Under the law, when a U.S. Attorney’s office becomes vacant, a President may temporarily fill the job for 120 days, after which the district court is supposed to get the power to fill the role. Congress wrote the law that way to ensure the Justice Department wouldn’t be left short-handed, while also protecting the Senate’s advise-and-consent power over nominees.
In January, after Mr. Trump’s inauguration, the Administration named Erik Siebert as interim prosecutor for Eastern Virginia. Once his three-month lease was set to expire, the judges of the district chose to retain him. But Mr. Siebert was reluctant to charge Mr. Comey and Ms. James, as Mr. Trump demanded, and he stepped down in September. Then the Administration purported to install Ms. Halligan, who had no experience as a prosecutor.
In the White House’s view, Mr. Siebert’s exit gave Mr. Trump the opportunity to name another interim prosecutor for a new three-month term. But that isn’t what the law says, according to Monday’s analysis by Judge Cameron McGowan Currie. As he explains, that interpretation would let the President “evade the Senate confirmation process indefinitely by stacking successive 120-day appointments.”
The vacancy law is designed for a temporary fill-in, not Senate circumvention. Ms. Halligan “has been unlawfully serving,” the judge concludes, and her efforts on indicting Mr. Comey and Ms. James were “unlawful exercises of executive power.” This is what happens when officials don’t follow legal procedure. They lose cases. Mr. Trump was so eager to indict his enemies, and Attorney General Pam Bondi was so quick to go along, that it all unraveled at the pull of one legal thread.
The Trump Administration could refile the charges, though the statute of limitations may have expired in Mr. Comey’s case. If Mr. Trump tries again, he might end up with cases that are two-time legal losers.
Trump had already issued illegal orders or that he was about to issue illegal orders or that there was a clear risk that he would issue illegal orders, and that
anyone in the military or intelligence services who obeyed such illegal orders could suffer the same fate as the German officials who, famously and unsuccessfully, relied on the “Nuremberg defense”—“I was only following orders.”
But the officials did not explicitly say what orders they considered illegal—obviously a conscious and considered omission.
One could plausibly argue that this omission was cowardly. More to the point, one could plausibly argue that the failure to specify exactly what illegal orders they were talking about could create confusion in the minds of military personnel. Indeed, some have made plausible arguments along these lines, and the controversy will continue to grow.
However, our President, Mango Mussolini
lacks the mental capacity to construct a plausible argument,
would not recognize the Nuremberg defense if it bit him in the ass,
has no sense at all of the difference between a strong legal position and a weak legal position—he just thinks all legal argument is bullshit, and the winner is the guy who shouts his bullshit the loudest, and
literally does not know right from wrong.
Afflicted by these mental lacunae, Mango Mussolini cannont begin to devise a workable plan to make the Democratic officials pay for their failure to identify the illegal orders of which they spoke. Instead, he can only bluster and threaten—in this case, threaten to order his minions (1) to arrest the Democratic officials for the crime of referring to the Uniform Code of Military Justice and then (2) to procure their execution following trial in the federal criminal justice system.
But Here’s the Thing About Threats
First of all, pretty much everyone who plays in the arena of politics or business knows that it’s a bad idea to take the hostage if you are not prepared to kill the hostage. That’s because your extreme threat, followed by supine inaction, makes you look like a blustering fool.
And, by the way, the reason why you look like a blustering fool is that you are in fact a blustering fool.
On the other hand, what if the Justice Department does arrest Senator Slotkin, get Lindsey Halligan to indict her for treason, and put her on trial in a United States district court? Well, guess what? It isn’t illegal, let alone treasonous, for someone to make a general reference to a provision of law—here, the Uniform Code of Military Justice, Title 10 of the United States Code, Section 892, and the related case law.
Conclusion? Either course of action—blustering followed by inaction, or blustering followed by a ridiculous prosecution in federal court—leads inexorably to failure by Trump.
The logical next step would be for Trump to tell the Proud Boys to get our their guns and go after Senator Slotkin and the rest of the crew.
President Donald Trump accused a group of Democratic lawmakers on Thursday of “seditious behavior” and called for their arrest for appearing in a video in which they reminded members of the U.S. military and intelligence community that they are obligated to refuse illegal orders.
“It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL,” Trump wrote on Truth Social. “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand.”
The video released Tuesday features a group of six Democrats who served in the military and intelligence community. Addressing active service members, they caution active-duty military members that “threats to our Constitution aren’t just coming from abroad, but from right here at home.”
“Our laws are clear,” Sen. Mark Kelly (Arizona), a Navy veteran, says in the video. “You can refuse illegal orders.”
“You must refuse illegal orders,” adds Rep. Chris Deluzio (Pennsylvania), who also served in the Navy.
The video does not specify particular orders that might be unlawful. But some of the lawmakers have relayed this week that they are hearing concerns from service members about the legality of strikes that have targeted people the Trump administration alleges are trafficking narcotics by sea.
The Pentagon did not respond Thursday morning to questions about the Pentagon’s post. Traditionally, the U.S. military adheres to the Uniform Code of Military Justice, which holds that service members must obey lawful orders, whether they agree with them or not. They are obligated to not follow “manifestly unlawful orders,” but such situations are rare and legally fraught. Members of the military take an oath to the Constitution, not the president.
The video, organized by Sen. Elissa Slotkin (Michigan) — who previously worked as a CIA analyst, also features Reps. Maggie Goodlander (New Hampshire), a former Navy reservist; Chrissy Houlahan (Pennsylvania), a former Air Force officer; and Jason Crow (Colorado), a former Army Ranger.
On his social media platform Thursday, Trump echoed other Republicans who have called for the Democrats to be removed from office, dishonorably discharged from the military and charged with treason — a crime punishable by death.
The stark punishment was not lost on Trump, who wrote in another post on Thursday: “SEDITIOUS BEHAVIOR, punishable by DEATH!”
He also reposted a post from a Truth Social user proclaiming: “HANG THEM GEORGE WASHINGTON WOULD !!”
The White House declined to comment on the record.
Democrats sharply criticized Trump’s threats.
“The administration should never try to force our servicemembers to carry out an illegal order,” Sen. Chris Coons (D-Delaware) said on social media. “Calling for the execution of senators and Congressmembers for reminding our troops of that is chilling behavior. Every one of my Republican colleagues needs to swiftly condemn this.”
Trump has repeatedly accused different groups and individuals of treason going back to his first presidential term, but has never followed through with prosecution, lobbing attacks on Black Lives Matter, the news media, former FBI director James B. Comey and former president Barack Obama with the claim.
Trump campaigned on prosecuting his political opponents and dispensing with the 50-year custom of insulating federal law enforcement from political influence. This year he has grown increasingly explicit in demanding specific investigations against people who have criticized him, leading directly to action by his appointees at the Justice Department.
In September, Trump pushed out a federal prosecutor in Virginia who declined to bring charges against New York Attorney General Letitia James (D) and replaced him with his own personal lawyer, Lindsey Halligan. Halligan then indicted James as well as Comey, whom Trump fired in 2017. On Wednesday, prosecutors acknowledged in court that a grand jury did not review the final indictment, a defect that Comey’s lawyers argued should cause the judge to dismiss the case.
The U.S. attorney in Miami is pursuing a broad probe against Obama administration officials, including former CIA director John Brennan and former director of National Intelligence James R. Clapper Jr. related to the investigation of Russian interference in the 2016 election. Trump officials have also initiated investigations at the president’s urging against Rep. Adam Schiff (D-California), who led the first impeachment inquiry against Trump in 2019, and Lisa Cook, a Federal Reserve governor he has sought to remove.
And on Friday, Trump directed the Justice Department to investigate prominent Democrats’ ties to Jeffrey Epstein, the wealthy sex offender who killed himself in jail in 2019. Bondi said she would proceed with that case, four months after saying the department’s review of the case found no information to pursue additional charges.
The Justice Department, Pentagon and the offices for Democratic lawmakers in the video did not immediately respond to requests for comment.
D. John Sauer, Esquire, pursued a double major, philosophy and electrical engineering, at Duke. After college, he was a Rhodes Scholar at Oxford, where he earned a degree in theology, followed by a masters in philosophy at Notre Dame. At that point, he felt a call to the bar, prompting him to go to Harvard Law School, where he “made Law Review” and earned a degree magna cum laude. After Harvard Law, Judge Luttig of the Fourth Circuit gladly offered him a position as clerk, and from there he went on to provide his considerable intellectual talents as clerk to Justice Scalia.
No slouch is D. John Sauer, Esquire. As a consequence of his brilliance and prestigious education, Mr. Sauer knew exactly what to tell the judge who asked if it would be A-OK for a president to order Seal Team Six to assassinate a political enemy. “Yessiree bobtail,” readily responded D. John Sauer, Esquire, “that would be just hunky-dory.”
Having achieved victory in the presidential immunity case through the ministrations of D. John Sauer—electrical engineer, philosopher, theologian, and legal scholar—Mango Mussolini knew exactly whom to appoint as Solicitor General, the position Mr. Sauer currently graces.
Clearly, Trump and his Attorney General, Ms. Bondi, would like to shitcan all the normal lawyers from the Justice Department and replace every mother’s son and daughter of them with clones of D. John Sauer, Esquire.
Sadly, however, as the Washington Post reports today, the American bar is not populated by lots of Harvard trained Nazis, eager to replace the thousands of lawyers who have been fired or who have left the Justice Department. Nor are the law schools at Columbia and Harvard and Georgetown filled with eager young Fascist whipper-snappers, read to pour their hearts and souls into the struggle to establish authoritarianism. WaPo writes,
Current Justice Department prospective hires are more likely to have political backgrounds than have been typical in the past, coming from Republican congressional offices and advocacy groups, the people familiar with the hiring process said. Others are young attorneys with little relevant experience or mid- to late-career attorneys who have no background in prosecutions.
When I was three years old, I had to learn by experience what are the consequences of sticking the table knife into the electric socket. Apparently, large numbers of our fellow citizens need to learn from experience that it is unwise to pick as your airline pilot someone suffering from severe mental illness, who lacks common sense, and who is quickly becoming senile and demented. Such a pilot is likely to fly the plane into the ground. It’s a shame the passenegers didn’t know that before the picked him.
The Markers of Authoritarianism
I think the New York Times did a good job laying out twelve markers of authoritarianism. (See the immediately preceding post.) That said, I also think some context is badly needed.
What Trump Doesn’t Know
Trump doesn’t know how to do second-order thinking. He cannot accurately grasp the consequences of his actions, or the consequences of the actions of others.
Trump doesn’t know how to think long term. Witness, for example, his thoughts on the filibuster.
Trump doesn’t know how to use any tools to achieve his goals, apart from bribery and threats, including threats of violence.
It is a constant surprise to Trump that, while some people will succumb to bribery and some will succumb to threats, others will not. In fact, for many, the threats will, from Trump’s perspective, be entirely counterproductive.
As a sociopath lacking all empathy, Trump is unable to appeal to others’ empathy, because he does not know that most people are empathetic, at least to some degree.
Trump doesn’t know how to construct a plausible argument. Thus, on the rare occasions when his positions have some merit, he cannot make a logical argument.
In fact, Trump is unaware that some arguments are backed by facts and logic, and some are just bullshit. To him, legal disputes are just a matter of which side screams the loudest. Because he is unaware that some legal positions are well founded and others are not, and because he cannot accurately predict the consequences of his actions, and because he is incapable of second order thinking, he has ordered the prosecution of Letitia James and James Comey even though the prosecutions will fail, and he and his legal team will be revealed as the idiots they are.
By contrast, a rational proto-fascist would have known that ordinary prosecutions of his enemies would fail, and he would do better to encourage violent action against them, outside the formal legal structure.
But Trump is the President
So, he can do a lot of mischief and cause a lot of chaos.
Trump’s Popularity is Headed South
From The Economist this morning:
Inflation and Criminal Immigrants
Trump’s slender margin of victory in 2024 was based on inflation and fears of criminal immigrants.
A rational proto-fascist would have kept his promise to try to lower inflation. A rational wannabe dictator would have realized that policies that tend to promote inflation will in fact increase inflation. Someone capable of second order thinking would have realized that higher inflation would decrease his popularity and make it harder for him to achieve his authoritarian dreams. Someone not blinded by grandiosity would recognize his loss of popularity when he sees it.
A rational nascent Nazi would recognize that if he has made inroads into the Latino community by promising to round up criminal immigrants, then he should round up criminal immigrants, not terrorize the whole Latino population.
And What About the Supreme Court?
The Supreme Court is slow walking Trump’s emergency application to invade Illinois. On Wednesday of this week, they’ll hear oral argument on Trump’s tariff power grab. Other issues will follow in due course.
They game of Trump v. Justice is under way, but there are more innings to play. In the last game of the World Series, the Blue Jays were ahead at the end of eighth inning, but the Dodgers won the contest. Let’s let this game play out.
Yeah, But What if Trump Just Defies the Courts?
Well, as someone once said, aye, there’s the rub.
Let’s say Trump doesn’t want to obey a Supreme Court order and directs [insert name of police unit, National Guard, Army battalion, etc. etc.] to act in contravention of the Court’s decision, will the people making up that official body obey Trump or will they obey the Supreme Court or will law and order just break down?
I put it to you that it’s hardly a foregone conclusion that the … police, National Guard, Army, etc. … will just jerk their knees and do exactly what Trump tells them to do.
But Because I Can Do Second Order Thinking, I Post the Next Question
If the official organs of state power refuse to obey illegal orders, will Trump just call out the Proud Boys and the other hooligans?
The Times identifies twelve “markers of democratic erosion,” briefly discusses each one, and gives a “bottom line” view of where we are on the downward curve. This post cites each “marker” and reproduces the Times Editorial Board’s “bottom line”:
1. An authoritarian stifles dissent and speech. Bottom Line: Many forms of speech and dissent remain vibrant in the United States. But the president has tried to dull them. His evident goal is to cause Americans to fear they will pay a price for criticizing him, his allies or his agenda.
2. An authoritarian persecutes political opponents. Bottom line: True authoritarians go much further than Mr. Trump has, but he has already targeted his opponents with legal persecution in shocking ways.
3. An authoritarian bypasses the legislature. Bottom line: Mr. Trump has defied the Constitution by trampling on Congress’s power of the purse. In full autocracies, legislatures often formally transfer some of their authority to the executive, and some congressional Republicans have proposed such changes.
4. An authoritarian uses the military for domestic control. Bottom line: Mr. Trump’s use of the military for domestic control has been limited. But his willingness to use it as he has — and his threats to expand that use, through the invocation of the Insurrection Act and with troops beyond the National Guard — is extremely worrisome.
5. An authoritarian defies the courts. Bottom line: It is a hopeful sign that he has not ignored the Supreme Court, and the court may yet block his most blatant power grabs. Still, the court’s reluctance to restrain himappears to have emboldened him to sidestep lower court orders he does not like.
6. An authoritarian declares national emergencies on false pretenses. Bottom line: Mr. Trump’s willingness to kill people without due process, through the blowing up of boats that American officials could instead stop and search, represents one of his most extreme abuses of power. It raises the prospect that he may expand the use of emergency power to other areas, including domestic law enforcement.
7. An authoritarian vilifies marginalized groups. Bottom line: Mr. Trump is borrowing from the autocrats’ playbook by suggesting that some citizens are legitimate and others are second-class.
8. An authoritarian controls information and the news media. Bottom line: In place of an independent and free press, Mr. Trump evidently hopes to create a shadow ecosystem willing to promote his interests and talking points.
9. An authoritarian tries to take over universities. Bottom line: Because the federal government finances so much academic research, it has considerable power over universities. Initially, some universities seemed as if they might simply submit to Mr. Trump’s demands. More recently, several showed more willingness to resist, rejecting a proposal that would have rewarded them financially for adopting Trump-friendly policies.
10. An authoritarian creates a cult of personality. Bottom line: The Trump cult of personality plays into his claims — common among autocrats — that he possesses a unique ability to solve the country’s problems. As he put it, “I alone can fix it.” He seeks to equate himself with the federal government, as if it does not exist without him.
11. An authoritarian uses power for personal profit. Bottom line: The Trump cult of personality plays into his claims — common among autocrats — that he possesses a unique ability to solve the country’s problems. As he put it, “I alone can fix it.” He seeks to equate himself with the federal government, as if it does not exist without him.
12. An authoritarian manipulates the law to stay in power. Bottom line: Even if he backs away from any scheme to serve more than two presidential terms, Mr. Trump’s attempts to tilt the electoral field in favor of Republicans is anti-democratic and could pervert American elections for years.
“They have a ‘Hate America’ rally that’s scheduled for October 18 on the National Mall,” the House speaker, Mike Johnson, said on Fox News on Friday. “It’s all the pro-Hamas wing and, you know, the antifa people. They’re all coming out.”
The Republican Minnesota congressman Tom Emmer said the party’s “terrorist wing” was holding the “Hate America” rally. “Democrats want to keep the government shut down to show all those people that are going to come here and express their hatred towards this country that they’re fighting President Trump,” said the House majority leader, Steve Scalise. The transportation secretary, Sean Duffy, embellished the story on Fox, referring to the demonstrations’ “paid protesters” and adding: “It begs the question who’s funding it.”
I thought about skipping the No Kings demonstration next week. We’ll be lined up along a major north-south route in a large urban area. It would be easy for someone with a machine gun to drive along the street and mow us down.
Then I thought about my father, who got on that boat in 1944 and dodged several U-boat attacks as he went to Europe to fight the Nazis.
At minute 23, he expounds on how we will be called to resist when the shit hits the fan. At minute 32, he talks about the temptation to engage in physical violence. At minute 35, he counsels against the temptation to wallow in fear and despair.
Facing MAGA 