"There’s a whistleblower addressing the USPS plan to implement Trump’s EO on mail ballots"

 

Most federal workers are covered by the Whistleblower Protection Act. Postal workers aren’t covered by the Act, but they are covered by parallel internal rules that protect them from retaliation if they report violations of law, rules, or regulations; gross mismanagement; gross waste of funds; abuse of authority; or a substantial danger to public health or safety. Those protections turn out to be very important. 

Today, an anonymous federal employee—it’s unclear what agency they work for—came forward with allegations that the Postal Service (USPS) is pushing forward to implement Trump’s executive order on mail voting in a manner that will throw Americans’ ability to cast a mail-in ballot into jeopardy in November. And all of this is happening as North Carolina prepares to begin mailing out ballots on Friday. Other states will follow.

You can read the full whistleblower disclosure here. In a cover letter transmitting it to Postmaster David Steiner, Senator Richard Blumenthal wrote, “The whistleblower’s allegations make clear that USPS lacks the technical or operational capability needed to effectively implement the EO’s provisions in a way that safeguards every citizen’s right to vote in the upcoming midterm elections. Despite this, the Trump Administration appears intent on USPS moving forward with its flawed plans, no matter the chaos they may create.”

The most important revelations in the whistleblower complaint involve USPS’s creation of a Federal Ballot Mail Portal for uptake of state voting lists, including barcoded ballot envelopes.

The “Zero Fail” system is designed to fail: Senator Blumenthal said earlier today that “The Postal Service has designed a system to disenfranchise millions of Americans.” That’s the case because as large batches of ballots are delivered to the Postal Service, if even one doesn’t match, say due to a name or address change, all of the ballots in that group will be returned to local election officials, and nothing moves forward until the mismatch is cleared.

Inadequate testing of the rushed system: The whistleblower says USPS is trying to build a system that should take a year or more of work in just three months, with continuously changing requirements for what the system should look like and some directions not put into writing. (When has the government ever failed to put every last detail into writing? 

If that’s not a red flag…) In some instances, USPS bosses gave the developers as few as four days for user testing. The whistleblower reported that “In just the week prior to September 1, 2026, the Whistleblower learned that IT workers have described the election ballot mail development process as ‘a shit show.’”

Possible violation of court order: It appears from the dates referenced in the complaint that the Postal Service, which initially stopped work on the portal after Judge Talwani entered her injunction, resumed work several days later. 

That comes as no surprise in an administration that has a history of failing to comply with court orders. Here, the administration is sure to brush the failure off as a technical matter and point to the fact that the Supreme Court lifted the stay. How this will turn out depends on the details and bears careful watching.

Senator Blumenthal has demanded that the USPS stop work on the Portal and that it provides an accounting to the Senate Permanent Subcommittee on Investigations. A Postal Service spokesperson said that the agency was “carefully reviewing the concerns" and that it “welcomes oversight and is committed to transparency.”

The bottom line is that like the Justice Department and other executive branch agencies, the Postal Service isn’t supposed to have a dog in the hunt when it comes to who wins (or loses) our elections. Their only job should be facilitating receipt and return of mail ballots. 

Trump’s effort to weaponize the Postal Service to influence the outcome of elections and disenfranchise American voters really says it all.

And we should never focus so much on the details that we forget the context: No one works this hard to keep eligible citizens from voting unless they are truly, deeply frightened of what will happen if Americans are able to exercise their rights. We should never forget that. Our responsibility is to do whatever it takes to vote this year.

What’s Donald Trump’s endgame here? The situation is a win-win for him if we don’t stay on top of it, understand what he’s trying to do, and outsmart him. First off, Trump can try to keep people from voting by eliminating mail voting as a prospect for them. 

In the six states where most voting is done by mail, this could amount to game-changing voter suppression. And even where ballots are successfully mailed and collected, this is still creating chaos around the elections. 

Chaos can keep people from voting, especially if it becomes too difficult to figure out what the right thing to do is, or when misinformation and disinformation about voting is spread.

And finally, this gives Trump a narrative. If the courts rule against him and the Republican Party fares poorly in November, he’ll claim it’s due to fraud because the courts blocked his plan. Even if he wins in court, he’ll claim that the delay in implementing his executive order meant he couldn’t do everything he wanted to and use that to cast doubt on Democratic gains.

There’s no doubt he’ll use this situation every way we can. So, what do we do?

First, if you plan to vote by mail, apply for your ballot as early as you can. And be aware of deadlines for both requesting and returning your mail-in ballot. You can find that for each state, along with information on how to track your ballot and make sure your vote gets counted, here.

Second, what do you do if you request a mail ballot and it never arrives? The rules vary by state. The Brennan Center explained it in the context of the 2020 election, where there were issues with receipt of mail ballots by voters. In states like Georgia, there was no problem. If you didn’t receive your ballot in the mail, you could go to your polling place and vote a regular ballot. But other states force people who applied for a mail ballot and didn’t receive it to vote a provisional ballot. Some states want you to bring your mail ballot with you if you asked for one but change your mind and vote in person.

And then there’s a practical issue: If there’s a huge uptick in voting in person after asking for a mail ballot, will polling places have a sufficient quantity of provisional ballots on hand? This is the kind of chaos Donald Trump is driving. It means we have to be more disciplined about exercising our right to vote. 

But understanding that this is an issue is a big part of getting it right. Make sure you look up your state law and understand how it works. Look into whether county officials plan to have extra amounts of provisional ballots on hand if you’re in a state that will require them and get together with friends now to ensure your local election officials understand the issue (most of them do!) and are getting prepared.

Third, be the civics education our states and counties need right now! Share this information with friends and neighbors and make sure they’re prepared too.

Fourth, and most importantly, do vote! Remember our North Star: no one would try this hard to take your vote away unless they were desperately afraid of the outcome of a free and fair election. Whatever else you do, make sure you vote. Let’s be the result that they’re afraid of. We’re the cavalry.

We’re in this together,

Joyce Vance

Judge Talwani’s Most Recent Order on Voting by Mail

 

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

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

Thursday night, Judge Talwani granted a 14-day temporary restraining order in both of the cases before her, “staying the United States Postal Service (‘USPS’) from implementing certain sections of its final rule, Ballot Mail for Federal Elections.” 

She explained that “On emergency review, on August 24, 2026, the United States Supreme Court concluded that this court lacked jurisdiction to review challenges to the EO’s constitutionality where it was speculative as to whether the USPS would (1) propose a rule; (2) weigh the comments; and (3) issue a final rule consistent with the EO’s directives”—that’s the “ripeness” argument we’ve been discussing for weeks now. In essence, the Supreme Court directed her that the government hadn’t taken enough steps toward implementing Trump’s EO for the court to know what that implementation would look like and whether it was lawful. Too soon, the Supreme Court told Judge Talwani. You need to wait for the government to do more.

Now, the government has done more.

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

The Supreme Court gave no indication that it was aware of the Final Rule when the Order was issued. Defendants nonetheless insist, without citation, that “publication of a Final Rule” was “already known to the Supreme Court” at the time of the Court’s Order … 

Although the government’s Supplemental Brief regarding the Final Rule was docketed at the Supreme Court a few hours before the Court’s per curiam Order was entered on August 24, 2026 … this court cannot assume that the Justices received the brief prior to the issuance of the per curiam Order a few hours later. 

In any event, that Order found a lack of standing based on the events at the time the complaint was filed and did not purport to take into account events that occurred during the months that the litigation was pending.

Judge Talwani also strengthens her order for when it heads back to the Supreme Court by pointing to the purely procedural nature of the Court’s decision last week. Their decision was limited to timing; it was not about whether the executive order itself is lawful. By setting it up this way, the Judge clarifies that she is free, now, to take up the substantive issue. 

She wrote, “The Supreme Court explicitly noted, however, that the disposition of the government’s emergency application ‘does not mean that any measure taken by the Government to implement the Order will necessarily be lawful.’” By pointing out that the Supreme Court itself left that issue open, she positions the new TRO as the next step in the case, not a decision contrary to the Court’s dictates (although we should expect the government to try to play it that way).

Judge Talwani also took a gentle, but satisfying slap at the Court, pointing out that the Trump administration isn’t exactly playing by the rules when it comes to court orders: “Although the Supreme Court expressed concern that this court’s injunction ‘prevent[ed] the Postal Service from so much as initiating a rulemaking that could yield a rule applicable to these States[,]’ … no such delay occurred, as the USPS had gone ahead and noticed a proposed rule, solicited and reviewed comments, and issued a Final Rule.” 

The Roberts Court has largely ignored the Trump administration’s efforts to challenge the authority of the courts, but occasionally, it bristles and summons some backbone when the administration goes too far—think last term’s decision on birthright citizenship or firing a Fed Governor. This opinion is a signal to the Court that this case too is one where the government must be reined in, lest the Court lose all authority to act as a check and balance on an out-of-control executive.

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

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

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

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

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

The Judge goes on to explain the technical reason the government is wrong on that last point. It’s because “the question is not when appellate review will be completed. The issue before the court is whether Plaintiffs have met the traditional standards for emergency relief.” 

But the thing that really matters here is that the courts should not permit the Trump law firm formerly known as the Justice Department to play gotcha when it comes to something as important as Americans’ right to vote. DOJ’s position is nothing short of appalling. And predictable, unfortunately, for this administration.

Temporary restraining orders preserve the status quo until courts reach a decision on the substance of cases before them. Judge Talwani’s order preserves the pre-executive order status quo, for now. To issue a TRO, she has to find in the movants’ favor on the elements courts have established for entering an injunction: a strong chance of success on the merits, irreparable injury in the absence of the remedy, and public interest/a balance of the equities favoring the injunctive relief. 

So, for starters, she has to be persuaded that the plaintiffs have a good chance of succeeding with their claims. They now argue that the newly issued final rule “is unconstitutional, contrary to statute, and ultra vires,” and that it “violates both the separation of powers doctrine and the USPS’s governing statutes.” The government responds that it’s just doing what is necessary to implement the executive order and the final rule “merely imposes modest conditions on the sending of mail.” Seriously. That’s what they say. They add in an argument that none of the plaintiffs have standing.

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

Judge Talwani concludes, “Through the Final Rule, the USPS is refusing to send mail ballots to eligible voters unless States or local election officials submit their mail ballot envelopes and return envelopes and receive advance approval from the USPS without regard to impending deadlines for the November 3, 2026 election … 

Additionally, the Final Rule requires elections officials to create accounts for a new electronic portal, certify that they have received approval regarding the mail ballot design, and thereafter upload to the USPS portal each voter’s information, including name, address, and a unique intelligent mail barcode.” She rules that the plaintiffs are “likely to succeed on the merits of their claims that (1) the USPS lacked authority to issue the Final Rule; (2) the Final Rule is unconstitutional in imposing these requirements on the States; and (3) the Final Rule is unconstitutional in prohibiting non-compliant State and local officials from using the United States Postal Service to mail ballots.”

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

Most Plaintiff States have already ordered their mail ballots. Some are required by state law to send them to eligible voters as early as next week. Plaintiff States have neither time nor funds to design new mail ballots, seek approval of the new designs, order production of mail ballots, update their own election management systems, train election officials to use the USPS portal, and upload citizen data to the portal, all before the midterms.

The Final Rule includes no deadline or contemplated turn-around time for USPS approval of submitted mail ballot envelopes. If Plaintiff States are unable to comply with the Final Rule, an outcome that seems unavoidable given the timeframe, they will violate their obligations under the Constitution and State laws to administer elections.

The bottom line here is so grotesque that it’s impossible to imagine any other Justice Department advocating for such a plan, and any court taking longer than a few moments to reject it, as Judge Talwani did today. She notes that the government defendants “offer no reply to Plaintiff States’ assertion that compliance for the 2026 midterm elections will be impossible for many of them.” 

And what’s at stake is the right of Americans to vote. She notes the “significant risk of disenfranchisement” and finds that “In light of the State election officials’ unrebutted declarations that compliance with the Final Rule at this late date is impossible, the risk of irreparable harm to voters in those jurisdictions is grave.^” 

As for the League of Women Voters, their members face irreparable harm for the same reasons—because they live in states that will be unable to comply with these new measures, and so, their ballots will not count.

This is another key point we should all note. Why won’t the ballots count? It’s not because the voters involved aren’t eligible to vote. They are. It’s not because they’ve done anything wrong—failed to register or vote in a timely fashion. They haven’t. 

Americans will be disenfranchised because Donald Trump does not want them to vote. No legal sleight of hand can legitimize that. It’s an appalling abuse for an American president, especially one who spends so much time ranting about virtually non-existent voter fraud, when his intent is to keep eligible voters from exercising their rights.

The only thing that remains for the Judge to assess after this is the balance of harms and the public interest. “The record continues to lack any evidence regarding fraudulent absentee or mail-in voting,” she begins. Then she drives an industrial strength nail into the administration’s coffin and lays down something of a gauntlet to the Supreme Court, just in case it wants to contemplate reversing her again:

  “In any event, the USPS’s interest in correcting an unsubstantiated problem through likely unconstitutional means is dwarfed by the overwhelming risk of pervasive disenfranchisement of citizens who need access to mail ballots in order to vote. The balance of harms and public interest warrant a TRO.”

And so, Judge Talwani grants a temporary restraining order, explicitly forbidding the government from taking additional steps towards implementing specified parts of its final rule for the next 14 days (she is still considering the request for a longer preliminary injunction). The final rule can’t be implemented. It can’t be enforced. The Trump administration can’t take “further preparatory steps” toward putting it into operation. 

And she gives it some teeth, requiring that the government “must” within a day of receiving the order, “provide written notice of this Order to the USPS Defendants and their employees” and “notify all such recipients that they are required to comply with this Order, under penalty of contempt.” District Judges have become wise to this administration’s tricks. Judge Talwani is playing for keeps here. There will be no excuses, only contempt if the government violates her order.

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

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

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

We’re in this together,

Joyce Vance

 

Trump's executive order

 

The Supreme Court ruled in the case brought by state attorneys general challenging Trump’s executive order on elections. In this case, the government wants an injunction to stop Judge Indira Talwani’s injunction, which stops the administration from implementing the EO—it gets a little confusing.

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

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

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

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

In its decision today, the Court held that Judge Talwani incorrectly entered the injunction and that it believes the government will prevail on the factors necessary to get an injunction of its own to put an end to hers. The Court ruled the Judge was wrong on two doctrines we’ve been discussing a lot lately: ripeness and standing.

The Court wrote that while “the District Court rejected the Government’s argument that it lacked jurisdiction over the States’ claims because the States lack standing to bring them,” the Supreme Court believed the government was likely to succeed on those jurisdictional arguments. That means the Court believes, not necessarily that the EO is lawful, but that these are the wrong plaintiffs to bring the case, that they lack standing and that they sued too early.

The Court also wrote that it believed the government would prevail on two other factors necessary for its injunction to succeed: that the injunction is causing it irreparable harm and that the equities do not favor leaving the injunction in place while the Government’s appeal is pending.

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

That leaves us with some questions:

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

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

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

-Joyce Vance

"This week, the Trump administration will continue its transparent efforts to manipulate the election this year in its favor. There is no other way to interpret the events we are now living through"

 

The Postal Service, pursuant to the executive order we’ve been discussing ever since Trump promulgated it earlier this year, is on board to try to keep ballots out of the hands of people whose votes this administration fears. 

In a 95-page “final rule” it has scheduled for publication in the Federal Register on Wednesday, it “is amending the Mailing Standards of the United States Postal Service, Domestic Mail Manual, regarding the transmission of mail-in or absentee ballots for federal elections pursuant to its rulemaking authority.” 

This is how the executive order, which is largely an aspirational statement of what the president wants to see happen, would be put into effect. It would circumvent states’ control over their own elections by imposing a federal restraint in the form of which ballots the Post Office will accept and deliver.

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

And how does the government gild the lily, since there is an injunction against putting the EO in place for the 2026 elections? They try to do it like this: “To ensure the faithful execution of federal law in connection with federal elections, this rule has an immediate effective date.” They claim that “Delaying the effective date would jeopardize implementation of this rule in time for the 2026 general election,” before conceding that “Given injunctions currently in place … the Postal Service will not take actions to implement the rule specifically for the 2026 election unless and until the government obtains relief from those injunctions.” 

On the one hand, they write a rule meant to apply to 2026. On the other, they pay lip service to following court orders, which is mighty nice of them since they have no choice in that matter unless the Supreme Court intervenes for the administration.

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

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

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

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

Yes, it’s ironic. Trump votes by mail, as do a significant number of Republicans. But this is about something more for him; this is about building a narrative of fraud that he can try to use to overturn an election whose outcome he doesn’t like. That’s what it’s all about, Trump versus the voters of the United States. He has no respect for the Constitution, the democratic process, or the rule of law. We know that. He showed it for everyone to see on January 6. 

And having essentially gotten away with it and now being well on the way to erasing the insurrection from the history books, he is looking forward to the next election and figuring out how to erase losses there too. If only he would put as much energy into earning the voters’ trust and working for them as he does into circumventing their will.

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

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

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

When I left the Justice Department the night before Trump’s first inauguration, I never imagined that my interest in voting law would become a mainstream topic of conversation in our country. But I’m deeply grateful to those of you who care and who trust me to help explain it when you read this newsletter. 

We’ve known since Trump first issued this Executive Order what everyone else is waking up to now: that it’s a deeply disturbing signal of Trump’s willingness to bypass the voters’ wishes and the fundamentals of democracy. 

Thank you for sticking with me and for relying on Civil Discourse for plain talk and an explanation of how the law works and intersects with our politics.

We’re in this together,

Joyce Vance

 

The Trump Administration's Contaminated Food Supplies

In March 2025, shortly after his return to power, Donald Trump’s administration postponed the compliance deadline for the FDA’s Food Traceability Rule by 30 months. That moved it back from January 20, 2026, to July 20, 2028. We are now paying the price.

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

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

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

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

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

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

What could DOJ be doing? 

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

There are also felony charges available in cases of intentional fraud, deliberate concealment of safety data, or repeat offenses. 

Companies can face millions of dollars in fines and asset forfeiture, while individual executives can face personal fines and imprisonment. Under 21 U.S.C. § 331, it is illegal to manufacture, sell, deliver, or receive an adulterated food product in interstate commerce. 

But we’ve seen nothing to suggest any criminal violations are being explored here. Perhaps that will happen as public outrage grows, but one way to bring problems under control is to create deterrence by prosecuting known offenders and being public about it so others will be more careful.

To protect public health, DOJ routinely files civil complaints to secure injunctions that force companies to stop distributing items that are making Americans sick until their facilities come into compliance with the law and pass a review by independent experts. 

But even after the outrage when people realized it took the FDA a month to act, nothing has been forthcoming from DOJ, which could be taking immediate steps to protect Americans’ health from additional problems.

In the middle of all of this, Trump’s pick to lead the FDA, Heidi Overton, says the FDA, CDC, and NIH need to be “reformed” to fund more “conservative-based” research instead of peer-reviewed and evidence-backed medical science. 

Overton is a surgeon, currently working as the deputy assistant to the president for domestic policy at the White House. She is an alum of the conservative America First Policy Institute, where she wrote in opposition to gender-affirming care for minors and questioned the safety of medication abortion despite overwhelming evidence to the contrary. It feels like the era of conservative religious beliefs instead of science is upon us.

This is what happens when institutions break down. This is how the rule of law and those “cumbersome requirements” big business complains the federal bureaucracy imposes on it work to protect us. 

There are reasons we want those agencies to do their jobs. But sometimes, it’s not apparent until it all breaks down, as it has in this critical area. Heather Cox Richardson characterized it like this earlier this week: “It’s the largest cyclospora outbreak in U.S. history, spurred by cuts of more than 40% to food safety detection systems.”

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

Eggs recalled because of “probability of death”

Deli meals, possible metal contamination

Bacon

Whole Foods products

Beef

Cheese

Blueberries

Prepared pasta products

Finally, one of the kids posted back, “Mom, you need to stop getting your news from Instagram.” But isn’t that the problem here? We aren’t getting a comprehensive report from the government. There are no adults in the room. And so we’re left to fend for ourselves, discerning whether each new report is true or false and what it means we need to do about it. 

I haven’t eaten a salad in the last month that wasn’t made with lettuce I didn’t grow myself and I’ve abandoned my beloved blueberry muffins. But for many Americans, it’s about more than giving up favorite foods. 

It’s about being sick because Taylor Farms wanted to make more money, and the Trump administration was okay with that.

I write Civil Discourse because of stories like this. Contaminated lettuce turns out to be a story about so much more in the time of Trump, when the corruption gives us an abject lesson in why we need the rule of law and what happens to ordinary people when our institutions work for the rich and powerful instead of for us. 

More outbreaks and more illness lie ahead. Instead of covering them as individual breaking-news items, our lens is on the institutional failures, the grift that fueled them, and the laws that aren’t being enforced. Because we are entitled to a government that works for us, which means it’s essential to understand what’s happening when it isn’t.

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

We’re in this together,

Joyce Vance

 

"Doing the president's political bidding"

Newly anointed Attorney General Todd Blanche has been busy. But instead of doing justice, he’s been doing the president’s political bidding. A violation of the Hatch Act, if anyone believes the Attorney General should follow the law. One of the Act’s major prohibitions is against using a federal job to influence an election. Although federal employees can, technically, campaign on their own time, the Attorney General is on the clock 24/7. Presidentially appointed, Senate confirmed officials like Blanche can only participate in partisan political activity in a purely personal (not official) capacity.  

But here Blanche is, speaking at a Trump rally in New York yesterday. He endorsed Bruce Blakeman, the Republican County executive for Nassau County, New York, who is running against Democratic incumbent Kathy Hochul to be New York’s next Governor. Donald Trump has also endorsed Blakeman, and he was there yesterday too.

It’s hard to see what Blanche’s endorsement adds to Trump’s or why he thought it was an appropriate thing for an Attorney General to do. When the Attorney General, the Director of the FBI (yes, he was there too), and the President of the United States are all at a campaign event, standing in front of a backdrop of law enforcement officers, talking about their government jobs, that’s hardly personal time. Blanche spoke about “his” Justice Department, saying, “In my Department of Justice, if anybody touches a federal law enforcement officer in any way inappropriate, we will prosecute them to the fullest extent of the law.” (If only he felt that way about Jeffrey Epstein’s victims.)

Congrats to all of the Republican Senators who voted for Blanche. He showed you who he was from the outset, and you confirmed him anyhow. Blanche has also been busy overseeing a Justice Department that continues to persecute the president's political enemies, in the best tradition of dictators everywhere. 

A report this morning said the U.S. Attorney in Chicago has been looking into a political consulting business where Judge Juan Merchan’s daughter once worked. Merchan is the Judge who oversaw the New York State hush money prosecution connected to Trump’s liaison with Stormy Daniels that resulted in Trump’s conviction on multiple felony charges. 

Trump targeted the Judge and his family throughout the trial, making unsupported allegations Merchan’s daughter benefited financially from the trial. The U.S. Attorney in Chicago, Andrew Boutrous, was also involved in the Broadview 6 debacle that resulted in his being forced to dismiss charges against anti-ICE protestors after evidence of grand jury abuse came to light. He works directly for Blanche. The reporting suggests the case against Merchan’s daughter may have come up empty-handed, but that hasn’t stopped Blanche’s DOJ from seeking indictments in the past, when the President wants revenge.

Then there’s Ka$h Patel. Not to be outdone by Todd Blanche’s infamous “I love you, sir” paean to Trump, Patel had this to say at the same rally Blanche participated in: “Thanks to President Trump’s brilliant leadership, the American dream is not a dream anymore. It is a reality. I’m living it….”

The Solicitor General, too, although he managed to avoid the rally, is in full-on worshipful mode. You would think that the so-called “10th justice,” the Senate confirmed, fourth ranking official at DOJ, wouldn’t need to kowtow to the President, but in his brief trying to get Trump a better decision from the Supreme Court on the now-disallowed construction of the White House ballroom, John Sauer quoted an unnamed White House official who thinks Trump’s boondoggle “is already being adjudged to be one of the most beautiful of its kind, anywhere in the country,” before attempting flattery with the Court, based on its architecture of all things: “its magnificent Corinthian columns—considered the highest column order in architecture—have served as the inspiration for the monumental columns that front the military/ballroom complex.” And Sauer put all of that in his brief. It must have been music to Trump’s ears.

There is no case-related reason for the Solicitor General’s Office to scrape and bow like this, any more than there is legitimate reason for Blanche and Patel to be on the campaign trail with the President. But Trump makes it explicit, expressing mock “surprise” to see Blanche, as though there isn’t a formal plan in advance around both the President and the Attorney General’s movements. And coming in for the reputational kill shot, he admonishes Blanche that he will be great “if he remains tough.” We all know what tough means. It means doing Donald Trump’s bidding in all things.

The behavior of the three top Justice Department officials, Blanche, Patel, and Sauer, confirms that they understand the rules they are operating under: Trump rules, not the rule of law. 

After Pam Bondi’s demise as Attorney General and the forced departures of Bill Cassidy, John Cornyn, and Thom Tillis from the Senate after falling out of favor with Trump, they know that if they want to keep their jobs, they must keep currying favor with the president. Shamefully, they’re willing to do that.

We will not forget. We will keep following what happens at this Justice Department, even when stories disappear from the headlines. People who have been entrusted with power must be accountable for how they use it. Without knowledge and memory, that’s not possible. 

Paid subscribers let me keep doing this work while keeping the newsletter free for everyone. If you can subscribe, I hope you will. If you already do, thank you. You make it possible for hundreds of thousands of people to have access to independent legal analysis without a paywall.

We’re in this together,

-Joyce Vance

 

The Week Ahead -Joyce Vance

 

The Week Ahead: We began the week at a key moment on the critical issue of our ability to exercise our right to vote, which once again comes to the Supreme Court’s shadow docket. Trump is trying to use an executive order to limit who can vote and exert federal control, which the Constitution doesn’t give him, over our elections. Red states are acting like willing lambs heading to the slaughter, and have joined the lawsuit supporting Trump, while blue states oppose him. The Court could rule at any time, and this is an important one; we may see action in it this coming week.

Coffee with the Contrarians: Norm Eisen and I discussed the legal issues that absolutely piled up over the weekend.

Live with Norm Eisen: With so much going on, Norm and I decided to get together for a second time on Monday, so we could discuss DOJ’s decision to dismiss the Reflecting Pool prosecution of former Olympic canoeist Davey Hearn. When he took the case, it didn’t occur to Norm that the case would strike a chord with Americans across the country. We discussed why the Reflecting Pool case has become such a touch point and also discussed three principles for saving a backsliding democracy and what we can all be doing right now.

The $1.776b Slush Fund Isn’t As Dead As Senators Cornyn And Tillis Seem To Be Willing To Believe: Cornyn and Tillis may have folded and voted for Todd Blanche in Committee, but its ridiculous that they believed his Twitter post was enough to put an end to Trump’s slush fund and immunity deal. Make sure you know the facts!

More Blanche BS with Joyce Vance and Katie Phang: This is the deep dive of deep dives. Katie and I go all the way back to the origin of Trump’s slush fund, the lawsuit he filed in Florida, Trump v. IRS, to explain how we got from there to here. We trace the slush fund, the Trump immunity deal, and the arguments against confirming Blanche, although the Senate unfortunately confirmed Blanche in the early morning hours on Saturday, 50-49.

Trump’s Executive Order on Voting: Blue State Attorneys General, and Some Retired Judges, Weigh In: As a follow on to our review of the effort by the Trump administration to justify implementing an executive order that would give the federal government greater control over who can—and can’t—vote on Sunday, we analyzed the legal arguments made by blue states’ attorneys general who are challenging Donald Trump in this piece.

Live with Mary Trump: Mary’s Substack is called The Good in Us.” That really is how she views the world, and I needed a dose of that by midweek.

Erasing January 6: We went in depth to understand a ruling by Judge Amit Mehta in the District of Columbia, where the government moved to dismiss the indictments against insurrectionist January 6 defendants who had already had their sentences commuted. Judge Mehta's opinion is one of the clearest judicial descriptions we've seen of how prosecutorial discretion can be abused, exercised not to pursue justice, but to erase it. That's the Justice Department we'll be watching from here forward. If you missed this one earlier in the week, make time to read it now.

Live with Cait Conley: On Cyber, Elections & Why a Former Special Ops Soldier is Running for Congress: Cait Conley is running for Congress in NY-17, and although the incumbent is Republican (he votes with Trump 100% of the time), she is widely viewed as being in contention. Cait has deep expertise in critical areas involving 21st-century national security concerns. Rather than trying to summarize what she shared with us, take a minute to watch this phenomenal public servant explain issues on the basis of her experience in six tours of duty and time in the White House.

89 Days Until the Midterm Elections: Thursday was 89 days out from the election, a time that is legally significant for every registered voter. Read on to learn why and what you need to make sure you do right now to protect your right to vote.

Five Questions with Adam Gelb, President of the Council on Criminal Justice: Late last month, the bipartisan Council on Criminal Justice released a report on mid-year 2026 crime trends. It contained some interesting results. The organization’s president and CEO, Adam Gelb, joined us to talk about crime, statistics, and what they mean—going beyond politics into what we really need to know.

What Trump’s New Birthright Citizenship Orders Actually Do: The Supreme Court has spoken; birthright citizenship is part of the Constitution. Babies born here, with rare exceptions like one for children born to foreign diplomats, are American citizens regardless of their parents’ immigration status. But that hasn’t stopped Trump from issuing a pair of new executive orders on the topic. Read on for an explainer of what they mean and what they do.

Deserving of Chickens: By request, a couple of pictures of the Vance family chickens, and one of me closing out summer.

-Joyce Vance

 

"We are past the point where special treatment and multiple chances make sense"

 

Yesterday afternoon, federal District Judge Emmet Sullivan did something unexpected. Noting that courts, “In cases in which sensitive materials may be in issue,” have the “inherent authority to review such material ex parte, in camera as part of its judicial review function,” Judge Sullivan gave acting Attorney General Todd Blanche five days to provide him with unredacted copies of documents in the Epstein Files that the Justice Department continues to withhold. 

In camera review refers to a process where the Judge would review documents in chambers, without the public or the press present, and an ex parte proceeding in this context is one where the judge reviews sensitive information in the possession of one party without the other party present to determine what, if anything, should be turned over.

Judge Sullivan asked for the following items:

Eight emails along with supporting documentation to confirm DOJ’s representation that the names that are redacted in the published version of the documents are the names of victims.

A document with the names in the “to” and “from” lines redacted, and documentation to support DOJ’s claim that those names are of law enforcement personnel.

A document along with support for DOJ’s claim that the names that are redacted in the published version are the names of victims.

This is in the case filed by Katie Phang, which we discussed here.

The order can be found here.

The Judge previously entered an order that required the government to turn over specific categories of documents it was required to make public by the Epstein Files Transparency Act that became law on November 19, 2025, but has so far failed to disclose. Instead of complying with the court’s order, DOJ asked for two additional months, writing that the government “strongly disagrees” with the court’s order.

Of course, many litigants disagree with decisions judges make. The proper course of action is appealing them. Unless that judge or a higher court issues a stay, the government, like any other party, is obligated to comply.

Before Trump and during the Biden administration, courts were able to rely on representations made by the Justice Department. Every lawyer for the government understood they owed the courts a duty of candor; everything they said in court must be true to the best of their knowledge and swiftly corrected if they subsequently became aware of additional information. The government obeyed court orders, even the ones it disagreed with.

But that’s no longer the case. The presumption of regularity is essentially no more. The presumption is the “‘general working principle’ that means courts will ‘insist on a meaningful evidentiary showing’ before entertaining doubts about the integrity of official acts or documents.” It was commonly used to advance the idea that in the absence of evidence to the contrary, courts should presume government employees, including DOJ lawyers, acted properly in the execution of their duties. Now it’s on life support and Judge Sullivan’s order is another nail in its coffin.

This most recent order suggests that Judge Sullivan doesn’t believe the government when it says something is the case, even when that “something” is as simple as the identity of the person in a “to” line in an email. But the government has acted like it has something to hide, even after Congress passed the Transparency Act and Trump signed it into law. 

So, the Judge isn’t accepting what the government has represented to it as truthful, and is requiring documentation to support its claims. Under any other president, the Attorney General would have been disturbed by the suggestion prosecutors couldn’t be trusted. There would be disciplinary review. But here, the acting Attorney General is the defendant in the case. It’s paradigmatic of how far DOJ has fallen.

Phang v. Blanche is significant because it’s the only lawsuit seeking to enforce the Epstein Files Transparency Act that is moving forward. But it also is taking its place on the list of cases where the courts have found reason to distrust the Justice Department; everything from the deportation case where Judge Boasberg in the District of Columbia opened contempt proceedings against the government (whether they can proceed is currently pending en banc review before the Court of Appeals) to the slush fund case where a court concluded DOJ was party to a settlement designed to benefit Trump in his family in a lawsuit that was a “sham.”

When I was an Assistant United States Attorney, I argued cases in front of the Eleventh Circuit Court of Appeals frequently. One of my favorite judges would always point to the lights the court used to keep track of the lawyers’ time: green meant you could keep talking, yellow meant you were almost out of time, and red meant stop. This Judge liked to emphasize that last part, telling lawyers that when the red light came on, they were out of time and needed to stop arguing. Knowing that some lawyers would try to keep going, he would emphasize, with a hint of a smile, that “The red light is not aspirational.”

His gentle humor took some of the tension out of the room. But the advice holds in a much more serious context, minus the levity: Complying with the law and with court orders isn’t aspirational either. It’s one of the bedrock principles that makes our democracy possible. It’s been that way for 250 years.

The Trump administration doesn’t seem to see it that way. For them, the law is at best a speed bump in the road when it gets in the way of what they want to do. Court orders are mere suggestions. There is a great deal of concern about the moment where a court directly orders the government to do something and it refuses to. 

But the reality is, we have been dancing on the precipice of that moment virtually since this administration got underway. There is no longer anything to be gained by bending over backward to give the administration multiple chances to comply. Courts may not have armies to enforce their orders, which is, perhaps, why they have tried to avoid a direct confrontation. But the government must comply with the law, just as all other litigants must follow a judge’s dictates. We are past the point where special treatment and multiple chances make sense.

Thanks for being here with me at Civil Discourse and for your support and subscriptions, which make the newsletter possible. At this time last year, many people were asking whether we were approaching or in a constitutional crisis. My answer then was yes. The fact that courts are still struggling, a year later, with what they can do to convince the Trump administration to comply with the law confirms it. Your commitment to understanding these issues and sharing what you know with people in your circle as the midterm elections approach is essential. A Republic, if we can keep it.

We’re in this together,

Joyce Vance