Says Mango Mussolini, at 9:43 This Morning
“I Don’t Want Their Support Anymore”
In One of Life’s Many Ironies, Will QAnon Save the Country from Donald Trump?
It’s Monday, and No One Believes the Ministry of Truth Anymore. Even the Nutjobs. Especially the Nutjobs.
I don’t know whether people still read Orwell’s 1984. But I expect most of my readers know it. Remember what Winston Smith’s job was, at the Ministry of Truth?
This feels as if Trump is ordering the Ministry of Truth to rewrite history, and it’s not going so well.
I think the Morning Joe team did a good job of capturing the current situation. As did Philip Bump in today’s Washington Post. See Trump finds himself on the wrong side of a conspiracy theory: He has leveraged conspiracy theories for a decade—and now one lumps him in with The Elites:
One of the common misunderstandings about President Donald Trump is that he created the culture of conspiracy and surreality in which the American right is now immersed. He didn’t. He simply leveraged it.
This isn’t to say Trump hasn’t generated or amplified any conspiracy theories. He obviously has. It is simply meant to note that he emerged as a political figure a decade ago from an existing culture in which such claims were common currency. The central advantage Trump possessed in the 2016 Republican presidential primary was that he was willing to agree with false theories in a way that the established politicians against whom he was running were not. His most identifiable issue, immigration, was and is rooted in false claims about foreign powers shipping criminals to the U.S. where they are subverting traditional America. It’s conspiracies all the way down.
The conspiracies that take hold of the right centrally rely on the idea that Elites Are Up To No Good. In any objective context, Trump himself would be considered an elite, given his billions of dollars and his power, even before being elected president. But Trump sided with The People, meaning those beside him in the conspiratorial swamps. Because he stood against The Elites, a loosely bounded group that ostensibly controls America — meaning The People — Trump was granted a seemingly irrevocable dispensation from elitism.
Now, that dispensation is suddenly looking rather wobbly.
The reason? Jeffrey Epstein, the man who encapsulated so many of the characteristics that the conspiratorial right attributes to The Elites: inconceivable wealth, access to powerful politicians and celebrities, a privileged lifestyle (including a private island!) and accusations of criminal sexual deviancy involving minors. All of that was attributable to Epstein even before his 2019 death in a Manhattan jail cell — a suicide that was quickly presented by conspiracy theorists as something far more suspicious.
By the time Trump announced his presidential candidacy in mid-2015, Epstein was already a felon. The muckraking website Gawker had already published the contents of Epstein’s address book, including more than a dozen phone numbers for Trump and Mar-a-Lago, where Epstein had once been a regular. The site also published logs from Epstein’s private jet; Trump (and former president Bill Clinton) had been passengers multiple times.
But Epstein wasn’t really an issue in the 2016 election.
The salience of Epstein increased once Trump was president, and not only because it was during this period that the disgraced businessman was arrested and died. Trump’s first term in office saw the emergence of a sweeping conspiracy theory about an undercover government employee who was helping Trump conduct a secret, global campaign to uproot a cabal of pedophiles whose membership included various celebrities and (Democratic) politicians.
This was QAnon, which helped explain (as one adherent explained to me at the time) why Trump’s tumultuous, disorganized administration was actually a secret success. The pattern that Trump had leveraged since 2015 appeared again: What appeared to be, wasn’t; what was, was hidden from view.
QAnon caught on. In May 2021, PRRI found that nearly a quarter of Republicans believed in even its most extreme presentation, that “the government, media, and financial worlds in the U.S. are controlled by a group of Satan-worshipping pedophiles who run a global child sex trafficking operation.” QAnon’s adherents were a central element of the effort to overturn the 2020 election during the riot at the Capitol on Jan. 6, 2021. When Trump left power two weeks later, QAnon dissipated somewhat — though that was in part because its precepts and themes were absorbed and adopted by various right-wing actors, including Trump.
Epstein became a cudgel for the right to use against Trump’s replacement, Joe Biden. It’s much easier to espouse and amplify conspiracy theories when you don’t have the power to rebut them. Allies of Trump’s, like his son Donald Trump Jr. and then-Sen. JD Vance (R-Ohio) suggested that there was some nefarious reason that the government wasn’t sharing more information about Epstein, including a theorized set of clients or files in which various other Elites would be implicated.
The idea became so ingrained among Trump’s supporters that the existence of this material was treated as established fact and its release an inevitable element of a second Trump term. He and his allies would be asked about the material and (with a few notable exceptions) would pledge that it would be made public.
And then Trump became president.
There were other places where Trump’s return to the White House put him in a somewhat unsteady position. His advocacy for coronavirus vaccines in his first term had soured in the right-wing media universe since leaving office, for example, but that was easily remedied by tapping one of the country’s foremost anti-vaccination advocates to run the government’s health agencies. Epstein, though? Much harder to circumnavigate.
It probably didn’t help that Trump’s allies, like Attorney General Pam Bondi, weren’t interested in undercutting the right-wing narrative. Early on, she insisted that she was in possession of a client list that was being vetted. Then she — or someone at the Justice Department — attempted to put the whole thing to rest by inviting right-wing social media influencers to the White House and giving them mostly the stuff that had been published by Gawker a decade prior. The pro-Trump right wasn’t satisfied.
Last week, the Justice Department took another approach, releasing a memo flatly rejecting the idea that there was any client list to share. When a reporter attempted to ask Bondi about the memo at a Cabinet meeting, Trump interjected.
“Are you still talking about Jeffrey Epstein?” he asked. “This guy’s been talked about for years.”
Rumors swirled that senior FBI officials disagreed with the approach — officials who’d often touted conspiracy theories in their prior careers as Trump-aligned right-wing commentators. On Saturday, Trump published a lengthy message on Truth Social defending Bondi and offering a novel explanation for what had happened with the Epstein material: The “client list” conspiracy theory was itself a function of a left-wing conspiracy.
“Obama, Crooked Hillary, Comey, Brennan, and the Losers and Criminals of the Biden Administration, who conned the World with the Russia, Russia, Russia Hoax, 51 ‘Intelligence’ Agents, ‘THE LAPTOP FROM HELL,’ and more … created the Epstein Files, just like they created the FAKE Hillary Clinton/Christopher Steele Dossier,” Trump wrote, invoking various other conspiracy theories he had helped establish as canon on the right.
There are three fundamental challenges for Trump here.
The first is that he doesn’t have the control over conspiratorial thinking that he thinks he has. Again, he piggybacked existing anti-elite theorizing to reach the White House. As the vaccine debate shows, he’s never fully controlled it.
The second is that he is now president. As an expert on conspiracy theories explained to me back in 2017, the powerful have a difficult time leveraging conspiracy theories because those theories are generally tools used to rebut power (like that of The Elites). Presidents could prove a conspiracy theory true, if it were, but cannot prove one false since they are part of a system enmeshed in the theory.
The third, and most important, is that there are unanswerable questions about Trump’s relationship with Epstein. Trump was friends with Epstein. Trump and his family appear multiple times in Epstein’s address book, the only “list” that’s known to exist. Not only can the Justice Department never adequately dismiss a conspiracy theory that centers on government power; Trump is perhaps uniquely powerless to fully dismiss a conspiracy theory with which he is intertwined.
We can assume that the Epstein issue will soon fade from relevance in the national conversation, granting Trump a reprieve from the consternation of much of his base. (The replies to his post on the social media platform he owns have been broadly and unusually disparaging.) However, we can still recognize this moment for the exception that it is: Probably for the first time since he announced his candidacy in 2015, Trump has found himself on The Elites side of the divide against The People. Instead of leveraging the power of conspiratorial thinking, for at least a moment, he is seeing it being used against him.
Given how dependent his political power is on the grip with which he holds his base, even the loosening of one finger may be a weakness he can’t afford.
A Final Ray of Sunshine
Imagine how much worse things would be if Pam Bondi had any sense.
He’s Releasing the Files! To Catch All the Pedophiles!
I fear this post will ruin my chances of being hired by the FBI.
Rick Wilson Explains How Trump is Losing His Superpower This Weekend
Epsteingate
I was only able to download an audio file of the second podcast—by Sara Longwell and Will Sommer of the Bulwark. I recommend you give it a listen.The video may be behind a paywall, or you may be able to watch it here.
Why Did Trump Order the Coverup?
This weekend, lots of talking heads are postulating that MAGA minds are in deep distress, trying to figure out whether (1) Trump told Pam Bondi and the FBI to put the kibosh on Epsteingate because there is actually nothing to see, and Trump didn’t want to unwashed masses to realize they had been lied to, or (2) Trump told Pam Bondi and the FBI to put the kibosh on Epsteingate because Trump is as guilty as homemade sin, and he wanted to cover up his misdeeds.
Logically, there’s a third possibility too: Trump told Pam Bondi and the FBI to put the kibosh on Epsteingate because Trump realized there’s a load of blackmail material in the file, against a lot of people, and he wanted to preserve his ability to gain from those blackmail opportunities.
But, given all the facts and circumstances, I think the overwhelming probability is that Door Number Two is the right one: Trump put the kibosh on Epsteingate because Trump is guilty as sin.
A Big Fissure Within MAGA?
Apparently, despite all the talk of splits, fissures, and cognitive dissonance within MAGA resulting from Epsteingate, most of the MAGA folks have also lept to the conclusion that there is a Trump coverup. So, not much cognitive dissonance on the assumption that this is a coverup.
Good for them.
So, what comes next? Who knows?
I Told You So
What Just Happened
Contrary to the views of headline writers who did not go to law school and who suffer from chronic confirmation bias, in the recent case of Trump v. CASA, the Supreme Court opened the door to nationwide injunctions against Trump in cases where plaintiff classes have been certified according to Rule 23 of the Federal Rules of Civil Procedure.
Today, the first such injunction was granted, by a federal district judge in New Hampshire, in a case spearheaded by the American Civil Liberties Union and its allies.
The judge “ruled from the bench”—meaning that the formal text of most of his ruling isn’t available, at least currently. (The order certifying the class, however, is found here. As I predicted, Trump’s own executive order does a fine job of defining the class that is being certified.)
The ACLU’s press release reads in part,
CONCORD, N.H. — A federal court in New Hampshire today blocked President Trump’s executive order restricting birthright citizenship and certified a nationwide class that protects the citizenship rights of all children born on U.S. soil. The case is Barbara v. Donald J. Trump.
The ruling stems from a nationwide class-action lawsuit filed June 27, immediately after a Supreme Court ruling that potentially opened the door for partial enforcement of the executive order.
The American Civil Liberties Union, ACLU of New Hampshire, ACLU of Maine, ACLU of Massachusetts, Legal Defense Fund, Asian Law Caucus, and Democracy Defenders Fund brought the challenge on behalf of a proposed class of babies subject to the executive order. It seeks to protect all impacted families in the country in the wake of the Supreme Court’s recent decision in Trump v. CASA, which directed courts to consider narrowing nationwide protection that had been provided in the first round of challenges to the executive order attacking birthright citizenship.
The groups were in court today successfully arguing for a preliminary injunction and nationwide class certification. The ruling was made from the bench.
In granting the request, the court provided for a 7-day delay so that the government — which argued to the Supreme Court that a nationwide class was the appropriate way to seek nationwide protection in the birthright cases — could nevertheless try to get the First Circuit Court of Appeals to stay the relief, if it decides to pursue that option. Even with a 7-day delay, the ruling will go into effect well before July 27, when partial implementation of the unconstitutional order might otherwise have begun.
“This ruling is a huge victory and will help protect the citizenship of all children born in the United States, as the Constitution intended,” said Cody Wofsy, deputy director of the ACLU’s Immigrant’s Rights Project, who argued the case.“We are fighting to ensure President Trump doesn’t trample on the citizenship rights of one single child.”
What Happens Next?
Team Trump could wait for more decisions along the same lines by district courts around the country, in order to forum shop for the best appellate court. More likely, I think, is that they will appeal to the federal appellate court in Boston, which will quickly rule in the ACLU’s favor, so that the Supreme Court will have to address the merits of birthright citizenship very soon.
And what will happen then?
Well, maybe Justices Thomas and/or Alito and/or Gorsuch will quibble with whether a class should have been certified—or raise some other arcane, pettifogging objection to jurisdiction. Or maybe one of them will receive a revelation from the Angel Moroni that all class actions are unconstitutional.
You never can tell. But I am confident that at least five of the justices will continue to adhere to language of the Fourteenth Amendment and to reject Trump’s interpretation, just as the Supreme Court ruled back in 1898 in the Wong Kim Ark case.
And what will happen after that?
What will happen after that is that large pieces of shit will hit the fan.
A Legal Seminar for the Fourth of July
This morning, on the Fourth of July, I watched an hourlong seminar on constitutional law. The host was Preet Bharara, fellow graduate of Columbia Law School, widely admired for his work as the U.S. Attorney for Manhattan, fired by Trump for doing his job with competence and integrity, and current partner of WilmerHale (one of the Big Law firms resisting Trump’s illegal targeting).
Guest commentators were
- Melissa Murray, the Stokes Professor at New York University School of Law, and the daughter of Jamaican immigrants,
- Jack Goldsmith, the Learned Hand[1] Professor of Law at Harvard, and
- Trevor Morrison, professor and dean emeritus at New York University School of Law, and former attorney with the Office of Legal Counsel under President Obama.
Scrolling down, you will find several of my recent posts on Trump v. CASA, birthright citizenship, and “nationwide”/universal injunctions. Unlike me, the four people in the video have spent their lives studying constitutional law and federal civil procedure. That is one reason why they bring many valuable insights to the “nationwide” injunctions kerfuffle—and why, if the subject interests you, watching the video will richly repay your time.
And also why watching the video will provide valuable insights into how good constitutional law is done.
And why, moreover, good constitutional law reasoning is hard—an activity not best left to people whose thinking consists of bumper sticker slogans.
All that said, I am gratified that these people mostly agreed with my amateur understanding of the big legal issues—though they made their points will more precision and detail than I brought to bear.
With one exception. I think I missed the boat on a subtle but important point.
Did the Supreme Court Reserve to Itself the Power to Issue “Nationwide” Injunctions—All the While Denying that Power to the Lower Courts?
Justice Barrett’s majority opinion makes a big bloody deal of the claim that, in the Judiciary Act of 1789, Congress did not grant the courts any general power to issue “nationwide” injunctions. (If I were writing for fellow shysters, I would say that the justice’s interpretation of the Judiciary Act was the ratio decidendi—the rationale for her decision. But since I’m not writing for other shysters, I’ll just say “big bloody deal.”)
Now, if Congress gave no such power to the district courts or to the courts of appeal, then it must follow, as the night the day, that Congress did not give any such power to the Supreme Court, either. For that reason, I was puzzled by certain commentators’ claim that the Supreme Court reserved for itself the power to issue universal injunctions in cases where there had been no class certification.
My mistake.
As one of the speakers in the video—Prof. Goldsmith, I think—pointed out, the very last sentence of the majority opinion is in fact a “nationwide”/universal injunction! That sentence reads, “Consistent with the Solicitor General’s representation [that Team Trump won’t play games with the Supreme Court], §2 of the Executive Order shall not take effect until 30 days after the date of this opinion.”
For context, note that Section 2 is the operative language of the executive order—the part that claims to declare the policy of the United States government about who is, and who isn’t, a birthright citizen.
The Learned Hand Professor of Law at Harvard did not know what authority the Court might claim to justify writing that sentence and issuing that order.
And if he doesn’t know, then neither do I.
[1] For anyone who might wonder, “Learned Hand” does not refer to Prof. Goldsmith’s penmanship, but rather to Judge Learned Hand, a distinguished jurisprude and federal appellate judge who died in 1961.
“Nationwide” Injunctions, Birthright Citizenship, and the Supreme Court Decision in Trump v. CASA
The case is here. For a variety of takes from the commentators, see, e.g.,
Amy Howe (SCOTUSblog), Supreme Court sides with Trump administration on nationwide injunctions in birthright citizenship case
Washington Post Editorial Board, Justices need to own the consequences of their injunction ruling: the court has significantly weakened district courts’ ability to halt illegal presidential actions.
Jason Willick (Washington Post), Justice Kavanaugh explains what the injunctions ruling won’t change
Philip Rotner (The Bulwark), Ignoring Substance, SCOTUS Permits Lawlessness
Nicholas Bagley (The Atlantic), The Supreme Court put Nationwide Injunctions to the Torch: That isn’t the disaster for birthright citizenship that some fear.
N.Y. Times, Guest Essay, ‘There’s Just Too Much Lawlessness’: Three Legal Experts on an Embattled Supreme Court
See also yesterday’s update from the ACLU.
I discussed the executive order on birthright citizenship in the preceding post.
What is a “Nationwide Injunction”?
The term “nationwide injunction” is inapt and misleading, but lots of people want to use it anyway. So let’s define it for present purposes. For present purposes, a “nationwide injunction” is an injunction issued in a case brought by one or more persons (either two-legged persons or juridical persons such as corporations) that protects not only the individual plaintiff(s) but also everyone else in a similar legal position, even though there is no certified “class action” in accordance with Rule 23 of the Federal Rules of Civil Procedure.
As so defined, a nationwide injunction is an end run around the normal requirements for class certification under Rule 23.[1]
To illustrate and explain the point: Plaintiffs in the CASA case include four new mothers and their babies, one pregnant woman and her unborn child, and three undocumented immigrant women who might become pregnant. If the plaintiffs wanted to secure a ruling protecting not only their children but also all children whom Trump threatened to deprive of citizenship, then the normal/traditional route would be to ask the district court to “certify” such a “class” of similarly situated mothers. That class certification process involves a number of inquiries about whether it would be advisable for the litigation to go forward on a class basis, not an individual basis. But Liza, Andrea, and the other expectant mothers asked for nationwide/universal relief, without going through the certification exercise.
Before Trump v. CASA, Was There a Legitimate Legal Controversy about Whether Courts Could Issue “Nationwide Injunctions”?
Yes. Long story. But yes.
In fact, the Biden administration asked the Supreme Court to impose severe limitations on “nationwide injunctions.”
Some Say it was Odd—and Inadvisable—for the Court to Rule on the “Nationwide Injunction” Question but Kick the Can Down the Road on the Substantive Issue of Birthright Citizenship. Do You Agree?
Yes, I do agree. And if anyone reading this post wants to delve deeper, many of the sources cited above will be useful.
But I think the much more interesting question is whether plaintiff can represent a class of similarly situated mothers, babies, and unborn children.
And whether, by so complying with Rule 23, they can find effective legal relief against Trump’s illegal position on birthright citizenship.
What’s Going to Happen Next in the Birthright Citizenship Cases?
I’ll write about that in my next post, which will appear immediately above this one, because the posts on my blog appear in reverse chronological order.
[1] Related, but distinct, issues are raised by lawsuits with plaintiffs claiming to represent a category of other people—for example, a suit brought by a state government on behalf of all its citizen or a suit brought by a trade association on behalf of all its members. Team Trump challenged the “standing” of states and associations to bring such cases, but the Court decided to kick this can down the road.
Trump’s Executive Order on Birthright Citizenship
What Does the Executive Order Claim to Accomplish?
The executive order is prospective. It purports to deny citizenship to future babies born in the United States if (1) the baby’s mother is unlawfully present in the United States and (2) the baby’s father is not a U.S. citizen or lawful permanent resident.[1]
What is the Legal Basis for the Executive Order?
The 14th Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …”
Thus, if you want to argue that babies born in the United States to undocumented parents are not citizens, then you have to hang your hat on the words “and subject to the jurisdiction thereof.” And you have to make a very strained and slanty-eyed interpretation of that phrase.
That strained interpretation is the position Trump takes in the executive order.
A Frontal Challenge to an 1898 Supreme Court Case
Back in 1898, the Supreme Court considered—and rejected—the legal position that Team Trump now espouses. So Trump has to argue (among other things) that the Supreme Court got it wrong in 1898, and that the law has stayed wrong for the past 127 years.
Four Ways to Read the Executive Order
(1) A Test Case before the Supreme Court. A charitable reading is that the executive order is intended as the predicate to a test case, in which the Supreme Court would revisit the issue it decided back in 1898.
Trump may argue that it’s OK to set up a test case. After all, we all have a constitutional right to be wrong, and we all, including His Most High Excellency, have a right to ask the Supreme Court to embrace our erroneous legal claims.[2]
(2) Defiance of the Supreme Court. An uncharitable reading of the executive order is that Mango Mussolini claims that HE ALONE, not the Supreme Court, may divine the definitive definition of the words in the Constitution.
(3) Evasion of Supreme Court Review, or, the Cuter Than Bambi Reading. A third interpretation—perhaps even more uncharitable, though very possibly accurate—is Team Trump is attempting to evade Supreme Court review of his novel constitutional argument by
- losing all the cases brought by people aggrieved by the order,
- avoiding all appeals of such losses, and
- enforcing their erroneous legal interpretation against everybody else.
Some lawyers—not that many, but some—are under the impression that they are cuter than Bambi. This is the sort of horseshit that they come up with.
(4) The FAFO Reading. Lastly, one may read the executive order as implying that Team Trump hasn’t thought through how to get their novel legal theory accepted. Under this interpretation, they just plan to Fuck Around and Find Out.
What about Retrospective Application of Trump’s Position against Birthright Citizenship?
Someone other than me must surely have spotted this issue—but, if so, I haven’t seen any evidence of it. Here’s the issue.
Suppose that—some way, somehow—Team Trump gets the courts to all enforcement of the executive order in respect of future babies born to undocumented immigrants. Bear with me on that. Just entertain the supposition.
Logically, that would imply everybody already born in the United States to undocumented parents also lacks U.S. citizenship.
Would Team Trump be prepared to take that position?
That’s at least five million people, and probably more.
[1] The order also addresses another distinct issue/problem, that of “birth tourism.” That’s an interesting issue, but pales in importance compared to the issue of babies born to undocumented immigrants.
[2] That right flows from the First Amendment right to petition for redress of grievance. And, BTW, Trump also has a constitutional right to ask Congress to pass a law endorsing his view of citizenship. But that wouldn’t work, because any such law would be unconstitutional unless and until the Supreme Court changes its mind about its 1898 interpretation of the Fourteenth Amendment.
War and Peace
The Great Warrior
Washington Post, U.S. initial damage report: Iran nuclear program set back by months, not obliterated
An alternative title might be, “Defense Intelligence Talks, Bullshit Walks.”
Mango Mussolini is fit to be tied:
White House press secretary Karoline Leavitt pushed back on the report’s conclusions, while not denying its existence. “This alleged ‘assessment’ is flat-out wrong and was classified as ‘top secret’ but was still leaked to CNN by an anonymous, low-level loser in the intelligence community,” Leavitt wrote on X.
“The leaking of this alleged assessment is a clear attempt to demean President Trump, and discredit the brave fighter pilots who conducted a perfectly executed mission to obliterate Iran’s nuclear program,” she wrote. “Everyone knows what happens when you drop fourteen 30,000 pound bombs perfectly on their targets: total obliteration.” …
Rep. Mike Quigley (D-Illinois), a member of the House Intelligence Committee, told The Washington Post there is widespread belief in Congress that the embarrassing content of the assessment is the reason why the Trump administration decided to delay the classified briefing. ““They don’t delay briefings that have good news,” Quigley said.
Quigley declined to discuss the contents of a classified briefing he received earlier this week. But he said that for years he’s been told by U.S. intelligence officials that any aerial attack on Iran’s nuclear facilities would not have a lasting impact.
“I’ve been briefed on the likelihoods of how this would play out for years, and I was always told you have to finish the job with troops on the ground,” he said. “Nothing has changed my mind on that.”
The Great Peacemaker
Facing MAGA 