Republican dissent over House Speaker Mike Johnson’s (R-La.) shutdown strategy spilled out on a private GOP call this afternoon, with Rep. Dan Crenshaw (R-Texas) adding himself to the growing list of lawmakers questioning whether they should still be home in their districts.
Republicans have been largely unified around their strategy of keeping the House out of session and refusing to negotiate with Democrats. But the cracks are growing.
Crenshaw questioned how the House could make up for the lost days, a source on the call told Axios. Lawmakers haven’t voted since Sept. 19.
Reps. Marjorie Taylor Greene (R-Ga.) and Kevin Kiley (R-Calif.) also raised concerns about being on recess during the shutdown. They both have expressed opposition before.
It’s not just the members who spoke up on the call who are questioning their party’s refusal to even come to the negotiating table with Democrats.
“I do think we should be negotiating the ACA tax credits and have that compromise to put in the Approps bills,” Rep. Don Bacon (R-Neb.), a retiring centrist, told Axios.
“We don’t need [it] for the CR, but if we all negotiate in good faith within the Approps process, we may break the ice jam.”
Who knows how many these people speak for? But there is rumbling in the senate too.
The House is on track to work one of it’s lightest non-election years in decades, and has effectively removed itself from the conversation around reopening the government.
They’re no doubt enjoying their paid vacation while most others in the government aren’t getting paychecks and we’re about to see kids going hungry. I assume this makes them happy.
I hadn’t heard about the new right wing movement to drive women out of the workplace but apparently, it’s a thing:
Although interest in “The Great Feminization” has been building for a while, it exploded recently with a viral essay by Helen Andrews, a conservative commentator. In it, Andrews argues that female group dynamics are responsible for “wokeness” and “cancel culture,” which she describes as “simply feminine patterns of behavior applied to institutions where women were few in number until recently.” Andrews argues that corporate cultures often suffer when they become majority female, and she worries particularly about the impact of gender dynamics on law. Too many women lawyers, she suggests, might well bring down the American legal system:
The field that frightens me most is the law. All of us depend on a functioning legal system, and, to be blunt, the rule of law will not survive the legal profession becoming majority female. The rule of law is not just about writing rules down. It means following them even when they yield an outcome that tugs at your heartstrings or runs contrary to your gut sense of which party is more sympathetic.
Andrews concludes that while it is “still controversial” to argue that “there are too many women in a given field or that women in large numbers can transform institutions beyond recognition in ways that make them cease to function well,” it is necessary to do so because “we all are … dependent on institutions like the legal system, scientific research, and democratic politics that support the American way of life, and we will all suffer if they cease to perform the tasks they were designed to do.” In a speech at the National Conservatism Conference last month, Andrews argued that “a thoroughly feminized civilization will set itself on the road to collapse.” Although Andrews is careful to point out that she doesn’t want to roll back women’s rights (and acknowledges that individual women can pursue professional excellence), she hopes the trend of feminization will reverse if we take what she sees as needed steps to abandon our “system in which it is illegal for women to lose” and “[r]emove the HR lady’s veto power.” While Andrews is cagey about what future she hopes for, she’s explicit that institutional threats remain “as long as demographics remain unchanged.” She doesn’t say where she wants the apparently too many working women to go.
The essay is notable not only for how much interest it generated, but also how many positive comments it received among pundits. One female business leader called it a “seminal essay,” while a professor at Duke said it “contains far-reaching hypotheses that academics should take seriously and test rigorously.” And it seems to have spread beyond the writerly class: Andrews’ tweet of her essay has, as of this writing, racked up 6.4 million views.
That’s from The Dispatch, a conservative outlet, and the author actually makes the case that this is wrong and warns that Republicans are creating their own gender war and that’s a mistake. She makes a good argument about why this is bad politics but never really grapples with the fact that they are just making the oldest conservative argument in the world. Until very, very recently, the idea that women are incapable of leadership and important responsibility because they’re too dizzy, stupid and soft to do what’s necessary was the consensus and every institution and virtually every society was organized with that understanding. It is hardly some new idea being advanced by exciting original thinker. Good lord.
Patriarchy has always been fundamental to conservatism. Whatever progress has been made for women is always subject to reversion the minute they get the chance. And they have the chance now. Ending abortion rights was only the beginning.
James Comer and the House Oversight Committee are still on the Biden beat and have produced one of the most inane reports the U.S. Congress has ever produced. Philip Bump has the story. He goes through all the Comer atrocities over the last few years and then gets into it:
You will forgive me, then, if I don’t take seriously the Oversight Committee’s new report, alleging that key actions taken by the Biden administration were “illegitimate.” And that’s even before reviewing the report itself, flimsy enough to be at risk of disintegration from even a whisper of wind.
To distill the conclusion, Comer and his majority determined that Biden’s mental capacity was diminished during his last year in office, meaning that maaaybeee people on his staff signed stuff without his knowing it and that maaaybeee that included some of his pardons? If this sounds a lot like something Trump himself would say, that’s not an accident. The probe by Comer’s committee developed in concert with Trump’s rhetoric on the issue, functionally handing over to the president the power of congressional oversight activity.
Trump wants someone to say that Biden’s pardons are illegitimate so that he can push his opponents into the Justice Department’s acquiescent crosshairs. Comer and his friends are happy to give him the pretext. As I wrote for The Washington Post in June, there’s no actual question that those pardons were issued on Biden’s instructions. But the game here has always been to whip up a fog of uncertainty — was the 2020 election somehow stolen? can’t a president just destroy a third of the White House? — that lets Trump move forward with what he always intended.
What an Oversight Committee could be doing, of course, is conducting oversight on the executive branch. There’s no shortage of serious questions about the sitting president that would seem to warrant more urgency than unserious questions about a former one. Trump’s own pardons, the enormous sums of money he’s earning from people who are benefitting from the administration’s decisions, his deployment of the military against nebulously defined actors in the Caribbean — the list goes on. Hell, you’d think that the House might be interested in assessing Trump’s willful disregard for Congress’s power of the purse. But that’s only if you think that the intent of Comer and Oversight is to aid Americans instead of simply siding with the president. (Not that this is a surprise; one of the first things Comer did upon taking leadership of Oversight was kill an investigation into Trump’s finances.)
I write all of this centrally because, despite the past three years, Comer and his committee are still granted the baseline assumption that their work product is offered in good faith. The Post’s coverage of its new report, for example, mentions only in passing that Biden has been an ongoing target of Comer’s and doesn’t add the useful context that his targeting has resulted in any number of misfires. This is the same paper that, in 2023, ran the accurate headline, “Comer mischaracterizes Hunter Biden car payment reimbursement to his dad.” Yet we’re led to assume that his current characterizations should be assumed to be legitimate.
No one would credibly argue that questions about Biden’s acuity were baseless. But no one can credibly argue that the output of a Comer-led Oversight Committee is inherently trustworthy. Comer spent years proving that he would embrace any disparagement of Biden as he ignored any criticism of Trump. That should be a focus of assessments of the committee’s output before we consider the output itself.
On Tuesday morning, the next step of the plan swung into action. Speaking to reporters, House Speaker Mike Johnson (R-La.) stated that any Biden administration action that involved the use of an autopen “should be voided,” including pardons. Then come contrived investigations and then come arrests and then come administration lawyers telling district courts that the question isn’t settled and maybe they should just head over and ask Samuel Alito his view of the matter.
Has anyone asked if Trump signed all 1500+ pardons for the January 6th insurrectionists? Maybe he did. But it’s worth asking.
Obviously this is all irrelevant. Biden’s pardons are all valid. It’s just a way to continue to harass him and treat him like shit for the sheer joy of it. There’s no legitimate purpose to any of it, no way to prove the spurious charges they are flinging and no reason for any of this except to give Dear Leader a thrill up the leg.
Meanwhile, he’s walking around Japan like a blind salmon, so out of it it’s clear he has no idea where he is:
Interior minister Diosdado Cabello said that a cell ‘financed by the CIA’ planned to attack the USS Gravely and pin the blame on Caracas, after the missile destroyer docked in Trinidad and Tobago on Sunday to conduct joint exercises with Trinidad’s navy.
Venezuela said that it had captured a group of mercenaries “with direct information of the American intelligence agency” and whose goal it was to carry out a false-flag attack in the region. Cabello said four people had been arrested, without providing details.
True? No idea. Maduro is a liar too. But let’s just say it wouldn’t surprise me. Trump publicly announced that he had approved “covert” CIA action in Venezuela so what should we expect?
Trump: "Nobody makes equipment like we do. Nobody makes the ammunition, the weapons, the missiles, the planes, none of it. And if they do, the American sailor stands ready to crush them and sink them and wreck them and blast them into oblivion, right? … everybody said that I… pic.twitter.com/aolWejYHUx
Trump: We’d go in and we’d win and we’d leave. They used to say to the victor belong the spoils. Well, we'd be the victor. Then we'd leave because we had people that didn't know what the hell they were doing. pic.twitter.com/705lHHqxvA
.@POTUS: "Biden used to say he was a pilot. He was a pilot, he was a truck driver, whatever, whoever walked in. He wasn't a pilot. He wasn't much of a President, either, to be honest with you… That we all know." 🤣 pic.twitter.com/AS46etmlJD
Trump: I am delighted to announce that as your sort of boss, I don't feel like your boss, but I guess I am… we're going to make sure that you receive the full amount that you were owed for the deployment. And we're not going to deduct anything because you came in to listen to… pic.twitter.com/paiXDEpigB
Trump: "They spent $900,093,000 on the catapults trying to get them to work. And they had steam, which worked so beautifully and it has for 50 years, right? So we're gonna go back. Seriously fellas, I want to make that change. I'm gonna do an executive order." pic.twitter.com/znIfA2yJDF
Trump: They have magnets… Somebody decided to use magnets… I’m going to sign an executive order, when we build aircraft carriers, it’s steam for the catapults and hydraulics for the elevators. Do you agree? Everybody agrees. pic.twitter.com/O9TbTucqKR
Trump to troops in Japan: "Unlike past administrations, we will not be politically correct. You don't mind that, do you? When it comes to defending the United States we're no longer politically correct. We're gonna defend our country any way we have to and that's usually not the… pic.twitter.com/0w16wOTbq0
Trump: "People don't care if we send in our military, if we send in our National Guard, if we send in Space Command, they don't care who it is, they just want to be safe … we're gonna go into Chicago … we can do as we want to do." pic.twitter.com/FKEhISQkdv
He's genuinely so crazy and disconnected from reality. Total new foreign direct investment in the U.S. in 2024 was $151 billion. We are not getting 100 times – or ten times that – this year. It's pure fantasy. https://t.co/IhPQncC2m6
President Donald Trump has a lot on his plate these days. There’s his military actions in Latin America, which have left at least 43 dead, and the government shutdown, now in its 28th day. There’s his demolition of the East Wing of the White House, the militarization of Democratic-led cities and tariffs, tariffs and more tariffs. Those are just a few of the highlights. Somehow, though, he has still managed to ensure that the Department of Justice isn’t leaving any stone unturned in its pursuit of his perceived political enemies.
Even as he traveled to Asia over the weekend, Trump found time to post that former FBI Director Christopher Wray, Special Prosecutor Jack Smith, Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco “cheated and rigged the 2020 election.” That’s odd, you’re likely thinking; Trump was the president in 2020, and with the exception of Wray — whom he handpicked to lead the FBI in 2017 after Director James Comey’s firing — all of them were appointed after he left office. But that would be missing the point.
Trump is determined to see that the 2020 election remains at the top of voters’ minds, despite the fact that he won in 2024 and Democrats accepted the results without any question.
To my mind, the president’s continuing obsession with 2020 is mostly because he will never be able to accept that he lost — and he certainly cannot accept that he made an utter fool of himself with what transpired on Jan. 6. In fact, the lengths to which he went in contesting the election are even more deeply humiliating than the Big Lie itself. On some level Trump knows this, and he can only soothe what churns inside him by doubling down on all of it, even if it means claiming that people who weren’t even in office were responsible.
But there’s yet another reason for his compulsive dredging up of 2020, and it has everything to do with the future, not the past. With the 2026 midterms looming, Trump knows he can’t lose either chamber of Congress. Once that happens, his reign as the unfettered master of all he surveys will be over. A Democratic majority may not be able to stop his executive actions, especially as the Supreme Court seems to be intent upon handing him more and more power. But they would not lack means to claw back some authority of their own and at least slow him down.
Trump also knows that if the Republicans lose, his status as a lame duck is suddenly very real. No longer will he be the king, much less the kingmaker — and he cannot stand the idea of being irrelevant. (And no, despite the recent Steve Bannon blather about a secret plan to allow Trump a third term, it’s very unlikely. He will be 82 on Election Day in 2028, and he’s already slipping very badly.) Instead, the president wants to leave office as the undisputed Greatest Leader the World Has Ever Known, and losing the midterms as he did in 2018 just won’t do.
The plans for how to make sure his supremacy is maintained are not a secret. The first step is to ensure there is enough suspicion around election systems that the results are inherently suspect — unless the Republicans win. You would think that GOP voters would wonder why, if the Democrats are so adept at stealing elections, that they stole the one in 2020 but forgot to do the same in 2024. Instead, they take the president’s claims at face value — that he actually won a huge landslide last year that was just too big for Democrats to poach. In fact, Trump’s win over Vice President Kamala Harris was one of the narrowest victories in history. But to MAGA supporters, that just proves Democrats would have succeeded with their nefarious plans if Trump hadn’t won so “bigly.”
Even though he was on a trip to Asia to meet with important leaders including Chinese President Xi Jinping, Trump felt the need to post on social media that the 2020 election is a bigger scandal than the NBA gambling probe. He expressed hopes that “the DOJ pursues this with as much ‘gusto’ as befitting the biggest SCANDAL in American history!” Then he issued a telling warning: “If not, it will happen again, including the upcoming Midterms.”
Trump went on to demand that mail-in and early voting be banned, and he claimed that California’s redistricting is “totally dishonest” because ballots are being “shipped.”
That’s just the tip of the iceberg. Already, there are more concrete plans on the horizon. Mother Jones’ election expert Ari Berman laid out steps for what he dubbed “Project 2026” — the GOP’s plan to ensure they do not lose the midterms.
One important step happened in March, when Trump signed an executive order that contained a laundry list of voter suppression policies, including requiring proof of citizenship to vote and mail-in ballots to be received by election day. The order has been blocked in the courts, but Berman speculates that it is really designed as a means to contest the outcome if Republicans don’t win. Quite a few states have adopted these new requirements already. The order also has a cute catch-22 built in by requiring only certain voting machines and new standards be used — except they aren’t available, which automatically opens the door to challenges on the basis of compromised machine
By now, everyone knows about the GOP’s redistricting and gerrymandering efforts. Trump and party officials are openly demanding that GOP-led states redistrict to give the party more seats in the House. Meanwhile, on Oct. 15 the Supreme Court heard Louisiana v. Callais, which could weaken or kill the Voting Rights Act, eliminate most of the Black Democratic held seats in the South and possibly ensure a Republican majority in the House of Representatives for the foreseeable future.
Election deniers have also secured key government appointments, allowing them to work from within. This includes Heather Honey, who was named deputy assistant secretary for election integrity at the Department of Homeland Security in August, and Harmeet Dhillon, who was appointed to head the Justice Department’s Civil Rights Division. Dhillon is now focused on Black and Brown districts she claims are “unconstitutional racial gerrymanders.”
Following the lead of a candidate for the North Carolina Supreme Court who challenged the election results and nearly succeeded in having tens of thousands of votes thrown out, GOP officials throughout the country are preparing for similar challenges which may very well succeed if they can locate the right judge.
Berman notes there are concerns about Trump finding a reason to declare yet another national emergency, which would allow him to deploy the National Guard or send in Immigration and Customs Enforcement agents to intimidate people at the polls. That’s certainly a possibility. And there’s an excellent chance that if a Democratic House majority depends upon seating the winners of some close races, key GOP election officials could simply refuse to certify them and Speaker Mike Johnson, R-La., could then refuse to swear them in. (He’s already doing just that with Democratic Rep.-Elect Adelita Grijalva of Arizona.)
There was a time when I would have thought that such talk was paranoia, that Trump was just blowing smoke as a sort of prophylaxis against a possible loss. But the GOP has fully bought into the idea that they have a right to win by any means necessary, and that a Democratic victory is inherently illegitimate — regardless of the voters’ intentions. Unfortunately the 2026 midterms will not be the last election held under the shadow of election denialism. It is now an organizing principle of the Republican Party.
Roy Cohn’s most famous apprentice never admits defeat. Donald Trump never let go of losing the presidency to Joe Biden in 2020. He loves getting even, even for imaginary slights. Even if it takes time. Trump got even for his 2011 White House Correspondents’ Dinner roasting five years later by winning the White House in 2016. He tried (and failed) to get even for losing in 2020 by inciting a mob assault on the U.S. Capitol on January 6, 2021, with claims that he’d been robbed. He means to get even today by throwing the 2026 elections into chaos.
If Republicans lose control of the U.S. House, Trump will claim victory anyway. He will shout that the elections were flawed, rigged against him. One need not be clairvoyant to see it. He’s broadcasting his plans.
David Graham games out how it might go this morning in The Atlantic. Trump goes from claims of vote tampering to ordering troops to seize voting machines. He invokes the Insurrection Act, etc., in Graham’s war-gaming (gift link):
Trump and his allies will have before them less an orderly set of instructions than a buffet of options. Some of these options will go untested, or amount to nothing. But elections are a game of margins. Only a handful of Senate seats and a few dozen House races may be seriously contested, thanks to maps drawn to guarantee safe seats for one party or the other. Of those, some may be very close. In 2024, 18 House races were decided by fewer than 10,000 votes. Democrats won 11 of those.
Election experts Graham consulted “used words like nightmare and warned that Americans need to be ready for ‘really wild stuff.’ ”
“If you are not frightened,” Hannah Fried, the executive director of the voter-access group All Voting Is Local, told me, “you are not paying attention.”
Still, elections are decentralized and locally controlled. But Trump is not only laying the groundwork for establishing competitive authoritarianism, he and Republican Party accomplices across the country are working a smorgasbord of angles ahead of 2026 for ensuring GOP control in D.C. and in the states no matter what voters’ preferences.
In this “game of margins,” Republicans are changing registration rules and vote-counting deadlines. They mean to limit voting methods and voting days. And by redrawing congressional districts mid-decade at Trump’s request, they mean to give Republicans even more seats in Congress disproportionate to their public support. Trump may have no presidential power over elections, but the authoritarian holds the threat of his retribution over Republican state officials he would consider disloyal for not snapping to attention and saying, “Yes, sir, how high?” Trump is repeatedly musing about running for a prohibited third term in 2028. He’s plowing the earth for his MAGA cult and planting seeds to make such an attempt seem legal.
Red states are already preparing for the U.S. Supreme Court to drive the last nail into the coffin of the Voting Rights Act. Section 2 permits creation of majority-minority districts to protect the voting power of minorities. Voiding Section 2 would “open up the floodgates” for drawing racially skewed districts, “if not in time for 2026 than certainly for 2028,” Politico reports:
“Many states across the South are already licking their chops to try and prepare to racially gerrymander maps as quickly as possible,” said John Bisognano, president of the National Democratic Redistricting Committee. “It is clear that there is a consistent and dramatic need for laws to be in place to enforce the Fourteenth Amendment and ensure that the racial gerrymandering or racial discrimination at large is not permitted in this country.”
Read the details at the link.
North Carolina Republicans filed their controversial Voter Information Verification Act (VIVA) days after SCOTUS heard arguments in Shelby County v. Holder in February 2013. They passed it just over a month after SCOTUS ruled to weaken Section 5 of the VRA. Don’t think other GOP-dominated states don’t already have legislation sitting in drawers to take advantage of a SCOTUS ruling in Louisiana v. Callais that guts VRA Section 2.
The GOP’s nationwide assault on voting rights and fair representation over the last 15 years means that Americans in many states now are effectively, if not actually, denied the “Republican Form of Government” (small-r) guaranteed to each state in Article IV Section 4.
The Supreme Court has demurred since 1849 on the issue of whether the federal courts can hear cases brought under the Guarantee Clause. They’ve treated the clause as nonjusticiable, just as the Roberts court did the issue of partisan gerrymandering in 2019 (Rucho v. Common Cause). For now, that leaves the GOP-controlled federal Executive and Legislative branches in charge of enforcing that Section 4 guarantee. Meaning the Guarantee Clause is no guarantee at all.
Attention is political currency. Maybe it’s time for Democrats to make that dead issue a live one ahead of 2026. Maybe it’s time for some enterprising Democrat Attorney General with top-notch social media skills to sue the U.S. government over the Guarantee Clause. So what if the clause is obscure? Make a very public stink, win or lose, over the East-Wing-like demolition of our government’s mechanisms for heeding the voice of We the People. (Looking at you, NC AG Jeff Jackson. Maybe you and some buddy AGs. )
We exist now in an attention economy. There is no reason to not make a public show of demanding the United States uphold its constitutional obligations. I have no idea how that would work or how a credible case might be brought, but it’s the kind of attention-getting stunt Jackson is very good at and revels in. Democrats want to see Democrats fight Trump’s demolition of the Constitution.
As consultant friend in D.C. observed, he’s in “fight on the beaches, fight in the cities, fight on every hill and foothill mode.” Me too.
Donald Trump went on a deranged rant about the power of water to destroy magnets during a rambling address to the U.S. Navy just off the coast of Japan. Speaking aboard the USS George Washington aircraft carrier during his tour of East Asia, the president appeared to suggest—in a largely incoherent speech—that he is pushing for aircraft carriers to use “steam for the catapults” and hydraulics for elevators, while wrongly claiming that water can disable magnets.
Trump had an uncle who taught at MIT, have you heard? How many times?
The elderly president was talking about the magnetic catapults used to launch planes from the latest Navy super carriers, the USS Gerald R. Ford class, and the electromagnetic elevators used to move weaponry to the flight deck. Both systems double the speed with which planes can be armed and launched but slowed the delivery and commissioning of the $13 billion flagship of the class.
Trump to troops in Japan: "Let me ask you. We're gonna go steam first and then electric. Catapults, which is better, electric or stream? I'm gonna put in an order. Seriously. They're spending billions of dollars to build stupid electric. And the problem when it breaks you have to… pic.twitter.com/BZZxuj8XmU
But magnets give “perfect” results when they are scanning Trump’s brain. Why are doctors giving Trump an MRI and his second dementia screening in six months?
Trump: "They have Jasmine Crockett — a low IQ person. AOC is low IQ. Have her pass the exams I decided to take when I was at Walter Reed. They're cognitive tests. Let AOC go against Trump. Let Jasmine go against Trump. The first couple questions are easy — a tiger, an elephant,… pic.twitter.com/H8Lo3vCj7a
Musk is engaged in an ongoing feud with acting NASA administrator Sean Duffy over delays in SpaceX’s work for future NASA missions, which naturally Musk has made as personal and angry as possible.
Tesla’s profits dropped 37% in the third quarter of the year despite a bump in vehicle sales as consumers rushed to beat the expiration of EV tax credits.
In response to the end of the credits, Tesla unveiled slightly cheaper and slightly crappier versions of its Model Y and Model 3. Other than the spectacular failure of the Cybertruck, it hasn’t released a new model in years, which doesn’t exactly position it as a company on the bleeding edge of innovation.
Tesla’s robotaxi rollout in Austin has been underwhelming; only about 30 of the taxis are in operation, and they still have drivers in the front seat for safety. Musk says that by year’s end they will be fully autonomous, but his predictions have a way of not coming true. In any case, Tesla is way behind Waymo in this sector, suggesting that the robotaxi project will never amount to anything like what Musk has said it would.
Tesla recently rolled out “Mad Max” mode in its self-driving features, which will engage in rapid acceleration and swerving between lanes. Sounds like a great idea that couldn’t possibly have any negative consequences! Naturally, safety regulators are concerned.
Musk is trying to get Tesla shareholders to approve what would be a $1 trillion pay package, though it is highly unlikely that it will ever amount to that much, since it depends on outlandish production and sales targets.
Elon Musk thinks that Grimes, the mother of two of his children, is a “simulation” he has created in his mind, according to journalist Devin Gordon.
The writer, who interviewed Grimes at her house earlier this year, appears in the BBC’s new documentary, The Elon Musk Show. While being interviewed for the series, he said that the Tesla billionaire believed that the musician was his “perfect companion” but not “real”.
Waldman writes:
Perhaps Musk will mount a dramatic comeback and surprise us all. Perhaps his AI company, xAI, will emerge as the dominant force in that sector (assuming there’s a universal demand for a chatbot that is being shaped according to Musk’s anti-woke ideology and at one point started calling itself MechaHitler). And he is still the richest man in the world (current estimated net worth: $428 billion), though it is mostly based on the insane price of Tesla shares. Nevertheless, it isn’t hard to imagine that Musk has begun what could be a dramatic fall.
If you think the fact that the murderous attacks by the U.S. Navy on civilians in small boats are clearly illegal don’t get your hopes up that anything can be done about it. Former Office of Legal Counsel Jack Goldsmith tells us that there’s something called the “Golden Shield” which can apparently legalize any behavior by a government official.
The attorney general—and, by delegation, OLC—wields a power akin to an advance pardon: the ability to insulate executive officials from future criminal liability through legal advice. When the DOJ advises the president or another officer that a proposed action complies with federal criminal law, that opinion effectively guarantees immunity from prosecution by a later administration.
Former Central Intelligence Agency general counsel John Rizzo called such advice a “golden shield.” He had in mind the legally flawed OLC opinions that concluded that the CIA’s post-9/11 enhanced interrogation techniques (EIT) did not violate the criminal ban on torture. Rizzo viewed the OLC opinions as “the Executive Branch’s functional equivalent of a Supreme Court opinion [that] would protect the Agency and its people forevermore.”
First, the attorney general and, by delegation, OLC exercise the president’s Article II power to determine governing law for the executive branch.
Second, under the doctrine of entrapment by estoppel, it violates due process to prosecute someone who reasonably relies on an authorized government opinion that the vetted conduct is lawful, even if the opinion turns out to be flawed. The government cannot advise someone that an act is legal and later punish them for doing it. At oral argument in Trump v. United States, the special counsel’s attorney, Michael Dreeben, invoked this principle in trying to persuade the justices that a presidential immunity defense from criminal prosecution was unnecessary.He stated that “it would be a due process problem to prosecute a President who received advice from the Attorney General that his actions were lawful.”
And here I thought the “I was only following orders” excuse had been tossed in the dustbin for all time after WWII. Apparently not.
There are some other legalese rationales as to why this essentially confer immunity on anyone who follows orders. I confess I had no idea the extent to which this idea was an accepted doctrine.
In case you were wondering, Trump’s OLC has reportedly issued a Golden Shield, in secret, for the murders in the high seas:
Legal deliberations inside the executive branch, according to officials familiar with the matter, have been closely held and largely limited to political appointees. The Justice Department’s Office of Legal Counsel — which Mr. Trump sidelined for most of the year until appointing an official to lead it in August as preparations for the attacks ramped up — has produced a memo apparently blessing the campaign. But the administration has not described its analysis.
That article by Charlie Savage of the NY Times, describes a process that is radically different than that undertaken by all the other administration who contemplated broadening the powers of the president in foreign affairs. The Trump administration just has a few insiders and this new toady at the office of Legal Counsel rubber stamping whatever Trump and his bloodthirsty henchmen want to do.
Between this and the plenary pardon power it looks like there’s no legal restraint on anything the president wants to do. As Goldsmith writes:
OLC’s golden-shield-conferring authority amplifies the administration’s already prodigious efforts to clear away legal constraints on Trump’s will and bring him closer to realizing his famous claim: “I have an Article II, where I have the right to do whatever I want as president.”
If we manage to survive this, I think we have to accept that legal accountability for this lawless, immoral regime is going to be very hard to come by. And even reforms will be awfully difficult to sustain now that Trump has laid the path for any would-be despot to simply ignore the rule of law and decimate existing norms. It’s going to take a tremendous effort to turn this around. I hope smart people are thinking about how to create something new out of the rubble because there’s no going back.
