Donald Trump has used his second term to coerce powerful people and institutions into serving his interests. He not only barred reporters who shared information not sanctioned by the White House from entering the Pentagon, but also co-opted the Department of Justice to initiate scam investigations into his perceived enemies. A former prosecutor is drawing connections between Trump’s intimidation tactics and those equipped by the mafia bosses she once pursued.

Barbara McQuade is a former U.S. Attorney for the Eastern District of Michigan, a professor at the University of Michigan Law School, and the author of The Fix: Saving America from the Corruption of a Mob-Style Government. She joined me and John Fugelsang for this week’s episode of The Oath and the Office to explain why Trump’s second term could be lifted straight from “The Godfather,” and why that ironically gives her hope that “Don Donald” will one day fall.

The similarities between the second Trump administration and organized crime started from day one. One of Trump’s first acts in office was to pardon the perpetrators of January 6, just as a mob boss might reward a loyal grunt with protection or territory.

As Barbara explained, the similarities did not stop there. Trump stripped law firms that were associated with political rivals of their right to enter federal buildings unless they supported charities of his choice. He pressured the DOJ to investigate James Comey, Letitia James, and Adam Schiff—three of his loudest critics. He may not cut off thumbs, but the message is the same: cross him, and pay the price.

Extortion is an unusual tactic for a president. But not for a mob boss. “This president is using power to acquire more power,” Barbara explained. “And it is very similar to the tactics that I saw from some of the defendants that came through the criminal justice system when I served as a prosecutor.”

Fortunately, mob bosses do not tend to stay afloat for long. Barbara hopes we can expect the same of Trump. The problem with mafia structures, Barbara explained, is that eventually “people who are loyal to the boss realize that this is not a good deal.” And Trump makes that more likely the more campaign promises he breaks. He started a war after pledging to keep America out of foreign skirmishes. He promised to lower inflation rates, yet prices keep rising.

When his base withdraws their support, his “house of cards,” as Barbara called it, will crumble. What happens when the DOJ refuses to prosecute his political enemies? When law firms stop capitulating? The whole thing breaks down. So while a mob boss president is far from the democratic ideal, Barbara’s comparison might actually indicate that this dark point in American democracy is doomed to end.

Nearly six years ago, Americans watched thousands of co-citizens storm the U.S. Capitol to stop Congress from certifying the results of the 2020 presidential election. But most Americans do not realize that members of the far-right Christian nationalist movement played a large role in the insurrection of January 6.

Representative Jared Huffman (D-CA) joined me for this week’s episode of The Oath and the Office to discuss his efforts to reveal how Christian nationalism drove one of the darkest days in American democracy. In No Prophets: The Fight to Save Democracy from Christian Nationalism, Congressman Huffman “sounds the alarm,” as he explained on the show, about the danger of the Christian nationalist movement.

But the alarm should have first been sounded on January 6. “I have watched during my time in Congress this Christian nationalist movement grow stronger and more militant,” Congressman Huffman explained. Mike Johnson (R-LA), the Speaker of the House, “dedicated his life and career to what he calls ‘biblically sanctioned government’—which is a euphemism for theocracy.” At least ten members of Congress have staked Appeal to Heaven Flags, a symbol for a movement that advocates limiting government to Christians, outside their Congressional offices.

January 6 was a new level of extreme, Huffman said; “It really erupted for all of us to see in the January 6th insurrection. It was a religious coup.” Most people do not know that “extreme faith leaders [...] were in the White House days before the insurrection and had been enlisted by the Trump campaign to radicalize and mobilize these religious shock troops for January 6th.” So what should have been a long needed warning for concerned Americans instead passed under their noses. “I really thought it would be the wake-up call we needed to start taking Christian nationalism seriously,” Congressman Huffman explained. “Unfortunately, I watched the country go back to sleep.”

It is not a coincidence that the role of religious extremists in the insurrection has been minimized. The House Select Committee to Investigate the January 6th Attack on the United States Capitol largely omitted the role of Christian Nationalists in its final report. Former Congresswoman Liz Cheney (R-WY) “vetoed any reference to Christian nationalism,” as Congressman Huffman said. And she did a “great disservice to the country by erasing that—by censoring that in a way that allowed these folks to escape accountability.”

That censorship is itself a threat to American democracy. I explained on the show that “the foundation of America in the First Amendment is anti-theocracy.” Our founders rejected not only a Christian state, but also any law or institution that respected or related to an establishment of religion. So when thousands of far-right Christian nationalists attempt to intervene in a United States election, the First Amendment should be our bulwark against precisely that kind of theocratic overreach. But when our own representatives choose to hide the religious underpinnings of January 6 from everyday Americans, that is an attack on the accountability systems carefully etched into our system of government.

This is bigger than one insurrection. When a movement believes its authority comes from God rather than the consent of the governed, there is no room left for the compromise or elections that democracy depends on. If Americans, and Congress in particular, continue to look away from what actually happened on January 6, we leave the door open for it to happen again.

Earlier this month, Trump Media & Technology Group launched Truth API: a “business-to-business data feed that provides licensed, real-time access to posts from the highest-ranking Truth Social accounts.” For up to $100,000 per month, subscribing financial firms can receive presidential communications before ordinary users.

But, as John Fugelsang and I explained on this week’s episode of The Oath and the Office, Truth API is certainly unethical and also stands as an insult to the Constitution’s rejection of the presidency as a vehicle for private profit. With a suit already in motion from The Intercept and Freedom of the Press Foundation, it is sure to spend its fair share of time in the courtroom. Still, it all comes back to one simple question: what happens, as John asked on the show, when “a president treats the powers and information of the presidency as his personal property rather than a public power?”

That question emanates from the U.S. Constitution itself. We have a First Amendment. And it says, with no ifs, ands, or buts, that “Congress shall make no law [...] abridging the freedom of speech.” The plaintiffs argue that “the First Amendment guarantees equal access to the President’s public announcements.” Trump, the largest shareholder of Truth Social’s parent company, often uses the platform to share official announcements. As I put it, you cannot “charge journalists for access to the president and you cannot monetize the bully pulpit.”

The plaintiffs also point to Banks v. Manchester, where the Supreme Court held that judges “can themselves have no pecuniary interest or proprietorship, as against the public at large, in the fruits of their judicial labors.” The plaintiffs argue that the same principle applies to the president. Trump, they say, cannot legally profit off his official duties.

The suit makes a powerful case that Truth API is not only deeply unconstitutional, but also fundamentally at odds with the values that underlie American democracy. Equality, liberty, the common good: all of these are irreconcilable with what John and I called a “subscription service to the presidency.” But it is not quite obvious what we can do to stop it.

The answer may not lie with the courts alone. The Supreme Court grants former presidents widespread immunity from criminal prosecution for official acts. Even though the private monetization behind Truth API “strikes me as the definition of an unofficial act,” I explained, “part of what incentivizes Trump to do all this is that he believes he will never be prosecuted for it.” And he might be right. Trump’s Defense Department accepted a luxury jet from Qatar for his use as Air Force One. He and his family have profited enormously from cryptocurrency ventures while his administration has relaxed crypto regulation. We are still waiting for the courts to impose meaningful limits on arrangements like these.

So enforcement may fall to the legislature. Certainly we need legislation immediately that makes clear that using official presidential communications for private profit is criminal. Until then, the Impeachment Clause provides for impeachment and, upon conviction, removal of the President, Vice President, and civil officers for “Treason, Bribery, or other high Crimes and Misdemeanors.” The United States Code does not say verbatim that a president cannot paywall access to his social media posts and pocket the revenue. But “just because we do not yet have criminal laws that make this illegal does not mean it is not a high crime and misdemeanor,” I argued. That won’t happen with this Congress, but it should be among the first priorities if Democrats take the House.

Whether in the courts or in Congress, Truth API should not survive constitutional scrutiny. The Constitution, longstanding precedent, and our most fundamental principles make that clear enough. What we cannot do, and what the founders themselves guarded against, is ignore this grave assault on our Constitution and the principles behind it.

Last Friday, the U.S. Court of Appeals for the District of Columbia affirmed a preliminary injunction that blocked above ground construction of “Trump’s ballroom”: an unfinished 90,000 square foot event space in the footprint of the former East Wing. The ballroom itself might feel like a trivial topic. The ordinary citizen is more focused on high gas prices and the rising cost of living than a White House remodel. But the ballroom is another symptom of the same problem: a president who treats the U.S. Constitution more like a recommendation than a mandate.

To understand why a construction dispute has landed in a federal appeals court and why it matters far beyond the White House lawn, it helps to look at how we got here. Beautifying the capital is a central tenet of Trump’s second term. He renovated the Reflecting Pool, re-gilded statues, and even proposed an arch 250 feet tall. And in October 2025, he demolished the East Wing of the White House without Congressional authorization.

The Constitution gives Congress plenary control over federal property, and federal law requires express Congressional authority to erect a building or structure on federal public grounds in Washington. As I said on the show, the “White House is not Donald Trump’s personal mansion.” Congress has not given Trump authorization to build this ballroom. “When he starts to alter the property,” I explained, “he is a tenant. He is not the landlord.” It is closely tied to the power of the purse. Whoever holds the purse strings gets to decide where the money goes. And a 90,000 square foot ballroom requires a lot of money.

That is what the U.S. Court of Appeals for the District of Columbia reiterated on Friday. The majority sharply criticized the unsanctioned demolition of the East Wing and concluded that the administration very likely lacks statutory authority to construct the ballroom. The majority wrote that they “are aware of no instance in American history in which a President unilaterally and using privately collected funds demolished substantial portions of the White House that Congress authorized to be built and American taxpayers paid for. Until now.” They added that “whether or not a massive ballroom should be constructed is for Congress to decide and is not a matter for Executive self-help.”

The appellate decision sticks vehemently to the text and to historical precedent. But Trump does not seem to care about either. He fired back on Truth Social that same day. Trump called the injunction an “unlawful ruling” and “a National Security threat to our Nation.” In the same post, he said the “unjust decision must be overturned by the Supreme Court in its entirety.”

The ballroom is only one example of Trump acting without Congressional authorization and resisting efforts to hold him accountable. He also ordered military strikes in Iran without specific Congressional authorization and tried to deny birthright citizenship to certain U.S. born children via executive order, to name a few. But a president who openly shows disregard for the law acts as if he is a king. And that is what our Constitution was carefully constructed to prevent.

As the 2026 midterm elections approach, a CNN poll suggests that Donald Trump is not as invincible as he would like you to think. More and more Americans are turning against the 45th and 47th president. And the dissatisfaction extends well beyond the economy or foreign wars: Americans are also expressing deep concern about Trump’s use of presidential power and his pursuit of personal interests while in office. As John Fugelsang and I discussed on this week’s episode of The Oath and the Office (and as I mentioned in my commentary for the New Republic), this poll represents a beacon of hope for U.S. democracy.

The poll itself was conducted for CNN by SSRS in late July. Trump’s approval ratings looked poorer across the board: only 34% approved of how Trump is “handling his job” compared to a second-term high of 48% in February 2025. 70% of those polled disapprove of how Trump is handling the economy. 75% disapprove of Trump’s handling of inflation, while 61% disapprove of his handling of immigration.

The numbers John and I focused on reflect sharp concerns about Trump in relation to executive overreach, corruption, and democracy. As I said on the show, “Donald Trump’s approval ratings are plummeting—and they’re plummeting on a very specific dimension, which is his threat to democracy and especially his corruption.” For example, 60% of those polled believe Trump has gone too far in his use of the “power of the presidency and executive branch.” And 64% say he has gone too far in pursuing his personal business interests while serving as president.

Americans are also increasingly skeptical of Trump’s personality. Only 34% of respondents agreed that Trump “puts the good of the country above his personal gain.” Fewer yet thought he is “in touch with the problems ordinary Americans face in their daily lives.”

Together, these data paint a hopeful picture of the American electorate. Democracy might be under attack, but that attack is no longer going unnoticed. And this is not a common phenomenon. Sure, “there was corruption during Nixon,” I explained. The Watergate tapings and break-ins were a devastating abuse of executive power. But “the corruption here is off the charts: the 1.8 billion dollar slush fund, the cryptocurrency scams, the bribe plane.” Each independent display of corruption contributes to the momentum of the anti-Trump movement. The polling suggests that concerns about corruption and abuse of power are becoming part of a broader public rejection of Trump’s presidency. But how will this all end?

I think it will be reflected in the results of the 2026 midterm elections. Ordinary Americans are fed-up with Trump’s antics, and I think that will bode well for Democrats. As I said on the show, “I’m optimistic about what’s to come once Democrats take the House.” The poll shows congressional Democrats that many Americans are deeply concerned about Trump’s use of presidential power. And that might give their representatives the courage to stand up to Trump. Through legislation—and, hopefully, through the impeachment process.

So, that gives me confidence in the future of our democracy. In an ideal world, there is no abuse of power, corruption, or authoritarianism. But a democracy in which citizens recognize and call out antidemocratic behavior is one in which democratic processes are working. More and more Americans are starting to see what is really happening under the red ballcap. That is the crucial first step in a democratic revival: recognizing that democracy is under threat in the first place.

When the Supreme Court upheld birthright citizenship this summer, it settled, for now, one of the most consequential debates of Trump’s second term. Both my podcast and this newsletter frequently engaged in that debate and provided in-depth coverage of the legal issues. We had the honor of hosting Cecillia Wang, the attorney who argued Trump v. Barbara, and Joyce Vance, a former U.S. Attorney who vocally criticized Trump’s attack on birthright citizenship.

But we rarely turn our attention to the many supporters of the anti-birthright-citizenship camp who fall within a conservative coalition dubbed the New Right. Who better to unpack that coalition than David French, a devout champion of liberal democracy who helps explain and critique illiberal ideas at The New York Times? I hosted David on last week’s episode of The Oath and the Office. My previous newsletter explored David’s unique lens for viewing the New Right: Vichy France. We also took that conversation one step further to dissect the philosophical underpinnings of birthright citizenship itself and deduce where the New Right diverges.

Not every nation decides who belongs to it in the same way. Most European countries rely primarily on lineage as a determinant. The 14th Amendment charted a different course for people born in America, tossing blood and lineage aside. Today, nearly everyone born in the United States and subject to its jurisdiction is a U.S. citizen at birth, regardless of race, gender, religion, ancestry, or the immigration status of their parents.

Many in the New Right reject this idea. As David explained, “They derisively use the term ‘magic dirt’ to say that you are arguing that there is something magical about being born in the United States that suddenly makes you a citizen.” But David believes this is a fundamental misunderstanding of what the 14th Amendment means. The answer is not magic dirt. It is a magic idea. “America is the location of the magic idea: all men are created equal,” David explained. “A person who is born here can and will marinate in this sort of magic idea.” These ideas—equality, justice, liberty—make and prepare citizens of a democracy.

Instead, the New Right often appeals to allegiance theory to decide who becomes a U.S. citizen at birth. This theory offers a far narrower view of birthright citizenship: only those born to parents who already owe allegiance to the United States are eligible. As I put it, the New Right resents “that if you’re born in America and just get your citizenship, you in a sense didn’t earn it or you didn’t buy into the idea of America.”

But allegiance theory conflicts with what conservative judicial scholars have turned to for answers for decades: the text itself. The 14th Amendment’s Birthright Citizenship Clause extends citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” By the text, nearly everyone born in the United States—save, for example, the children of invading armies or foreign diplomats—has a constitutional right to U.S. citizenship. “What the New Right has done is sort of come in and basically said, ‘Yeah, forget the text. The text is really trying to put in place a particular kind of history. And that’s the history that we’re sort of relaying to you now,’” David said.

These narrower interpretations of the 14th Amendment conflict not only with the textualism conservatives have long championed, but also with the basic idea of America itself. The founding rested on the revolutionary premise of “We the People.” As Frederick Douglass emphasized, the Constitution did not say “We the White People.” Dred Scott twisted the Constitution in precisely that direction. The 14th Amendment reversed that catastrophic distortion of the Constitution to bring our law back in line with the ideals our founders preached. So “what the New Right is really doing is reading in this very anti-American different tradition of soil or domicile into a text that is really about the idea of equality, as so much of the Constitution is,” I said.

So a faction that claims to be ardently pro-American is perhaps one of the most anti-American coalitions in the modern political landscape. The New Right, which claims to defend the Constitution, also asks the courts to distort its plain text. As I wrote last week, illiberalism does not require that liberal democracy fail first. Today, it arrives as a subtle trick between the lines of rhetoric that claims to preach democratic ideals. A movement to return to “We the White People” rejects—rather than revives—the American tradition.

Questions or comments? Leave a comment or email corey.brettschneider@gmail.com.

The New Right came to the forefront with the rise of Donald Trump, but its ambitions extend well beyond him. To help us understand what makes this group, including its various offshoots, so unique—and so dangerous—I invited David French to join us for this week’s episode of The Oath and the Office. David is a Harvard Law graduate who helped launch The Dispatch, a conservative media company, in 2019. He is a devout champion of liberal democracy who helps explain and critique illiberal ideas at The New York Times and is the author of Divided We Fall: America’s Secession Threat and How to Restore Our Nation. There is no one better to help John and me understand what exactly defines the New Right—and how we ought to face it.

Our conversation made clear why the New Right is different. Whereas much of traditional American conservatism revered the Constitution and liberal ideas like individual liberty and free markets (think Reaganomics), much of the New Right tosses these virtues aside. Beyond that commonality, it is fragmented into various camps, including Christian nationalism, the “manosphere” and its adherents, as well as white nationalism.

David used Vichy France—the authoritarian government infamous for collaborating with Nazi Germany—as a lens for parsing many of the arguments of the New Right. David said that, in 1940, illiberal French leaders witnessed what they saw as a “failure of liberal democracy” and saw an “opportunity to remake France.”

David claimed that much of their rhetoric is “reminiscent of the language you often read out of the New Right.” The now-popular ideas that liberalism fosters excessive individualism, and that individualism is a proxy for selfishness, echo the philosophy of these infamous Nazi collaborators. Like Vichy France, the New Right preaches the importance of the family, the church, social cohesion, and the need for “a strong government that is advancing these civilizational values.”

But one thing makes figures like JD Vance and his intellectual inspirations distinct: they abandoned liberalism before liberal democracy failed. Rather, “it’s arising when liberal democracy is actually still ascendant and more powerful,” David said.

This rhetoric—which bemoans women’s entry into the workplace and civic decline—is dangerous for two reasons. First and foremost, it threatens longstanding American ideals. Those who decry birthright citizenship and the principle of equal citizenship, I explained, are contributing to a movement that is “so foreign to the American tradition.” It is also dangerous because it grows from a small seed of truth, David added: “It is true that when families fail, it puts a society in distress [...]. And that is something to be concerned about. But guess what does not fix it? Authoritarianism.”

Further, there is little evidence that the New Right’s rhetoric will cease anytime soon. While Donald Trump’s ascendancy—and his pick of JD Vance—surely gave confidence and credibility to fringe right-wing ideas, the New Right will not magically disappear in 2028. In fact, it could very likely inherit Trump’s coalition. “They’re starting journals. They’re creating think tanks,” David explained. They’re more organized, and intellectually prominent, than many of the other conservative factions competing to lead in 2028.

So, if the New Right is here to stay, how should Democrats respond? David and I agreed that much of the answer lies in thought that not only predates the New Right but is also centuries old. The solution to our modern problems is to turn to the founders. David claimed, “If you want to refute the New Right, there are few better people to go to than George Washington and James Madison.” The founders, despite their many moral shortcomings, vigorously defended American ideals like individual liberty, religious freedom, and government by consent. Reconstruction later expanded that constitutional tradition through birthright citizenship and equal protection. And what makes the founders’ invocation so powerful is that they “speak in the language a lot of right-leaning people understand.”

What might save democracy, we both agreed, is the constitutional tradition that began with those who founded American democracy itself. The real twist is that Democrats can use the ideas and writings of those whom conservatives have long revered to punch holes in one of the most dangerous conservative movements of our time.

On July 16, Donald Trump delivered a speech on election integrity. Trump repeatedly conflated data mismanagement and theft with stolen elections. He also echoed baseless claims about the reliability of mail-in ballots and exaggerated vulnerabilities within the American electoral system. Then, Trump threatened the broadcast licenses of companies whose major networks refused to air his speech live during primetime. What should be done when a president gives a major address littered with lies?

The answer, as John Fugelsang and I argued on last week’s episode of The Oath and the Office, is to refuse to air the speech or to fact-check it in real time. In that spirit, we started by analyzing the speech itself and its ramifications for election integrity.

Trump’s speech rested on the assumption that American elections are corrupt. That assumption is shaky, at best. No election is ever perfectly free and fair. But there is no evidence that widespread fraud changed the outcome of the 2020 presidential election. U.S. elections are run by state and local governments. Even if a foreign adversary or domestic actor wanted to change the outcome of a national election, the fragmented and decentralized nature of the U.S. electoral system would make large-scale manipulation extremely difficult. “It’s a great thing that elections are controlled by local and state governments,” I explained, because it also helps prevent strongarm presidents, like Trump, from manipulating ballots, too.

Admittedly, parts of Trump’s speech did echo valid concerns. The People’s Republic of China did want “president [Trump] to lose the [2020] election.” The National Intelligence Council concluded in 2021, however, that China did not deploy an election-interference operation designed to change the result. Maybe China “bought” some voter registration information. But much of the data the administration points to is publicly or commercially available. Most of the speech was either misinformed, misconstrued, or outright malicious. Trump repeatedly referenced a “stolen election”—by which we can safely assume he means the 2020 presidential election. But he never presented evidence that an election was stolen. Instead, he cited an unsubstantiated estimate that “278,000 non-citizens” are registered to vote in federal elections and claimed that China attempted to “manufacture illegal ballots for Joe Biden.” Even if these claims were true, vulnerability to election theft is a far cry from election theft itself.

As a vessel for misinformation, Trump’s speech itself was an attempt to interfere politically with the electoral process. “He is trying to subvert votes to undermine confidence in elections,” I explained. Disrupting trust in the electoral system creates a convenient scapegoat for potential Republican losses in the 2026 midterm elections.

Trump used these false claims to encourage Congress to adopt further measures that would make it more difficult for some eligible citizens to vote. He said that “Congress must pass the SAVE America Act,” which would impose documentary proof-of-citizenship and photo-identification requirements, and he called for most mail-in ballots to be banned as “inherently corrupt.” Both measures would make it more difficult for some young and poor voters to cast their ballots. As John said, “he brought no evidence to justify these laws that are designed for one thing: to make it harder for citizens to exercise the right to vote.” Trump’s speech raised concerns not only about election integrity and misinformation, but also about First Amendment freedom of speech protections.

Both NBC and ABC, which Trump called “fake news,” declined to air the speech live on their main broadcast networks, although both made it available through their streaming platforms. CNN also declined to carry the speech on its cable channel but provided a digital feed. In response, Trump threatened the broadcast licenses of stations owned by the companies. But the media is not legally required to air presidential addresses live during primetime. Nor does the president have the constitutional power to censor news organizations that choose to report on his statements after the fact or not at all. Trump’s threat raised grave First Amendment concerns because the Constitution prohibits the federal government from “abridging the freedom of speech, or of the press.” So “I hope that those corporations do sue,” I said, “because the president cannot threaten the licenses and try to influence the decision-making of private companies.” NBC and ABC did exactly the right thing. They refused to give Trump an uninterrupted primetime audience without the context necessary to protect Americans from his fear-mongering. Much like John and I do every week on The Oath and the Office, the media should add careful analysis and fact-checking to present a complete picture of American democracy.

When the president insists on lying in major addresses, all media organizations are morally obligated to fact-check what he says or ignore it.

Last May, a settlement between Trump and the IRS established a $1.776 billion “Anti-Weaponization Fund” to compensate victims of supposed Biden-era lawfare. The fund has drawn criticism for violating the separation of powers; the suit itself was called a fraud on the court. The administration claims the fund is gone for good, but the story is not quite that simple. One legal organization is taking to the courts to expose these promises for what they are: empty.

John Fugelsang and I discussed this incredible act of resistance with Skye Perryman on this week’s episode of The Oath and the Office. Skye is the President and CEO of Democracy Forward, which provides free counsel and representation for Americans who sue to protect their rights.

Democracy Forward is “one of the premier legal organizations fighting Trump right now in court,” I said. And the courts have never been more important than they are today—not only because of the relative weakness of the legislative and executive branches, but also because this administration has a unique tendency to test, and often blatantly violate, the boundaries of constitutionality.

Skye emphasized that “one of this administration’s core philosophies has been to try to outrun accountability.” So Skye turns to the courts to both “demand that citizens’ rights be defended” and “expose how this administration is operating.”

Skye pointed to Democracy Forward’s work challenging the $1.8B Anti-Weaponization slush fund as an example. “This slush fund that the government created has been unlawful from the start,” Skye explained. But the first step in any suit is determining a cause of action, and “there was a real question about who would really be able to step up and challenge it.”

Skye and her team filed a complaint in the Eastern District of Virginia last May. The long-term legal goal is to show that Skye’s “clients can be harmed if these people go out and get checks from the government,” Skye said. If successful, the suit will dissolve the Anti-Weaponization Fund for good. In the meantime, the administration cannot distribute payments from the fund.

The suit does work outside the courtroom, too, by encouraging transparency. While the administration promised to kill the fund, acting Attorney General Todd Blanche still refuses to sign documents pledging that the DOJ “will not take any action to create or operate the Anti-Weaponization Fund, and that the Anti-Weaponization Fund will not proceed in any manner, or under any name.” Democracy Forward exposed this inconsistency through their litigation. “Part of this really is the American people getting to see with their own eyes the way this administration says one thing, but then won’t back it up and tries to outrun accountability,” Skye explained.

Democracy Forward is also suing to reverse a ban on abortion care and counseling at the VA, stop new policies that remove discrimination protections in lending, and more. In all of these cases, Skye said, “it’s not just about the restoration of democracy. It’s really about the reimagining of democracy.” We are reimagining justice. We are reimagining equality. All in the pursuit of creating practices that match the promises our founders made two hundred and fifty years ago.

Skye and her team do not reimagine alone. Ordinary citizens are at the center of their lawsuits. They are the ones who push the government to keep its word. They are both witnesses to and active defenders of democracy. “As powerful institutions have been pulling back,” I said, “people have been stepping forward.” Much of that work takes place in the courtroom—an unassuming space worth only a few paragraphs in our founding documents. But citizens are fighting to defend our democracy everywhere: in the streets, in the papers, on podcasts. Everywhere, we are not just restoring democracy, but reimagining it.

The First Amendment protects Americans against government action “abridging the freedom of speech, or of the press.” The Trump administration is testing those protections.

On July 10, the Justice Department served federal grand-jury subpoenas on three New York Times journalists who had reported on security concerns involving the Qatari-gifted jet being prepared to serve as Air Force One. The administration says the reporters are material witnesses in an investigation into the disclosure of classified information. The Times has moved to block the subpoenas, arguing that they are an attempt to punish the newspaper for its reporting.

The subpoenas are not an isolated event. They are part of a broader pattern in which the Trump administration uses government power to intimidate critics and chill speech. John Fugelsang and I explained why that pattern is incompatible with democracy on last week’s episode of The Oath and the Office.

What Does the First Amendment Protect?

We started with the text. The First Amendment protects religious liberty, speech, the press, peaceful assembly, and the right to petition the government.

These freedoms are not ornamental. They are the foundation of democratic government.

Free speech and a free press are “more fundamental, in some ways, than the right to vote. Without it, we wouldn’t have a democracy,” I said.

A country in which citizens cannot criticize their leaders is one in which no opposition party has a real chance, no election can be genuinely free and fair, and democratic institutions become a façade. Voting matters only when people are free to obtain information, expose wrongdoing, organize opposition, and argue publicly for change.

So when a president attacks freedom of speech and the press, “we are beyond constitutional crisis,” I explained. Rather, this is “an attempted coup by the president.”

How Trump Is Intimidating the Press

The Air Force One subpoenas show how that intimidation works.

The government has the authority to investigate genuine threats to national security. But it cannot use those investigations as a pretext to punish embarrassing reporting or frighten confidential sources into silence.

“The founders wrote ‘freedom of the press.’ They did not add ‘unless the president gets embarrassed,’” John explained.

The reporting concerned whether the aircraft carrying the president had adequate defensive capabilities and how the government was handling an extraordinarily valuable gift from a foreign country. Those are plainly matters of public concern.

John described it as “just a normal story in democracy that we need to have access to. This isn’t a national security concern.”

That is why these subpoenas are so troubling. They send a message not only to the reporters but also to anyone inside the government who might reveal information that embarrasses the president: Speak to the press, and the full power of the Justice Department may be turned against you.

This Isn’t a One-Off Attack

“This isn’t a one off,” I said. “It is part of an overall assault on democracy in which Donald Trump has his minions, the Department of Justice, go after those he considers political opponents.”

The same pattern can be seen in the administration’s pursuit of figures such as James Comey and Letitia James. The allegations in those matters are different, but the underlying strategy is familiar: publicly demand action against an opponent, unleash the machinery of government, and force the target to endure the cost and stigma of an investigation or prosecution.

The administration does not necessarily need to win in court to achieve its goal. The investigation itself can become the punishment.

Legal bills, public humiliation, and the threat of criminal liability can deter people from speaking even when the government’s case is weak. Other journalists, officials, and citizens see what happens and decide that remaining silent is safer.

That is how speech is chilled. And democracy cannot survive when a president can frighten critics into silence.

“This is really a threat to the entire system,” I explained.

Journalists Are Defending Democracy

The Times reporters are not facing criminal charges. But they are being asked to testify about confidential sources before a federal grand jury. Forcing journalists to reveal their sources can discourage government officials from disclosing information that the public has a legitimate need to know.

That pressure matters. It can make sources disappear and important stories go unreported.

The Air Force One reporting raised serious questions about the plane’s defensive capabilities. Trump later acknowledged that the aircraft would undergo additional work so that those capabilities could be “maxed out.”

The reporting may not have caused that decision. But it shows why an independent press matters. By exposing flaws, questionable decisions, and potential abuses of power, journalists force the government to answer questions and correct mistakes.

That is not an obstacle to democracy. It is one of democracy’s essential safeguards.

We Cannot Remain Silent

One way to protect the press is to publicize these attacks and demand that the administration justify its conduct. When citizens call out abuses of government power, they encourage others to use their own voices and votes to defend democratic institutions.

That is the whole point of the First Amendment.

Its authors did not protect speech and the press as a courtesy to journalists. They protected them because a government that can silence its critics answers to no one.

When the Justice Department targets reporters after they publish information that embarrasses the president, every American should pay attention. Defending those reporters means defending the same constitutional guarantee that makes every other democratic right—to vote, organize, protest, and petition—worth having in the first place.

The Foreign Intelligence Surveillance Act has raised Fourth Amendment questions since its enactment. The law establishes authorities and procedures for federal foreign-intelligence surveillance, while Section 702 permits particularly broad warrantless collection directed at foreigners abroad. A bipartisan group of legislators is emphasizing the need to reform that authority. One of its leading members joined me on this week’s episode of The Oath and the Office.

A Leading Voice for Surveillance Reform

The Oath and the Office hosted Senator Ron Wyden of Oregon for a one-on-one interview about his work on surveillance reform. Senator Wyden has served on the Senate Intelligence Committee for more than two decades. He has been “a leading voice on questions of constitutional law, including how to restore the Fourth and First Amendments,” I said. Many of those questions concern the precarious balance between national security and individual freedom.

How Section 702 Works

FISA was enacted in 1978 to create a legal framework for gathering foreign-intelligence information. In 2008, Congress amended the law to add Section 702. That provision authorizes the attorney general and director of national intelligence, subject to annual review by the Foreign Intelligence Surveillance Court, to target non-U.S. persons reasonably believed to be located outside the United States to obtain foreign-intelligence information.

Section 702 does not permit the government to target Americans or people located inside the United States. Nor does it formally authorize indiscriminate bulk collection. But it does allow the government to target foreigners abroad without obtaining an individualized warrant for each target.

Because foreign targets communicate with Americans, Section 702 surveillance also captures some Americans’ emails, text messages and telephone calls. Americans cannot lawfully be selected as the targets of Section 702 collection, but their communications can nevertheless be swept into the government’s holdings.

The Backdoor Search Loophole

Agencies may then search those holdings using an American’s name, email address or other identifier. FBI personnel must provide a written factual justification and obtain approval from a supervisor or FBI attorney before conducting an American-person query. Certain sensitive searches require additional approval. But the government generally does not have to obtain a traditional probable-cause warrant before searching for an American’s communications.

Senator Wyden described the scale of the problem starkly: “untold numbers of Americans are being swept up in these searches.” The government does not provide a comprehensive count of how many Americans have had their communications incidentally collected. Past improper queries have involved Black Lives Matter protesters, campaign donors, elected officials and a state judge who complained about police misconduct.

Government Purchases of Personal Data

There is also a separate surveillance loophole involving data brokers. Senator Wyden described agencies “purchasing people’s personal data” from private companies. This practice does not take place under Section 702, but it can allow the government to acquire sensitive location, browsing and other personal information without first obtaining a warrant. Wyden’s broader surveillance-reform proposal would address both backdoor searches of Section 702 data and government purchases from data brokers.

Section 702 Has Expired, but the Surveillance Continues

Section 702’s statutory authority expired on June 12 after Congress enacted two temporary extensions but failed to agree on a longer reauthorization. That does not mean every form of Section 702 surveillance immediately stopped. Existing court-approved certifications can remain valid for up to a year, allowing at least some collection and querying to continue under their terms. Congress may also still reauthorize the provision.

The continuing operation of those certifications makes reform no less urgent. What remains of the Fourth Amendment if the government can deliberately search for an American’s private communications without demonstrating probable cause to a judge?

Digital Privacy Is Fourth Amendment Privacy

Digital communications may not be tangible, but they can reveal intimate information about a person’s political views, relationships, movements, medical concerns and private life. Americans have as much interest in protecting that information as they do their homes, papers and possessions.

The Fourth Amendment is especially important in an age of increasingly pervasive surveillance technology. Artificial intelligence can make it easier for agencies to process, combine and search enormous quantities of information. The history of improper Section 702 searches, and the current administration’s willingness to investigate journalists and political opponents, demonstrates why statutory restraints cannot depend on the goodwill of executive-branch officials.

Surveillance Also Threatens Free Speech

Warrantless surveillance also threatens freedom of speech and association. People who believe the government may be reading their communications can become less willing to speak freely, contact journalists or associate with political organizations.

“Ben Franklin said that you could have a balance between liberty and security,” Senator Wyden said. “And if you weren’t interested in both, you didn’t deserve either.”

Congress Must Act

As long as Congress postpones meaningful reform, both First and Fourth Amendment rights remain at risk. Senator Wyden’s work illustrates the statutory changes that are needed: a warrant requirement for searches aimed at Americans, limits on government purchases of sensitive data and stronger accountability for officials who violate the rules.

“We’ve come a long way, but there’s a lot more to do,” the senator said. With a president convicted of 34 felonies in office, and AI making government surveillance more powerful and scalable, Congress should act now.

The New York Times reported that Trump’s businesses generated at least $2.2 billion in revenue in 2025, his first year back in office. That was more than three times the roughly $622 million they generated in 2024.

Crypto accounted for most of the increase. Revenue connected to World Liberty Financial, the Trump family’s crypto business, rose from roughly $57 million in 2024 to about $799 million in 2025.

Wealth Is Not the Constitutional Problem

On last week’s episode of The Oath and the Office, John Fugelsang and I explained why legislators are raising concerns about Trump’s revenue streams.

Trump’s wealth alone is not the problem. Nothing in Article II prohibits a wealthy person from becoming president. The problem is how President Trump and his family have used the presidency while expanding their business interests during his second term.

The massive year-over-year growth in Trump’s crypto revenue raises serious conflict-of-interest and corruption concerns. But dealing in assets affected by policies his administration helps shape is only one of the unprecedented ways Trump is testing the boundaries of the presidency.

Trump also reported revenue connected to Trump Media and Technology Group and licensing the Trump name in 2025. In each of these ventures, “Trump is using the office to enrich himself,” I explained. “That is the definition of an emolument. And he is doing it at the expense of ordinary people.”

What the Constitution Says

To hold Trump accountable for abusing the presidency, we need to turn to the law.

There are two Emoluments Clauses in the Constitution. The Foreign Emoluments Clause restricts federal officeholders from accepting presents, payments, offices or titles from foreign governments without congressional consent. The Domestic Emoluments Clause prohibits the president from receiving additional benefits from the federal government or any state beyond the president’s fixed compensation.

The founders thought emoluments “was such a big deal they put it in there twice,” I said.

But Congress has failed to create a clear and comprehensive enforcement regime. Existing federal anti-corruption laws do not adequately address the president’s financial conflicts, and the Emoluments Clauses have never been definitively interpreted by the Supreme Court.

Questions about who can sue, what counts as an emolument and what remedies courts may provide remain unresolved.

A Legal Gray Area

Congress’s failure to enact clear enforcement legislation has helped preserve a legal gray area in which officeholders can engage in conduct that appears plainly corrupt without necessarily facing legal consequences.

“There are anti-corruption statutes, but the bottom line is that they are way too weak,” I explained. “How should this be a hard question? The president is using the office to enrich himself. That violates the emoluments clauses.”

The Constitution establishes the principle. But without clear definitions, disclosure requirements and meaningful penalties, enforcing that principle becomes far more difficult.

Congress Must Act

We need legislation that brings clarity to this area and makes presidential corruption practically enforceable.

“In the House Judiciary Committee, Jamie Raskin is sponsoring a bill to criminalize emoluments,” I said.

Raskin is supporting legislation intended to codify and strengthen enforcement of the Constitution’s foreign and domestic emoluments prohibitions. This is what democracy requires: “a bill—and eventually a law—to make it clearly criminal to use the office in a crypto scheme, or any of these other ventures, in order to enrich yourself.”

Clear federal legislation is the most reliable way to define violations, create meaningful remedies and deter presidents from using public power for personal gain.

For nearly a quarter of a millennium, the country has relied on constitutional language, political norms and incomplete statutes to police presidential financial corruption. That will not be enough for Trump. And it will not be enough to constrain a future president willing to exploit the same weaknesses.

What We Can Do

What does that mean for you and me?

It means we must use our voices to draw attention to Trump’s abuse of office and demand stronger laws.

“Democracy is fragile,” I said. “If we are able to galvanize support by saying ‘no kings,’ ‘no oligarchs,’ and ‘no using the office to enrich yourself,’ we might get the necessary laws on the books.”

Last week, the Supreme Court upheld laws in Idaho and West Virginia that categorically exclude transgender girls and women from female school sports.

The cases, West Virginia v. B.P.J. and Little v. Hecox, arrived at a moment when few issues generate more political heat than the rights of transgender Americans. And even within that debate, the question of who should be permitted to participate in women’s sports remains especially divisive.

But on this week’s episode of The Oath and the Office, John and I focused on a different question. We did not try to settle the broader political debate over transgender participation in sports. We asked whether the Supreme Court interpreted the rights of transgender athletes under federal law and the Constitution correctly.

To understand the Court’s answer, we have to begin with a decision from only six years ago.

What Happened to Bostock?

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act protects gay and transgender employees from workplace discrimination.

Justice Neil Gorsuch wrote the majority opinion. His reasoning was straightforward: discrimination against a transgender person necessarily involves discrimination based on sex.

As I explained on the podcast, Gorsuch accepted that “sex,” as used in the Civil Rights Act, referred to biological sex rather than gender identity. But that did not resolve the case in favor of the employers.

Suppose an employer fires a transgender woman but retains an otherwise identical employee who was identified as female at birth. The employer is penalizing one employee for a characteristic it tolerates in another, and the difference between them is their sex.

In Gorsuch’s words, the employer “intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”

That, he concluded, is discrimination because of sex.

Six years later, Gorsuch joined Justice Brett Kavanaugh’s majority opinion upholding the Idaho and West Virginia laws. The Court ruled 6–3 that neither Title IX nor the Equal Protection Clause prevents states from limiting female school sports to athletes classified as biologically female.

The majority emphasized that this was a different statute and a different context. Title VII generally prohibits sex discrimination in employment. Title IX’s implementing regulations, by contrast, expressly permit schools to maintain separate teams based on sex in contact sports and in sports where selection is based on competitive skill.

That distinction matters. Even the liberal justices agreed that Bostock did not automatically dictate that the athletes should prevail under Title IX.

But it is not the whole story.

The Court Contained the Principle It Had Announced

The Court did not overrule Bostock. It did something subtler: it contained the decision so sharply that its central insight provided transgender athletes almost no protection in these cases.

In Bostock, Gorsuch insisted that transgender discrimination necessarily entails a distinction based on sex. In B.P.J. and Hecox, the Court treated that reasoning as largely irrelevant once the setting changed from employment to school sports.

The majority then allowed states to exclude transgender girls and women categorically, without requiring an individualized determination of whether a particular athlete possessed the physical advantages the laws were supposedly designed to address.

That was especially important in B.P.J.’s case. She argued that because she had taken puberty blockers and never experienced endogenous male puberty, the state’s assumptions about male athletic advantage did not apply to her.

The liberal justices agreed that her Title IX claim failed. But they argued that the Court should not have rejected her separate equal-protection claim without taking a closer look at the facts.

The majority refused. It held that states may generally define eligibility for female athletic teams according to biological sex, even when an individual athlete argues that the physical assumptions behind the classification do not apply to her.

The Court therefore did more than recognize that sex-separated sports are legally permissible. It permitted states to impose sweeping exclusions without asking whether those exclusions actually fit every person affected by them.

The Political Context Is Impossible to Ignore

Justice Gorsuch faced intense criticism from conservative politicians and activists after writing Bostock. In the six years since that decision, the culture war surrounding transgender Americans has grown only more aggressive.

We cannot know that political pressure determined Gorsuch’s vote. But the change in context matters. A principle that seemed clear when the Court protected transgender employees suddenly became tightly confined when applying it would have produced a politically explosive result.

Justice Clarence Thomas’s concurrence makes it even harder to regard the ruling as a narrow disagreement about statutory language or athletic eligibility.

Thomas went well beyond the legal questions before the Court. He used the case to reject the validity of transgender identity itself:

“Men and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable, ‘biological’ characteristic; it is binary; and ‘man’ and ‘woman,’ ‘boy’ and ‘girl,’ are the terms that correspond to adults and children of each sex.”

He then suggested that language recognizing transgender identity obscures reality and amounts to lying to the public.

That was not necessary to decide whether Title IX permits sex-separated athletic teams. It was an ideological declaration about transgender Americans and how society should understand them.

And it exposes the larger danger of the decision.

A Steeper Path for Transgender Athletes

Twenty-seven states have enacted laws similar to those in Idaho and West Virginia. The Court’s decision strengthens those laws and leaves transgender athletes with a far steeper path when challenging categorical exclusions under Title IX or the Equal Protection Clause.

The ruling is formally limited. It does not require states to exclude transgender athletes, and it does not prevent schools or athletic organizations from adopting more inclusive policies. Nor does it decide the rights of transgender people in every educational setting.

But for transgender girls and women seeking to participate in female school sports, the practical consequences are severe.

The Court did not declare Bostock mistaken. It confined the decision precisely when its reasoning might have protected an unpopular and politically vulnerable minority.

That is what makes this ruling so alarming. Constitutional and statutory principles should not expand or contract according to the intensity of the political backlash surrounding the people who invoke them.

“You are not judging if you’re giving in to the culture war,” I said on the podcast.

On this week’s episode of The Oath and the Office, John and I break down the opinions, the dissents, and what the decision means for transgender athletes—and for the future of Bostock.

The Supreme Court released two decisions with resounding implications for the independence of federal agencies in the final week of its 2025–2026 term. In one widely anticipated ruling, Trump v. Slaughter, the Court overruled what remained of Humphrey’s Executor as applied to the Federal Trade Commission, eliminating the statutory protections that had prevented the president from firing FTC commissioners without cause. In another, Trump v. Cook, the Court denied the government’s request to lift an injunction keeping Federal Reserve Governor Lisa Cook in office, preserving—at least in that case—the Federal Reserve Act’s for-cause protection and the long tradition of central-bank independence.

Together, Slaughter and Cook will further shift and expand the structure of American executive power away from the system Congress designed.

John Fugelsang and I discussed what the new balance of power between the president and executive agencies will look like on last week’s episode of The Oath and the Office. We walked through Slaughter, Cook, and the legal weeds of presidential firing power to answer this question and more.

With all legal questions, the path to an answer begins with the text. Article II of the Constitution establishes one “President of the United States of America” in whom “The executive Power shall be vested.” Some limits on that office are clear from the text itself: the president is elected to a four-year term; the president must be at least 35 years old. Other parts of Article II, including the command that the president “shall take Care that the Laws be faithfully executed,” leave more room for interpretation.

When the Constitution leaves room for interpretation, Congress has a central role to play. Congress creates statutory laws, and it also creates agencies to administer and enforce those laws. Some of those agencies are designed to have a measure of independence from the president. Congress does this by giving their members protection from arbitrary political firing. The idea is not mysterious. Congress understands that a corrupt or self-interested president might try to bend public agencies to private ends. As I put it on the episode, a president “might try to get in the way of the public good by using these agencies for nefarious purposes. So what did they do? They created a protection against political firing.”

Slaughter and Cook both raise questions about those protections. They involve two institutions with enormous influence over American economic life: the Federal Trade Commission and the Federal Reserve. The FTC enforces antitrust and consumer-protection laws, guarding against unfair methods of competition and unfair or deceptive practices. The Federal Reserve helps set monetary policy, including interest-rate policy, and plays a crucial role in preserving financial stability. Insulating these institutions from political firing is not a technicality. It is part of what prevents a president from manipulating economic policy for personal, partisan, or short-term political gain.

But the Court’s treatment of the two cases could not have been more revealing of its desire to aggrandize executive power. In Slaughter, the Court swept away the FTC’s removal protections, holding that officers who exercise executive power must generally be removable by the president. In Cook, however, the Court left in place an injunction protecting Governor Cook from removal, emphasizing that the Federal Reserve’s for-cause protection could not simply be transformed into at-will employment. The Court did not fully confront the constitutionality of the Fed’s protection in the same way it confronted the FTC’s. But the result is still striking: the FTC loses its independence, while the Fed—at least for now—keeps its special status.

The justices do not satisfactorily explain why. In Slaughter, Chief Justice Roberts, writing for the majority, argued that “subordinates who exercise the President’s power are subject to removal by him” under Article II. On that view, for-cause removal protections violate the separation of powers by interfering with presidential control over the executive branch. But in Cook, Roberts warned that reading the Federal Reserve Act to allow at-will removal would be “an interpretive leap out of step with the statute Congress enacted and our Nation’s tradition of central banking protected from political interference.” The Court tries to cast the Fed as exceptional, but it does not reconcile the deeper contradiction. Both the FTC and the Fed have long traditions of independence. Both were structured by Congress to resist presidential pressure. Why does one tradition count and the other disappear?

The inconsistency is troubling. The danger is greater still. Slaughter, I said, “is nothing less than a massive aggrandizement of presidential power.” It strips away a vast amount of agency independence, including the independence of institutions designed to protect consumers, investors, and the public from political manipulation. It opens the door for a president to fire officials who refuse to do his “political bidding.”

That danger is not limited to the FTC. Slaughter and Cook, taken together, “completely change the structure of the federal government.” They move us closer to a system in which the president can dominate agencies that Congress deliberately designed to stand at some distance from direct political control. They give Trump unprecedented leverage over the machinery of government and over the economic future of the country.

And they point toward something even more alarming: a vision of executive power in which one person stands above the independent institutions Congress created to serve the public. That system—with one powerful man at the helm—has a name: monarchy. And there is nothing more un-American than a king.

Earlier this year, President Trump signed an executive order directing federal agencies to deny citizenship to many children born in the United States to undocumented immigrants, despite the Fourteenth Amendment’s guarantee that those born on U.S. soil and subject to the jurisdiction of the United States are citizens. On June 30, the Supreme Court rejected that effort in Trump v. Barbara. We covered the case earlier on The Oath and the Office with ACLU Legal Director Cecilia Wang, who argued—and won—the case before the Supreme Court. The ACLU is also a sponsor of this podcast.

On this week’s episode of The Oath and the Office, former U.S. Attorney Joyce Vance joined John Fugelsang and me to discuss what the Court’s decision means—and why she believes it should never have been a close call. Joyce is the author of Giving Up Is Unforgivable: A Manual for Keeping a Democracy.

Barbara is a class action brought on behalf of children who risked losing their citizenship under Trump’s executive order. Five justices held that children born on U.S. soil to undocumented immigrants are citizens under the Fourteenth Amendment. Justice Kavanaugh agreed that Trump’s order could not take effect, but concluded that federal statutory law, rather than the Constitution itself, was sufficient to decide the case. Three justices dissented.

But rather than celebrating a 6-3 victory, “this should have been a 9-0 decision,” Joyce said. The text of the Fourteenth Amendment is clear, she argued, and more than a century of precedent has settled the question. There was never a serious constitutional basis for denying birthright citizenship. So “when the Supreme Court rules against Donald Trump on birthright citizenship,” Joyce added, “do not clap.” A Court fully committed to applying the law without hesitation would have reached this result unanimously—and without allowing such a fundamental constitutional guarantee to remain in doubt for months. As Joyce put it, Barbara is “symbolic of how deeply democracy has been degraded.”

The challenges facing democracy are, in many ways, the product of a fatal assumption underlying our Constitution: that there will be a “sufficient number of people of good faith” keeping democracy moving, Joyce explained. The people populating our institutions, including the justices themselves, are not the impartial saints some of the founders imagined. They face political pressures and ethical dilemmas like anyone else.

Barbara tested the justices’ ability to withstand those pressures. And, in wavering, many of the justices failed. The three justices in dissent—Thomas, Gorsuch, and Alito—would have accepted the argument that children born in the United States are not citizens if their parents were not sufficiently “subject to the jurisdiction” of the United States because they lacked lawful domicile here. The majority rejected that reading. But the fact that three members of the Court embraced such a sweeping reinterpretation of the Fourteenth Amendment is, in Joyce’s view, nothing to celebrate.

What deserves celebration lies outside the Court itself. Citizens retain extraordinary constitutional freedoms. They can criticize their government, bring lawsuits, vote, organize, report the truth, and hold those in power accountable.

And perhaps most importantly at this particular political moment, they can realize that “we’re going to have to become a country that has the moral courage to have these difficult conversations with people we don’t see eye to eye with,” Joyce said. The way to sustain democracy is to “draw a circle big enough for everyone to stand on”—Democrat and Republican alike.

Secretary of Defense Pete Hegseth claims that ending Diversity, Equity, and Inclusion initiatives will restore the military to a meritocratic ideal. But in practice, his anti-DEI campaign has reportedly delayed or blocked the promotions of vetted, promotion-selected Black officers and women, while producing promotion lists that are whiter and more male.

On last week’s episode of The Oath and the Office, John Fugelsang and I discussed Hegseth’s efforts to reshape military promotions in the name of “merit.” These are not isolated personnel decisions. They are part of a longer history of exclusion that the military spent decades trying to correct.

That history matters. Black Americans have served in the armed forces from the founding onward, but the military itself remained segregated for generations. Formal desegregation began with President Truman’s 1948 executive order, and the work of real integration continued long after that. By the Vietnam era, racial conflict inside the ranks helped military leaders understand that inclusion was not symbolic politics. It was essential to discipline, cohesion, command legitimacy, and national security.

That is why, beginning especially in the 1970s, the services adopted equal-opportunity and affirmative-action policies that helped expand opportunities for Black service members and women, including in the officer corps. Those policies were not a rejection of merit. They were an effort to make merit real in an institution that had long excluded people from fair consideration.

As retired military leaders later argued in the affirmative-action cases, a highly qualified and racially diverse officer corps is essential to leading a racially diverse enlisted force. The point was simple: military effectiveness depends on trust, legitimacy, and the ability of officers to command the whole force.

Hegseth is now driving the Pentagon in the opposite direction. He has pledged to eradicate DEI from military procedures and has described concerns about unqualified “diversity hires” as a major problem. But the record tells a different story. Reports indicate that he has blocked or delayed promotions across multiple services, including lists on which Black officers and women were disproportionately affected.

This is why the language of “meritocracy” is so misleading. Hegseth says he wants the most qualified officers to rise. But if the practical result is that vetted Black officers and women are singled out for suspicion while promotion lists become whiter and more male, then “merit” is doing ideological work. It becomes a mask for exclusion.

The same logic appears elsewhere. When schools abandoned affirmative-action admissions policies, many campuses grew whiter. When the Trump administration attacked DEI across the federal government, the cuts hit agencies and programs focused on women’s health, maternal health, and health disparities. Race-neutral language can sound fair in the abstract while producing deeply unequal results in practice.

That is what we are seeing in the military now. Hegseth claims to be restoring color-blind meritocracy. But his tenure so far suggests something very different: a campaign against diversity that risks making the officer corps whiter, more male, and less representative of the country it serves.

This is not meritocracy. It is discrimination dressed up as neutrality.

When the Epstein Files Transparency Act became law, it required DOJ to make covered Epstein-related records publicly available. What many hoped would be a major triumph for Epstein’s victims instead produced a delayed release of documents that Katie Phang and other critics argue were incomplete, missing key materials, and riddled with improper redactions. At a moment when democratic institutions are struggling to respond, the responsibility once again falls to citizens to hold the Trump administration accountable.

On this week’s episode of The Oath and the Office, John Fugelsang and I hosted Katie Phang, the independent journalist and legal analyst who is suing the DOJ for its alleged failure to comply with the Epstein Files Transparency Act. Katie is an attorney and former television host. But this week, we focused less on her résumé and more on her refusal to become another “megaphone,” as Katie calls it, for the powerful.

That refusal drives not only her reporting, but also a pioneering lawsuit that could force the DOJ to comply with the Transparency Act. Katie’s suit alleges that the DOJ inflicted both informational and economic harm by violating the Act, which was passed in a rare bipartisan effort to increase transparency about the Epstein investigation. The statute explicitly required the DOJ to “make publicly available [...] all unclassified records, documents, communications, and investigative materials” relating to the investigation into Epstein and his associates.

Instead, Katie argues, the documents released by the DOJ were both incomplete and questionably redacted. Although DOJ says it has released nearly 3.5 million responsive pages, Katie’s suit and other critics contend that many responsive materials remain unreleased, missing, withdrawn, or inadequately explained. And many of the documents that are available are missing key information—like the names of public officials and email attachments. “These improper redactions,” Katie explained, “have made it very hard for me as a journalist, and as a citizen, to report on the files with not only accuracy but also depth.”

The fight over redactions is not merely a technical dispute; Phang argues they are unlawful, and they are also a power play in a fight over the historical record. The information promised in the Transparency Act could expose the same powerful people who have the ability to keep it quiet. “The DOJ is using the Epstein Files Transparency Act to weaponize journalists to only give the information that they want us to give to the people,” Katie said. “And that’s a disgusting perversion of what this law was supposed to do.”

Katie wants to remedy this disconnect by seeking a “special master” who can oversee the files’ release and enforce transparency. This new position could take some of the discretionary power from those Katie characterized as the “gatekeepers of this information.” The stakes are high for both victims, who deserve justice, and the public, which deserves responsive and answerable government.

As a member of that public, Katie exemplifies the crucial role of citizens in advocating for government accountability. Katie is an accomplished political commentator; she is also, as I noted on the episode, “a citizen who is trying to get us access to material.” This is the point of transparency laws: once passed, they can allow ordinary people to enforce public accountability. In an era when truth itself is under assault, a citizen with a lawsuit may be one of the last lines of defense against a government that wants to dictate what we’re allowed to know. Check out this important episode of The Oath and the Office podcast.

On May 9, 2025, Stephen Miller, the White House Deputy Chief of Staff for Policy, told reporters that the Trump administration was “actively looking at” suspending the constitutional right to challenge one’s detention in court. The proposal was designed to support the administration’s aggressive deportation campaign. But a memo recently obtained by The New York Times revealed that Will Scharf, the White House Staff Secretary, opposed Miller’s extreme proposal. John Fugelsang and I discussed this threat to our fundamental constitutional rights on last week’s episode of The Oath and the Office.

The writ of habeas corpus, often called the “Great Writ,” is the legal process through which a person can challenge their detention in court. It is expressly protected in the Suspension Clause of Article I of the Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Habeas corpus is a remnant of English common law that far predates the United States itself. “The first idea there,” I explained, “and this goes back to the Magna Carta, is that if the government is going to hold you against your will, it has to have a reason for it. And it has to be able to give you a legal reason in court.” The writ embodies the presumption of liberty that is built into the innocent-until-proven-guilty system our founders envisioned.

That presumption of liberty is not absolute. The second half of the Suspension Clause creates a narrow exception: habeas may be suspended in cases of rebellion or invasion, when public safety requires it. But the dominant constitutional view, supported by the Clause’s placement in Article I and by history, is that congressional authorization is required. Some presidents have nevertheless tried to act unilaterally. And while “there are some precedents in some of the worst moments in American history,” I said, “they really do not support this unilateral suspension that Miller was arguing for.”

President Lincoln was the first American executive to invoke the Suspension Clause. During the Civil War, Lincoln suspended the Great Writ in order to detain Confederate sympathizers and opponents of the war. He ignored Chief Justice Roger Taney’s ruling, sitting as a circuit judge in Ex parte Merryman, that the president lacked unilateral authority to suspend habeas corpus. Congress later authorized suspension in 1863. “The fact that Lincoln did it is a lot of the fuel here,” I added. Trump often compares himself to the Great Emancipator. “He sees himself as a kind of Lincoln.” The Great Writ was also suspended during Reconstruction to combat the Ku Klux Klan and in Hawaii after Pearl Harbor. During the War on Terror, Congress attempted to strip habeas rights from Guantánamo detainees, but the Supreme Court rejected that effort in Boumediene v. Bush.

Trump is the latest president to consider taking habeas corpus into his own hands, as Miller revealed. But Trump has no constitutional authority to do so without congressional approval. And he would be attempting something extraordinary: using a claimed immigration “invasion” to cut off habeas review for a targeted class of migrants.

The memo published by The New York Times revealed that even some conservative loyalists deep within the administration shared these concerns. In his memo to Susie Wiles, the White House Chief of Staff, Scharf pointed out that the “denial of habeas corpus rights was a key grievance underlying the American Revolution.” He also argued that the relevant case law “greatly diminishes the utility of suspensions of the writ to the executive branch in all relevant contexts.”

Even if it looks like “Will Scharf wants to cover himself for posterity in writing,” as John suggested, the memo is still a positive sign. It shows that some members of the administration are willing to defend the fundamentals of the rule of law. Once the right to challenge your detention in court goes out the window, little remains to prevent absolute control by the president. And Scharf seems to recognize that danger.

In the context of immigration, “if I don’t have the right to appear in court,” I explained, “how do we know that I am, for example, from Venezuela? That I am the person I’m accused of being?” I added that this was one of the problems early in the deportation campaign: “They were getting the wrong people. They were getting people who were supposedly guilty of crimes who really were not in any way guilty.”

This memo gets to the root of the issue. Scharf’s writing implicitly asks us to consider what we, as Americans and as inheritors of a robust democratic system, value. Are we willing to stand up for our most basic and fundamental rights? Will Scharf might just be a surprising example of how facts, reason, and devotion to the rule of law can ignite hope for the future of our democracy.

California Governor Gavin Newsom announced earlier this week that he and his wife are facing federal scrutiny, and he accused President Trump of directing the Justice Department to investigate them for political reasons. Newsom himself has not been charged with wrongdoing, and the precise scope of the inquiries remains unclear. But his allegation fits a larger and increasingly familiar question: is this Department of Justice using investigations and prosecutions not simply to punish crimes, but to intimidate critics?

We discussed this question, and more, with Harry Litman on this week’s episode of The Oath and the Office. Harry served as U.S. Attorney for the Western District of Pennsylvania and as a Deputy Assistant Attorney General at the Department of Justice. He is also the host of the Talking Feds podcast and author of the Talking Feds Substack.

By the numbers alone, this Department of Justice appears less effective than its predecessors in several of its most politically charged cases. “We’ve had a record of failure in these cases that is breathtaking,” Harry said. In high-profile matters, federal prosecutors have faced unusual setbacks before grand juries and in court. Those failures have been partly attributed to inexperienced or politically selected prosecutors filling roles vacated during the legal exodus from the Trump Administration.

But the problem is not only personnel. It is also the cases this DOJ is choosing to pursue. Too often, the targets are high-profile critics of the president, and the evidence appears thin. To Acting Attorney General Todd Blanche and his team, the legal outcome of these cases can seem less important than their political effect: forcing opponents to spend money, endure public suspicion, and think twice before speaking out. That marks a major departure from the norms that traditionally guide federal prosecution. “Throughout my entire career in the Department of Justice,” Harry said, “I saw one case where the grand jury didn’t return the charges. It wasn’t even mine, but I worked on it. And that’s because you choose cases very carefully.”

Trump and Blanche are not the first officials to discover that government power can be used to chill dissent without winning convictions. The Supreme Court heard a series of cases in the mid-20th century challenging federal practices that indirectly discouraged communist speech and political activity. Those cases helped give rise to what we now call the “chilling effect” doctrine. When a statute is vague, overbroad, or selectively enforced, it can create uncertainty about what conduct is forbidden and deter lawful speech. The threat of surveillance, investigation, or prosecution can also chill speech and association even before anyone is convicted of a crime. In such cases, the First Amendment problem is not only punishment after the fact. It is the fear that government power creates in advance.

Much of the chilling effect today comes from investigative pressure that may never culminate in a guilty verdict. The process itself can become the punishment: legal fees, subpoenas, public accusations, reputational damage, and the constant threat of indictment. “They are not necessarily trying to get convictions in court at this point,” I said. Rather, I continued, “the idea is to threaten political opponents” and to “let people know that, if you are good at criticizing Trump, you might find yourself under indictment.”

The pattern is clearest in cases and investigations aimed at Trump’s most visible critics. The DOJ indicted James Comey over an Instagram photo showing seashells arranged as “86 47,” which prosecutors characterize as a threat against the president and Comey says was misunderstood political speech; a prior prosecution of Comey had already been dismissed. Letitia James, the New York Attorney General who brought the civil fraud case against Trump, was indicted last fall on bank-fraud and false-statement charges; those charges were later dismissed, and a federal grand jury reportedly declined to reindict her. Newsom’s allegation fits this same pattern: he says federal investigators have targeted his family, friends, and former staff, including scrutiny of his wife’s nonprofit and taxes. The common feature is not proven guilt. It is the use of federal investigative power against highly visible political adversaries.

That is why Harry was so blunt. “They brought meritless cases against political enemies of the president because the president wanted to. There’s no possible way to defend this. This is just revolting,” he said. The recent investigations involving the Newsom family raise the same danger: that federal law enforcement power is being used not as a neutral instrument of justice, but as a warning to political opponents.

As Harry said, the problem is rooted both in the people currently occupying positions of power and in the broader structure of the federal government. The thousands of experienced lawyers who have left federal service since Trump’s second term began took with them institutional memory, professional judgment, and norms of independence. But Congress has a responsibility, too. Legislators can reinforce DOJ independence, constrain selective enforcement, and make it harder for presidents to turn federal prosecution into a tool of personal retaliation.

The DOJ’s attacks on Trump’s political enemies exist at the intersection of two battles: one for truth, and one for democracy. The degradation of DOJ independence is a symptom of both. What is really at stake is something more fundamental: the freedom to criticize one’s leaders without fearing prosecution. Lose that, and you do not just lose legal protection. You lose the conditions under which meaningful political opposition is possible.