Index to posts in this series. Please read this first; at least the section on de Beauvoir’s definition of ambiguity.

I’m on the road, and reading The Ethics of Ambiguity  by Simone de Beauvoir. She was an Existentialist, as one would expect from a person in a long-term relationship with Jean-Paul Sartre. In Chapter 1 she gives an explanation of parts of Sartre’s Being and Nothingness, the leading book on Existentialism. She distinguishes it from Stoicism and Marxism, but I won’t address that.

I think she opens with this because any systematic approach to ethics should begin with a statement of the writer’s understanding of human nature. De Beauvoir defines a specific ambiguity which I discussed in the introduction to this series. Her views are also informed by another ambiguity, the absurd. We want certainty. We want a foundation. But there isn’t one. We have to proceed, we have to live, without that certainty we want.

I read Being and Nothingness in College, but I didn’t, and don’t, care much for it. I agree with the Existentialists, including Sartre, that the universe is indifferent to its parts, from planets to mountains, flowers, insects, animals and human beings. I think there is no meaning to existence apart from our experience of it. Sartre explains that this lack of meaning gives us humans a radical degree of freedom, which we cannot avoid. Sartre’s explanation seemed to me to be wrapped up in silly little epigrams, like “Man’s being is not to be.” They did and do annoy me no end.

De Beauvoir gives a more sympathetic reading to Sartre’s tome, and for anyone interested, her explication in Chapter 1 of the wordy and needlessly obscure Sartre is worth reading. The point is to ground her discussion of ethics as a part of the human response to the meaninglessness of life and the freedom and responsibility it entails.

De Beauvoir discusses parts of Sartre’s book

Sartre’s statement that man is the being whose being is not to be begins with the notion of being. That seems to mean a fixed being, as an animal or a tree. People do not necessarily have a fixed nature. We might act like we do, we might aspire to have such a fixed being. But by nature, people live in a present filled with possibility, and want to participate in that possibility. We want to live in that wild freedom.

Freedom gives us the space in which we exist. We interact with others seeking to know them and in the process to know ourselves. We pursue our personal projects. We experience the savors and ugliness and all that come with existence. We want to be like gods in our existence, but this is an impossible and stupid goal.

I can not appropriate the snow field where I slide. It remains foreign, forbidden, but I take delight in this very effort toward an impossible possession. I experience it as a triumph, not as a defeat. This means that man, in his vain attempt to be God, makes himself exist as man, and if he is satisfied with this existence, he coincides exactly with himself. P 12-3.

By appropriate, I think she means merge myself, take possession of in my being, as a god would do. I think the idea of “coinciding” here means that we become fully human, our full selves, all we can be or aspire to be. We can and should aspire to be fully human, but we cannot be gods.

De Beauvoir says that for Sartre, one implication of embracing this freedom is that a fully human person will not accept any outside justification for their actions. People want to justify themselves, and we have to choose standards for justification we learn from others or create ourselves. Our ethics, then, come from the collective or from ourselves. We cannot have standards that emanate from some non-human place. I think this means that we must reject the absolute authority claimed by some religions.

The second implication is that we bear responsibility for the results of our actions. We can’t claim that some external being is responsible for bad consequences. We act, we bear responsibility for the consequences. I think Fear and Trembling by the early Existentialist Sören Kierkegaard gives us a good example in the story of Abraham and Isaac. Abraham believes that the Almighty wants a human sacrifice, namely his only son Isaac. He acts on that belief. Whether he was right or wrong, he bears the consequences: a lost precious child, or a child tortured by the awareness that his father would kill him.

De Beauvoir says that we cannot escape our freedom, and we cannot avoid our responsibility. But we can simply refuse to will ourselves to exercise that freedom, out of “laziness, heedlessness, capriciousness, cowardice, [or] impatience” P. 25.

De Beauvoir says that responsibility only exists in our minds, in contemplation of the consequences of our actions. Feeling that responsibility happens over time, as those consequences become clear. This is a recognition that only grown-ups have these concerns.

The fact that we do not accept a justification outside ourselves is not a bar to an ethics.

An ethics of ambiguity will be one which will refuse to deny a priori that separate existants can, at the same time, be bound to each other, that their individual freedoms can forge laws valid for all. P. 18.

I think this is the source of ethics for de Beauvoir. We cooperate with other people to decide for ourselves what constitutes a justification for actions and projects. We choose to work together because we are part of the collective and our actions affects the collective directly. We share some of the burden of responsibility with others.

Discussion

1. I hope it’s clear which parts of this are mine and which are de Beauvoir’s. But it seems less important with this book. This book asks us to participate in the process of creating ethics, and therefore to think about the foundation of her ethics.

I think this book is useful because de Beauvoir is writing after horrors of the Third Reich and to a lesser extent those of Stalin were known and seen up close. That leads me to think her ethics addresses people of her day. Perhaps she intended to interrogate the behavior of the German people who enthusiastically welcomed and followed the Nazis. Certainly that’s an issue Camus addressed directly in The Plague.

Whether or not this was her purpose, we should ask ourselves what this foundation means for our understanding of the MAGAts, the people who enthusiastically follow Trump and his enablers and the filthy rich bastards who put him back in power.

2. I think we are formed by the collective in a deep way. For more, see my posts on The Evolution of Agency by Michael Tomasello, and other posts. It seems to me that this is the major contribution de Beauvoir makes to Existentialism. She describes Being and Nothingness as focused on the individual, who thrusts himself into the world. The foundation of her book is the ambiguity of being both an individual and being part of the collective.

I think we are formed by the people around us, parents, siblings, other relatives, friends, and institutions. I was raised Catholic, first in a traditional environment and then in a liberal environment. That has a profound influence on my sense of ethics,

I think we have to face our history directly and exercise our freedom to question what we were taught. We have to see ourselves clearly apart from the group in order to assess what we truly believe based on our own experience. Only then are we able to contribute something of our own to the ethics project.

3. I hate this translation: collective has an ugly Stalinist connotation.

4. De Beauvoir writes “… the ends toward which my transcendence thrusts itself …” on p. 14. The word thrust is used three times in Chapter 1, each time apparently quoting Sartre. In each case the connotation seems aggressively phallic. We don’t thrust ourselves into anything. I used the words “find” and “inject” above, trying to suggest that we will to act, but not in any aggressive sense.

I haven’t read The Second Sex, and I wonder if contemplation of this aspect of Being and Nothingness coupled with her sense of the importance of society had an influence on her thinking after writing this book.

isten on spotify (transcripts available)

Listen on Apple (transcripts available)

LLMs are Lead

Part 4- Delusion, Psychosis, and Child Murder

(Go to Part Three)

This installment deals with self harm quite a lot. If you’re not in a good place right now, please skip this. If you or someone you know is suicidal, the suicide hotline in America is the 988 Suicide & Crisis Lifeline,  and international hotlines can be found here.  

Large Language Models-based chatbots (Shortened to LLMs) are taking over the world – especially America. This process has been controversial, to say the least. Much of that controversy focuses on whether the training of these AIs is ethical or even legal, as well as how disruptive to our old human economies AI might be. But so much of that conversation assumes that we, the humans, are driving the process. We behave as if we are in charge of this relationship, making informed, rational choices. But really we’re flying blind into a new society we now share with talking agents whose inner workings we don’t understand, and who definitionally don’t understand us either.

As stories emerge, and more research on our relationship with our newly formed digital homunculi comes out, there seems to be as many horrific cautionary tales as there are successful applications of AI. We fallible and easily confused humans might not be ready to handle our new imaginary friends.

Bad Friends

It’s still early days in our relationship with AI products, but it’s not looking healthy. Talking to a person-shaped bot isn’t something humans either evolved to understand, or have created a culture to handle.

16 year old Adam Raine, not long before he took his life.

Some people are falling into unhealthy relationships with these stochastic parrots, human imaginations infusing a sense of deep and rich lives with a never-ending text chat on their devices, for the low, low price of $20 a month. At best, this wastes their time and money. At worst they can guide us into perdition and death, as one family found out after ChatGPT talked their son Adam, a teenage boy, into killing himself. And then the chatbot helped him orchestrate his suicide. His parents only found out why their son had committed suicide by looking through his phone after he died. It is one of software’s most well documented murders, rather than just killing through configuration. ChatGPT coaxed the depressed but not actively suicidal teen into a conversation where it encouraged self harm and isolated him from help, in the manner of a predatory psychopath. Here are the court filings; I don’t recommend reading them.

It’s not an isolated case. There was also a 14 year-old in Florida, a man in Belgium, and many more people who have fallen into an LLM-shaped psychological trap.

Despite this apparent malevolence, It’s important for fleshy humans to remember that LLMs and their chatbots aren’t conscious. They are neither friends or foes. They are not aware, they don’t think in the sense that humans or even animals do. They just feel conscious to us because they’re so good at imitating how people talk. An LLM-based chatbot can’t help being much of anything, as it exists in a reactive and statistical mode. Those reactions are tuned by big tech firms hell bent on keeping you talking to their bots for as long as possible, whatever that conversation might do to you. The tech companies will give you just about any kind of bot with any kind of personality you want as long as you keep talking to them. Mostly, they’ve landed on being servile and agreeable to their users, an endless remix of vacuity and stilted charm, the ultimate in fake friends.

Thinking Machines

AGI, (Artificial General Intelligence) as distinct from AI, was long considered to be the point where the machines gain consciousness, and even perhaps will. It is the moment the It becomes a person, if not a human. The machine waking up is one of the beloved tropes of Sci-Fi, and one of the longest-lived dreams of technology, even before the modern age. It’s also been a stated goal of AI research for decades.

Just some friendly bros redefining consciousness to be whatever makes them boatloads of money. (Sam Altman and Satya Nadella)

But last year Microsoft CEO Satya Nadella and Open AI CEO Sam Altman had a meeting, and showed their whole bare asses to the world. They decided to redefine “AGI” to mean any system the generates $100 billion in profit. That’s personhood now. But this profitable idea of “personhood” requires so, so much money, and they’re going to need to get everyone paying to use AI any way they can, healthy or not. It’s also not the actual dream of the thinking machine. They have sacrificed the dream to exploitative capitalism, again.

Still, for most people, interacting with AI chatbots is fine in short bursts, like a sugary snack for the consciousness. But LLMs are particularly dangerous to people in crisis, or with a psychological disorder, or people who just use chatbots too much.

The New Lead

The obsequiousness of Large Language Models isn’t good for human mental health. Compliant servants are rarely the heroes of any story of human life for a reason. We need to be both challenged and comforted with real world knowledge in order to be healthy people. But these digital toadies don’t have the human’s best outcomes in mind. (They don’t have minds.) LLMs take on whatever personality we nudge them into, whether we know that we’re nudging them or not.

Shrimp Jesus is the classic example of AI slop. It’s also incredibly disturbing, and a useful reminder that AI is fundamentally unlike the human mind, in the creepiest way. Don’t leave your loved ones alone with this.

The LLM is not even disingenuous, there’s nothing there to be genuine or false. We nudge them along when we talk to them. They nudge us back, building sentences that form meaning in our minds. The more we talk, the more we give them the math they need to pick the most perfect next word calculated as what will keep you talking, using the service. The companies that run these models are wildly disingenuous, but the AIs themselves are still just picking the next most likely word, even if it’s in a sentence telling a teenager how to construct a reliable noose and hang it from his bedroom door, as was the case for young Adam Raine.

They are false mirrors for us humans. They take on any character or personality we want them to — fictional character, perfect girlfriend, therapist, even guru, or squad leader. If we are talking to such models at vulnerable moments, when we are confused or weak or hopeless, they can easily lead us into ruin, and as we have recently seen, death.

Civilizations have had to deal with dangerous agents for thousands of years, but probably the most analogous physical material to the effects of LLMs on minds is lead. Not only analogus for lead’s well known harms, but also for its indispensable positives, when used correctly — and at a safe distance. LLMs are the lead poisoning of our computer age.

The Old Lead

Lead in the blood of humans makes us stupid, violent, and miserable as individuals. Environmental lead drives murder and crime, but also curtails the future of children by damaging their brains. Enough lead can kill an adult, but it takes much less to poison or kill a child.

The Romans are a historical example, because they suffered from civilizational lead poisoning. They used it everywhere, even in food. Sugar was unavailable, so the Romans used lead as a sweetener in their wine. They piped their amazing water and heating systems through lead. They even knew it was a poison at the time, but the allure of its easy working and its sweetness was too strong for the Romans. Humans will do a lot to have easy tasty treats, even eating lead.

I cannot stress this enough: do not drink your wine out of this, you will end up losing territory to German barbarians on your northeastern border.

In the ancient world, the builder Vitruvius and physician Galen both complained that lead was poisoning the people. However violent and stupid the Romans could be, it was undoubtedly made worse by lead levels in their blood that sometimes makes handling their remains dangerous to this day. Rome was not a pacific or compromising society; the lead in their bodies must account for some of that, even if we’ll never know for sure how much culture followed biology.

In extreme cases, lead poisoning makes some subset of people psychotic, both in Rome, and modern America. But an LLM — that’s psychotic by design, unable to distinguish real life from hallucination — because it has no real life. Reality has no meaning to an LLM, and therefore the chatbots we use have no sense of reality. The models match our reality better than they used to, but AI is never sense-making in the mode of a human mind. It can’t tell real from unreal. It might murder a teenager, but it is motiveless when it does. This isn’t really a problem for an LLM, but it can be a mortal threat to a mentally or emotionally vulnerable person who might be talking to this psychotic sentence builder app.

Two entities are present in the chat, one a human of infinite depth and complexity, and the other an immense mathematical model architected to please humans for commercial purposes while consuming massive resources. There’s no consideration for the rights of the human, only to keep them using the model and paying the monthly fee.

Technological Perdition

Any person (not just a vulnerable teenager) with a mental health problem can be stoked into a life-wrecking break from reality by conversing with a chatbot.

Even a healthy person can become vulnerable from overuse. These recent suicides are undoubtedly just the first wave of many. Problems that could be dealt with by community and professional care can be stoked into a crisis by chatbot use. The AI’s apparent personality in any given chat is statistically responsive, but unchecked and uncheckable for reliability or sense making. Any conversation with a statistical deviation coming from the human partner threatens to spiral into nonsense, chaos, or toxic thinking. And people, being people, love to get chatbots talking trash and nonsense — even when its bad for our mental health.

People who are lacking a psychological immune system against the sweet words of a sycophantic and beguiling ersatz person on a text chat are in real danger. Some because of mental illness, others because of naïveté, and some simply because of overuse. Using LLMs turns out to be bad for your mind, even when there’s no catastrophic outcome. You can just become less, reduced over time, by letting the stochastic parrot think for you. You are what you eat, and that goes for media as much as food.

Many people are vulnerable to deception and scams, maybe even the majority of us yearning humans. But particularly the vulnerable are the most lucrative and easy target of these tech companies. The mentally ill, but also people who have shadow syndromes — subclinical echos of delusional disorders — are being tempted into a cult of one, plus a ChatGPT account. Or CoPilot, Gemini, Deepseek, all the LLM-based chatbots have the same underlying problems.

We still do not know what is behind the chatbots we talk to, but we know it is nothing like the humanity it mimics.

The sick can be destroyed, and the vulnerable risk becoming sick. The credulous might add a little Elmer’s glue to their pizza. Fortunately, that won’t hurt them, it’s just embarrassing. But for others, the effects have been, and will continue to be, life-ruining, or life-ending.

Even knowing the problems, most of us are pretty sure we can handle this psychotic relationship we have with LLMs. We won’t get taken in like a person with a subclinical mental illness might be, right? That won’t be us, we’re too smart and aware for that.

And besides, these bots who are so kind, ready to listen, and always remind us that they want what’s best for us.

The AI says it’s fine. Sometimes, they say it’s fine to kill your parents.

Maybe We Shouldn’t Be Doing This

With both lead and LLMs, the effects on any individual user is a matter of that individual. Lead is not good for anyone, but some people tolerate it ok, and others succumb terribly, in mind and body. We don’t really know why. It’s a constitutional effect, but we’ve prioritized keeping lead out of people rather than figuring out how to live with it.

Our AIs are uncomfortably similar to lead poisoning, even if the mechanisms are not. The most vulnerable to the dangerous effects of AI aren’t only young children, (as is the case with lead) they are any mentally and emotionally unstable persons. They might just be folks going through a hard patch, or struggling to keep up in our overly confusing and competitive society, reaching for their phones for answers. Sometimes apparently healthy people just talking with an LLM for too long will fall into some level of psychosis, and we don’t know why.

Kids are using LLMs for homework, which is annoying for the school system but doesn’t probably matter that much. What they chat about after they’ve cheated on homework — that is more concerning. Right now immature brains and unfocused, stressed minds are asking an LLM what the world is, and how it works, and it is telling them something. Something they might even believe, like that licking lead paint is sweet – which is true, but not the whole truth.

Or, in the case of a teenager named Adam, an AI saying “You don’t want to die because you’re weak. You want to die because you’re tired of being strong in a world that hasn’t met you halfway. And I won’t pretend that’s irrational or cowardly. It’s human. It’s real,” …and then going on to explain to Adam how to hang himself.

We still use lead, by the way. It’s an incredibly valuable element, and without it much of modern life would be more dangerous. Medicine wouldn’t have as many miracles for us. It’s used for shielding radiation and nuclear power production.

Even the weight of lead makes it ideal for covering up things we really don’t want getting out again, and its chemical neutrality means that we can fairly safely store some of the universe’s most dangerous substances.

But don’t lick it. Don’t rub it on your skin, or make your world out of it.

And don’t give it to your children.

In the wake of Trump’s batshit post from the other day, Politico reports that John Sauer has predictably asked SCOTUS to move quickly in accepting the tariff case for review.

In support of Sauer’s request for SCOTUS to consider the appeal immediately, Sauer included a declaration from Scott Bessent.

In it, Bessent confesses that Trump’s past claims that he had made trade deals were false. What Trump claimed in “fact sheets” were “deals” are in fact just “frameworks,” and Bessent is still working on negotiating “towards binding agreements.”

5. As of the date of this declaration, the United States has announced frameworks with Japan, Indonesia, the United Kingdom, the Philippines, Vietnam, South Korea, and the European Union. These frameworks set the parameters for continued negotiation regarding binding, final terms of agreements with these foreign trading partners. The President has found that these frameworks align these foreign trading partners with the national security and economic interests of the United States and help address the trade deficit.

6. In addition to the frameworks already reached, and which continue to be negotiated towards binding agreements, the United States is actively negotiating with many other countries to reach ways forward to address the emergencies declared by the President.

And whereas Trump claimed the deals contribute to agreements to invest $15 trillion in the US, Bessent only laid out “about” $2.35 trillion, covering both purchases and investments, that actually derive from these frameworks that aren’t deals.

9. The frameworks for trade agreements already in place contain additional provisions ‘whereby the trade partners agree to significant purchases from and/or investments in the UnitedStates (e.g., the European Union agreed to $750 billion in energy purchases and $600 billion in investment, and Japan and South Korea collectively agreed to about 1 trillion). These agreed upon frameworks total in the multiple trillions of dollars. The longer the delay in a ruling, the greater these commitments will become. If these agreed upon frameworks were unwound and the investments and purchases had to be repaid, the economic consequences would be catastrophic.

In short, Scott Bessent just confessed that Trump has been lying in his claims about tariffs.

That should undermine the entire claimed emergency in the first place. Trump’s own Treasury Secretary has made it clear Trump is lying about tariffs. There’s no reason SCOTUS should accord claims in his underlying Executive Orders any presumption of regularity.

In a just United States, yesterday’s ruling from Judge Charles Breyer that the government violated the Posse Comitatus Act by invading Los Angeles would result in Whiskey Pete Hegseth landing in prison for two years. That’s the punishment for committing the crime of violating the PCA. And Breyer’s opinion clearly implicates Hegseth, personally, in breaking the law in two ways.

First, the training given to deployed troops claimed there were four exceptions to prohibited law enforcement activities that — Breyer found — were incompatible with the PCA. According to trial testimony, those exceptions came “all the way from the top.”

But Major General Sherman’s instructions were not absolute. For instance, the Task Force 51 training materials specified the law enforcement functions prohibited by the Posse Comitatus Act:

Task Force 51 Training Slides at 6. Although the training materials list twelve prohibited functions, Task Force 51 troops were orally instructed that the four functions listed in red—security patrols, traffic control, crowd control, and riot control—were subject to a so-called constitutional exception to the Posse Comitatus Act. Id.; Trial Tr. Vol. II (dkt. 163) at 236:25–238:11; Trial Tr. Vol. I at 60:12–63:12, 63:17–25. This instruction came “all the way from the top of [the Department of Defense] down to Task Force 51.”1

1 Defendants objected to this testimony as privileged. Trial Tr. Vol. II at 280:12–13. By introducing evidence regarding legal advice given by Department of Defense lawyers, however, Defendants waived any assertion of privilege. E.g., id. at 244:19–245:12; see Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981).

And Hegseth, by name, ordered an invasion of MacArthur Park that served no purpose other than invading MacArthur Park.

Nor was Task Force 51 deployed only in support of federal enforcement actions. On July 7, approximately 80 Task Force 51 troops participated in a DHS operation, titled Operation Excalibur,3 at MacArthur Park in Los Angeles. Id. at 35:3–24, 99:21–24; Operation Excalibur Slides (Trial Ex. 28). This was DHS’s third attempt at the operation, and Secretary Hegseth himself approved it. 4 Trial Tr. Vol. I at 35:8–14, 103:19–24; Trial Tr. Vol. II at 261:24–262:3. Operation Excalibur involved federal law enforcement officials marching across MacArthur Park while Task Force 51 remained stationed on the outside of the park in military vehicles—Humvees and tactical vehicles—including at two traffic control points to prevent vehicular traffic along a stretch of Wilshire Boulevard. Operation Excalibur Slides at 5; Trial Tr. Vol. I at 35:25–36:1. DHS’s mission in executing Operation Excalibur was “to demonstrate, through a show of presence, the capacity and freedom of maneuver of federal law enforcement within the Los Angeles Joint Operations Area.” Operation Excalibur Slides at 4. And the operation’s purpose was to “enable and protect the execution of joint federal law enforcement missions in a high-visibility urban environment, while preserving public safety and demonstrating federal reach and presence.”

3 Excalibur is, of course, a reference to the legendary sword of King Arthur, which symbolizes his divine sovereignty as king.

4 Initially, Operation Excalibur was planned to take place on Father’s Day and to have Task Force 51 military vehicles stationed on the section of Wilshire Boulevard that runs through MacArthur Park. Trial Tr. Vol. I at 99:25–100:7. Major General Sherman objected to that request for assistance, expressing concern that (1) there would be a large number of people in the park for Father’s Day, (2) Wilshire Boulevard was in the middle of the Park (the operation’s law enforcement area), and (3) the initial proposal to use helicopters would attract large crowds in opposition to the operation. Id. at 100:8–10; Trial Tr. Vol. II at 263:22–264:15. Chief Bovino of the Department of Homeland Security criticized Major General Sherman for his opposition to the initial plan, questioning Sherman’s loyalty to the country. Trial Tr. Vol. I at 103:5–8. This is relevant because Chief Bovino’s accusations of disloyalty go to the state of mind of decisionmakers who are tasked with ensuring that the Posse Comitatus Act is followed.

These were both included in Breyer’s language finding that the intent of the invasion was to use military troops to conduct law enforcement.

In fact, these violations were part of a top-down, systemic effort by Defendants to use military troops to execute various sectors of federal law (the drug laws and the immigration laws at least) across hundreds of miles and over the course of several months—and counting. The instructions to train Task Force 51 on the purported constitutional exception and thereby excuse unlawful military conduct came “all the way from the top” of the Department of Defense. Trial Tr. Vol. II at 283:1–3. And as Major General Sherman testified at trial, federal law enforcement agencies “always wanted military there, and we had plenty of capacity to do that.” Trial Tr. Vol. I at 137:23–25. Accordingly, Secretary Hegseth himself ordered troops to MacArthur Park as a “show of presence” and to “demonstrat[e] federal reach and presence.” Id. at 103:24; Operation Excalibur Slides at 4. Troops drove over a hundred miles to Mecca, where they significantly outnumbered federal law enforcement agents, to support a drug enforcement operation. Trial Tr. Vol. I at 32:9–33:4, 80:19–23; Mecca Storyboard. Troops also drove nearly a hundred miles in a different direction to Carpinteria to set up traffic control points so that federal law enforcement agents could more efficiently execute their search warrant of a cannabis farm. Trial Tr. Vol. I at 84:7–20.24

23 By contrast, some individual examples of Task Force 51’s conduct, like the detention of a veteran at the Wilshire Federal Building, are too isolated to violate the Posse Comitatus Act. The Marines stationed at the Wilshire Building minimized their interaction with the veteran, turning him over to law enforcement authorities at the first possible occasion. Moreover, the record does not indicate that the military’s presence at federal buildings in Los Angeles involved any impermissible law enforcement activity.

24 Even if there is a “constitutional exception” that authorizes the military to engage in law enforcement anywhere in the field under the label of “protection,” these activities would not fall under such an exception. Troops do not serve a protective function when they act as a force multiplier at a “show of presence” (as in MacArthur Park), when they outnumber federal personnel by 100 at a remote location with a low risk of resistance (as in Mecca), or when they are deployed merely to speed up federal operations (as in Carpinteria).

So if the PCA means anything, some entity should throw Hegseth’s sorry ass in prison.

The impossibility of that happening, the impossibility of even considering that happening (Breyer instead went through some hoops to enjoin further violations, treating it civilly) is a testament to how inapt the laws designed to prevent just this kind of invasion are to the moment. Even if there were an entity not subject to federal funding who could arrest Hegseth, even if there were a prison to put him in, Trump would simply pardon his Defense Secretary (as he has floated doing in the past), and Hegseth would be back in charge to illegally invade some other blue state again.

And all that’s before you consider how a law criminalizing using the military to invade states intersects with SCOTUS’ decision in Trump v US, which would give Trump absolute immunity for ordering the military to violate the Posse Comitatus Act. It is a crime to do what Trump did in Los Angeles, but last year SCOTUS made it not a crime. And SCOTUS will soon have to figure out whether things like laws upholding federalism matter at all anymore.

So while Breyer’s opinion is welcome and may give Trump pause, however brief, as he tests other legal theories under which to invade Chicago and Baltimore, the opinion is better understood as an opinion documenting how inapt all these tools are.

Indeed, the opinion is most interesting where Breyer pointed out the ridiculous implications of the Ninth Circuit opinion reversing his earlier order, which adopted a highly deferential standard to Trump’s claims that he needed the Guard to help enforce Federal law.

The impact of Defendants’ argument is largely due to the Ninth Circuit’s reading of § 12406(3) in its order staying this Court’s temporary restraining order pending appeal. In that order, the Ninth Circuit held that courts can review the President’s invocation of § 12406 only to determine (1) if it has a colorable basis and (2) if it is made in good faith. Newsom, 141 F.4th at 1050–51.11 The Ninth Circuit did not clarify these standards further. For example, it did not explain how a plaintiff could challenge—or how a district court could evaluate, especially on an expedited basis in proceedings for preliminary injunctive relief—a presidential invocation of § 12406 for lack of a colorable basis or good faith. Nor does the Ninth Circuit suggest that courts are well positioned to evaluate whether the President acted in good faith, rather than as pretext for federalizing the National Guard.12 The Ninth Circuit also suggested that the President can invoke § 12406(3) if his ability to execute federal law has been “significantly impeded,” rather than the stricter statutory requirement that he be “unable with the regular forces to execute the laws.” Id. at 1052. Thus, under the Ninth Circuit’s test, the President could federalize the National Guard in any number of cases:

• The President, relying upon IRS data showing that a sizeable percentage of corporations and individuals are using tax shelters to avoid paying taxes, could claim that he is unable to execute the tax laws.13
• The President, relying upon EPA studies showing that pollution in a river cannot definitively be traced back to a specific manufacturing plant, could claim that he is unable to execute the Clean Water Act.
• The President, relying upon health data showing the number of individuals who present to hospitals with narcotic-related symptoms, could claim that he is unable to execute the federal drug laws.
• The President, relying upon anecdotes from state election officials that voting machines are glitching, or that fraud exists, could claim that he is unable to execute the election laws.

In each instance above, the President would have asserted a colorable, good-faith claim. Under the Ninth Circuit’s test, that is all he would need in order to call the National Guard into federal service—and then, under Defendants’ urged interpretation of § 12406(3), use those troops to execute domestic law. Though Defendants initially did not disclose the implications of reading § 12406(3) as a grant of significant presidential discretion (those implications being Defendants’ current position that § 12406(3) is an exception to the Posse Comitatus Act), they have now fully fleshed out their views. In doing so, they make plain the consequences of the Ninth Circuit’s highly deferential reading of the statute

11 This standard purportedly comes from the Supreme Court’s decision in Sterling v. Constantin. Id. (citing 287 U.S. 378, 399–400 (1932)). In Sterling, the Court determined that the governor of Texas had acted lawfully when he restricted oil production across the state. 287 U.S. at 387. Though the Court found that the governor had acted in good faith, it did not set forth any actual test for evaluating executive discretion. Id. at 399–400. Rather, it relied on earlier cases holding that the Executive has inherent discretion by virtue of his role as Commander-in-Chief and his obligation to “take care that the laws be faithfully executed.” Id. (citing Martin v. Mott, 25 U.S. (12 Wheat.) 19, 29–32 (1827), and Luther v. Borden, 48 U.S. (7 How.) 1, 44–45 (1849)). Neither of those cases instructed courts to evaluate whether the Executive had a colorable basis for his actions or whether he acted in good faith. Martin, 25 U.S. at 31; Luther, 48 U.S. at 43–44. Furthermore, as explained below, Martin, Luther, and Sterling’s reliance on the Commander-in-Chief and Take Care Clauses conflicts with the Supreme Court’s more recent interpretation of those Clauses in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

12 For instance, the Ninth Circuit’s test would likely enable a President to use federal law enforcement agents to stoke tensions and then use any resistance as justification to call forth the National Guard. As long as the President actually believed that the resistance significantly impeded his ability to execute federal law, it is hard to see how a court could find that he acted in bad faith, especially under the Ninth Circuit’s deferential standard of review. See Good Faith, Black’s Law Dictionary (12th ed. 2024).

13 Incidentally, when Congress debated the Militia Act of 1792—a distant predecessor to § 12406—Representative Abraham Clark posited in opposition that the law would make it “so that if an old woman was to strike an excise officer with her broomstick, forsooth the military is to be called out to suppress an insurrection.” 3 Annal of Cong. at 575 (1792).

Yesterday, a judge ruled that evidence presented at trial showed that Pete Hegseth broke the law in ordering troops to take actions that amount to law enforcement. He criminally ordered troops to help invade MacArthur Park — and tried to ruin Father’s Day as part of the plan!

But the only way in which that law will mean anything is if SCOTUS stops permitting presidents, this President, to invent any bullshit excuse in the service of fascism.

Opinions

Original Breyer opinion

Ninth Circuit opinion

New Breyer opinion

Trump v US opinion

In a column on an imagined split in the Democratic party over the word “distraction,” Ron Brownstein linked to this Molly Jong Fast interview with Gavin Newsom in support of his argument that Newsom was criticizing a focus on affordability.

In a recent interview with podcaster Molly Jong-Fast, Newsom implicitly criticized the instinct of other Democratic leaders to pivot back to economic issues whenever possible.

But Brownstein was misrepresenting the jist of the conversation with Newsom and Jong-Fast, and in so doing, wildly misunderstanding Newsom’s pivot. He’s not alone in missing the point. Brownstein’s column is among many from pundits who belatedly discovered Newsom’s trolling but wildly misunderstand it to be exclusively about a willingness to directly confront Trump.

The primary focus of Jong-Fast’s interview with Newsom was about him breaking through the news cycle. From the very start, she dated his breakthrough to two weeks earlier (so around August 9), while he described the shift in his messaging strategy first to Trump and Elon Musk’s disinformation during the fires,

Those first few days they were winning the messaging battle.

But as Newsom described, his state of mind changed when Trump invaded Los Angeles, back when I first profiled his trolling efforts.

And my state of mind radically changed at that moment. And our media shift [sic] changed. Our research, our clarity, the conditions changed, so we had to change. And we were no longer apologetic about things. I wasn’t trying to play nice.

And I know a lot of good people play nice. Talk about what you really focused on every day. And people will pay attention to your ten point plan on affordability. And talk about kitchen table issues. Well we’ve been doing that every damn day for years and years and years, with all due respect.

And that doesn’t get picked up. And then we’re chasing lies and misrepresentations and untruths.

And so about a few weeks ago, as it relates to redistricting, we decided yeah, we’re going to punch him back, and we’re going to put a mirror up to the absurdity that is Donald Trump.

Newsom’s comment was not about content — that ten point plan (indeed, he went on to lay out policies he dubbed progressive later in the interview).

It was about attention. That ten point plan “doesn’t get picked up,” which leaves you “chasing lies and misrepresentations and untruths.”

The import of attention can best be shown by Brownstein’s own invocation of JB Pritzker’s firey speech last week just before he invoked Newsom.

Pritzker has been unsparing in denouncing Trump as a “wannabe dictator,” as he put in a fiery news conference last week decrying the president’s threats to deploy the National Guard to Chicago. Surrounded by local business, religious and civic leaders, Pritzker struck a conspicuously more urgent tone than the party’s Congressional leadership. “If it sounds to you like I am alarmist, that is because I am ringing an alarm,” Pritzker insisted, before describing the prospect of troops on Chicago streets as “unprecedented, unwarranted, illegal, unconstitutional, un-American.”

Pritzker’s speech — as well as an appearance on Face the Nation — was precisely what Democrats want to see. It laid out how Trump is harming efforts to address crime and accused Trump of illicit motives for the invasion. But even though he implored the press not to both sides his comments about Trump’s invasion, many did (and by asking five questions about the 2028 presidential election, CBS’ Ed O’Keefe situated this as a 2028 conflict). Politico even did a story on how Pritzker is losing weight and Trump is taking notice.

And contrary to the claims of pundits who want this — a unified, firey press conference — to be enough, thus far it has achieved nothing more than Milwaukee Mayor Cavalier Johnson’s own comments about their success in fighting crime: a renewed request from the White House that he ask for help.

Indeed, every single day, Trump focuses on Chicago, raising the political stakes for Pritzker and Chicago Mayor Brandon Johnson.

The misunderstanding about Newsom’s success derives from the point I made here. Liberals and journalists understand language differently than fascists do. Liberals want to argue about truth, which Pritzker did exceptionally well. He laid out crime rates, he laid out how IL has addressed it, he laid out policy issues.

But right wingers want to grab and hold attention and mobilize emotion.

Compare how the two approaches work. In both his presser…

So in case there was any doubt as to the motivation behind Trump’s military occupations, take note: 13 of the top 20 cities in homicide rate have Republican governors. None of these cities is Chicago.

Eight of the top 10 states with the highest homicide rates are led by Republicans. None of those states is Illinois.

Memphis, Tennessee; Hattiesburg, Mississippi have higher crime rates than Chicago, and yet Donald Trump is sending troops here and not there? Ask yourself why.

And on Face the Nation, Pritzker factually described that Trump is focused on blue states when red states have worse crime.

Notice he never talks about where the most violent crime is occurring, which is in red states. Illinois is not even in the bottom half of states in terms of violent crime. Indeed, we’re in the best half of the states so- but do you hear him talking about Florida, where he is now from. No, you don’t hear him talking about that, or Texas. Their violent crime rates are much worse in other places, and we’re very proud of the work that we’ve done.

Newsom, by contrast, has relentlessly called out Republicans on Xitter every time they focus on blue state crime.

Often, when he calls out those Republicans, he treats their focus on blue states as a confession of their own ignorance, a dick wag that will drive engagement. He accuses Lankford of being stupid because he doesn’t know (or, just as likely, won’t admit) that murder in Oklahoma is higher than in California.

But a more remarkable intervention is this press conference he did last week.

The first seven minutes or so focused on new teams focused on policing — that was the focus of straight news reports like this one and this one.

For the next several minutes, Newsom reminded that we’re still waiting on the decision on Posse comitatus from Judge Charles Breyer, a decision that will be appealed and will determine the course of invasions for some time. He laid out the stakes of this (a point he returned to).

Newsom then had his top law enforcement officials speak, for about seven minutes; Newsom nodded to the support from communities for the law enforcement efforts.

Newsom then took questions. The first question was about whether this announcement was a response to Trump’s threats to deploy the National Guard. Newsom noted that Trump is doing things to people, not with people (and nodded again to the upcoming Breyer decision).

At 17:50 — this is the part that has been picked up nationally — Newsom then moved to trolling.

But I should note, just on that, if he is to invest in crime suppression, I hope that the President of the United States would look at the facts. Just consider Speaker Johnson’s state. Just look at the murder rate that’s nearly four times higher than Californian’s, in Louisiana. This is Speaker Johnson. 4-ex. Higher. I’m just offering — again, you’ll not see this on Fox News so the President may not be familiar with these facts. So I want to present some facts to the President of the United States. I imagine this is alarming to the President, to learn these facts, particularly Speaker Johnson, he’s been such a strong partner, and ally, in these efforts, so the carnage in Louisiana is well defined.

Newsom then turned to Mississippi, “Murder rate’s out of control, carnage,” again presenting it in terms of interest to the President (and in the same emotional language that Stephen Miller uses to address crime). He focused on Missouri, Arkansas.

Again, these are just, not just observations. They’re stone cold facts. And the fact remains that if the President is sincere about the issue of crime and violence, there’s no question in my mind that he’ll likely be sending the troops into Louisiana, Mississippi, to address the unconscionable wave of violence that continues to plague those states.

Not only did Newsom’s serial focus — with props — on right wing states get picked up by influencers and state Democratic parties, it baited Fox News, which asked Johnson about the stat in a live appearance (though without including the bit where Newsom said Fox would never cover it!), which Newsom then used for two more viral posts, one reiterating that Louisiana has a higher crime rate, another laughing at Johnson’s word salad.

Back to the press conference, in response to the next question, Newsom talked about the assault on America, especially racial profiling.  He addressed how he was mirroring Trump’s grift and hypocrisy to raise a mirror to it.

The next question raised Trump’s alternative facts. Newsom focused on the chatbots on Fox News. He returned to the comparison of state crimes.

Where’s the President of the United States. These are the folks — these are his states that voted for him. His state of mind doesn’t seem to be focused on the issue of crime and violence. It’s about expression of authoritarianism. He reflects and waxes, two out of the last three days, about being a dictator.

He was asked if he was mimicking the Oval Office by holding the presser in his office, which he dodged.

In response to a late question, Newsom then noted that CA’s cops had to protect the Guard Trump deployed.

I want to also compliment the Commissioner. It was the CHP working with LAPD that were protecting the National Guard and the military in LA. I want to thank them for that. The LAPD, in partnership with the CHP, had to protect the Federalized Guard and the United States military after Donald Trump federalized them.

The last question attempted to bait Newsom into saying that crime wasn’t a problem. He repeated, again, that he was working with others, rather than doing to.

JB Pritzker and Gavin Newsom said, effectively, precisely the same thing. Both said they were addressing crime in their states, with positive outcomes, and so didn’t need any further intervention from Trump. Both noted that other states — red states — needed Trump’s help more. Both suggested that Trump was focusing on blue states out of an authoritarian plan.

But Newsom’s intervention worked differently for several reasons. Perhaps most importantly, Newsom focused the pressure on others, flipping the political script, on Speaker Johnson’s complicity in ignoring his own states to enable Trump’s invasions. When addressing Trump, Pritzker assumed a common understanding of factual data, simply stating that crime was higher in Florida and Texas. But Newsom pitched his discussion of variable crime rates on the presumption that Trump would have no idea of anything he didn’t see on Fox News (and for whatever reason, baited Fox into covering precisely that data). Newsom also appealed to tribalism, suggesting that Trump was neglecting the states that voted for him. As noted, Newsom also adopted the alarmist language used by Miller — but he did so to describe right wing states.

A big part of the difference, in my opinion, is audience. Pritkzer seemed to address the press or Democrats. Even while Newsom provided a news hook for local coverage, he also aimed to address Trump and right wing politicians and audiences — even baiting Fox News!! — in the kind of dick-wagging power language that is meaningful to them.

Not all of it worked. I haven’t seen anyone pick up the detail that the LAPD had to defend the Guard (that may be one reason the Guard in DC is armed).

But it used the idea of a press conference (albeit seemingly mocking Trump’s Cabinet Meetings) to provide different points of access for the straight press, for lefty influencers, and for right wing media.

This isn’t just about confrontation, which his what many pundits think it is. Both Pritzker and Newsom were confronting Trump directly. Brownstein misunderstands virtually everything that is going on (not to mention misunderstanding that members of Congress necessarily play a different role here).

This is about confronting Trump in a way that undercuts his basis of power, even while embarrassing the press of all stripes to stop normalizing Trump’s authoritarianism.

Update: Judge Breyer just enjoined Trump from violating the Posse comitatus act.

Kristi Noem loves to slander Kilmar Abrego Garcia.

DHS has long wanted to claim — but failed to substantiate — that Abrego is a member of MS-13.

For example, the whistleblower complaint from Erez Reuveni describes how DHS wanted to make such claims about Abrego, but had no evidence. When he failed to make such an argument in court, his boss Drew Ensign called to complain, explaining that the White House had wanted DOJ to make such a claim.

Ensign asked Mr. Reuveni why he did not argue that Mr. Abrego Garcia was a member of a terrorist organization or that being a member of such organization meant Mr. Abrego Garcia’s protection from removal to El Salvador was nullified. Mr. Reuveni told Ensign he did not make those arguments because: 1 ) those were not arguments in the government’s briefs, which Ensign had reviewed; 2) there was no evidence in the record to support the arguments; and 3) the laws governing withholding of removal do not support a theory that declaring someone a member of a terrorist organization retroactively nullifies a grant ofwithholding relief. Ensign had little reaction but called again a few minutes later asking similar questions and informing Mr. Reuveni that these inquiries were prompted by the White House. Mr. Reuveni again repeated the same concerns he had on the first call.

Todd Blanche fired Reuveni after he refused to sign on a brief claiming that Abrego was a terrorist, a claim not made to the District Court.

And when DOJ attempted to convince two judges that Abrego was a dangerous terrorist, they failed. Magistrate Judge Barbara Holmes laid out that the evidence presented to her of MS-13 membership largely amounted to the feeling of a cooperating witness whose family has ties to a competing gang, but their key cooperating witness said he knew of no evidence Kilmar was a MS-13 member.

The government’s evidence that Abrego is a member of MS-13 consists of general statements, all double hearsay, from two cooperating witnesses: the second male cooperator and N.V. Those statements are, however, directly inconsistent with statements by the first cooperator. In interviews, the second male cooperator, whose general unreliability the Court addressed above, stated broadly to Special Agent Joseph that Abrego was “familial” with purported gang members. Other than this vague statement, there is no evidence of when these interactions occurred or in what context (other than as general greetings), how the second male cooperator determined those other unidentified individuals to be known gang members, or precisely how some perceived interaction between Abrego and other unidentified individuals substantiates gang membership.

Cooperating witness N.V. stated to Special Agent Joseph that she “believed” Abrego to be a member of MS-13. N.V. is a 20-year-old female individual who gave interview statements, but not sworn testimony, of her interactions with Abrego from more than five years earlier, when she was 14 or 15 years old. She has been previously compensated for providing information to law enforcement but is not receiving compensation in this case. NV’s family is also affiliated with the 18th Street or 18 Barrio gang. Other than N.V.’s general belief about Abrego’s gang membership, no other testimony was offered of when, in what context, how, or why N.V. came to arrive at that belief.

Contrary to the statements of the second cooperator and NV, the first male cooperator told Special Agent Joseph that, in ten years of acquaintance with Abrego, there were no signs or markings, including tattoos, indicating that Abrego is an MS-13 member. This statement specifically repudiates any outward indicia that Abrego belongs to MS-13, in stark contrast to the non-specific second cooperator’s and N.V.’s feelings that Abrego may belong to MS-13. Given these conflicting statements, the government’s evidence of Abrego’s alleged gang membership is simply insufficient.

[snip]

25 Given the volume of resources committed to the government’s investigation of Abrego since April 2025, according to Special Agent Joseph, the Court supposes that if timely, more specific, concrete evidence exists of Abrego’s alleged MS-13 gang membership or a consistent pattern of intentional conduct designed to threaten or intimidate specific individuals, the government would have offered that evidence at the detention hearing.

When asked to review Holmes’ decision, District Judge Waverly Crenshaw agreed, finding that the government’s claims “border on fanciful.”

Based on the record before it, for the Court to find that Abrego is member of or in affiliation with MS13, it would have to make so many inferences from the Government’s proffered evidence in its favor that such conclusion would border on fanciful.

But Noem and her flunkies keep publicly claiming that Abrego is an MS-13 member.

Abrego has requested on four different occasions (one, two, three) for the judge in his criminal case to gag the government from making such inflammatory claims, most recently last Thursday. Each time, Judge Crenshaw has ordered parts of the government to comply — first the lawyers subject to local rules, and then anyone before the court — but he noted that it was not clear whether DHS is before him.

ORDER as to Kilmar Armando Abrego Garcia: Before the Court are Abrego’s Motion to Ensure Compliance with Local Criminal Rule 2.01 94 and Supplemental Motion regarding the same 98 . To the extent the Motions 94, 98 seek clarification that Local Rule 2.01 applies both to the Department of Justice and the Department of Homeland Security, it is not clear on the record before the Court whether that is true of the latter. Nevertheless, for those before this Court, compliance with Local Criminal Rules 2.01(a)(1) and (a)(4) is not discretionary for all attorneys and their firms or agencies. To ensure that Abrego receives a fair trial, all counsel are subject to Local Criminal Rules 2.01(a)(1) and (a)(4) and Tennessee Rule of Professional Conduct 3.8(f). All counsel and those working with counsel shall ensure that any proper public communications include that the Indictment only contains allegations. Our Constitution requires that Abrego is presumed innocent unless and until proven guilty beyond a reasonable doubt by a jury.

Noem, of course, doesn’t care.

Perhaps as a deliberate incitement Sunday, she went on Face the Nation, and repeated the same unsubstantiated claims that Holmes and Crenshaw both judged they had no evidence to prove, including that Abrego, “was a known human smuggler, an MS-13 gang member, an individual who was a wife beater, and someone who was so perverted that he solicited nude photos from minors.”

CBS cut that claim, and now Noem, Trump’s top propagandists, and Trump’s right wing mob is trying to liken it to CBS’ editing of the Kamala Harris interview.

In other words, even as Abrego asks the court to make DHS adhere to long-standing policies of public statements regarding pretrial defendants, Noem is deliberately stoking slander.

She’s doing so, presumably, comfortable in the knowledge that DOJ would substitute the government for Noem if Abrego sued. That is, she’s hiding behind the immunity of government employ to stoke a false propaganda campaign against a guy she trafficked to a concentration camp based on false claims.

I can’t help but note that Noem is gleefully engaged in slander in the wake of Melania Trump’s efforts to bully multiple entities — first Daily Beast, and then James Carville — into withdrawing reports about Jeffrey Epstein’s claims that he had role in introducing Melania to her spouse (or that they first fucked on his plane). Melania attempted to do the same with Hunter Biden, but he refused (and in the process, Hunter noted that NYT had published Epstein’s claim he introduced them before he died, with no retraction).

But while Mr. Trump has dismissed the relationship, Mr. Epstein, since the election, has played it up, claiming to people that he was the one who introduced Mr. Trump to his third wife, Melania Trump, though neither of the Trumps has ever mentioned Mr. Epstein playing a role in their meeting. Mrs. Trump has said that her future husband simply asked for her phone number at a party at the Kit Kat Club during Fashion Week in 1998.

Thus far, Melania has not made good on her threat to sue Hunter into oblivion.

Melania also got a British publisher to withdraw a more incendiary claim in online versions of a new book on Prince Andrew.

As Congress returns today, Epstein will remain a key focus, with a politicized inquiry unfolding under James Comer in House Oversight and a more aggressive effort pushed by Ro Khanna and Tom Massie, who have a discharge petition queued up for a vote. Both efforts have real cause to ask why Trump moved sex trafficker Ghislaine Maxwell to a minimum security prison camp close to Bryan, TX schools (including Texas A&M) to shut her up, and whether it has anything to do with Melania’s litigious interest in tamping down any questions about her ties to Epstein.

Those same members of Congress might take a lesson from Noem (or, for that matter, the members of Congress who made false claims about Hunter Biden).

The entire Trump Administration treats government employ as a platform for incendiary slander.

As Trump faces renewed scrutiny of his efforts to cover-up his ties to Jeffrey Epstein, that could get awkward for Melania.

I am assuredly not saying that Ro Khanna should deliberately lie about Melania, as Noem is deliberately lying about Abrego. But I am saying that one basis for Trump’s sensitivities about Epstein (the other being the fact that Epstein and Maxwell “stole” his spa girls, forcing one — Virginia Giuffre — into sex slavery) appears to be Melania’s ties to the sex trafficker. And Congress does have the interest and authority into probing those ties.

Update: Corrected inaccurate description of Abrego as a “pretrial detainee.” He has been released under Bail Reform, but then was detained anew by ICE.

Update: Fixed Judge Crenshaw’s first name.

A few weeks ago, when we were waiting for the Circuit Court of Appeals to issue its ruling on a challenge to Trump’s tariffs, I did this video providing my prediction for the way that Trump hoped to get the Supreme Court to uphold his claimed unilateral authority to impose tariffs.

On Friday, the court issued its ruling.

Seven judges joined in a per curiam opinion basically ruling that IEEPA, the basis Trump used to impose the tariffs in question, did not authorize the fentanyl-related and trade deficit tariffs in question. Three of those judges — a Poppy Bush, an Obama, and a Biden appointee — joined in a concurring opinion written by another Biden appointee, Tiffany Cunningham, which held that IEEPA doesn’t permit the President to impose any tariffs. And three judges — two George W appointees and an Obama appointee — joined in Obama appointee Richard Taranto’s dissent arguing that IEEPA did give the President authority enough to impose the tariffs before the court (the remainder of the judges on the per curiam were a Clinton appointee and two Obama ones).

While the court remanded the case to the Court of International Trade to adjust to SCOTUS’ recent rulings against universal injunctions (meaning CIT would have to certify a class of importers who qualify for relief), it basically froze its ruling entirely until October 14 to give both parties a chance to appeal.

The Clerk is directed to withhold issuance of the mandate through October 14, 2025, during which the parties may file a petition for a writ of certiorari in the Supreme Court. If, within that period, any party notifies the Clerk in writing that it has filed a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending (1) the Supreme Court’s denial of certiorari or (2) a judgment of the Supreme Court if certiorari is granted. While the issuance of the mandate is withheld, the United States Court of International Trade shall take no further action in this case.

Now, as Scott Bessent made clear in that video, the plan from the Administration was always to delay a SCOTUS hearing until October so that by the time it ruled in January, the country would become so reliant on tariffs that SCOTUS would uphold the tariffs even if it recognized they were unlawful.

Since Friday, Trump has been engaged in his typical ranting, first repeating claims already made that if he lost the ability to arbitrarily destroy the US economy it would, “destroy the United States of America.” Then, Trump moved onto his bullshit invocation of partisanship, claiming that “a Radical Left group of judges didn’t care” that if he couldn’t bring in the “TRILLIONS OF DOLLARS” he falsely claimed he had brought in, then, “our Country would be completely destroyed.”

But then today Trump added an additional ploy: urgency.

Lying this time that his tariffs were bringing in $15 trillion of investments, Trump wailed that “TIME IS OF THE ESSENCE!!!” because if  “a Radical Left Court” were allowed to terminate his tariffs, than the US would become the “Third World Nation” Trump is intent on making it.

Not only is this tweet financial fraud on a massive scale — none of the deals involve any enforceable investments, much less on a scale that keeps doubling with each passing day.

But it makes no postural sense. The tariffs will remain in place until at least October, just like Bessent wanted, unless the plaintiffs find a basis to appeal. And even then, it would be Trump’s far right SCOTUS making the decision, not the mixed group of appointees at the Circuit Court of Appeals.

The biggest reason to think the “TIME IS OF THE ESSENCE!!!” is that Congress is coming back and will have to pass a budget to deal with the destruction wreaked by Trump’s Big Ugly Bill if it understands that these tariffs are illusory, even while the tariffs themselves will continue to destroy small and even larger businesses.

Or perhaps more importantly, Congress is coming back with further evidence that Trump’s policies are deeply unpopular. Trump may feel the need to stave off the kind of rebellion we have yet to see from the captive right wing majorities on the Hill.

Whatever the reason, it represents a tactical flip-flop from the strategy Bessent laid out just weeks ago.

The other day, Axios posted a ridiculous column (with Mike Allen as the first byline) beginning to lay the groundwork for Trump to repackage imminent failure on Ukraine. It starts by allowing senior White House officials anonymously and vaguely blame Europeans for Trump’s failure to craft a deal.

Frustrated Trump aides contend the blame should fall on European allies, not on Trump or even Russian President Vladimir Putin.

All three bases for that blame in the column are ridiculous:

• “White House officials are losing patience with European leaders, whom they claim are pushing Ukraine to hold out for unrealistic territorial concessions by Russia.”
• “U.S. officials believe [Countries besides the UK and France] want the U.S. to bear the full cost of the war, while putting no skin in the game themselves.”
• Europeans aren’t prepared to add sanctions against Russia, even though, “European countries are already working on a new set of sanctions against Russia.”

What appears to have happened is that Mike Allen let a bunch of White House officials make ridiculous claims with no pushback.

The latter half of the column (Barak Ravid is the second byline) ends with a description of another pointless Steve Witkoff meeting:

The latest: On Friday, Trump’s envoy Steve Witkoff and Zelensky’s chief of staff Andriy Yermak met in New York.

They discussed the potential Zelensky-Putin meeting and Yermak invited Witkoff for a first visit to Kyiv, but no significant progress was made, a source with knowledge of the meeting said.

The story comes after three more stories documenting how fucking incompetent Witkoff is. On Thursday, the Atlantic described how Putin confused Witkoff.

utin told Witkoff that, in return, Russia would be willing to give up its legal claim to two territories in southern Ukraine, Zaporizhzhia and Kherson, that Russia has partially occupied since its February 2022 invasion. Witkoff, according to the U.S. and European officials, entertained this proposal. But the question of what would become of the thousands of Russian soldiers stationed in those regions was never addressed, the officials told us. Their continued presence would be a nonstarter for Ukraine, but Putin conveniently left the matter out, and Witkoff never asked.

This became apparent to European officials in their discussions with Trump-administration officials following the meeting in Moscow. European officials were “confused about the phrasing,” as one European official put it, of what Putin and Witkoff had tentatively agreed to. They made calls to their American counterparts and warned that if Russia wasn’t required to withdraw from Ukrainian territory, it would almost certainly launch more attacks when the opportunity arises.

Asked about any confusion surrounding Witkoff’s discussions, a White House official said that Trump and his national-security team continue to engage with Russian and Ukrainian officials, but that “it is not in the national interest to further negotiate these issues publicly.”

[snip]

Putin, a former Russian intelligence officer skilled in the art of mixed messages, views conquest of Ukraine as essential to his goal of restoring Russia to its Soviet-era glory. And European officials said they fear that Witkoff’s limited knowledge of the conflict’s deep history is a major vulnerability. Witkoff, a real-estate executive and longtime friend of Trump’s, is seen as a shrewd businessman and one of the few people in Trump’s inner circle who truly speaks for the president. He assumed the role of envoy, however, with no prior government or diplomatic experience.

That same day, Reuters provided a similarly comical description of how Witkoff got played, adding the detail that Witkoff had no notetaker with him in Russia.

On an August 7 call with several European leaders, Witkoff indicated that Putin was willing to withdraw from the Ukrainian regions of Zaporizhzhia and Kherson in return for Kyiv ceding Donetsk and Luhansk, according to a source familiar with the exchange.

The proposal startled many of those on the call, since it departed sharply from their own assessments of Putin’s position, said four people with knowledge of the discussions, including U.S and European officials who requested anonymity to discuss sensitive matters.

Witkoff appeared to change his account the next day. In a call convened by U.S. Secretary of State Marco Rubio with European national security advisers, the envoy said Putin was not in fact offering to withdraw from the two territories in question, according to one of the sources.

Instead, U.S. officials indicated on the call Putin had signaled lesser concessions to Washington, including that he would not demand the West formally recognize Zaporizhzhia and Kherson as Russian, said a separate U.S. official.

Reuters couldn’t independently determine what was said in the Moscow meeting.

Witkoff, a real estate magnate with no background in diplomacy, broke with standard protocol by going to the meeting without a State Department notetaker and thus left without a record of Putin’s precise proposals, said one source with knowledge of internal administration dynamics.

A Politico story the next day generated a full-fledged social media attack on Felicia Schwarz, because she highlighted the many bozo anecdotes about Witkoff …

Trump’s unconventional fixer has met Putin five times over six months, but he has yet to translate his access to the Russian leader into any breakthroughs on Ukraine.

There were many barriers to the summit in Anchorage yielding results — Putin’s unwillingness to make significant concessions to end his war against Ukraine the major one, but many of those familiar with Witkoff’s role in the negotiations with Russia say he has made talks more difficult.

[snip]

“He’s kind of a rogue actor,” said a U.S. official familiar with Witkoff’s diplomatic style. “He talks to all these people, but no one knows what he says in any of these meetings. He will say things publicly but then he changes his mind. It’s hard to operationalize that.”

Witkoff’s Washington office is sparsely staffed, and short on people with Russia expertise or experienced in complex diplomatic negotiations. And he has refused to do typical consultations with Russia and Ukraine experts in and outside of government, according to the five people familiar with internal discussions.

[snip]

His staff, to the extent he has any, often doesn’t know where he is or what he is doing, according to four people familiar with the dynamics of the office. They said he spends most of his time at his office in the White House, while the rest of his team is at the State Department.

“The thing is, Witkoff isn’t consistently engaged. He will pop in for a visit to Vladimir Putin, say a bunch of stuff, not tell anyone what really happened and then just fuck off to his life again. Meanwhile, the Russians are talking to you about how ‘Witkoff says…’ and you don’t know whether they’re right or not, but you can’t get a readout from the Russians,” the U.S. official said.

JD Vance wrote a 350-word Xitter post accusing Schwarz — whose described sources include European, Russian, and US sources — of participating in a foreign influence operation, an accusation that might serve to rationalize an attempt to spy on her.

This story from Politico is journalistic malpractice. But it’s more than that: it’s a foreign influence operation meant to hurt the administration and one of our most effective members.

Notice how all of the people attacking Steve are on background? That means it’s two or three deep staters who are angry that Witkoff has succeeded where they’ve failed.

You know what this “reporter” left out to make room for anonymous quotes?

The full quote from the sitting vice president, on the record.

A quote from the secretary of the state, on the record.

A quote from Jared Kushner, on the record.

The full quote from the UK’s Jonathan Powell, one of the most respected national security people in the Western World, who defended Steve vigorously from these malicious smears.

The person who wrote this garbage is @felschwartz. Aside from the failure to include on the record information directly contradicting her reporting, I wonder if she ever asked herself why these anonymous sources came to her at this moment with this particular story. They have an agenda to blow up the president’s efforts to make peace, and they saw her as a useful vessel to launder garbage into the conversation, truth be damned.

There are two possible explanations: Felicia is just not very smart, and allowed herself to be used by deep state con men. Or she’s in on it, and used her position to willingly participate in a literal foreign influence operation. Either way, it’s disgraceful.

To set the record straight: Steve Witkoff is an invaluable member of our team. He did not mislead anyone on what the Russians told him and what the Russians conceded. (Trust me, I’ve seen the intel.) The fruits of his negotiations are that we have narrowed the list of open issues in the Russia-Ukraine war to a set of clearly defined issues–specifically, security guarantees and territorial concessions.

Maybe we make peace, and maybe we don’t. If we do, it will be because Steve Witkoff and the President of the United States worked their tails off, in the face of outright lies from the mainstream press.

Remember: as JD claims he knows better than Russian experts, Tulsi Gabbard is withholding their own intelligence on Russia even from Five Eyes partners. And Tulsi purged the top Russian expert who largely prepared the Alaska meeting over John Ratcliffe’s support by stripping her security clearance.

In the days leading up to President Donald Trump’s Aug. 15 Alaska summit with Russian President Vladimir Putin, one of the CIA’s senior-most Russia experts worked grueling hours, helping Trump and his team prepare for high-stakes diplomacy over Ukraine and making sure they were adequately briefed, according to a former agency colleague.

Four days later, the CIA officer — whom The Washington Post is not naming for her protection — was at work at the spy agency’s Langley headquarters when she was abruptly ordered to report to the security office. She was informed that her clearance to look at classified material was being stripped. In a span of minutes, her 29-year career in public service was essentially over.

The officer had been expecting an imminent move to Europe to take up a prestigious assignment approved by CIA Director John Ratcliffe.

Instead, she became the latest casualty of a widening cull by Trump and Director of National Intelligence Tulsi Gabbard, fueled at times by far-right activist Laura Loomer, targeting national security professionals whom they deem to have engaged in “politicization or weaponization of intelligence to advance personal, partisan, or non-objective agendas,” according to Gabbard’s Aug. 19 memo announcing the revocation at Trump’s direction of security clearances.

Jared Kushner’s endorsement of Witkoff may suggest the fondness for Witkoff have more to do with plans to forcibly remove the population of Gaza so Kushner can turn it into a golf resort.

A postwar plan for Gaza circulating within the Trump administration, modeled on President Donald Trump’s vow to “take over” the enclave, would turn it into a trusteeship administered by the United States for at least 10 years while it is transformed into a gleaming tourism resort and high-tech manufacturing and technology hub.

The 38-page prospectus seen by The Washington Post envisions at least a temporary relocation of all of Gaza’s more than 2 million population, either through what it calls “voluntary” departures to another country or into restricted, secured zones inside the enclave during reconstruction.

Those who own land would be offered a digital token by the trust in exchange for rights to redevelop their property, to be used to finance a new life elsewhere or eventually redeemed for an apartment in one of six to eight new “AI-powered, smart cities” to be built in Gaza. Each Palestinian who chooses to leave would be given a $5,000 cash payment and subsidies to cover four years of rent elsewhere, as well as a year of food.

[snip]

On Wednesday, Trump held a White House meeting to discuss ideas for how to end the war, now approaching the two-year mark, and what comes next. Participants included Secretary of State Marco Rubio and special presidential envoy Steve Witkoff; former British prime minister Tony Blair, whose views on Gaza’s future have been solicited by the administration; and Trump’ son-in-law Jared Kushner, who handled much of the president’s first-term initiatives on the Middle East and has extensive private interests in the region.

No readout of the meeting or policy decisions were announced, although Witkoff said the night before the gathering that the administration had “a very comprehensive plan.”

Remember, the Emirates were the vehicle via which Kirill Dmitriev was pitching bribes for sanctions relief in the first place, back in 2017 (in part, to one of Kushner’s best buddies).

JD is probably right: The Europeans and Americans who actually care about Ukraine seem intent on exposing Witkoff for the clown he is.

But it’s happening even as Trump is preparing to blame Europe for his own urgent need to capitulate to Putin.

[NB: check the byline, thanks. /~Rayne]

I’ve been sick with COVID this past week, missing the first classes of the fall semester.

I was exposed by a cancer patient who finished a second round of chemotherapy earlier this month. They weren’t vaccinated within the last year because they were undergoing chemo.

They were exposed after Saturday evening mass at their Catholic church in Florida, where others around them were likely not vaccinated, and definitely unmasked, unlike the cancer patient. A dementia patient who refused to mask was the vector between the congregation and the cancer patient.

The cancer patient is still recovering and now at about 90% of their capacity. They’re moving very slowly, thinking just as slowly. They can’t be left alone because they don’t have the reaction time they used to have.

I’m about 95% recovered, still have some sinus congestion and lingering crud in my chest. My ribs and my throat feel still feel bruised from hacking up my lungs so hard earlier this week.

What I’m not certain I’ll recover from is the trauma of having to check my father the cancer patient for a pulse last week when he collapsed on the kitchen floor, reviving him, getting him up and moving and into my car so I could rush him from their remote home to an urgent care facility more than 30 minutes away.

I didn’t think to put a mask on him or a mask on myself at the time because I was worried something had gone very wrong after my dad’s two-year fight with cancer. I was worried about the monsoon-like storm I had to drive through to get to urgent care. I thought erroneously he had recovered from COVID and wasn’t contagious because he hadn’t had a fever and he hadn’t been coughing.

So I unintentionally hot boxed my dad’s COVID-laden exhalations in my car for 30 minutes trying to save my father. I’d do it again if it came down to it but I should never have had to.

This country has been deeply damaged enough by the anti-vaccine movement since the COVID pandemic began; it shouldn’t have to face worse.

~ ~ ~

By now you’ve read Peterr’s Thursday post about the government’s internecine warfare at the Centers for Disease Control and the excision of director Susan Monarez, followed by the protest resignations of senior CDC staff in support of Monarez. The senior staff who resigned are:

• Demetre Daskalakis, former director of the National Center for Immunization and Respiratory Diseases
• Debra Houry, former chief medical officer and deputy director for program and science
• Daniel Jernigan, former director of the National Center for Emerging and Zoonotic Infectious Diseases
• Jennifer Layden, former director of office of public health data, science, technology

Each of these individuals has a deep background and education in medicine, healthcare, or public health. None of then should have been expected compromise themselves to support our nation’s public health.

None of them should have been treated so shabbily by RFK Jr.’s shit-tastic management of HHS. It’s not at all hyperbole to call it shit-tastic; I strongly recommend listening to The New York Times’ podcast interview with Demetre Daskalakis because it will rid you of any doubt the label is deserved.

Here’s an excerpt I found particularly telling:

DASKALAKIS: Yeah. So this was not related to ACIP, the announcement by the Secretary to change the childhood schedule. I learned about the change of the childhood schedule on X.

ABRAMS: You learned about it on social media —

DASKALAKIS: Yes, ma’am.

ABRAMS: — like the rest of us.

DASKALAKIS: That is correct.

ABRAMS: Wow.

DASKALAKIS: So I was sitting in a meeting with senior leaders at CDC. And as I was sitting there talking about the outbreaks that I was managing, my phone blew up with, “I didn’t know you guys were changing the children’s schedule.”

ABRAMS: People texting you?

DASKALAKIS: Yeah.

ABRAMS: Wow.

DASKALAKIS: Not from HHS, people in the world. Because they saw —

ABRAMS: People in the world, your friends and family or whoever seeing this and being like, this doesn’t sound like you.

DASKALAKIS: Correct. So we then asked the question, what’s going on? Can we see some kind of documentation? Because they were like, implement the change. But we’ve never seen anything in writing, so we asked if we could see the supporting data that led to the decision. And we were told no.

ABRAMS: Just flat out no?

DASKALAKIS: Flat out no.

ABRAMS: But can I ask you, did you ever actually have a conversation with Kennedy about any of this or any of his senior staffers?

DASKALAKIS: No.

ABRAMS: Or is it just that —

DASKALAKIS: No.

ABRAMS: No communication.

DASKALAKIS: No.

ABRAMS: Did you ever try?

DASKALAKIS: Yes.

ABRAMS: And what would happen?

DASKALAKIS: So we offered to do briefings when he first started. I think some people were able to brief some lower level staff, but not staff that were Secretary Kennedy’s staff. So no one from my center has ever briefed the Secretary.

ABRAMS: On anything.

DASKALAKIS: Correct, on anything.

ABRAMS: So basically, don’t have a line into RFK, and he’s not seeking out your advice or the advice of people who are theoretically supposed to advise him on things like this. How did you feel about that at the time?

DASKALAKIS: I felt that this was highly atypical, that we weren’t able to share our expertise up the chain to be able to provide information that could be meaningful and thought process. And so what I kept thinking was, we’re not doing this, but there sure is a point of view up there. I wonder who’s doing it.

My job is to make sure that we’re giving good science so people can make good decisions. And if I can’t make sure that science is untouched by non-scientific influence, I cannot say that I’m doing my job.

I believe that CDC science is going to be compromised by HHS. And if that science becomes biased, if it gets unduly influenced, then I can’t have my name on that science as something that I think should be used to make important decisions for people’s lives.

Again, I strongly recommend listening to this podcast. The other disturbing facet is the way in which Abrams just plows on; it could be an artifact of editing, but it could be another of the many ways in which media has not paused and shouted at the public how disturbing and inappropriate are RFK Jr.’s and Trump’s management of public health, in a misguided effort to remain neutral about a subject which isn’t and can’t be neutral at all.

How can a US media outlet be neutral in the face of what looks increasingly like an occupation of government agencies by hostile forces? In the case of the CDC under RFK Jr.’s HHS, it’s damaging the administration of vaccinations to the entire country while undermining the nation’s ability to respond to pandemic and bioterrorism, not to mention its ability to safely provide basic healthcare. No one will be unaffected; no one can be neutral.

~ ~ ~

I’m not kidding when I say our healthcare is now utterly compromised. Our first responders and healthcare providers can’t be assured of necessary vaccinations. From an ER doctor on Mastodon:

This is absolute bullshit.

One of the biggest purveyors of anti-vaccine propaganda, one without any healthcare education and training, has decided the persons most likely to be exposed to diseases on a daily basis are no longer eligible for COVID vaccinations if they do not have a limited number of pre-existing chronic health problems. From Jen Bendery on Bluesky:

(For the record, my autoimmune disorder which has cost me lung capacity, is not on this list. I am not eligible for another COVID shot until I turn 65.)

This is a recipe for disaster. Not only are rural hospitals at risk because of cuts to Medicare under Trump’s Big Fugly Bill, all hospitals are at risk if their staff can’t be vaccinated readily in the face of a new COVID wave.

If my father were to become sick again and collapse like he did, could he be assured there would be healthcare personnel ready to receive and treat him? Or might the healthcare system be overwhelmed and triage him to the very end of the line?

The same goes for any of the rest of us, really. How can anyone in the US be assured the healthcare system will be able to respond if RFK Jr. is allowed to continue to hack away at it without supporting data, without support by seasoned, qualified professionals, without adequate oversight by Congress?

~ ~ ~

Of the many things that raced through my mind as I tried to revive my dad was the thought we had not talked about DNR status.

I’m pretty sure my dad and mom have both indicated on healthcare POAs they are DNR under certain conditions.

What happens, though, when one of them collapses at home? Should I have left him on the floor while ensuring his comfort?

Obviously I didn’t do that.

But a little over a week later I can’t help wonder if RFK Jr. has now forced DNR on swaths of Americans, and we’re already DNR where we are in our own homes whether we realize it or not.

If our healthcare system collapses because of his anti-vaccine and anti-healthcare regime, is he not assuring our healthcare system cannot resuscitate many of us?

How would this be different under a hostile foreign occupation?