Why Don't They Stop Him?

 

To wit:

• A President should not be able to pay himself out of the U.S. Treasury. Do we need to say more? (Not for nothing, but the 27th Amendment doesn’t even let Congress give itself a pay raise without the approval of their constituents.)
• Apart from the Appropriations Clause (Art. I, Sec. 9, Cl. 7) which requires that Congress have the power to determine public expenditures (which means that outside funds have to be deposited in the Treasury first), the Army Clause limits appropriations for the Army to two years, precisely to ensure that Congress has a frequent check on the President’s command authority to prevent him from abusing it. Imagine if George Washington had gone rogue and wanted to be a dictator and turn the armed forces against the country. If Congress refused to give him money, could he have simply turned to King George III and said, hey man, help a brother out? I don’t think so. The same thing applies to whatever “private donor” is at play here.
• The White House is federal property, and Trump is a tenant, not an owner. I don’t know the specific rules and regulations that govern White House remodeling — it may well be that if a sitting President wants to paint the walls of every room chartreuse, he has the power to do that — but I suspect that latitude doesn’t extend to major structural alterations. When I got my downstairs bathroom upgraded from a half to a full, I had to get a permit and two visits from the city (and my house is old but not a historical landmark or part of our country’s cultural heritage). I mean, if this is OK, what’s the logical stopping point? Can Trump build condos in federal parks? Blow one of the faces off of Mt. Rushmore and add his own? Start renting the White House for weddings?

So, we all know this is wrong. And the natural inclination is to ask; how can he do this? What laws are being broken? Who has standing to sue?

Our constitutional system is not designed to handle this kind of extra-constitutional lawlessness. We encountered a version of this when Elon Musk was taking his proverbial chainsaw to the federal government. Our system has two major checks in place, and one failsafe: the two major checks are the courts saying what the law is and Congress exercising its power of the purse. If court decisions are disobeyed and the power of the purse is meaningless, then the failsafe is impeachment, also in the hands of Congress. That’s it. That’s the system.

The point here is, we have a system that does work, but only when everyone on the team is doing their part. But if the people assigned to their positions on the team refuse to fulfill their role, or fake injury and don’t perform at all, the whole thing falls apart. And if that happens, we are being defrauded from the honest services of our government.

I say all this to highlight that at some point we need to stop focusing only on Trump and retrain our sights on the relatively small number of people who could put a stop to this insanity. We’re talking about a dozen people. They, not Trump (or at least, in addition to Trump), need to be named, shamed, and held to account, just as the NBA players were in the indictment that was just filed. The question isn’t (just) what the mad king is doing or what laws he is breaking, it’s why the people who are assigned to stop it aren’t doing anything.

-Asha Rangappa, The Freedom Academy

"Pay attention to what is happening on the high seas, because the plan is to bring it to a city street near you"

 

          

So far, the Trump administration has killed twenty-one people using military strikes in the Caribbean. Meanwhile, back at the ranch, President Trump has escalated his attempt to deploy the military in cities throughout the United States, on the heels of the Secretary of Defense informing his military brass that they are no longer going to be bound by “stupid rules of engagement.” 

And last week, Attorney General Pam Bondi assured Trump that the United States is “going to take the same approach” the government has with drug cartels against Antifa – a group that Trump has unilaterally designated as a “major terrorist organization.” If you are starting to connect the dots and are feeling a queasiness in your stomach, then you know where the rest of this piece is headed. Steel yourself.

Let’s start with the bombing of the drug boats. The Trump administration advanced its thin legal basis for the four military strikes to date through a “confidential notice” to Congress last week. Its argument is that 1) the targets are “designated terrorist organizations”; 2) that the U.S. is in a “non-international armed conflict” with said organizations; and 3) as a result anyone who belongs to these groups are “unlawful combatants” and therefore valid military targets.

If these buzzwords sound familiar to you, it’s because they are the same ones that were used in the legal justifications for targeted killings (i.e., drone strikes) in the war on terror following 9/11. However, to quote The Princess Bride, these words do not mean what the administration thinks they mean, and throwing them together into a word salad does not a legal justification make.

It is true that al Qaeda, and its later iterations like ISIS, have been designated as Foreign Terrorist Organizations (FTO) by the executive branch since 9/11. It is also true that the United States was in a “non-international armed conflict” with these groups, and members of these groups were considered “unlawful combatants.” However, the reason these designations all made sense was because of three important things.

First, al Qaeda and related groups met the definition of “armed groups” under international law, to wit: They were armed and had “a sufficient degree of military organizations to conduct hostilities” against the United States. 

Second, they had (at different points) already attacked the United States and were actively planning more attacks; because they were non-state actors that did not observe the laws of war (for example, they targeted civilians), they were “unlawful combatants,” and military hostilities against them were considered a “non-international armed conflict” under international law. 

Finally, Congress had passed an Authorization for the Use of Military Force (AUMF) shortly after the 9/11 attack, authorizing the president “to use all necessary and appropriate force” against any people, organizations, or nations who participated in 9/11.

In 2010, the Obama administration put these factors together into a legal theory it called “preemptive self-defense.” The idea here was that al Qaeda and associated forces were in a state of constant planning of attacks against the United States, such that they posed an ongoing, imminent threat of attack. (If the idea of something being both “ongoing” and “imminent” makes you pause, it should.) 

The President’s Article II Commander in Chief authority, combined with the AUMF, justified the use of lethal force against senior members of al Qaeda who were located outside the active area of hostilities (i.e., not on a battlefield, where they would already be a lawful military target by virtue of carrying arms against U.S. forces).

Specifically, lethal force was legally justified where 1) “an informed, high-level official of the United States” determined that the targeted individual posed an “imminent threat of violent attack” against the U.S.; 2) where capture was infeasible; and 3) the operation was conducted in a manner consistent with the law of armed conflict (an international law framework which requires that military force meet certain criteria, like distinction of targets and proportionality, to be lawful).

The 2001 AUMF is incredibly broad (and it is still in effect today!) – but I don’t think even the most hawkish Republican in Congress could argue with a straight face that it would possibly cover Central and South American drug traffickers. Without any kind of congressional approval to engage in hostilities against these groups, Trump is (I think?) relying on his Article II Commander in Chief authority, which – going back to the Civil War – has been interpreted to include a “defensive war power” to protect the country in the event of an imminent threat.

The problem is that smuggling drugs into the country does not constitute an “armed attack” or the kind of imminent threat that would justify the use of military force in self-defense. More importantly, drug cartels do not even meet the definition of an “armed group” with which we could be engaged in the kind of non-state conflict we were post 9/11. Finally, remember the part about capture being infeasible? Well, not for nothing but the Coast Guard has been (successfully) interdicting drug vessels on the high seas for decades.

So, if the U.S. is not in an authorized military conflict with these targets under either domestic or international law, what is it? Well, colloquially, we call it murder.

Don’t take my word for it. Even John Yoo, best known for co-authoring the so-called “torture memos” during the George W. Bush years and one of the strongest proponents of Article II war powers out there, argues that Trump is trying to extend the terrorism framework into something that is more properly addressed through criminal law.

But I think there’s a reason the Trump administration is doing that, and it’s because the Obama-era theory of “preemptive self-defense,” which the administration is trying to distort, also extended to a category of people over whom Trump may want to exert military authority: American citizens.

Yes, that’s right, folks. In a major instance of Bad Idea Jeans, the Obama Justice Department authored a white paper which analyzed the “balance of interests” between an American’s rights under the Due Process Clause and the Fourth Amendment right against unlawful seizure (i.e., a drone strike) and the national security needs of the United States.

It concluded that the balance tipped in favor of the government (surprise!) and that targeting a U.S. citizen under the criteria set forth above would not constitute murder or an “assassination,” which is prohibited under law. A lawsuit brought by the ACLU and the Center for Constitutional Rights challenging the killing of three U.S. citizens, including Anwar al-Awlaki, the American-born Islamic cleric involved in several al Qaeda plots against the U.S., was dismissed by the district court for lack of standing and because it raised “political questions” that were nonjusticiable by the courts. In other words, the legality of the strikes was not something the court could decide.

This is why Trump’s executive orders designating “Antifa” as a “domestic terrorist organization” and authorizing the Attorney General to designate other “domestic terrorist organizations,” alongside the Secretary of Defense’s statements that the military is targeting “designated terrorist organizations” (without naming them) should start ringing alarm bells.

For one, these are not real things. Foreign terrorist organizations are a thing, and the process and criteria for designating these are indeed delegated by Congress to the executive branch under the Immigration and Nationality Act: In February, the State Department designated several drug cartels under this rubric. (Again, even this designation, on its own, does not automatically make them lawful military targets.)

But the fact that the language used by the administration since then has replaced the word “foreign” with “designated” and “domestic” – and has even gone as far as to invoke “Antifa,” an ideology that has no organizational structure or membership – when referring to “terrorism” is a big sign that they hope to bring the war home, as it were.

And this is where the military deployments into cities and Secretary Hegseth’s decision to basically authorize war crimes is a big, big problem. If the Trump administration is trying to conflate ordinary crime and even ideology with terrorism, and is taking the position that being labeled as a “terrorist” – by God knows who in the Trump administration and with no evidence, transparency, or judicial check – justifies using lethal force against that person, then it’s just one step away from ordering the military to do so.

In fact, Trump is calling cities like Portland and Chicago “war zones” and told his generals they would be fighting the “enemy within.” Like a good MAGA sycophant, House Speaker Mike Johnson has fallen in line, calling the upcoming No Kings protests a “hate America” rally led by “pro-Hamas” and “antifa” forces, with another representative calling it a “terrorist” event. 

Tom Nichols writes for The Atlantic that the civil-military crisis is here, and that the military “may soon face a terrible decision” – where the unlawful orders they are being conditioned to follow in the Caribbean will be directed against the very people they are sworn to defend and protect.

Following Bondi’s statement regarding Antifa, Representative Adam Schiff asked, “You begin to wonder – do they believe they have the authority by putting some groups on a list, even domestic groups, to use lethal force against them, with no trial, no due process, no nothing? The reality is we can’t rule that out.” No, we can’t. 

Pay attention to what is happening on the high seas, because the plan is to bring it to a city street near you.

-Asha Rangappa, The Freedom Academy

 

The Death of Free Speech

 

                                                    Cartoon by Pat Bagley

“There was ‘free speech’ for court jesters even if they insulted the king, but not for comedians under Trump.”

In 1351, the English Parliament passed a law called the Statute of Treasons. The statute specified seven different crimes that could be considered either “high treason” or “petty treaason.” Six of them actually required some kind of criminal action, like levying war against the king, or sleeping with his wife, or killing one of his ministers.

But one of them didn’t require any action at all: It was a thought crime. Known as “compassing the death of the King,” merely imagining the king’s death (or the queen’s, or their heir’s) was a crime unto itself. Professor Carlton Larson, author of On Treason: A Citizen’s Guide to the Law (an excellent book and a must read, especially for these times), writes that in defining treason in the Constitution, the Framers easily dispensed with including compassing the king’s death, because “[n]ot only was there no king in America, but this provision had generated some of the worst abuses under English law.”

The crimes against the king — including thought crimes — are an interesting juxtaposition against the role of the court jester, who could get away with quite a lot apart from providing entertainment, including criticizing, mocking, and even insulting the king directly (and perhaps referencing his death, I suppose, if they were funny enough). Shakespeare’s plays have many examples of this “jester’s privilege,” from As You Like It’s Touchstone to King Lear’s Fool. This delightful TED-Ed video narrated by Beatrice D. Otto, author of Fools Are Everywhere: The Court Jester Around the World, shows how close to the line jesters across various cultures:

One of the main purposes of the jester — the entertainer and comedian of the court — was to speak truth to power…even if you were a king or an emperor.

But that role doesn’t extend, apparently, to being a comedian under a U.S. president. Disney’s suspension of late-night host Jimmy Kimmel under pressure from the Trump administration follows in the footsteps of autocrats around the world, who are clearly more thin-skinned than their divinely-appointed historical counterparts.

For instance: In 2000, soon after coming to power, Putin became incredibly irked by a late night political satire show featuring puppets called “Kukly” — watched by over half the households in Russia — that mercilessly critiqued his administration. Kukly had also skewered Putin’s predecessor, Boris Yeltsin, when he was president; Yeltsin apparently hated the show too but, as the first post-Soviet president who had made claims to support free speech, he “ground his teeth and bore it all.” Putin, not so much. This contemporaneous New York Times article describes the shift after Putin took office:

'Things changed dramatically,' [the program’s writer] said. ‘There were no requests for physical changes. But we've received threats from his political family — not threats to close the program but that the program may have some “difficulties.” And this Russian phrase, “to have difficulties,” can mean many things.’

The threats peaked this March in a private conversation between a senior Kremlin official and a top executive at NTV. Yevgeny Kiselyev, the network's general director, said the official proffered a list of tasks the network would have to meet to escape the government's wrath, including less skeptical political coverage and toned-down reporting on the war in Chechnya. ‘One of those demands was to get Mr. Putin's look-alike — his rubber look-alike, that is — off the “Kukly” show,’ Mr. Kiselyev said in an interview.

At the time of the article’s publication, NTV’s chairman, Vladimir A. Gusinsky, had just been jailed. The show was still on the air, and the show writer was quoted as stating, “I'm not saying we don't have freedom of speech. I'm saying that the field of that freedom is being narrowed. There are fewer and fewer who can speak the truth. And maybe ours is one of the last.”

The show was later canceled, and replaced with milquetoast programs that were allowed to criticize people — as long as they were popular celebrities or enemies of the Kremlin, like President Obama.

Since then, everyone is joining the Autocrat Crybaby Club. Turkey’s Erdogan prosecuted a Turkish man for making a meme that compared him to Gollum. Egypt’s Abdel Fatah al-Sissi threatened to fine a comedian dubbed as “Egypt’s Jon Stewart” with a $10 million fine (he Feld to the U.S….oops). Professor Ruth Ben-Ghiat writes at Lucid that Berlusconi brought the power of the state against media outlets in Italy.

Of course, all of them are following the OG fascist playbook:

 

With Trump, don’t forget that this has been something he been trying to do for a long time. Comedian Michelle Wolf got canceled for her jokes about Sarah Huckabee Sander’s eyeshadow at the 2018 White House Correspondent’s Dinner (which was in my opinion a pretext for the real reason, which was that she roasted Trump, a lot). This year’s dinner’s comedian was canceled after she criticized the Trump administration on a podcast. In fact, the WHCA president decided they wouldn’t have a comedian, at all.

The crackdown at ABC is one that is sure to be the beginning of many more, especially if we don’t resist and speak up, now. Perhaps the silver lining of Disney’s actions against Kimmel is that it might get some ordinary folks who have been in denial that we have crossed a Rubicon to finally wake up and take notice.

Renato and I discuss more about the legal implications of Kimmel being taken off air, as well as the charges against Charlie Kirk’s alleged killer, Tyler Robinson, in this week’s pod:

-Asha Rangappa, The Freedom Academy

Asha Rangappa is an Assistant Dean and Senior Lecturer at the Yale University's Jackson Institute for Global Affairs and a former Special Agent of the FBI, specializing in counterintelligence investigations.

"There's a lot that casts doubt on whether the individuals involved are acting in good faith"

 

There’s a concept in the law called the “presumption of regularity” – the idea that, in the absence of evidence to the contrary, executive branch employees are presumed to have acted in good faith and through the proper channels in arriving at an outcome. The presumption is typically applied by the courts in reviewing agency decisions, but the principle can be applied to how, ideally, we should think about government actions more broadly.

Having worked inside the government, and in the executive and judicial branches specifically, I have seen firsthand that when it is operating normally, government servants do, in fact, follow the rules and do their jobs like they’re supposed to. But the news that Trump’s former national security advisor, John Bolton, had his home and office searched – and in particular, the conflicted people and irregular circumstances surrounding it – has made me realize that we can no longer operate on this presumption. In fact, there is a lot that feels hinky, as we would say in the FBI, about the Bolton search.

Since the search seems to be related to some stuff that happened half a decade ago, let’s start at the beginning. Two months after Bolton left the Trump administration (or was fired, depending on whether you ask him or Trump) in 2019, he got a deal with Simon & Schuster for a book. By December of that year, he had a draft manuscript of his memoir, The Room Where It Happened – the book was critical of Trump and also bolstered some of the allegations being made against him in his first impeachment.

Because the book contained Bolton’s accounts of conversations and observations during his time as Trump’s national security adviser, he was required to put his manuscript through “prepublication review” with the NSC, to ensure that it did not contain classified information. He did so, and went through four months of edits with the Senior Director for Records and Information Security Management at the National Security Council, Ellen Knight (a career employee who had been detailed to the NSC from the National Archives and Records Administration). At the end of that process, she advised him that the manuscript no longer contained classified information.

However, Bolton never received formal authorization from the White House to publish his book. In June 2020, John Eisenberg, the Deputy White House Counsel and Legal Adviser to the NSC, wrote to Bolton and told him that his book still contained classified information. At that point, though, Bolton had already sent his manuscript to his publisher. The Trump administration then sued Bolton, seeking to enjoin him from publishing his book.

The judge, Royce Lamberth, denied the injunction, finding that the government could not meet the criteria showing that an injunction would prevent “irreparable harm” since 200,000 copies of the book had already been published, noting that “the horse is not just out of the barn – it is out of the country.” But Judge Lamberth also stated – after reviewing the White House declarations of the classified material contained in the book – that the government would likely succeed on the merits, because “Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations” and had “exposed his country to harm and himself to civil (and potentially criminal) liability.”

That’s pretty damning coming from a federal judge, and the Trump administration did, in fact, subsequently open a criminal investigation into Bolton. But the drama didn’t end there. In September of 2020, the lawyers for Knight – the person who had initially conducted the prepublication review – sent Bolton’s lawyers an 18-page letter. In the letter, Knight stated that political appointees at the White House, including Eisenberg and his deputy, Michael Ellis, had commandeered the prepublication review process right before she was about to clear the book for publication.

Specifically, they put the authorization on hold, and Ellis had personally gone through the manuscript and declared, improperly, huge swaths of the manuscript classified. Judge Lamberth did not have the letter when he was considering his ruling and had relied on Ellis’ and other NSC officials’ declarations in making his statement concerning Bolton’s potential criminal liability. Knight also alleged that the political appointees at the NSC pressured her to change her assessment of Bolton’s manuscript – she refused, and her detail to NSC was terminated. In short, Knight’s account is evidence that ought to rebut any presumption of regularity with regard to the prepublication process. (It also suggests that the criminal investigation on Bolton was arguably opened on false pretenses.)

(By the way: If Ellis’ name seems familiar, it is because he’s one of the ‘Where’s Waldo’s’ of the Trump era. He first surfaced in 2017, when he was working in the White House Legal Counsel’s office and was one of the officials who shared information about classified intercepted communications with Devin Nunes (for whom he had worked previously) that led to the “unmasking” controversy. Trump later tried to install Ellis as the General Counsel at the NSA, but his appointment was stalled because of an Pentagon inspector general investigation and a security inquiry into whether he mishandled classified information. Ellis, who was placed on administrative leave, later resigned.)

Anyway, all that was five years ago. Fast forward to now. Search warrants require the probable cause to be current, meaning that there has to be a reason to believe that evidence of a crime is in the places to be searched now. If Bolton’s search is related to the investigation that was opened in 2020, that would mean the FBI would have to show there was probable cause that there was evidence of possession or dissemination of classified information present now, years after he left the government and published his book. The big question is, what could possibly have come up to suddenly provide enough probable cause to obtain a warrant?

According to the New York Times, the “fresh” evidence was intelligence collected overseas by the CIA, which was recently shared with the FBI. Importantly, the CIA is prohibited from directly collecting evidence on U.S. persons (USPERs). However, the CIA can use human or technical sources to target non-U.S. persons (non-USPERs), which may result in “incidental” collection about a U.S. person (so the source says something about an USPER or they capture the target communicating with the USPER).

And if that incidental collection reveals evidence of U.S. laws being broken, it can pass it to the FBI. This is relatively rare, mainly because if the FBI decides to use that information to prosecute a criminal case, it has the potential to reveal the CIA’s sources and methods. Ordinarily, this built-in disincentive would mean that the CIA would not take this step lightly – i.e., you could use the presumption of regularity.

In Bolton’s case, though, it’s hard to maintain the presumption. For one, the intelligence was passed by the CIA director, John Ratcliffe to the FBI Director, Kash Patel, both of whom are Trump loyalists aligned with his agenda, including Trump’s obvious long-standing animosity towards Bolton. (Ratcliffe had provided an affidavit against Bolton in the lawsuit about the book, and before becoming FBI director, Patel had Bolton among 60 names on a “deep state enemies” list.) And guess who is the Deputy Director of the CIA, right under Ratcliffe? One Michael Ellis. You can see why this is feeling hinky.

Perhaps, though, this search warrant is unrelated to any of the book stuff. Maybe the CIA passed intelligence to the FBI on something wholly unrelated, some recent incident involving classified information. In fact, Vice President JD Vance suggested that the search was based on something new and unrelated to the book investigation, stating, “We are in the very early stages of investigation.” But that’s red flaggy, too.

Searches are typically executed in the later stages of an investigation. Because it is highly intrusive, a court will want to know that the FBI has already conducted a fairly thorough investigation and that the specific evidence sought can be obtained only through the search. It’s hard to see how the FBI would immediately run out and execute a search based on this (raw?) intelligence alone.

Perhaps the intelligence did reveal an urgent national security threat that had to be addressed immediately. If the FBI had reason to believe that, say, someone had hundreds of pages of classified documents, including nuclear secrets, sitting in their bathroom which hundreds of randos had access to, it might be able to get a search warrant immediately. Unless it involved a former president, in which case they might spend eighteen months asking nicely to get it back. But I digress.

Vance’s comments only add to the problematic aspects of this case. Vance also stated that “there was broad concern about Ambassador Bolton” and that they were gathering evidence on “something we are worried about,” adding that “if [Bolton] committed a crime, of course, eventually prosecutions will come.”

Let’s pause for a minute. Even if there is an urgent, national security reason to undertake a search of someone’s home, you do that because you are investigating a specific crime, not based on vague, “broad concerns” or “worries.” That smacks of a fishing expedition. (It’s also possible that Vance doesn’t really understand criminal law and is just talking out of his butt.) And not for nothing, but am I the only one wondering why the hell the Vice President, who literally has no role in law enforcement, even knows anything about this case?

Look, I’m a process gal. For as long as I’ve been doing legal commentary, a presumption of regularity was always my starting point. Of course, any institution can have rogue and bad actors, but a properly working system will have oversight mechanisms in place to identify and weed them out – we have seen that happen before, in things like the FISA process during the first Trump administration. Right now, there is nothing to suggest that the judicial process of getting the search warrant itself was not followed. That’s a good thing. But there’s also a lot that casts doubt on whether the individuals involved are acting in good faith or observing internal executive branch norms and processes at all.

As my colleague Joyce Vance eloquently put it, “We are caught in the tension between our desire to preserve what is left of the system and the need to be clear about what is wrong.” My version is more straightforward: This whole thing just feels hinky.

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