With clear eyes, hard facts, critical thinking, new political strategy, empathy, and a soupçon of Schadenfreude
Back in the day, the state of New York used to show prospective jurors a film about Crown v. Zenger, a 1735 trial in which a New York jury refused to convict John Peter Zenger for “seditious libel” because he published criticism of the Royal governor.
I hope they are still showing it.
Two days ago, a federal judge in Fulton County ordered that Team Trump “shall file, no later than the close of business on Tuesday, February 10, 2026, the search warrant affidavit [about the alleged voter fraud in 2020] subject to the redaction of the names of non-governmental witnesses.”
United States District Judge J.P. Boulee signed the order. A former partner at Jones Day, where he worked in that firm’s Corporate Criminal Investigations practice group, Judge Boulee was elevated to the federal bench by Donald Trump.
Glenn Kirschner is a retired federal prosecutor whose voice is worth listening to. In this video, he outlines four stories that illustrate his thesis that the United States Department of Justice is crashing and burning.
I believe his conclusion is sound.
One reason for all the crashing and burning is that many lawyers, especially those who have chosen government service over maximizing their earnings in the private sector, are people of honor and integrity.
A second reason—buttressing the underlying good character and ethics—is the well-founded fear that obeying illegal orders could lead to highly adverse professional consequences.
And, finally, good character aside, fear of legal discipline aside, the attorneys at the Justice Department are being ordered to do things that are impossible to do successfully. Mainly, they are being ordered to obtain criminal convictions of people who are innocent—and whose innocence is provable.
If a thing cannot be done, then it will not be done.
If you don’t want to watch the whole thing, I recommend skipping to the very end, where Kirschner makes an interesting, and I think entirely valid, point. I’m not speaking of his views on the alleged willfulness of the Justice Department’s failing to redact many Epstein victims’ names, as required by the Epstein Transparency Act. He may well be right about that, but I don’t know enough to have an informed opinion, myself.
Rather, I am speaking about Kirschner’s claim that victims whose names were exposed to the public, and who can show how that exposure caused injury to them,
Sounds about right to me.
David French (N.Y. Times), This Is Not a Drill
David French’s warning is timely and well taken. That said, I think we may all thank Orange Mussolini for sending a clear and timely signal about his intent with respect to the 2026 elections. We have a reasonable amount of time to litigate l’affaire Fulton County ballot seizure, establish beyond peradventure of doubt that Tulsi Gabbard is a blithering idiot—and that Trump’s delusions are in fact delusions, and take the preventative steps that David French encourages us to take.
It’s a sign of the times that Senator Thune recognized that “nationalizing elections” is unconstitutional, and that he did not cotton to the idea.
Atlanta Journal-Constitution, ‘Blood in the water.’ Why Republicans fear an upset in MTG’s backyard.
Georgia Republicans are shitting their pants about the special election in Marjorie Taylor Greene’s district.
While some law firms caved to Trump, renowned plaintiffs’ firm Susman Godfrey stood tall, and walloped the living daylights out of Team Trump. See here.
This week brings reports that top lawyers at the Susman firm are now charging $4,000 per hour. See here.
Point of personal privilege: I was one of the late Steve Susman’s ten thousand closest friends. I’m confident Steve is looking down from heaven or the bardo at recent developments, and I know he’s still wearing that shit-eating grin.
This post follows up on the one immediately below, which, among other things, addresses George Will’s magisterial thoughts on the unitary executive legal theory of constitutional interpretation. Several thoughts here.
Beginning with the Interstate Commerce Commission, established in 1887, Congress has created more than 25 independent agencies, chiefly to foster the development of regulatory specialization and expertise, and to provide some degree of insulation from political pressures—including the kinds of political pressures resulting from generous campaign contributions by affected interests.
Yes, it does. The leading case is Humphrey’s Executor v. United States, decided by the Supreme Court in 1935. The issue there was essentially identical to the current case, Trump v. Slaughter, argued before the Supreme Court in December, 2025. In each case, the President fired one of the five FTC commissioners, not “for cause,” as required by the Federal Trade Commission Act, but rather because he or she different with the President on political and policy grounds.
To amplify a little, Mr. Humphrey was a loud-mouthed, obnoxious anti-New Dealer. There was little doubt that President Roosevelt’s decision to fire him violated the FTC Act. Rather, the question was whether the statutory provision that Roosevelt violated was constitutional. The Court ruled nine to zero that yes, the pertinent FTC Act provision was in fact constitutional—and that it was OK to have independent regulatory agencies.
In the current Trump v. Slaughter case, both sides have elected to rely in general legal issues rather than whatever differences on policy may exist between Commissioner Slaughter and Orange Mussolini.
Yes. The precedent is long standing and has enjoyed bipartisan support. There is no new or compelling reason to overturn it.
No, it does not. If you want to know more, I recommend the succinct but helpful discussion in Wikipedia.
For Trump, and against Humphrey’s Executor.
No, no more than a ruling for Roosevelt back in 1935 would have led to despotism.
Did God make little green apples? And does it rain in Indianapolis in the summertime?
A point of personal privilege here: Much of my 35 years of practice involved merger work before the Federal Trade Commission and the Antitrust Division. The staff was consistently conscientious, though they sometimes made unwise decisions, mostly because of ideological blinders. But the President was not taking bribes to dictate outcomes to the FTC or the Justice Department. And attempts by the parties or their counsel to use political influence, let alone bribery, in particular cases would have been highly counterproductive.
Now, it’s going to be Katie bar the door.
Jonathan Chait (The Atlantic), Donald Trump Can Be Stopped: The president’s retreat in Minneapolis is a stinging defeat for the national conservatives:
Of the many lessons to be drawn from the administration’s retreat in Minneapolis, the most important is that Donald Trump can be stopped.
He spent his first year acting as though the 2024 election were the last time he would ever have to give a thought to public opinion. Now the myth that Trump is invincible has been exploded.
After federal agents killed Alex Pretti, Trump-administration figures including Secretary of Homeland Security Kristi Noem and Deputy Chief of Staff Stephen Miller described the victim as a terrorist, indicating their desire to ignore or intimidate all opposition. But other Republican sources signaled their discomfort, and some called for an investigation—a routine step for a normal presidency, but a daring breach of partisan discipline in an administration that shields itself from accountability and tries to put itself above the law.
During yesterday’s White House briefing, when a reporter asked if Trump shared Miller’s belief that Pretti was a domestic terrorist, Press Secretary Karoline Leavitt replied that she hadn’t heard him use that term. Trump also sent out conciliatory messages on social media indicating that he’d had productive talks with Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Frey. And he dispatched Tom Homan, the border czar and a more traditional immigration hawk, to replace Gregory Bovino, the commander at large in Minnesota. Bovino has justified his agents’ misconduct with transparent lies.
Trump’s retreat in Minneapolis is a stinging defeat for the national conservatives, the Republican Party’s most nakedly authoritarian faction. The NatCons believe American liberalism cannot be dealt with through normal political methods such as persuasion and compromise. Speakers at the National Conservatism Conference have described the American left as “the enemy within” (Senator Rick Scott of Florida) and “wokeism” as “a cancer that must be eradicated” (Rachel Bovard of the Conservative Partnership Institute). NatCons also maintain that immigration poses a mortal threat to the United States. These two strands of thought are intertwined; NatCons consider immigration a weapon employed consciously by the left to assume permanent power, via manipulating elections and creating government dependency, a conspiracy that can only be reversed through the kind of ferocious operation on display in Minneapolis.
The NatCons, whose ranks include powerful administration figures such as Vice President Vance and Miller as well as members of Congress (such as Senator Eric Schmitt of Missouri) and activists (such as Heritage Foundation President Kevin Roberts), have wielded profound influence. They have rarely, if ever, lost important struggles to steer Trump’s strategy.
For the NatCons, the mass-deportation scheme overseen by Miller is an existential priority. Vance once claimed that immigration levels “would mean we never win, meaning Republicans would never win a national election in this country ever again.” Ten days ago, Miller explained on Fox News that Democrats were resisting ICE in Minneapolis because “this mass-migration scheme is the heart of the Democratic Party’s political power.” Miller sees his crusade not merely as a matter of relieving the burden on public services or raising wages, but as a final chance to stop permanent left-wing tyranny. Thus Miller’s immediate, fervent insistence that Pretti and the other Minnesotan recently killed by federal agents, Renee Good, both deserved their fates, a line the NatCons repeated vociferously through Monday.
The NatCons have attained their sway by positioning themselves as the vanguard of Trumpism in its purist form. Other conservative factions, such as social conservatives, libertarians, and foreign-policy hawks, supported Trump reluctantly in 2016, and backed away after the January 6 attack on the Capitol, hoping Florida Governor Ron DeSantis or some other rival could displace him. The NatCons never flinched in the face of Trump’s failed autogolpe, or any other actions that made other Republicans nervous. They won the loyalty contest—which, in the second Trump administration, is the only currency of influence.
Calls for Trump to stand firmly behind Miller had a desperate yet vague tone. “Leftist protestors who shut down streets, destroy property, refuse lawful orders, and physically assault federal officers cannot be rewarded with veto power over public policy,” beseeched the Manhattan Institute activist Chris Rufo, employing the passive voice. In response to a liberal observing yesterday afternoon on X that Trump was backing down, Will Chamberlain, a national conservative affiliated with numerous right-wing organizations, replied, “This isn’t happening, and it’s very important that it does not happen.”
Nevertheless, it was happening.
The reason it happened is that, although Trump listens to the NatCons, he has no deep grounding in their theories or, for that matter, any theories. The president’s despotism is not ideological but instinctive. He cannot tolerate criticism and he deems any process that embarrasses him, including a critical news story or an election, illegitimate, even criminal.
And while he has embraced a restrictionist immigration agenda, he has vacillated between endorsing mass deportation and allowing exceptions for categories of laborers he considers necessary. As Trump told The Wall Street Journal editorial page before the 2024 election, “I mean, there’s some human questions that get in the way of being perfect, and we have to have the heart, too.” If that has ever occurred to Miller, he has hidden it well.
Whether or not Trump’s intermittent expressions of human feeling for the immigrants his administration has abused is heartfelt, his desire to maintain his political standing most certainly is. Trump appreciates the power of imagery. It does not take a political genius to understand that, if Americans were repulsed by the sight of a Vietnamese man being executed in 1968, an American being shot in the back, facedown on a midwestern street, would not go over much better.
Trump’s capitulation would never have occurred if not for the heroic, disciplined resistance in Minneapolis. Faced with something like an occupying army that was systematicallyflouting the law, the people of Minneapolis thrust its abuse into the public eye, raising the political cost of Miller’s war until enough Republicans decided that they couldn’t bear to pay it.
Political theorists have long debated whether Trump and his movement should be described as fascist. On an intellectual level, the answer depends largely on which definition of fascism you choose (there are several). I have generally resisted the term because the definition I prefer, and the one most Americans probably think of when they hear the term, is not mere political oppression but a form of it so extreme that opposition becomes impossible.
That may be more or less Trump’s aspiration, and possibly our destiny. But this is not a fascist country, at least not yet.
Here’s Rachel from last night:
I applaud her analysis and agree with much of it, though I think the optimism is premature. Let’s see what happens today. Let’s see what happens in the coming days on the streets of Minneapolis. Let’s see what happens in Congress with funding for the Department of Homeland Security.
As Rachel emphasizes, Democratic pushback will be responsible for whatever good comes out of this disaster. That said, be it remembered that the Stephen Miller/Kristi Noem/Kash Patel/Greg Bongino team’s clusterfuck represents a signal achievement on their part—and a big reason why things are looking up today.
The progressives are riled up.
Lots of ordinary people are riled up.
Not only that: big business is riled up.
With big business riled up, the Republican empty suit politicians are beginning to speak up.
Even the Second Amendment wingnuts are fit to be tied, because of the suggestion that folks lawfully carrying a firearm deserve to be mowed down with impunity.
Thank you, Miller, Noem, Patel, Bongino. Thank you. Thank you. Thank you.
One of the early morning talking heads pointed out that, with Homan in Minneapolis allegedly reporting directly to Trump—thus, allegedly, bypassing and cutting the Miller/Noem gang—“Trump will personally own whatever happens next in Minneapolis.”
That sounds right. And I would add this: to get out of this mess with some dignity, Trump would need to be a Washington or a Lincoln or a Roosevelt.
Trump is not a Washington or a Lincoln or a Roosevelt. Instead, Trump is best compared to Jubilation T. Cornpone.
N.Y. Times, ‘We Are Creating the Conditions for a Catastrophe’: Three Columnists on Minneapolis. (Also available here.)
For additional insight, check out the Wall Street Journal Editorial Board today, which is shitting in its pants because the clownish but lethal brutality in Minnesota is hurting Republicans.
At least, the Wall Street Journal Editorial Board has its priorities straight.
The N.Y. Times piece is an excellent source of insight for those who need perspective on the events of the last few days. You probably want to read it for yourself; I’m not going to try to summarize it. But I will say this about that.
So, here’s the deal. If you’re an authoritarian regime, you can put down opposition with brutal force—provided you can command enough state power (in other words, provided your own police and army don’t turn on you) and provided you are prepared to use enough brutality on your own population.
The Iranian tyrants just gave us an object lesson. So did the Chinese Communist Party in Tiananmen Square back in 1989.
But if you kill just a few people, you don’t terrorize the population. Instead you just royally piss off the general public. And you create martyrs, which is very helpful to your opposition. Case in point: the Boston Massacre of 1770. Other examples include the Peterloo Massacre in England in 1819, Bloody Sunday in Russia in 1905, South Africa’s Sharpeville Massacre in 1960, and the events at the Edmund Pettus Bridge in Selma back in 1965.
Stephen Miller and Kristi Noem hired a bunch of White supremacist thugs and told them they enjoyed absolute immunity for whatever they might choose to do.
Just what the hell did they think was going to happen?
Then, when it happened, as inevitably it would happen, did Stephen Miller and Kristi Noem actually proclaim to the public that they were trying to impose authoritarian terror?
No, siree, they did not say that. What they said was that the public must disbelieve the evidence from the dozens of iPhones that were taking movies from all directions.
Then, on Sunday, when Miller and Noem couldn’t even get Orange Mussolini to endorse their lies, the official story changed to: He was carrying a gun, therefore it was OK to execute him in cold blood. A massively stupid response, on multiple grounds. And one that was particularly offensive to the National Rifle Association.
Today, there are widespread reports that Trump is planning to TACO. See, for example, Politico, White House reckons with GOP backlash after federal agents kill a second person in Minneapolis.
Facing MAGA 