Tuesday: Maduro and Flores hearing

The U.S.-ousted Venezuelan leader Nicolás Maduro and his wife, Cilia Flores, were captured by U.S. forces on January 3 at their Caracas home. They were arrested pursuant to an indictment federal prosecutors had obtained and taken to the U.S. to face those charges. Both pled guilty and are currently detained pending trial. The superseding indictment can be found here. We discussed it at length here.

There was supposed to be a status conference on the case this Tuesday. But the government wrote the Judge, Alvin Hellerstein in the Southern District of New York, requesting a “brief continuance.” The stated reason was to permit discovery to proceed before the parties returned to court, a reasonable request given the likely amount of evidence the government will be turning over to the defense and the time it takes to review it with defendants who remain in custody.

But the government has been busy on the case already, opposing the defendants’ efforts to use Venezuelan government monies to fund their defense. Prosecutors say Maduro is not the legitimate leader of Venezuela and hasn’t been considered by the U.S. to be so for several years. Madura and Flores’ lawyers argue the laws and traditions of the country permit it to fund their defense. A Venezuelan official has said they are prepared to do so.

The defendants argue that their inability to access certain third-party funds to pay for their legal fees violates their Fifth and Sixth Amendment rights to due process and effective assistance of counsel. The parties have filed their briefs, and Judge Hellerstein is expected to consider the legal fees dispute during the March 26 hearing.

Tuesday: Illinois Primary

Illinois voters head to the polls Tuesday to choose their Democratic and Republican nominees for the open Senate seat being vacated by Dick Durbin, who is retiring after almost three decades. Two members of the House, Raja Krishnamoorthi and Robin Kelly, have thrown their hats into the ring, leaving their seats up for grabs. Three additional Illinois representatives are retiring: Danny Davis, Jan Schakowsky, and Jesus “Chuy” Garcia.

That means the Illinois delegation will look different, possibly younger, heading into 2027, and we will have new names to learn. Kamala Harris won the state with 54.8% of the vote in 2024, and it’s unlikely Democrats will lose any seats. In Kelly’s district, former representative Jesse Jackson Jr, who pled guilty to misusing campaign funds in 2013 and was sentenced to 30 months in prison (he served a little under two years), is trying to make a comeback, but he is one of 10 Democrats running for the seat. Jackson, who represented the district for over 20 years before going to prison, is up by double digits in two polls.

Everyone expects Governor JB Pritzker to handily win reelection. But as a potential 2028 presidential contender, there will be heavy scrutiny of how he handles himself during the campaign and how well he performs and leads the Democratic ticket. So there’s a lot to see here.

Under Illinois law, only poll workers and poll watchers can be at the polls on election day, and other people may not mill around outside as voters go about their business. Nonetheless, there have been concerns that ICE might show up to intimidate people. But DHS’s Assistant Secretary for Election Integrity, Heather Honey, issued a statement in late February, saying “Any suggestion that ICE is going to be present at polling places is simply disinformation.” She committed that there would "be no ICE presence at polling locations” during a call with voting officials from across the country.

That makes sense and I’m inclined to believe it. But only because doing it now would trigger legal challenges that would likely be decided against the administration. If they’re going to do this, we’ll likely see it for the first time when voters go to the polls in November.

Wednesday: Fulton County.

As you may recall from our earlier discussion, Judge J.P. Boulee sent the Justice Department and Fulton County to mediation in the case filed by the latter over the government’s seizure of voting records. Wednesday is the date by which the parties must let the Judge know whether they’ve been able to resolve the matter voluntarily. If mediation failed, it will be up to the Judge to decide whether the records are due to be returned, which they almost certainly are (the government gets to keep copies), but the administration could face some messy, revelatory testimony in court if the County goes into the unusual decision to have a U.S. Attorney from Missouri take over the matter, rather than the local U.S. Attorney.

The Rest of the Mess

Pam Bondi wants to deprive state bar associations of their ability to consider ethics challenges to federal prosecutors’ behavior.

DOJ has posted a proposed new regulation in the Federal Register that would prohibit state bars from proceeding while DOJ is conducting an internal review. Nothing in the rule would preclude DOJ from engaging in endless delay and short-circuiting state investigations.

In practice, state bar associations have routinely deferred to DOJ to conduct internal ethics proceedings before they act against a Justice Department lawyer. But that was under the old rules, where DOJ took ethics seriously. And as a practical matter, state bars, not Pam Bondi or Donald Trump, decide whether to give a specific lawyer a license to practice law in their state, so it’s difficult to see how the government has a legal leg to stand on here. It would be like Donald Trump deciding who can be a barber in Oklahoma or a cosmetologist in Arizona.

There is a 30-day comment period for the proposed regulations that will close on April 6. Comments will be public. Expect a wide variety of members of the legal profession to weigh in against the administration’s transparent effort to prevent state bar action against DOJ officials who are in ethical trouble. Congress made it clear in a law called the McDade Amendment that government attorneys “shall be subject to State laws and rules … governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” The measure was passed in 1998 amid concerns about overzealous prosecutors. Pennsylvania Republican Representative Joseph McDade (R-PA) championed the measure after he was acquitted on bribery and racketeering charges.

The SAVE Act heads to the Senate for a vote this week.

We’ve been talking about it for months. This appears to be the week the Senate will vote on the SAVE Act. It has already passed in the House. In our conversation at Big Tent last week, Marc Elias opined it would not pass. The Senate would have to abandon the filibuster rule to get it across the finish line. That would be a last-ditch measure that Republican Senators have long argued against, but some seemed to waffle on the issue last week.

Trump tried to get Republican Senators to abandon the filibuster last November. He made that pitch with visiting Hungarian Prime Minister Viktor Orbán at his side. Orban heads what he has called an “illiberal democracy” in that country. It was quite an image.

The issue last year was the pending government shutdown. Trump called on Senate Republicans to scrap the filibuster rule and allow simple majority votes to prevail on that issue and for most other legislation. They declined, even though, or perhaps because, Trump promised his party that if they did, the GOP would “never lose the midterms and we will never lose a general election” for the foreseeable future. It will be interesting to see if that pitch reemerges this week as Trump tries to pass a measure designed to suppress Democratic votes in the upcoming election.

Senators on both sides of the aisle have long understood the power that honoring the filibuster gives both sides; it’s a form of mutually assured retention of power. But Texas Senator John Cornyn, long a proponent of the filibuster, put out an op ed in the New York Post arguing that the SAVE America Act is more important than it is.

“For many years, I believed that if the US Senate scrapped the filibuster, Texas and our nation would stand to lose more than we would gain … My fellow conservatives and I have proudly used the 60-vote threshold to protect the country from all sorts of bad ideas and dangerous policies. But when the reality on the ground changes, leaders must take stock and adapt…Today, Democrats are weaponizing the Senate’s rules to block the SAVE America Act, defund the Department of Homeland Security and hurt the American people — all to spite President Donald Trump.”

It was quite a reversal of long-held principles in service of Trump from the Texas Republican, who is facing an uphill battle to hold onto his Senate seat. He faced a primary challenge from Texas Attorney General Ken Paxton. Neither candidate reached the 50% threshold necessary for an outright win, so there will be a runoff, which is scheduled for May 26, although there have been whispers of a voluntary resolution. How we are about to find out if other Republican senators want to hold onto any of their institutional power or are willing to throw it away on Trump and a law that has strong arguments against its constitutionality.

Finally, Julie Le, the former government lawyer in Minneapolis who we met in this piece, when she begged a judge to hold her in contempt so she could get a good night’s sleep, has launched a Congressional campaign website. “This job sucks,” she told the judge. Now, it appears she might be looking for a new one, since she was ultimately removed after her outburst in court.

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Joyce

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• The Week Ahead: We began the week with Trump turning a dignified transfer ceremony for fallen soldiers into a marketing opportunity for his merch. Lots of prep for the legal proceedings that were underway this week and President Obama’s eulogy for Jesse Jackson rounded out our Sunday night.

• A Night Off with Chickens: I got some much-needed sleep during a travel- and delay-heavy week, and you got chicken pictures.

• Bye, Girl: On the way out as DHS Secretary, Kristi Noem left us with . . . so many questions. What exactly is the Shield of the Americas? Who and where are the 145,000 children she claims to have located? How does displacing the Coast Guard Commandant from their home in order to live in it yourself “revitalize” the Coast Guard? And then of course there’s the new landlocked Coast Guard training facility in my home state. So many of you commented on the tone of this piece (in a positive way), and I have to admit, when it comes to Noem, my cup of snark runneth over. We will not miss her.

• Anthropic Sues the Administration: We looked into the high stakes legal battle between AI company Anthropic and the Trump administration after Anthropic sought guarantees that its AI model, Claude, would not be used for fully autonomous weaponry or domestic mass surveillance. This lawsuit is going to be a big deal, so if you missed this piece earlier in the week, this is a great opportunity to catch up.

• The Fate of the First Amendment: The Department of Defense is barring press photographers from its briefings on Iran—reportedly because photos taken of the secretary of defense were unflattering. But this isn’t a one-off, it’s a trajectory. Read here for where we are when it comes to the First Amendment.

• Thursday in America: It was the type of day that has become increasingly common, one where we drank from the firehose of news developments. From the “excursion” in Iran to judicial pushback against the administration, it’s the same, critical theme we’ve been exploring ever since Trump’s return to office: Trump’s vision of an all-powerful executive.

• Five Questions with Geoff Bennett, PBS NewsHour Co-Anchor & Co-Managing Editor: Geoff joined us to discuss his new book, Black Out Loud, which is delightful and important. And we got a night off from Trump! At its heart, the book is a story about how America can transform itself and be better off for it. He reminds us who we are and who we can be, and it’s perfect for right now.

• Live with Retired General Shawn Harris: I thoroughly enjoyed meeting Georgia Democrat and Retired Brigadier General Shawn Harris. He recently beat his Trump-endorsed opponent in the special election for Marjorie Taylor Greene’s vacant seat, but he has a tough runoff ahead of him. Some people think no Democrat can win in the Northwest corner of Georgia. No one is pretending it will be an easy race, but this is a superlative candidate and 2026 is unlike any prior election year. Republicans who selected a different candidate than the Trump-endorsed opponent Harris faces now may switch sides or sit this one out. And with a low percentage of eligible voters turning out in 2024 when MTG won, and lots of enthusiasm in the Harris camp, this is one to watch.

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These are complicated legal times, and it’s easy for the truth to get lost in the chaos. Civil Discourse doesn’t just track today’s headlines—it connects them to the legal and political history that explains why they matter. We won’t forget what’s at stake, or let Trump and his allies rewrite the past. You can subscribe to Civil Discourse for free and get clear analysis that helps you see the whole picture, delivered straight to your inbox. If you’re in a position to, your paid subscription helps me devote the time and resources it takes to write the newsletter. That means everyone has access to information they can share with friends and family—a constructive act we can all participate in right now, helping more Americans understand how critical this moment is.

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Trump complained about media coverage of damage reports to American tanker planes. He called out the New York Times, the Wall Street Journal, and what he characterized as other “Lowlife ‘Papers’ and Media.” Trump claims the reporting is tantamount to wanting the U.S. “to lose the War,” and called the reporters “sick and demented people.”

How do presidents handle reporting they honestly believe is inaccurate? There’s an apparatus in the White House for that. Reporters are actually eager to receive accurate information and the White House media shop is more than capable of delivering it. Deriding accurate reporting as “fake news” and using invective to describe journalists is quite simply painting a bullseye on their backs, in an era when we’ve repeatedly seen people take this kind of language as marching orders.

The deference presidents show to the First Amendment, both out of respect for first principles and because they can afford to, is dead with Trump. He doesn’t seem to realize that inaccurate reporting has its own price—the inevitable need for correction and the loss of reputation that comes with it. The same is true when it’s the president who is putting out false information, and in any event, it’s reprehensible for a president to accuse the press of being un-American when it’s just doing its job.

In case Trump’s feelings about the press weren’t clear enough in the first post, he followed up an hour later with this:

The President of the United States touted defunding PBS and NPR. He gloated about anchors who were “out”: Chuck Todd at NBC, Jim Acosta at CNN, Joy Reid at MSNBC, and others. And more, most of it indicative of a desire to have state-controlled media instead of a free press.

“FCC Broadcast Accountability” came under the label of “Reform.” That takes us back to Brendan Carr, now the head of that agency under Trump. By lunch time, he had a tweet of his own.

“Broadcasters that are running hoaxes and news distortions - also known as the fake news - have a chance now to correct course before their license renewals come up,” he wrote. “The law is clear. Broadcasters must operate in the public interest, and they will lose their licenses if they do not.” There’s the threat: Cross this administration and lose your ability to stay on the air.

Where have we heard that kind of threat before? The law firms that Trump tried to put out of business with his executive orders? To Anthropic last week? With colleges, universities, political leaders, students, and others, ever since this administration came to power. This is an administration that cannot tolerate dissent. And dissent is essential to the American tradition. It is who we are. It is embodied in the First Amendment.

Carr had more to say, “The American people have subsidized broadcasters to the tune of billions of dollars by providing free access to the nation’s airwaves. It is very important to bring trust back into media, which has earned itself the label of fake news.” Of course, the subsidized stations are PBS and NPR, two of the most highly regarded and widely listened to sources of news and other programming in the country.

”Time for change!” he concluded.

This is not the first time we have encountered Mr. Carr and his efforts to implement the President’s anti-free speech agenda from his perch at the FCC. It started with Project 2025. He’s been threatening to take away licenses from stations that won’t bend the knee for at least that long.

Carr wrote the Project 2025 chapter on the FCC. We’ve discussed that here, in November of 2024, as Carr’s name surfaced for the FCC, we noted his claim that “bipartisanship on the FCC is a matter of tradition, not law,” and his suggestion that he could do away with it. He characterized it as “make life more difficult” for entities the FCC regulates: radio, television, wire, satellite, and cable networks.

It’s cut and dry. Saying you’ll take away broadcast licenses from stations that refuse to toe the line for a presidential administration is just another way of saying you want to move toward an authoritarian form of government. Carr tried to create window dressing for it, characterizing media companies that believe in freedom of the press as companies that don’t “operate in the public interest.” But we could all see what was going on here and it’s manifesting now, as Trump faces increasing opposition. If the President has a case to make for the war in Iran, then let him go to Congress and make it in compliance with the Constitution and the War Powers Act. Let him sell it to the public. Attacking the press is just a sign of weakness.

Last September, Carr pushed for Jimmy Kimmel’s removal after Kimmel criticized the litmus test reaction to Charlie Kirk’s brutal murder, saying of Trump, “This is not how an adult grieves the murder of someone he calls a friend. This is how a four-year-old mourns a gold fish." Carr called what Kimmel said “the sickest conduct possible,” adding that the FCC could move to revoke ABC affiliate licenses as a punishment. When the network took Kimmel off the air briefly, Trump “congratulated” them “for finally having the courage to do what had to be done.” The attack on the free press was free flowing. But Kimmel is back on the air. The First Amendment survives.

The threats and epithets about false news are nothing new. Around the time of the Kimmel incident, Trump claimed that 97% of some network coverage was negative toward him. “They give me only bad publicity or press,” Trump said. “They’re getting a license, I think maybe their license should be taken away. It’s up to (Federal Communications Commission head) Brendan Carr.”

At the time I wrote, “The idea that Trump views the news, factual reporting by the press, as ‘bad publicity’ pretty much says it all. It captures so much of what is wrong. This isn’t 1984, and Trump is not Big Brother, entitled to acclaim from all. If you don’t want bad press, don’t do bad things.” But Trump continues to do bad things and attract legitimate criticism for it. The First Amendment protects the press that reports that legitimate criticism and the politicians and public who express it. The First Amendment and our ability to use it have outsmarted Trump on more than one occasion, and Carr and Trump haven’t always fared so well when they try to do battle with it.

Just a few weeks ago, Stephen Colbert shared that the network’s lawyers told him he couldn’t have Texas Democrat James Talarico, who is running for the U.S. Senate, on his show because of Federal Communications Commission (FCC) rules that require broadcasters to give “equal time” to opposing political candidates. So, Colbert put the segment on YouTube, where it got megatons of views, far more than it would have received on late-night TV. We discussed it here. Score another one for the First Amendment.

The First Amendment has been around for a lot longer than Trump and MAGA. It was ratified on December 15, 1791, as part of the Bill of Rights. Trump’s near-constant attacks on it are a serious matter, and we should take them seriously. Our continued exercise of our rights under the First Amendment is essential to its survival.

The night that I wrote about Colbert’s response to having his Talarico pulled, I quoted a number of famous takes on the importance of free speech. It’s George Orwell who seems most apt tonight, as he all too frequently does these days: "If liberty means anything at all it means the right to tell people what they do not want to hear."

We have the right to do exactly that.

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General Harris, who beat his Trump-endorsed opponent in the special election for Marjorie Taylor Greene’s vacant seat, has a runoff ahead of him because no candidate received a majority of the vote. Northwest Georgia is Republican country, but Harris, a moderate but strongly committed Democrat (he was solicited to run as a Republican but declined on principle), has a plan for that and enjoys support from Republican friends. Listening to him talk about country over party makes you think he might have the secret sauce. He’s refreshing, and with the Trump-endorsed candidate coming in behind him in the election, it looks like there is all sorts of room for Georgians who voted for other Republicans to either switch sides or sit this one out.

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Black Out Loud, the first book from Geoff Bennett, who you undoubtedly remember from his time with MSNBC before he went to PBS, comes out March 24. It traces the transformational history of Black comedy—particularly the explosion of 1990s television—and looks at what those shows meant culturally, politically, and socially. And you definitely need this book!

Because it’s about something that’s been missing in our national life lately: shared cultural touchstones. In the ’90s, tens of millions of us—across race and geography—watched the same sitcoms on the same nights and talked about them the next morning. Shows like The Fresh Prince of Bel-Air, Martin, and Living Single became places where we encountered each other’s humanity, humor, and complexity. We built community. It was civil discourse at it’s finest.

Geoff explores these issues in the book, noting that those shows stood on the shoulders of decades of groundbreaking work by Black comedians, both on-screen and on-stage, to deliver nuanced portrayals of life, family, and culture. Just a few decades earlier, the idea of Black artists as a dominating force on American airwaves, with characters that were both hilarious and heartfelt, would have been unimaginable. Geoff explains how that happened and what can we learn from that.

At it’s heart, Black Out Loud is a story about how America can transform itself and be better off for it. It’s a story about who we are and who we can be, and it’s perfect for right now.

Geoff is the co-anchor and co-managing editor of PBS NewsHour and serves as a contributor to NBC News. A Peabody Award-winning journalist, he has reported on national politics at the highest levels—covering the White House and six presidential election cycles—while conducting exclusive interviews with cultural icons, world leaders, and groundbreaking artists. His work bridges politics and culture, offering clear-eyed insight into the forces that shape American life.

“Five Questions” is a periodic feature for paid subscribers, my way of thanking those who are able to support this work so that I can devote the necessary time and resources to it. Whether you’re a paid subscriber or not, I’m happy to have you here. I appreciate everyone who reads the newsletter and works to stay informed in this pivotal moment. Free subscriptions, with access to all of the other nightly posts, will always be available, so please sign up.

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Georgia is purple-ish, but there’s no doubt a Democrat faces an uphill battle in a race like this. However, Harris’s showed a lot of strength in the election night results. He’s a true contender to go to Washington, and wouldn’t he be a breath of fresh air after MTG?

Harris beat his Republican opponent Clayton Fuller, 37.3% to 34.9%. But other Republicans drew a share of the vote as well, so this will be a tight race.

Harris got on my radar screen early because a dear friend in Georgia was working on his campaign, out walking house to house knocking on doors (and apparently that worked!). I wanted to know more.

Harris is quietly impressive. He is a retired US Army brigadier general. But he started out, and has returned to his roots as, a farmer. In fact, when I was setting up our Substack Live with him earlier in the week, I was learned he wasn’t available that afternoon because one of his cows had just had a calf and he was tending the new baby. The video up above could be a campaign ad! But it’s not, it’s just Harris in real life.

If you want to know more before we meet him live Saturday morning, Harris’s website lays out his view on the issues. We’ll have a chance to discuss them with him tomorrow, so bring your coffee, and if you have questions you’d like me to ask, drop them here in the chat.

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“Freedom of speech and freedom of religion commit us to pluralism,” she told him. “They commit us to tolerance. They commit us to having to respect and allow to be heard even those viewpoints that we might disagree with.”

So, what does she make of a president who is not committed to freedom of speech or freedom of religion? Are we to draw the obvious conclusion? Or is she just speaking generically here?

Justices speak publicly at programs like this, but they usually attract little attention. It’s unlikely, with public confidence in the Court at an all time low, that it’s lost on the Justices that they present a unique opportunity for the Court to try and reclaim some of that ground. But words like these are easier to say than live by today. Justice Barrett is correct that these rights make the country more open, more accepting, more diverse, and much more rich and interesting. But we live in an era when they are undeniably being constricted, as we discussed last night.

The president of the United States has taken to calling his war in Iran an “excursion” as though we are all off on spring break. Seven American are dead, possibly more following today’s news that an incident involving two KC-135 refueling aircraft, one that did not involve enemy or friendly fire, resulted in one of the planes crashing. Recovery efforts are still underway.

Now that Trump has his war, he doesn’t seem to know what to do with it. He appears to have had no plans in place for either the future or Iran or protection for the straits of Hormuz. Instead, the White House account on Twitter is posting videos that equate war with video games or football. It did that here, using video of University of Nebraska receiver Kenny Bell’s blind-side block on a Wisconsin defender during the 2012 Big Ten title game and other sports footage mixed in with footage of U.S. strikes on Iran. Bell told the Washington Post that the White House’s video made him sick.

There were two shootings in the U.S. today, one at Old Dominion University, the other at a reform Jewish synagogue in Michigan, Temple Israel, where children were in daycare when the shooter drove his vehicle into the building. There is a rising tide of antisemitism in this country that continues to grow. The administration pays lip service to opposing it, even as Trump encourages a tide of hate against people because of their race, religion, national origin, gender, or sexual orientation. They are not unrelated. Legitimizing hate begets more hate.

The shooter at ODU, who is now deceased, spent over a decade in federal prison for material support of terrorism. He took the life of an army ROTC officer who was in his classroom, a horrific act. But there is risk in these moments that when a person or a small group commits acts of violence motivated by hate directed at Jews, Muslims, or anyone else, the criminal acts are ascribed to a group broadly to justify dehumanizing that group. That leads to more hate and more hate crimes. The dehumanization is an effort to make it acceptable to attack American Jews if you don’t like Israel’s policies or condemn all Muslims for the acts of two men who committed odious crimes today. It is much the same as pretending all immigrants are violent criminals or all transgender people pose a threat to kids. These are the kinds of passions most administrations try to tamp down on.

Not this one. Alabama Senator Tommy Tuberville received some support from his side of the aisle for a tweet Democrats condemned:

The federal judiciary continues its pushback against the administration’s politicization of how taxpayer dollars are spent. Tonight, Judge Manish Shaw told the Trump administration it could not stop funding health care in states led by Democrats, which it had tried to do to the tune of $600 million. The Judge called the effort “contrived” and held that it was an illegal effort to punish the states for trying to protect immigrants with sanctuary policies.

The Judge explained how the administration was penalizing the four states, “Plaintiffs are four states that usually receive billions of dollars in federal funds through the Department of Health and Human Services, the Department of Transportation, and the Department of Homeland Security. Other states receive federal funding from similar sources and based on similar criteria. But these four are on a list that the federal Office of Management and Budget pushed out to agencies in January 2026. Around the same time and over the next few days, word got out (formally and informally) that there would be no money from grants administered by HHS and no funds obligated from DOT and DHS to the four states. These funds support health and safety initiatives, infrastructure modernization projects, and disaster recovery and relief—projects deeply embedded in basic operations of state and local government. The funds are authorized by Congressional appropriations that are unrelated to immigration policies or political pique, and, for many grants from the Centers for Disease Control, that set a floor for required spending.”

He continued, “On January 13, 2026, the President announced that starting February 1, 2026, the federal government would not make any payments to ‘states having sanctuary cities.’” These are the facts. And they do not line up well for the government here. It’s left to argue that the plaintiff states have some evidence, but it’s not enough to get the injunction they seek. The states want to stop the federal government from discriminating against them. The Judge concluded that “the public interest is ‘served by an injunction in that it acts as a check on the executive’s encroachment of congressional power that violates the separation of powers.’”

Whether it’s the economy and affordability, Trump’s wars, the Epstein files, or the state of our democracy, there is little good news for Trump as the primaries continue and midterms come closer. I turned on the TV tonight, to find that Fox News was telling its viewers about Dr. Jill Biden’s new biography as CNN discussed the disruption in the oil markets and MS NOW highlighted Trump’s ongoing efforts to pass the SAVE Act.

The SAVE Act, which far too many people assumed was a dead letter, has cropped back up. Hopefully, Marc Elias, who said Tuesday night when we spoke to Big Tent that it would not pass in the Senate (and that if it did he will challenge it), will prove correct. Because ultimately, it’s up to voters to decide the future of the country.

For Trump, pushing the SAVE Act is about the only perceived path to success in the midterm elections—keeping eligible Americans from voting. Trump has had success at using his war to turn attention away from the Epstein files. But he knows he’s still vulnerable. His party is in danger and it’s in danger because of him. There is no telling what a man who cannot tolerate losing, who incited the January 6 insurrection to pretend it didn’t happen in 2020, will do when he is backed into a corner. We should be prepared for anything and ready to do whatever it takes to vote.

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A year ago, the administration banned the AP from events other reporters were permitted to attend, including a briefing at the White House and an Air Force One flight. They did it because the AP continued to refer to the Gulf of Mexico by its internationally recognized name after the President redesignated it as the Gulf of America. This led to a lawsuit, of course, Associated Press v. Budowich. The administration argued that covering the president was a privilege and that they could decide who could and who couldn’t have access.

District Judge Trevor N. McFadden, a Trump appointee, ruled that the Trump administration’s reason for barring AP reporters mattered:

“[T]he Court simply holds that under the First Amendment, if the Government opens its doors to some journalists — be it to the Oval Office, the East Room, or elsewhere — it cannot then shut those doors to other journalists because of those viewpoints. The Constitution requires no less.”

That encapsulates the idea of what lawyers call “viewpoint discrimination,” the principle that the government can’t treat speech differently based on the point of view it represents. We discussed the theory of the case at length here.

Viewpoint discrimination is a well established basis courts use to find a First Amendment violation. In 1943, Justice Robert Jackson wrote that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

In Budowich, Judge McFadden stayed his order so the administration could appeal his ruling. The appeal was briefed and argued before a three-judge panel in the court of appeals late last year, with lots of participation from amici, who filed “friend of the court” briefs. The decision is still pending, although a delay of months between argument and opinion is not especially unusual. But we still don’t know what the AP’s fate is, and perhaps more importantly, how much of an ability the administration has to punish “offending” journalists, which there is every reason to believe they would push to the limits and likely beyond.

Whether it turns out to be the prevailing view or not, Judge McFadden would seem to have the best of it: “The Constitution requires no less.” If the government can stop all photographic coverage of press conferences during a war because it doesn’t like how the Secretary looked, who are we?

Maybe the President should take that up with his cabinet secretary and tell him to clean up a little? Americans are entitled, because of the First Amendment and our profound tradition of freedom of the press that stems back to the clear intent of the Founding Fathers, to robust reporting on what our government is up to—who did what, when, and why they did it, if that can be discerned. In this very visual era, that should include photographs and videos of what happens. There is no legitimate excuse for keeping the public from viewing what it’s paying for in settings, like public press conferences, that don’t compromise national security.

The AP ban came after calls from the President and Elon Musk (back when DOGE was still a thing) to defund NPR. But that wasn’t enough for this administration. Major news outlets that millions of Americans rely on for coverage of the Pentagon were ejected from their office space, making it more difficult to report contemporaneously on what was happening there. And reporters who ask tough questions, or even just logical ones, are dismissed without answers. “Quiet, Piggy.”

There is context. There is a trajectory here. This is an administration whose rules make it more difficult for the press to tell Americans what’s happening, instead of encouraging a free flow of information and ideas.

Writing about the Gulf of America debacle as it was happening in the Wall Street Journal, the AP’s Washington Bureau Chief Julie Pace commented, “For anyone who thinks the Associated Press’s lawsuit against President Trump’s White House is about the name of a body of water, think bigger. It’s really about whether the government can control what you say.”

She asked, “If we don’t step up to defend Americans’ right to speak up freely, who will? Today the U.S. government wants to control the AP’s speech. Tomorrow it could be someone else’s.” It could be yours.

What’s the press to do? The Washington Post, after publicly abandoning it at the start of Trump 2.0, quietly readopted the tagline “Democracy Dies in Darkness.” Those words, which first graced the Post’s masthead in 2017, still ring true, despite their on-again, off-again usage. As the people who pay Hegseth’s salary, we’re entitled to know enough to give him performance reviews, and the media should be able to provide us with the information that makes that possible.

It’s an understatement to say that we are living through upheaval in the fourth branch of government, the press. It has been a struggle ever since the internet knocked out the business model. Now, much of the press faces a full-blown crisis of public confidence, as do so many of our institutions. Americans have the hard work ahead of them of becoming discerning, engaged evaluators of information. But what role will the press play?

In 2019, Freedom House, which tracks freedom of the press internationally and is viewed by media bias checkers as center-right in its orientation, argued that “Elected leaders in many democracies, who should be press freedom’s staunchest defenders, have made explicit attempts to silence critical media voices and strengthen outlets that serve up favorable coverage. The trend is linked to a global decline in democracy itself: The erosion of press freedom is both a symptom of and a contributor to the breakdown of other democratic institutions and principles.”

Those are sobering words, especially having been written in 2019, not primarily about this country, and with so much more having happened since then.

On October 2, 2018, Jamal Khashoggi, a Saudi journalist and permanent U.S. resident, went to the Saudi consulate in Istanbul to pick up some documents. After initial denials from the White House, the CIA concluded, during Trump’s first administration, that Khashoggi was murdered by Saudi agents. His last piece for the Washington Post ran on October 17, two weeks after his death.

“The Arab world needs a modern version of the old transnational media so citizens can be informed about global events. More important, we need to provide a platform for Arab voices. We suffer from poverty, mismanagement and poor education. Through the creation of an independent international forum, isolated from the influence of nationalist governments spreading hate through propaganda, ordinary people in the Arab world would be able to address the structural problems their societies face.”

Those are the words Jamal Khashoggi died for. He could have been writing for America in 2026, too.

Sure, today, it’s just pictures of Pete. But this is how the First Amendment erodes. Slowly. In ways that are written off as minimal or within the President’s prerogatives. Ultimately, it could be our collective right to engage in free speech that suffers. And we need that right. In the end, be what gets us through this era. It’s worth fighting for and protecting.

Sometimes, the most significant threats to the First Amendment don’t arrive with flashing lights. Understanding the larger context for small, discrete events is essential to protecting our rights. If you value clear-eyed analysis that connects the dots, consider becoming a paid subscriber to support Civil Discourse and independent journalism so it can become easier to find.

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Now, in a new lawsuit filed by Anthropic against the government, we’re getting a lesson in why Trump was so determined to take on the firms. WilmerHale, one of those firms, represents Anthropic, an American AI company that developed Claude, one of the best-known large language models.

Anthropic was one of the government’s early AI partners. A recent dispute over how the models could be used in the Defense Department has upset that relationship. The administration balked when Anthropic wanted assurance that its models wouldn’t be used for fully autonomous weapons or domestic mass surveillance. Defense Secretary Pete Hegseth told the company it was obligated to permit “all lawful uses” of Claude. Anthropic filed a lawsuit against more than a dozen federal agencies, including the DOD, the Departments of State and Treasury, and the General Services Administration. In the lawsuit, it noted that: “Despite disagreement on the two use restrictions, Anthropic has continued to reiterate its commitment to providing Claude to serve the United States’ national security interests and to negotiate in good faith with the Department.”

Before the lawsuit, as the relationship was heading into trouble, Trump threw this gasoline onto the fire:

And so, represented by one of the law firms Trump feared enough to try to put them out of business with an executive order, Anthropic headed into court. A lawsuit in the Northern District of California asks the Judge to reverse the Pentagon’s designation of the company as a “supply chain risk,” which essentially puts them on a blacklist that prevents other companies from doing business with them if they want to continue working with government agencies. A second lawsuit was filed directly with the federal court of appeals in Washington, D.C.

Anthropic notes the heavy-handed tactics used by DOD in its complaint, as in this paragraph:

The lawsuit raises a number of claims, including:

• A challenge to DOD’s action against it under the Administrative Procedure Act as arbitrary and capricious, in violation of that law.

• A challenge to DOD’s action against it as a violation of Anthropic’s First Amendment rights because they amount to retaliation against Anthropic’s “expressive activities”, including protected speech, protected viewpoints, and protected petitioning of the government.

• A claim that the President acted in excess of his authority (“ultra vires”) when he ordered “EVERY Federal Agency in the United States Government to IMMEDIATELY CEASE all use of Anthropic’s technology,” since he has no authority under Article II of the Constitution or any law to do so.

• A Fifth Amendment due process violation claim.

• A challenge under the Administrative Procedure Act to orders issued to cut off Anthropic’s work with the government by other executive branch agencies because they aren’t authorized by law.

Anthropic asked the court for an injunction and a declaration that “the Presidential Directive exceeds the President’s authority and violates the First Amendment and Fifth Amendment to the United States Constitution.”

Anthropic also filed a petition with the Court of Appeals in D.C., asking it to review DOJ’s designation of it as a supply chain risk under a separate law from the DOD covered-systems designation it challenges in the California lawsuit. That designation, made under the Federal Acquisition Supply Chain Security Act (FASCA) of 2018, has to be challenged in DC and is unusual in that it permits the challenger to go straight to the court of appeals, which is why we have the two lawsuits.

District Judge Rita Lin in California held a status conference in the case before her this morning, and said she would hear the request for a preliminary injunction on March 24, after the government declined to say it wouldn’t continue to take adverse action against the company. Judge Lin, who has strong beliefs about public access to the courts, held today’s hearing on Zoom, a good omen for anyone who believes the public has the right to follow proceedings of interest.

The litigation feels like there’s some karma involved. A law firm Trump wanted to prevent from litigating against his administration has taken on a major case. And the more he posts about it on social media, something he seems to lack the discipline to stop doing, the worse he makes it. This case is going to get interesting fast, especially with the short timeline Judge Lin has put it on.

If this kind of information helps you understand what’s actually happening when lawsuits get filed, that’s one of the goals of Civil Discourse. I read the cases and opinions and explain their significance, based on 25 years of experience at DOJ. Paid subscriptions make this work possible and help to create a community of informed people. If you’re able to, I hope you’ll consider joining us.

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Like Kristi Noem’s last tweet as DHS Secretary. The one where she thanked Donald Trump for appointing her to be “the Special Envoy for the Shield of the Americas.” Some folks would have been upset to be fired while they were in the middle of speaking publicly about their future plans in the position. But not Kristi. She’s apparently made her peace with becoming an underling to. Rubio and Hegseth.

But that’s not the funny part.

The Tweet goes on for a really long time and convinces me Twitter needs to restore character limits, even for fancy Blue Check Cabinet Secretaries—maybe especially them. Before she’s done, we learn that she has learned that the Western Hemisphere is absolutely critical for U.S. security. Kudos to her for figuring that out.

Noem also advises that “we have located 145,000 children. I need to know more about this. Where did she find these kids? Were they missing? Who are they? 145,000 is a lot of kids.

Maybe these are kids like Liam Ramos up in Minnesota, who her agents took into custody with his Spider-Man backpack on and his blue bunny ears hat? Maybe that’s what “located” means? That she took kids away from their schools and their friends and their families and stuck them into her people-warehouses with concentration camp-like conditions, where many kids, we read, are getting seriously ill and even requiring emergency care. Maybe “located” means traumatized for the rest of their lives? That’s definitely not the funny part.

My favorite part of the tweet is the claim that Noem “revitalized the Coast Guard.”

I’m not sure what all Kristi Noem did for the Coast Guard. I do know that she bought a new training facility for them. Oh, and as DHS Secretary, she insisted she needed more secure housing, so she booted the Commandant of the Coast Guard out of their residence and took it over for herself. It’s described as a “spacious waterfront residence” in Washington, D.C., on Joint Base Anacostia-Bolling. Because the Coast Guard, of course, operates on the nation’s and international waterways. As for the new training facility Noem purchased, I’m sure you can see it in your mind’s eye, a beautiful property on the water with plenty of opportunity to train sailors.

But nope, that’s not it. Kristi Noem‘s new Coast Guard facility is in Birmingham, Alabama. I live here, so I can tell you with authority that it’s landlocked. The ocean is five hours away on Mobile Bay. We do have some lovely rivers and lakes here. The new training facility isn’t located on them, either.

So why put the Coast Guard here? It doesn’t really make a lot of sense. The facility Noem purchased was a small private college, Birmingham Southern, that went bankrupt about two years ago and has been vacant since May of 2024. The campus has been on the market since then.

It was Alabama Senator Katie Britt who announced that Birmingham Southern had been selected as the site for the Coast Guard’s new training center. Britt chairs the Homeland Security Appropriations Subcommittee, which funds DHS and the Coast Guard. “This is a huge day for Birmingham, our great state, and the U.S. Coast Guard,” said Britt. “This move will save the American taxpayers hundreds of millions of dollars,” added Alabama’s other Senator, Tommy Tuberville.

Al.Com reported that “ the purchase price was undisclosed.” The school, which has been empty for two years, was characterized as being in Turnkey condition.

Explaining the unusual location of the facility, Master Chief Petty Officer Phillip N. Waldron said the Coast Guard had urgent need of a new facility and that the inland location wouldn’t be a problem. “That’s one of the things that I think we had to kind of get out of the mindset of, ourselves,” he said. “When we look at the whole purpose of a training center, we didn’t necessarily need it to be on the water. What we needed [for] it was to be a place that had the adequate facilities that we can train folks to be able to go do that out on the water.”

Maybe it will work out okay when new Coast Guardsmen “do that out on the water.” After all, this is the agency that spent $2.25 million to buy 25 Chevrolet Tahoes emblazoned with the ICE logo, which someone figured out after they arrived couldn’t be used by an agency that’s so concerned about publicizing its work that agents wear masks.

Semper Paratus, as the Coast Guard’s motto says. Always ready.

Noem said in a statement after the location of the facility was announced, “This next generation of heroes deserves training centers and support facilities worthy of their mission, and that is exactly what they are going to have in Alabama.”

Go get ‘em, Shield of America

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Early, before the rain kicked in, we had a salad buffet.

Clementine is a very sweet chicken. She doesn’t pose for me very often, so this was a rare picture of her (I had a croissant in my pocket and she knew it).

I put the eggs down on the ground while I was collecting and this very well-behaved girl sniffed them but didn’t get into them (and she got scramble for lunch).

Omeletta helped us plant an Olive Tree.

The chickens aren’t sure what’s happening with this new bed. They miss the stump that it took me a couple of years to get all the way out, but they’ll be happy when they realize I’m going to plan herbs for them next month.

Some bad chickens have made a nest that isn’t in the coop, but it’s sort of pretty with all of the feathers, and thankfully, I’m onto them, so no babies.

Not a chicken, but Tofu is too beautiful to get left out.

He was surveying the chicken salad day in this picture, and I wish I’d gotten a shot from further back, because they have absolutely no fear of him.

See y’all tomorrow. I hope you’ll join Marc Elias and me at Big Tent.

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Joyce

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Big Tent puts it like this: “If you care about democracy (and we know you do), this is your briefing.” I hope you’ll be able to join us. Use this link to register to attend on Zoom: https://bigtentusa.org/event/hands-off-our-ballots/

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It’s not just any white ball cap. This one, with the gold letters “USA” embroidered across the front, comes from “The Trump Store,” which benefits, you guessed it, Donald J. Trump. You can find the hat there for just $55, and in case you want to know more about the many items you could purchase to line the president’s coffers, there is plenty of merchandise, as well as links to Trump Hotels, Trump Golf, Trump International Realty, and Trump Winery. Apparently, if you’re Donald Trump, nothing says great opportunity for pushing your merchandise like bringing home fallen soldiers. Mary is right. It’s disgusting.

Trump has also been busy using the presidency to wage war against his enemies—not just abroad, but also at home. He continues to attack federal judges, even though they are part of a coequal branch of government that the Constitution and his oath of office require him to work with. On Friday night, the government filed its brief in its on-again, off-again defense of Trump’s executive orders against four law firms that provoked his ire for things like having once counted Bob Mueller among their partners or offering pro bono legal advice to Jack Smith.

The government’s brief begins like this: “Courts cannot tell the President what to say. Courts cannot tell the President what not to say. They cannot tell the President how to handle national security clearances.” It’s almost as though the government’s lawyers don’t know there’s a Constitution out there, a rule of law that both assigns power to and constrains the exercise of power by the executive branch of government, which is one of three branches of government in this democratic Republic, and not an all-powerful dictator.

“Ignoring those constraints, the district courts below bent over backwards to facially invalidate every section of four Executive Orders without considering their plainly constitutional aspects and applications. This appeal of those sweeping decisions is not about the sanctity of the American law firm; it is about lower courts encroaching on the constitutional power of the President.”

And there we have it. As with virtually everything we’ve seen in Trump 2.0, this is about creating an all-powerful presidency, and trying to bulldoze over anyone, federal district court judges included, who stand in Trump’s way. It is a far cry from the Founding Fathers’ vision of a government by, for, and of the people, designed to prevent the accumulation of too much power in any one branch of government, because they were trying to avoid a return to the rule of kings, or more pointedly, the rule of a despot.

The government doesn’t just object to the decision made by each of the four judges who considered the issue that Trump’s executive orders exceeded his powers. They characterize it as “grave error” in their brief and say the judges are “encroaching on the constitutional power of the president.” Utterly amazing since just days ago, the government told the court of appeals it wanted to abandon its lawsuit.

This is absolutely one of the top cases to watch right now. It will take some time for it to be fully briefed and argued in the court of appeals, and the big show will happen when the losing party there takes it to the Supreme Court. The Court can either let the lower court’s decision stand or agree to take the case. That would be, at the earliest, during the next term of Court, unless both the court of appeals and the Supreme Court move remarkably fast.

But we will see briefs from the lawyers representing the four law firms soon. They’ve certainly gotten under the president’s skin here, and he has apparently demanded that “his lawyers” at the Justice Department pursue what they likely believe, along with the rest of the legal community, is a stone-cold loser of a case. Trump doesn’t have the power to put law firms, or any other private companies, out of business to take revenge on them for personal grievances. That, almost by definition, is how a dictator operates, not a democratically elected president whose power comes from the people.

Normally, I’d expect to see a case like this handed by the Justice Department Civil Division’s appellate section. Instead, we have the Associate Attorney General, the number three official in the Department—he supervises the Civil Division—on the brief, along with one of his deputies. No word on whether they decided to take the case over or whether the experienced career lawyers in the Civil Division declined to participate. Both the earlier brief abandoning the appeal and Friday’s brief were signed by Abhishek S. Kambli, one of the Deputy Associate Attorney Generals. According to his Federalist Society biography, prior to his appointment at DOJ, Kambli was the Deputy Attorney General at the Kansas Attorney General’s Office, but he also has experience as both a federal prosecutor and a JAG officer. In other words, this is someone who understands the fight he is picking with the federal judiciary.

Trump also seems to be intent on using the Justice Department to execute his foreign policy. Trump and others have been talking this weekend about Cuba, suggesting that the days of its current leaders are numbered. Late last week, reminiscent of the use of a federal indictment to go into Venezuela and arrest its president, there was a report that the U.S. Attorney in Miami is running a “multi-agency working group” whose goal is to prosecute leaders of the Cuban government or Communist Party in the U.S.

One of the fundamental rules of being a federal prosecutor is investigating crimes, not people. Here, it’s shocking (I don’t use that word lightly when it comes to Trump) to have an announced foreign policy and learn that the Justice Department is being used to execute it. Federal agents and prosecutors only open an investigation when they have at least reasonable suspicion that a crime has occurred.

But MS NOW’s Carol Leonnig and Jake Traylor reported that, “roughly a month ago, White House officials privately discussed their concern that they did not believe they could remove Cuba’s leadership in the same way they removed Maduro, due to the lack of a clear criminal charge, according to a person familiar with those discussions. The working group was created after that concern was raised.” That approach stands any notion of justice and fairness on its head and turns our criminal justice system into a political tool to be used by a president who can now tell prosecutors to go get his enemies.

Today, it’s Cuban leaders. Tomorrow, it could be Democrats or anyone else the president doesn’t like.

Last Wednesday, a federal judge in Boston ordered the government to stop deporting people to countries to which they have no connection. Judge Brian Murphy ruled that the Trump administration’s policy of sending immigrants to nations other than their countries of origin is unlawful.

“This case,” Judge Murphy wrote, “is about whether the Government may, without notice, deport a person to the wrong country, or a country where he is likely to be persecuted, or tortured, thereby depriving that person of the opportunity to seek protections to which he would be undisputedly entitled. The Department of Homeland Security has adopted a policy whereby it may take people and drop them off in parts unknown—in so-called ‘third countries’—and, ‘as long as the Department doesn’t already know that there’s someone standing there waiting to shoot . . . that’s fine.’”

He told the government, “It is not fine, nor is it legal.”

Predictably, the government has gone to the First Circuit Court of Appeals for an emergency stay, so it can continue deporting noncitizens to third countries with as little due process as possible, despite the danger it is placing people in. "The Supreme Court twice stayed the district court’s sweeping nationwide, classwide preliminary injunction," the government argued, suggesting that the judge was trying to "evade" prior decisions by higher courts. We discussed the origin of this case here.

The government has advised the court that if the First Circuit denies the stay, it will go directly to the Supreme Court for a shadow docket ruling on its request for an injunction. There could be a lot of action in this case this week.

Finally, in Georgia, a mediator is on board to decide whether Fulton County is entitled to get its ballots and voting records back from the FBI. That mediation will have to happen quickly. The Judge has ordered the parties to advise him whether they are able to reach an agreement by March 18.

In mediation, a neutral arbiter (the mediator) helps the parties to a lawsuit arrive at a mutually acceptable settlement to avoid trial. Mediation can be faster, cheaper, and less adversarial than a courtroom process. Here, the Judge reminded the government that it could keep copies of the documents it returned to the County, and suggested that agreeing to do so could avoid more extensive fact-finding in court. We discussed why the government might want to attempt mediation here, although this Justice Department seems to be able to do precious little to help itself out in a case where Trump is involved. Mediation proceedings are conducted in private.

On Friday, at the Reverend Jesse Jackson’s funeral, Barack Obama spoke:

“Each day we wake up to some new assault on our democratic institutions.

Another setback to the idea of the rule of law. An offense to common decency. Every day you wake up to things you just didn’t think were possible. Each day we’re told by those in high office to fear each other and to turn on each other, and that some Americans count more than others, and that some don’t even count at all.

Everywhere we see greed and bigotry being celebrated, and bullying and mockery masquerading as strength. We see science and expertise denigrated, while ignorance and dishonesty and cruelty and corruption are reaping untold rewards. Every single day. We see that, and it’s hard to hope.”

The stark contrast between the former president and the current one is unavoidable.

Giving up hope, as my book says, would be unforgivable. We owe staying in this fight to Reverend Jackson and to other leaders who have fought to make this country better. We owe it to the foot soldiers who marched across the Edmund Pettus Bridge 61 years ago in Selma, Alabama, and to everyone who marches today. Giving up is not an option

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• The Week Ahead: All the tails were wagging all the dogs as we entered the week. As the strikes against Iran continued, we looked towards continued developments at home—with the Epstein Files, where Republican senators were pressuring Pam Bondi to release files the DOJ has withheld involving Trump, and to federal judges, who, led by Minnesota, have been taking a consistent stand against ICE and for the rule of law.

• Grok on Chickens and Democracy: Is it come for the chickens, stay for the democracy, or come for the democracy and stay for the chickens? Plus some community fun with AI.

• Another Big Loss for the Little Bully: In a move that, spoiler alert, would be reversed the following day, DOJ abandoned its legal defense of Trump’s revenge executive orders that sanctioned four major law firms.

• DOJ Changes Course: After DOJ’s abrupt change of course in the case defending (then not defending, now defending again) Trump’s executive orders targeting major law firms, an in-depth explainer of the case, the filings, and DOJ’s weak position. We also touch on the Minnesota case involving ICE agents returning property seized from immigrants who were detained, another bad look for DOJ, and on the last-term energy Senator Thom Tillis brought to an Oversight Committee hearing questioning now-former DHS Secretary Kristi Noem—and why we need more of this energy in Congress.

• Last Night in Texas We Saw the Future: More Voter Suppression: Local Republican parties in two Texas counties opted out of joint primaries, creating confusion and chaos for Democratic voters on Election Day. It’s bad on its own, and it gives us an idea what we need to be prepared for in the midterms. But combine it with the SCOTUS ruling in U.S. Postal Service V. Konan, which removes legal consequences for the intentional non-delivery of mail (including mail-in ballots) and Trump’s push to “nationalize” elections, and you’ll see a coordinated push for voter suppression. Information and preparation are our tools—read here to understand the landscape.

• Fired, But for the Wrong Reason: The president fired DHS Secretary Kristi Noem—via Truth Social, of course. It was long overdue, and any one of many substantive issues including defying court orders, civil rights violations, and the death of American citizens at the hands of ICE agents, provide good reason for the move. But in the reality-show presidency, Trump made the move why? To protect his ratings.

• No More Benefit of the Doubt: We go in-depth for an analysis of an important Friday-night ruling from Judge John Tunheim in the Minnesota case regarding the failure of ICE agents to return personal property seized from detainees. The Judge did not pull any punches. If you missed this Friday night, it’s definitely worth your time.

• Bloody Sunday: Sixty-one years ago our country turned outrage over Selma into progress and the Voting Rights Act. We need to find that courage in ourselves again to combat Trumpism.

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These are complicated legal times, and it’s easy for the truth to get lost in the chaos. Civil Discourse doesn’t just track today’s headlines—it connects them to the legal and political history that explains why they matter. We won’t forget what’s at stake, or let Trump and his allies rewrite the past. You can subscribe to Civil Discourse for free and get clear analysis that helps you see the whole picture, delivered straight to your inbox. If you’re in a position to, your paid subscription helps me devote the time and resources it takes to write the newsletter. That means everyone has access to information they can share with friends and family—a constructive act we can all participate in right now, helping more Americans understand how critical this moment is.

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Given the brutality of the attacks, he was lucky to end up with a concussion. As serious as that was, it could have been far worse.

The national press reported what was happening in Selma to the rest of the country. The outrage it generated across the country was a pivotal moment in the struggle for civil rights. The Voting Rights Act of 1965 was passed later that year. It created federal protection for voters and outlawed the supposed literacy tests that kept Black people from voting if they couldn’t answer ridiculous questions meant to exclude them from participation in elections—things like how many bubbles there were on a bar of soap or how many jelly beans there were in a jar.

Brutality no longer outrages some Americans. They watch immigrants rounded up, zip-tied, frog marched into El Salvadoran prisons, and assaulted by federal agents in the process of detaining them. They read about people herded into facilities where there are bugs in the food and they sleep on concrete floors. They watch footage of American citizens being shot on the streets of Minneapolis and learn that an agency covered up the shooting death of a Texas man for a year. And they are unmoved.

How we became that country, or at least how MAGA became that country, is hard to comprehend. People readily swapped out their religious beliefs to worship at the altar of a man who doesn’t believe in kindness or decency. MAGA Republican politicians, which is to say virtually everyone in the Senate and the House, fear Trump more than they care about truth and justice.

Earlier this week, we attacked a girls’ school. The Wall Street Journal reported that, “U.S. military investigators think American forces likely were responsible for a strike that killed dozens of children at a girls elementary school in Iran, a U.S. official said. The investigation hasn’t reached a final conclusion.” The New York Times reported that the strike on the school in Minab “appears to have been part of an attack on an adjacent naval base in southern Iran, where officials said U.S. forces were operating.”

Today, Trump was asked about the attack and who was responsible. He answered with a lie. He said Iran was responsible. Even Pete Hegseth couldn’t back that up. Standing next to the president, he said the attack was still “under investigation.”

Where is the outrage? On the anniversary of Selma, a moment that reminds us that Americans are capable of coming together and doing great things, MAGA remains enthusiastic about where Trump is taking the country while many Americans seem to have become numb from the constant barrage of truly horrible things this administration does and is perfectly fine with.

Trump always has an excuse. Then, he relies that something new will come along to knock the most recent outrage off of the radar screen: The Epstein files, Minneapolis, the attack on Venezuela, war in Iran. And it goes on and on. When it comes to the Iranian girls who were killed in their school, the one safe place that should have existed for them, the Trump administration will hide behind “we’re investigating” and hope everyone will forget and move on. Like always, Donald Trump counts on “luck” to help him avoid consequences.

We need the kind of national courage that took us from Selma to the Voting Rights Act in the space of five months. It’s difficult in a sense because there are so many different outrages that it’s hard for people who love democracy to pick one to coalesce around. They all deserve our attention.

But we can all condemn an attack on a school—and a president who lies about his responsibility for it. In fact, we have to, if we don’t want to become a country that kills people at will. What happened in Iran should terrify Americans because of what it means if we don’t face it. And that is especially true as the administration warehouses immigrants in this country and we hear stories of people dying in those places from lack of medical care and even homicide. There is great danger in moments like this, and that is precisely why we need to make sure we don’t let this go.

I wrote to my senator and asked for her views. Predictably, I have not had a response yet, but I hope everyone will contact their Republican senators and let them know that they’re watching. What if we all joined forces on this one issue and they got bombarded by millions of their constituents demanding accountability for this. It’s not difficult to do. Let’s try it.

How do we get started? I wrote to my Senators this morning.

I’m sure I’ll get a response in a week or so, thanking me for sharing my views and saying nothing of substance, committing to do nothing of substance. But we know their offices keep track of communications on a topic. That’s how we ended up with the Epstein Files Transparency Act, because people like you and me wrote and called and demanded justice. We need to mount a sustained campaign here too, this time to find out what the truth is and to publicly acknowledge it, because we cannot become a country that kills school kids and lies about it.

So write and call your senators and representatives. But don’t stop there. Join up with others locally and online and inspire a movement, demand the truth, be a country that holds itself to a higher standard. It would be easy to brush this aside as something that happened to people far away, as a mistake during a war—which may well be the truth of the matter. But mistakes should have consequences when innocent people are killed, and consequences start with acknowledging the truth. Donald Trump has gotten away without doing that too many times, and this is where it leads. It has to stop. We have to stop it.

At times like these it can be easy to feel powerless. But we aren’t. We know that when we act, our elected officials have to respond. Just like Americans did in 1965, it’s our moment to come together in community and demand that our government do the right thing. Today, of all days, we should draw courage from our history and live up to the example that was set in Selma 61 years ago.

If Civil Discourse helps you think through moments like this—drawing on history, law, and a long memory from years inside the justice system—I hope you’ll consider becoming a paid subscriber. Your support makes it possible for me to keep doing the research and careful analysis these pieces require, and it helps sustain a community of people who believe that understanding what’s happening is the first step toward doing something about it.

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Judge Tunheim felt so much urgency about the matter than he got his ruling out on a Friday night, not a typical time for a federal judge to be finishing up at work. But he decided it was time to deliver a reckoning to the Trump administration and apparently, didn’t want to delay. His order starts like this:

“During Operation Metro Surge, ICE repeatedly failed to return personal property to detainees ordered released by the Court. In some cases, weeks after their release, and in violation of Court orders, Petitioners continue to be deprived of access to their most essential physical possessions, intensifying the harm of their unlawful arrests and presenting further risks to their safety, liberty, and well-being.”

You can tell from the start. This is not a happy Judge. And it gets worse for the government.

Judge Tunheim says that the former detainees can submit claims for their “lost or missing property.” Then, he directs the government to “promptly remedy all ongoing violations of Court orders in these cases by compensating all claims submitted by Petitioners.” He gives the government 30 days to do that. It’s not entirely clear but I read this as saying “all” submitted claims must be paid. The government doesn’t get to evaluate the claims or argue about the dollar amount. It just has to pay up. In 30 days.

Then comes the kicker. The Judge says that holding the government, which here would mean the U.S. Attorney and other officials, in contempt “is not the appropriate action yet,”…..“but.” “But” does a lot of heavy lifting here and Judge Tunheim doesn’t beat around the bush in clarifying just how disturbing the Trump administration’s conduct has been. He writes, “the Court directs Respondents,” (that’s the government here), to handle the claims “with the same urgency that it used when arresting and transporting detainees, including these Petitioners, out of the state of Minnesota during Operation Metro Surge.” Ouch.

And the Judge isn’t giving the Trump administration any deference. They get 30 days. The Judge has scheduled a hearing for Day 31 “to address whether and to what extent Petitioners’ claims have not been satisfied. If Petitioners’ claims have not been satisfied by that date—more than thirty days after the date of this Order—the Court will impose civil contempt and daily civil fines until full compliance is achieved.”

You might think that would be as bad as it could get for the government. You would be wrong. Because the Judge identifies an additional question that must be dealt with, “A primary question at the hearing will be the identification of the appropriate official to pay the civil fines.” The question he’s posing is this: If the government goes into contempt, which the Judge seems to be anticipating, who has to pay the fines? Presumably, that won’t be the taxpayers. There are some interesting options, starting with the U.S. Attorney and ICE issues and potentially heading much further up the government food chain.

The Judge spends some time on the facts of each the five cases he rules in with this order. Suffice it to say, they are outrageous. The first case involves six individuals, identified only by their initials. They were “arrested at gunpoint in their home” in January and subsequently asked the court to release them. On January 19, 2026, the Court ordered the government to “produce a warrant justifying entry into Petitioners’ home” by 5:00 p.m. that day. The government didn’t, and presumably couldn’t, leading the court to order that all six be released within 72 hours.

That’s easy for the government. A direct order from the court requires compliance by the United States. But of course, since it’s the Trump administration, that didn’t happen. The Court threatened the government with contempt but it still took three additional days before all of the individuals were released from custody. In early February, those people had to go back to court—the government hadn’t returned their property, including documents like work permits and drivers licenses. The government dragged its feet, returning documents later than the Judge’s order permitted. In once case, Judge Tunheim notes they still haven’t returned an individual’s work permit.

In another one of the consolidated cases, the government said it couldn’t find the individual’s property. That defies belief. There are careful rules for inventory and storing of property seized during an arrest or detention. It took the government 30 days to advise that “Petitioner’s “cellphone, clothing, boots, and jewelry have been found” and could be picked up. In another case, the government advised the court that an individual’s Minnesota driver’s license, Guatemalan driver’s license, and Guatemalan Consular Identification Card had been “lost.”

In another case, a woman who had been detained was released was still missing “all of her personal property.” That included headphones, an iPhone, a watch, a wallet with debit and credit cards, personal documents, and a Minnesota identification card a month later. Finally, the government advised the court the property had been found. But they didn’t turn it over, they backpedaled and said it had been lost after all. Then, they found it again, in a sealed bag used for storing property in Texas. Judge Tunheim wrote in his order, “At the time of the Court’s hearing on March 5, 2026, it was unknown if this sealed property bag included all of Petitioner’s personal property.

In the final case, the detained individual reported that he had not received his “nail gun,” “[o]ver $100 in cash,” his social security card, or his “Work Authorization Card” after being released from custody. Ice advised the court, after the deadline for doing so, that the individual’s “social security card had been located and was being transported back to Minnesota from Texas but that ‘ICE is still actively working on locating the remaining property.’”

You just can’t make up a clown show like this. Lost. Not lost. Lost. Not lost. And, The standard procedure is for law enforcement to create an itemized list of all property seized when an individual is detained, so that it would be immediately clear what items were in which locations. The failure to handle routine law enforcement tasks suggests an absolute breakdown of good order and discipline at ICE and CBP. There is literally no reason for the court to have confidence in any representations they make. And this is only the cases in front of Judge Tunheim. Judge Bryan has another 25 cases like this, as we discussed in The Week Ahead.

The Judge had the U.S. Attorney, Daniel Rosen, in court on this matter previously and Rosen told the Judge that the “Department of Homeland Security intends to remedy these violations by reimbursing Petitioners for their property.” Rosen told the Judge they can expedite this process, individuals wouldn’t need to file lawsuits, and if their property was found afterwards it would be returned, even if they had already been compensated. The Judge found that papers like work permits, which are issued by DHS agencies, should be reissued promptly and at no charge. The government has its marching orders.

It’s easy to understand why the Judge is out of patience given all the history he lays out in these cases. The government doesn’t deserve any more chances. It has shown no good faith here, only the drive to execute Trump’s inhumane mass deportation policy. Judge Tunheim has advised the government, very specifically, that if it doesn’t comply with the court’s order it will be in contempt. It’s about time.

Judge Tunheim concludes with this, “In the cases before the Court, Petitioners were unlawfully arrested and detained, and the Court ordered their immediate release. Yet Petitioners’ hardships did not end when they were released from detention because Respondents retained personal belongings that are critical to ensuring Petitioners’ daily safety and well-being.” He notes that the cases he is handling in this order aren’t just about these specific people, that they are representative of what people across Minnesota experienced during ICE’s Operation Metro Surge. And he points to the fact that many of them “are the principal breadwinners for their family and…the loss of their work authorization documents has resulted in lost wages and hardships for their family.” Others are experiencing food insecurity because they don’t have access to finances or phones. Without their phones they can’t access stored documents, or even their loved ones. They have lost jobs and can’t get new ones without their documents. And, he concludes, “Perhaps most troublingly, many petitioners, including Christian A.S.C., are terrified that the loss of their personal identification documents will subject them to additional arrests because they will not be able to prove who they are or aren’t.”

This, in a nutshell, is what this administration is all about. The cruelty isn’t incidental, it’s intentional. This is how brutal dictatorships treat people, not democracies. And who stands against the administration? It’s not Congress, where Republican Senators are lining up to confirm Trump’s new, not even marginally competent nominee to be DHS Secretary. It’s up to the federal district judges now.

Courts around the country are no longer willing to give this Justice Department the benefit of the doubt. Traditionally, judges applied what’s known as the presumption of regularity, assuming that federal agents and prosecutors were doing their jobs properly, acting in good faith, and following the rules unless there was clear evidence to the contrary. But when it comes to matters tied to Trump’s priorities, there is now ample evidence that the presumption doesn’t hold. Judges are beginning to recognize that reality. Confronting it isn’t pleasant, but it’s necessary—and the courts that are doing it deserve our support.

I’m grateful for the community that has formed around Civil Discourse—thoughtful people who want to stay informed and engaged with the law and our democracy. We can’t read every opinion that every judge issues, but some of them, like the one we look at tonight, are incredibly important to understanding the moment we’re in and how the judicial branch is handling it. If being part of a community like this appeals to you, click the link below to become a paid subscriber.

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Joyce

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There were plenty of reasons to fire Noem. The writing was already on the wall by late January. We discussed it here, noting that, “There is already buzz that if Greg Bovino’s exile isn’t enough to quell the protests, DHS Secretary Kristi Noem could be the next sacrificial lamb. Anyone who works for this president would do well to remember there is no such thing as loyalty; it’s all just transactional benefit. Ask Jeff Sessions. Or Rex Tillerson, John Bolton, John Kelly, and others too numerous to list. If they think Trump will protect them when it no longer benefits him, they are sorely mistaken.”

The best reasons to fire Noem are epitomized, but not limited to, what happened in Minneapolis.

Renee Good and Alex Pretti are dead, killed by agents under Noem’s control. Instead of condemning their deaths and opening full, transparent investigations into them, she instead, and almost immediately, attacked the two dead Americans. She accused Good of attacking the agents who shot and killed her. She called Pretti a domestic terrorist. Those are lies.

Congressman Jamie Raskin gave her a chance to retract those lies in her oversight hearing earlier this week. She refused to.

Noem has repeatedly excused unconstitutional law enforcement conduct. Like the abusive arrests of American citizens we discussed here. There are so many incidents where she went to bat for unlawful behavior by her agents, that she became the poster child for it. We’ll never forget five-year-old Liam Ramos being taken into custody with his Spider Man backpack and blue bunny ears hat.

We documented some of the earliest abuses in a piece last October that asked, “Are We The Nazis Now?” There are so many others now. Dead American citizens, illegally detained and deported people. All an affront to American democracy, enabled by a DHS Secretary who was seeking the approval of the president who has now fired her.

When Congressman Eric Swalwell asked in her oversight hearing if any agent had ever been subject to discipline, Noem didn’t know the answer. Which means she didn’t insist on appropriate discipline in the agency she led, even after the deaths of American citizens. That includes one the agency buried, the shooting death of Texan Ruben Ray Martinez, until it was disclosed and we discussed it last week.

Noem should have been fired long ago.

The agency she runs has engaged in flagrant disregard of orders issued by federal judges. Vermont Congresswoman Becca Balint made that clear in the oversight hearing: “A federal judge appointed by George W. Bush identified 210 times—210 times when your agency violated court orders. And one judge has said about ICE, ‘ICE has likely violated more court orders in January of 2026 than some federal agencies have violated in their entire existence.’ Now, Secretary Noem, you have said repeatedly that your department is, ‘following all court orders,’ but just because you keep saying it does not make it true and Americans aren’t stupid and they can see what is happening.”

Further back, there was the incident with California Senator Alex Padilla last June. Padilla tried to ask Noem a question during a press conference she was holding in his state. Agents manhandled him to the ground and zip-tied him, as he audibly identified himself. Noem said afterwards on Fox News that Padilla lunged toward the podium where she was speaking and failed to say who he was. That’s a lie too, as video from multiple angles showed. Instead of apologizing, she used an official DHS social media account to criticize the Senator.

This pose in front of CECOT prisoners. Sickening. Unfit to be a cabinet secretary.

Under Noem’s leadership, ICE denied members of Congress access to the facilities they held detained people in, in an effort to prevent them from engaging in oversight, which Congress is entitled by law to do, some would say obligated, given the allegations of rampant abuses. And just in case you thought FEMA couldn’t sink any lower than it did following Hurricane Katrina, Noem “accomplished” that too, tying up payments that, not to put too fine of a point on it, are American taxpayer funds earmarked for Americans going through catastrophic emergencies.

But none of that got Noem fired. Trump fired her today because she was making him look bad. Not because what she did was wrong, was awful. If that had been the case, he would he fired her when she did it. He would have reined her in. He never did. In fact, MS NOW’s Vaughn Hillyard suggested that there had been a strong push from people like Stephen Miller for her to deliver still more deportations.

Colorado Representative Joe Neguse wanted answers from Noem about a highly questionable $220 million vanity ad campaign she entered into with Safe America Media. (I’ve seen the dollar value of the entire campaign set at everything from $100 million to $220, Neguse pegged it at $143, but both the AP and ProPublica set it at $220). You know the ads—Noem on horseback, carefully styled hair streaming behind her in the wind, proudly touting the accomplishments she and Donald Trump had achieved.

Neguse: “You want the American people to believe that this is all above board? That $143 million of taxpayer money just happened to go to this one company that doesn’t have a headquarters, doesn’t have a website, has never done work for the federal government before, and is registered, apparently, or attached to a residence from a political operative and, of course, one of the subcontractors of that contract, as you know, is a political firm that’s tied to you back when you were governor of South Dakota? The reason why I asked these questions is that this is taxpayer money.”

Noem has claimed the ad contract was awarded through a competitive process, but both the AP and ProPublica have reported long-time Republicans operatives are the beneficiaries. And this morning, NBC’s Julia Ainsley reported that, “Homeland Security Secretary Kristi Noem handpicked contractors to lead a $100 million campaign to recruit Immigration and Customs Enforcement officers instead of allowing competitive bidding for the jobs, according to three administration officials and internal communications reviewed by NBC News.” DHS denied it, but we’ve seen Noem’s track record with the truth.

Louisiana Senator John Kennedy seems to have put the nail in her coffin. During her Senate oversight hearing earlier this week he pushed her on who signed off on the expensive and highly flattering ad campaign. She said the president knew about it. That turned out to be a fatal mistake. Kennedy described Trump as “pissed off.” Many news sources today attribute her firing to the comment. It’s a convenient excuse for firing a contestant whose ratings had started to lag. The star of the show didn’t want any of her tarnish to rub off on him.

Noem was fired in a Truth Social post that Trump sent while she was speaking publicly. She appeared to be taken by surprise.

This administration is reality TV, not responsible governance.

Trump apparently thinks he can appease his viewers with pictures of his new ballroom. He posted a series of them on Truth Social today. Like this one.

There were plenty of reasons Noem should have never been appointed in the first place. That responsibility lands on the senators that confirmed her as well as the president who nominated her, so spare me the late-in-the-game outrage of a John Kennedy or a Thom Tillis. They’re willing to criticize when they don’t face any political consequences for it and the die is already cast. They could have kept this from happening by refusing to confirm her. And there’s no reason to believe they’ll act any more responsibly on the do-over opportunity they will get to confirm the next DHS Secretary. We will watch.

The new DHS chief nominee, straight from central casting for the Trump administration, is Oklahoma Senator Markwayne Mullin. The only member of Congress without a bachelor’s degree, Mullin holds an associate degree in construction technology from Oklahoma State University Institute of Technology. Oklahoma is nowhere near the border. It’s hard to figure out what his expertise for running Homeland Security is.

Trump has given Noem a new job as a buh-bye present. Something about the Shield of America. I’ll leave it to others to make the Marvel Universe jokes. But you have to ask why he’d fire her as the Secretary, under a cloud of allegations, just to give her another taxpayer funded job. (You might also ask what former cabinet secretary would be desperate enough to accept this sort of post, where she will work several levels below her former colleagues in the Cabinet, Secretaries Rubio and Hegseth). It looks like a bit of “Keep your enemies closer.” Noem has been an insider. There is undoubtedly a lot that she knows. But she also probably needs the job and the safe landing. She’s not someone who has a lot of places to go once she loses her “in” with Trump. The new job, despite the tremendous loss of status, secures her ongoing loyalty, at least for now.

And so we see how this administration continues to operate. It’s the same way that Trump always has. It’s a despicable mixture of kleptocracy (government corruption) and kakistocracy (government incompetence), unleashed on Americans by the man who claimed, “I alone can fix it.” But we all know he can’t.

Thanks for being here with me at Civil Discourse. I appreciate your support, which makes the newsletter possible.

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Joyce

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It feels like a test run for the midterm elections.

According to posters on Twitter who had receipts in the form of videos like this one, Black and Brown voters showed up to vote, only to be told that the polling place was “only for Republicans.” This type of last-minute gambit is appalling. But voter suppression is nothing new to Democrats in the Deep South. In fact, it defines the landscape. Examples range from mailers targeting Black voters that tell them their day to vote is the Thursday after an actual election to last-minute changes to assigned polling place locations to impossibly long lines to inadequate ballot deliveries to heavily Democratic boxes that require voters to wait for additional deliveries before they can vote.

We expect and try to prepare our communities for those experiences. We shouldn’t have to.

So far this cycle, the president of the United States has asked state Republican leaders to draw new, rigged voting maps so he can try to retain Republican control of the House. He tried to pass a major voter suppression law, the SAVE Act. And he has repeatedly called on Republicans to “nationalize” elections, which is to say to take control away from local folks (Democrats) who are charged with running them. It’s an open call for mass voter suppression. Last night was yet another wake-up call.

As we have recently discussed—and it bears repeating—voting is a right, not a privilege. Increasingly, Republicans, frequently motivated by the leader of their party, feel free to treat it like a privilege, one that exists only for them. I hate the advice I’m about to give, because it should be easy for every qualified American to vote, but the reality is, we are going to have to work hard and fight to be able to exercise that right this year. That means:

• Advance planning so you can register to vote, stay registered, vote, and make sure your vote is counted (I write about this in detail in my book, Giving Up is Unforgivable: A Manual For Keeping A Democracy)

• Using your financial resources to obtain, and if you can, help others get the ID they need through groups like VoteRiders.

• Getting involved with your local League of Women Voters to help spread advance education about polling places and voting requirements in your community.

The time to figure out where you’re going to plug in is now. There are lots of groups who will warmly welcome you. Sharing information with friends and family is critically important, and something each of us can to do make sure everyone is up to date or important details like changes in polling places.

But there’s more.

Last month, Justice Clarence Thomas wrote the majority opinion in U.S. Postal Service v. Konan. He held that the government could not be sued for intentional nondelivery of mail. That, of course, includes mail-in ballots. The decision was 5-4. In a dissent authored by Justice Sonia Sotomayor, and joined by Justices Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson, Sotomayor argued that the majority delivered far more protection from lawsuits to the Postal Service than Congress had intended to give it and that it’s not “the role of the Judiciary to supplant the choice Congress made because it would have chosen differently.”

But choose differently, the majority did. Although Konan is about the delivery of residential mail, its impact on voting will be far-reaching, removing any consequences of even intentional misdelivery or withholding of mail-in ballots. That’s alarming in the context of a government office that has a history, under the leadership of Trump crony Louis DeJoy, of using anti-voter tactics. DeJoy stepped down last March after reporting surfaced that he had invited DOGE to help him find “further efficiencies” at USPS. David Steiner, a former Waste Management CEO who has served on the board of USPS competitor FedEx, is the new Postmaster General.

Trump is undoubtedly pleased by the Supreme Court’s recent opinion, given his well-documented hostility toward mail-in ballots—an animosity that remains puzzling given that he (and reportedly other Republicans) frequently uses them. People who want to keep other people from voting may see value in the Konan decision, because it adds an element of uncertainty into mail-in voting, and people who were planning on using it or have no other option may just give up because they think their ballot won’t get counted. And, with no consequences for even intentional failure to deliver mail, there could be a disruption of ballots from, say, certain parts of certain counties in advance of election day.

That’s not to say that Konan should permit the Post Office to do this, and there are other laws that protect elections. But increasingly, we live in a world where we have to contemplate the worst case scenario and prepare for it when it comes to voting if we want our votes to count.

Many people, and especially those who are ill, away for school, have a disability, or must travel on election day rely on mail-in voting. Eight states permit elections to be conducted entirely by mail: California, Colorado, Hawaii, Nevada, Oregon, Utah, Vermont, and Washington state. Nebraska and North Dakota permit counties to opt in to mail-in voting. Other states have a mail-in voting option for small elections or rural counties. If the Court ends the counting of late-delivered ballots, it will undoubtedly disenfranchise voters who may not hear about the new rule in time and appreciate the consequences. Without regard to which candidates are hurt the most by this—apparently Republicans who are pursuing these actions are betting it will be Democrats—it’s rank voter suppression.

The only real answer to this debacle is that voters who routinely use mail ballots need to advance their timelines, and people who need to apply for an absentee mail ballot should do so as soon as possible and mail it in as soon as possible. It will be increasingly important to track your ballot’s delivery and make sure it gets counted.

Everything Trump touches dies. Sadly, even the Postal Service.

All of this puts us on notice of what to expect this year: more of the same old voter suppression. Expect some of it to land close to election day, changing the rules and moving the goal posts late in hopes that many people won’t learn of it. So, we need to raise awareness about this now and remind people that they wouldn’t be trying so hard to keep us from voting if our votes didn’t matter. I have no doubt that we are more determined to save the Republic than Trump is to steal our votes. Information and preparation are our tools. Let’s go.

If this piece helped you see more clearly how voter suppression works—and how we can push back—then you understand what Civil Discourse tries to do. Careful legal analysis takes time: reading the opinions, following the cases, and connecting the dots. If that kind of work matters to you, becoming a paid subscriber helps keep it going and helps make sure more people have access to clear, fact-based information when it matters most.

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Joyce

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After last night’s news broke, the Justice Department changed its mind. Perhaps, although we don’t know for certain, it would be more accurate to say Trump told his Justice Department to change its mind. Suffice it to say it’s enormously unusual for the government to one day file a motion to voluntarily dismiss its appeal on these cases and the next morning to say, “Nope, our bad, we’ll go ahead and defend those appeals after all”—which is precisely what happened this morning.

That’s how you get to the cumbersome title of today’s pleading, filed by the Associate Attorney General, the number three official at DOJ, just below the Attorney General and the Deputy Attorney General. This morning, he filed a “Motion To Withdraw Motion To Voluntarily Dismiss Appeals.”

The law firms opposed the motions to withdraw the motion to dismiss. A little legal terminology to keep everything straight here:

• The law firms each filed a lawsuit to challenge the executive order against them, so they are the plaintiffs.

• Trump and his cohort were the defendants in each case.

• The law firms won in the lower court, and it’s the government defendants who are (and apparently still are) challenging their loss, so on appeal, they are the appellants and the law firms are the appellees.

• The four individual law firm cases are currently consolidated in front of the Court of Appeals for the District of Columbia. That’s how the government was in a position to ask the court to dismiss the case, and of course, the plaintiff/appellee law firms were only too happy to agree.

The Justice Department’s opening brief in the case is due this Friday. Granting or denying its appeal/motion to abandon the appeal/motion to reinstate the appeal is within the discretion of the court, and although the sequence is highly unusual, there’s no real reason the court shouldn’t let the government proceed. We can expect a ruling soon, given that the brief is due at the end of the week.

But in many ways, the government would likely be better off letting this case fade away while most of the country is focused on the president’s war in Iran. It is very likely to be an embarrassing loss in both the Court of Appeals and in the Supreme Court (if it even gets there). It’s a weak case that reveals embarrassing personal weakness in a president who persistently abuses the power of his office as a tool for personal revenge. The New York Times Editorial Board put it like this earlier today, “This withdrawal of the administration’s withdrawal is amateurish, and it does not change the likely outcome of the fight. Judges — appointed by presidents of both parties — have repeatedly ruled that the executive orders were illegal.” We discussed last night that the four judges who ruled on the law firms’ cases, two Republican appointees and two Democratic ones, unanimously held that Trump’s executive orders were out of bounds.

There is also a fifth case, filed later, involving Mark Zaid, a lawyer who handles whistleblower cases. The administration tried to take away his security clearance, which would have made it virtually impossible for him to do his work. District Judge Amir Ali, a Biden appointee, characterized that action as “retribution” for Zaid’s work representing clients with complaints about the government. That case is not, at least as of yet, consolidated with the other four, and the lawyers in those cases have argued that the court should keep it that way because the issues are distinct. Consolidation would slow the matter down, and there is plenty of reason for the law firms to want to move forward quickly, especially given the strength of their case against Trump.

As for the Justice Department, it has again cheapened its position. Instead of pursuing cases in a principled way, based on the facts and the law, it has again made clear that it serves the whims of the president. That can’t help but make a mark on how the courts view the credibility of DOJ. We’ve talked before about the presumption of regularity, which courts have applied for decades to take as a given, in the absence of evidence to the contrary, that government lawyers do their duty and conduct themselves with integrity. Many judges have argued that it no longer applies.

This morning, in the combined habeas cases hearing before Judge Jeffrey Bryan that we discussed in The Week Ahead column last Sunday, the Judge advised Trump’s U.S. Attorney for Minnesota, Daniel Rosen, that although he didn’t want to use it, he had “not ruled out the consequence of imprisonment” if he found that the government was still in contempt of the court’s ruling that agents must return property seized from immigrants who were detained. Later in the day, he admonished an ICE supervisor, as she testified, that “aliens” are “people ... not space aliens.” At the end of the day, the Judge took the matters before him “under advisement” and will issue a ruling shortly. As with the executive orders case, the whole matter is a bad look for the Justice Department.

You would expect the Department’s leadership there to be doing everything possible to restore their credibility with the courts. Instead, they are seemingly content to continue to fritter it away in service of the president, having forgotten that their client is the American people. One of the places where that is most apparent is with the Epstein Files. Despite the Transparency Act, the DOJ has still withheld approximately 3 million documents, claiming it doesn’t have to produce them, even as there are demonstrably inappropriate exclusions and highly questionable redactions in what they have made available to Congress and the public.

This morning, outgoing North Carolina Republican Senator Thom Tillis told DHS Secretary Kristi Noem he thought she should resign. In today’s oversight hearing, he lambasted her for killing her dog. She wrote in a memoir that she had to shoot the dog because he was “untrainable.” She also shot a pet family goat. Tillis, a dog lover, said she had bad judgment, comparing her personal behavior and the lack of judgment the shootings showed to the way the agency she leads has carried out its work, including the shooting deaths of Renee Good and Alex Pretti at the hands of federal agents.

It’s about time Congress starts doing its job and holding federal law enforcement accountable. They have the tools to do it, with Tillis threatening to put a hold on DHS nominees if he didn’t get answers to questions he posed to Noem. We need more of the energy and candor of a retiring Republican senator in congressional dealings with this administration. Congress is going to have to police the Justice Department, too—it seems incapable of policing itself.

There’s a lot of noise out there about the law right now. My goal here is to slow things down, read the sources carefully, and explain what they actually mean. If that’s valuable to you, becoming a paid subscriber is the best way you can support my work.

We’re in this together,

Joyce

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At the time, I introduced the issue like this: “Unless you’ve practiced in Big Law, they’re probably just names: Perkins Coie, Covington & Burling, Paul Weiss. They are the law firms Donald Trump has attacked, using the power of the presidency in a venal form of personal revenge, by way of Executive Orders (EOs) that are so harsh clients have left firms, and some are rumored to be in dire straits. Yesterday it was WilmerHale, targeted explicitly because they hired two lawyers—the EO called it “welcomed” them—who had worked on the Mueller Investigation, which concluded Trump had engaged in behavior that could be prosecuted, but declined to do so because of a DOJ policy prohibition of indicting a sitting president.”

It was one of the earliest incarnations of Trump’s revenge agenda in action, Trump, deploying the power of the presidency against entire firms based on imaginary grievances against a few people there—or in some cases, long since departed.

Some firms caved. But not all. WilmerHale put out a statement saying, “Our firm has a long-standing tradition of representing a wide range of clients, including in matters against administrations of both parties.” It applauded Bob Mueller’s “long, distinguished career in public service, from his time as a Marine Corps officer in Vietnam to his leadership of the FBI in the aftermath of the September 11th terrorist attacks.”

Perkins Coie filed a lawsuit against Trump in mid-March despite reports that it had some initial difficulty finding a firm willing to take it on as a client—that’s how much of a shock Trump’s orders delivered. But the firms recovered. Jenner & Block filed a lawsuit and issued a statement: “The order threatens not only Jenner, but also its clients and the legal system itself. Our Constitution, top to bottom, forbids attempts by the government to punish citizens and lawyers based on the clients they represent, the positions they advocate, the opinions they voice and the people with whom they associate.” WilmerHale and Susman Godfrey filed lawsuits as well.

But nine large firms bent the knee, agreeing to the administration’s extortionate demand that they provide free legal services for some of the president’s favored causes. Included among the nine were firms that had litigated on behalf of democracy during the first Trump administration. Now, they sidelined themselves.

Why go after Big Law? We can see it more clearly now, as District Judges and the rest of the federal court system increasingly fulfill the checks and balances role the Constitution assigns to them. Courts can’t act on their own, they need lawyers to bring them cases. During the first Trump administration, that happened regularly. The new administration wanted to put a stop to it.

Jenner & Block, asking for a temporary restraining order against enforcement of the EO against them, made the point that “These orders send a clear message to the legal profession: Cease certain representations adverse to the government and renounce the Administration’s critics—or suffer the consequences.” The courts can only be effective at preventing Trump from usurping power that does not belong in the hands of the presidency if the law firms bring them cases. Trump could simultaneously indulge petty grievances and try to hamstring the courts.

The EOs signified that someone in Trump’s orbit understood this vulnerability: The rule of law can hold him accountable. That’s exactly what we’ve seen in the months since in many ways. In this particular regard, every law firm that challenged an executive order scored early wins in court.

This morning, the Erin Mulvaney and C. Ryan Barber at the Wall Street Journal reported that the Justice Department plans to “abandon its defense of the president’s executive orders sanctioning several law firms.” Until now, the administration had been pursuing the cases it suffered early losses in.

Perhaps someone in the Solicitor General’s office pointed out that the cases were inevitably doomed to failure and suggested dropping them while the news cycle is focused on Iran. After the administration’s loss in the tariffs case, the president may have a newfound concern over the sting of losses like this. So far, four different federal judges have held the orders are unconstitutional. While one of those judges was appointed by Barack Obama and another by Joe Biden, two of them were appointed by George W. Bush— bad math for the administration.

As for the firms that capitulated early on, they too appear to have miscalculated. Neera Tanden, who served in the White House during the Biden administration, explained the cost on Twitter:

Former Associate Attorney General Vanita Gupta, who is now the Director of the Center for Law and Public Trust at NYU Law School, explained it like this: “The law firms that capitulated to blatantly unconstitutional orders out of fear and for increased profit undermined the rule of law and the legal profession in this country. This episode will be remembered as demonstrating the difference between institutions that had the courage to uphold the Constitution and fight bullying, and those that didn’t and gained nothing. Let’s hope that media companies, universities, and other organizations pay heed.”

Standing up to the bully is the right response. Yes, it requires some initial courage. But the bully ultimately backs down. And every time he does, we win. Today, we won again, thanks to some lawyers who were willing to take the risk and be brave.

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Joyce

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