Judge Dale Ho Upends Emil Bove’s Weaponization

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As predicted, yesterday Judge Dale Ho dismissed the indictment against Eric Adams with prejudice, meaning the Trump Administration can’t charge Adams anew if he fails to do their bidding on immigration.

In his opinion explaining his decision, Ho engaged in a great deal of legal analysis, but ultimately it came down to this: even though DOJ’s explanations for the request to dismiss the indictment don’t hold up, because there’s no way to continue prosecuting Adams, Ho would end up having to dismiss the case in 70 days anyway on Speedy Trial grounds.

Thus, whatever teeth the public interest inquiry might have under Rule 48(a), denying dismissal as contrary to the public interest would be futile as a practical matter where, as here, the Motion was filed by DOJ itself. See id.; Nederlandsche, 453 F. Supp. at 463. While the Court could deny the Motion, allow seventy days to pass, and then dismiss the case on Speedy Trial Act grounds, it is hard to see what good that would accomplish.

Ho finds, for a bunch of reasons (including precisely the appearance of impropriety that DOJ claimed motivated their abandonment of the prosecution) to dismiss with prejudice, so the case is not hanging over Adams’ head. And so, having decided to dismiss with prejudice, Ho does so now rather than later (though he doesn’t say it, he does so with enough time that NYC voters can hold Adams accountable for this stinky deal).

[G]iven that seventy days from the date of this Opinion would take us uncomfortably close to the June 24, 2025 New York City mayoral primary election,60 the Court concludes that, if dismissal is inevitable, the public interest weighs in favor of its happening now rather than later.

In the process, Ho dismisses all the arguments DOJ made to justify the request.

First, he dismisses one of two reasons given for the dismissal — the appearance of impropriety — as a pretext. Ho cites his own opinion rejecting the claim when Mayor Adams’ team made it earlier.

45 To the extent that Mayor Adams argues that he has been prejudiced from extrajudicial statements about the case, see Adams Br. at 19-20, the Court has rejected two prior motions under Rule 6 raising these issues. See First Rule 6 Order; Second Rule 6 Order. Moreover, the Government itself has, until the filing of the Rule 48(a) Motion, denied that Mayor Adams has suffered any prejudice from any pretrial publicity throughout this litigation. For example, in response to Mayor Adams’s First Rule 6 Motion, the Government observed that there was no evidence that news articles about the investigation into his alleged illegal activity “put pressure on senior Justice Department officials to approve the indictment,” induced any grand jury witness to testify, or affected the grand jury’s decision to indict the Mayor. Gov’t First Sanctions Opp’n at 21-23. The Government also argued that Mayor Adams “ha[d] not established reason to believe that a future trial jury w[ould] be prejudiced by the news coverage of this case.” Id. at 23. The existence of such prejudice is typically uncovered through voir dire, which obviously has not happened here (nor will it). See United States v. Zichettello, 208 F.3d 72, 106 (2d Cir. 2000) (“When a trial court determines that media coverage has the potential for unfair prejudice, it is obligated to canvass the jury to find out if they have learned of the potentially prejudicial publicity and, if necessary, voir dire the jury to ascertain how much they know of the distracting publicity and what effect, if any, it has had on that juror’s ability to decide the case fairly.”).

But Ho also repeatedly adopts the word “pretext,” the one Hagan Scotten used to describe that excuse in his resignation letter.

As to Emil Bove’s claim that the indictment was hindering Adams’ ability to govern, Ho uses the public appearance Adams made to show that he was able to help the Administration in spite of the indictment.

The dispute here, however, seems to be more about how to interpret the facts than what the facts are. In a February 3, 2025 letter to DOJ (which they filed on the docket without prompting from the Court), Mayor Adams’s counsel asserted that the Mayor’s “independent abilities to exercise his powers have also been complicated by his indictment.” See Letter from Adams’s Counsel to DOJ. Specifically, they noted that [the Mayor’s] powers allow him to take actions such as preventing the Office of the Corporation Counsel from litigating challenges to immigration enforcement, preventing appointed city employees from taking public stances against enforcement efforts, reopening the ICE office on Rikers Island, and directing the NYPD to supply manpower to assist federal immigration agents. Id. Mayor Adams’s counsel did not explain how the Mayor’s exercise of these powers had been “complicated” by this case. Instead, they provided a list of discrete policy options that the Mayor could choose to exercise. And then, three days after DOJ issued the February 10 Decisional Memo directing SDNY to move to dismiss the Indictment (and one day before the Rule 48(a) Motion was ultimately filed), Mayor Adams decided to take one of these official acts, announcing that “he would issue an executive order allowing federal immigration authorities into the Rikers Island jail complex.” Br. of Amicus Curiae State Democracy Defenders Fund et al. at 5, ECF No. 152-2; see also ECF No. 150-4 at 152 (news article stating that “New York City Mayor Eric Adams said Thursday he will use his executive powers to allow federal immigration authorities back into the city’s sprawling Rikers Island jail complex, marking a substantial shift in the city’s sanctuary policies that prevent it from enforcing immigration law”). It seems that the Indictment was not, in fact, a barrier to that particular policy decision.

From that, Ho laid out how this creates the appearance of a quid pro quo.

The parties deny that Mayor Adams’s Rikers Island decision—which appears to be contrary to New York City Code53—reflects a quid pro quo. The record contains no contemporaneous notes of what was actually said during the January 31 meeting at DOJ,54 but counsel for Mayor Adams have represented in a letter to the Court that “we never said or suggested to anyone . . . that Mayor Adams would do X in exchange for Y, and no one said or suggested to us that they would do Y in exchange for X,” adding: “We are prepared to confirm these points under oath in sworn declarations.” See Def.’s Feb. 18, 2025 Letter at 2. The Court appreciates counsel’s willingness to supplement the record and facilitate further inquiry by the Court beyond the materials that they have affirmatively submitted without solicitation. E.g., Letter from Adams’s Counsel to DOJ.

But the Court finds that additional factual investigation—even if permissible—is unnecessary at this time. Whether anyone expressly incanted the precise words that they “would do X in exchange for Y” is not dispositive. As the Second Circuit has explained, “[a]n explicit quid pro quo . . . need not be expressly stated but may be inferred from the official’s and the payor’s words and actions.” United States v. Benjamin, 95 F.4th 60, 67 (2d Cir. 2024), cert. denied,

No. 24-142, 2024 WL 5112284 (Dec. 16, 2024); see also Benjamin, 95 F.4th at 68 (noting that while a “quid pro quo must be clear and unambiguous, there is no reason why it cannot be implied from the official’s and the payor’s words and actions.”); cf. Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring in part and concurring in the judgment) (“The official and the payor need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods.”). The Court need not and does not make any conclusive findings as to whether there was an explicit bargain here.55 It is sufficient to note that the facts, as put into the record by Mayor Adams’s legal team, do not support the notion that continuing this case will impede the Mayor’s ongoing immigration enforcement efforts—they instead suggest that dismissal of the case will facilitate future efforts by the Mayor, in alignment with the administration’s policy preferences

53 N.Y.C. Admin. Code § 9-131(h)(2) (“Federal immigration authorities shall not be permitted to maintain an office or quarters on land over which the department exercises jurisdiction, for the purpose of investigating possible violations of civil immigration law; provided, however, that the mayor may, by executive order, authorize federal immigration authorities to maintain an office or quarters on such land for purposes unrelated to the enforcement of civil immigration laws.”).

54 As noted above, the Sassoon Letter states one of her colleagues took contemporaneous notes but that those notes were confiscated at the end of the meeting. Sassoon Letter at 3 n.1. The February 13 Bove Letter in response references these events as well. See Feb. 13 Bove Letter at 3 n.3.

55 If such factual findings were necessary to the Court’s decision, additional evidentiary proceedings could then be appropriate.

The footnotes here are — as footnotes usually are — the sweet spot. Ho notes that Adams agreed not just to cooperate with Trump’s immigration enforcement, but to do so in defiance of New York City law.

And then he effectively says, if you don’t like my judgement that there is at least the appearance of a quid pro quo, we can reopen the evidentiary proceedings, in part by examining the notes that you seized from an AUSA on the case.

Judge Ho dismisses much of Bove’s effort to impugn Danielle Sassoon and Scotten by pointing out that it is irrelevant to the issue before him. DOJ said they were only relying on the two reasons to dismiss the indictment: the pretextual claim of appearance of impropriety that Ho had already rejected, and the infringement on Adams’ ability to do his work that Ho described as a quid pro quo. So they can’t, after the fact, attempt to manufacture real bias by posting communications from the prosecutors out of context.

In any case, Ho was unimpressed with Bove’s attempt to smear the prosecutors, finding it unexceptional, for example, that one of Scotten’s friends thought he would make a good judge.

Finally, the parties raise related issues in their briefs that do not appear in DOJ’s Rule 48(a) Motion. For reasons explained below, a court cannot properly grant a Rule 48(a) motion on the basis of rationales that were not raised in the motion. But even considering these additional points on the merits, the Court finds them either inapposite or unsupported by the record. For example, DOJ attaches various exhibits to its brief consisting of communications involving the former prosecution team and asserts that they show “troubling conduct” at USAO-SDNY. DOJ Br. at 1. But these communications were not public until DOJ sought to rely on them; as a matter of logic, they could not have affected “appearances” in this case. Moreover, the notion that DOJ sought dismissal because of improper conduct by the USAO-SDNY prosecution team is belied by the February 10 Decisional Memo itself, which makes clear that DOJ, in reaching its decision, “in no way call[ed] into question the integrity and efforts of the line prosecutors responsible for the case.” February 10 Decisional Memo at 1. At any rate, the Court has reviewed these communications carefully and finds that they do not show any improper motives or violations of ethics canons or the Justice Manual by the USAO-SDNY prosecution team or by former U.S. Attorney Sassoon.49

49 The Justice Department’s Principles of Federal Prosecution state, in relevant part, that “the attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” U.S. Dep’t of Just., Just. Manual § 9-27.220 (2023). There is nothing in the USAO-SDNY communications indicating a violation of these principles. For example, one communication indicates that a friend of AUSA Scotten believed that he would make a good federal judge. See ECF No. 175-4. The Court has reviewed this communication and finds that it shows nothing noteworthy, only that AUSA Scotten was focused on his current job “first,” rather than on any possible future opportunities. Id. Another communication—an email circulating a draft letter to the Court—refers to the Williams op-ed as a “scandal,” ECF No. 175-3, but the use of that informal shorthand in an email does not suggest that any of the individual AUSAs on the case, or the U.S. Attorney at the time, had any inappropriate motives or otherwise violated Justice Department policy or guidelines for purposes of its Rule 48(a) Motion, disclaimed any reliance on the suggestion of improper purposes in this prosecution.

Plus, there’s no way these could substantiate the appearance of impropriety claim justify dismissing the case, because Bove only made them public after the fact.

Similarly, Ho rejected Bove’s belated claims that there was something problematic with the case itself — and in a footnote, insinuates that Pam Bondi and Chad Mizelle were the ones engaged in misconduct by sharing their opinions about the strength of the case in violation of local rules.

The Rule 48(a) Motion does not allude to the possibility of other reasons for dismissal beyond the two set forth on its face. See Rule 48(a) Mot. ¶¶ 5-6. To the contrary, the Motion suggests that there are none. See id. at 3 (seeking dismissal “[b]ased on the foregoing” reasons). At the February 19 conference, DOJ confirmed that there were no other bases asserted in the Motion. See Feb. 19 Conf. Tr. at 22:18-22 (confirming that the Court’s “understanding that the motion contains no statement about the government’s views regarding the strength of the case in terms of the facts or the legal theory” is “correct”); id. at 22:18-25 (stating that “[t]here are two” bases for the Motion, neither of which concerned the merits). While counsel for DOJ stated “I do have other concerns” about the case, he disclaimed reliance on them for purposes of the Rule 48(a) Motion, explaining that the Government is “not asking the court to rely on any” reasons for dismissal beyond what is stated in the Motion itself. Id. at 22:5-13. And DOJ’s February 10 Decisional Memo is unequivocal in this regard, stating that “[t]he Justice Department has reached this conclusion without assessing the strength of the evidence or the legal theories on which the case is based, which are issues on which we defer to the U.S. Attorney’s Office at this time.” Feb. 10 Decisional Memo at 1 (emphasis added). It was only in response to this Court’s Order requesting further briefing on several questions, none of which concerned the reasons for the Motion, that DOJ raised this additional ground for dismissal.57

57 To be sure, in his February 13 letter to U.S. Attorney Sassoon, Acting DAG Bove stated that he has “many other concerns about this case,” which he described as turning on “factual and legal theories that are, at best, extremely aggressive.” Feb. 13 Letter at 7. Mayor Adams also points to a statement by the Attorney General that the case was “incredibly weak,” and has previously referenced similar statements to the same effect by the DOJ Chief of Staff. See Adams Br. at 6; Def.’s Feb. 21, 2025 Letter at 1. Assuming these concerns were well founded, they still do not contradict the February 10 Decisional Memo’s statement that DOJ reached its determination regarding dismissal without assessing the strength of the case. Separately, the Court notes that the statements referenced by Mayor Adams appear to violate Local Criminal Rule 23.1, which prohibits extrajudicial statements regarding an “opinion . . . in connection with pending or imminent criminal litigation . . . if there is a substantial likelihood that the dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.” S.D.N.Y. & E.D.N.Y. L. Crim. R. 23.1(a). The Rule provides that “[a]ny opinion as to . . . the merits of the case” “presumptively involve[s] a substantial likelihood that their public dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice within the meaning of this rule.” Id. at 23.1(d)(7). [my emphasis]

I noted the problems with Mizelle and Bondi’s interventions at the time.

You can’t retcon the reasons for dismissing the case, Judge Ho says, because it would undermine the political accountability that is one purpose for judicial involvement in a Rule 48(a) motion.

None of this is meant to suggest that it would be wholly impermissible for the government to have, in addition to valid reasons that are expressly stated, other unstated reasons for dropping a prosecution. But if the reasons actually articulated in a Rule 48(a) motion itself are insufficient, and dismissal can be justified only by resort to other grounds, then the omission of those other reasons misleads the court and the public, undermining political accountability. Under such circumstances, it would flout Rule 48(a)’s requirement of leave of court to grant a motion based on belatedly offered rationales. See Ammidown, 497 F.2d at 620 (“Rule 48(a)’s requirement of judicial leave . . . contemplates exposure of the reasons for dismissal.”). Here, DOJ has affirmatively asked the Court to rely on the reasons in its Rule 48(a) Motion and has argued that these reasons are a sufficient basis for granting the Motion. See Feb. 19 Conf. Tr. at 22:5-17. The Court therefore cannot permit DOJ to rely on a post hoc rationale not stated in the Motion itself. “[W]hen so much is at stake, . . . the Government should turn square corners in dealing with the people.” Regents, 140 S. Ct. at 1909. For these reasons, the Court cannot consider DOJ’s belated merits-based arguments in adjudicating this motion. [my emphasis]

In the last pages of the opinion Ho does a number of things that may have application outside of this case. He adopts Sassoon’s point that the comparison of the Adams case to the Viktor Bout case is inapt. More importantly, the Bout case was a quid pro quo. It doesn’t help Bove claim this wasn’t a quid pro quo, it does the opposite.

First, it is odd that DOJ would analogize its decision to dismiss Mayor Adams’s indictment—which it vehemently denies is a quid pro quo—to a prisoner exchange that was explicitly a quid pro quo. Moreover, it is inapt to compare an exchange negotiated between two sovereign nations, neither of which is beholden to the laws of the other, to the Government’s decision to dismiss the indictment of an elected public official who is subject to local, state, and federal laws.

The unprecedented nature of DOJ’s rationale is particularly concerning given its view that its decision is “virtually unreviewable” because it “invocates concerns about executive power that go right to the core of Article II of the Constitution.” Feb. 19 Conf. Tr. at 23:20-24. If that is correct, DOJ’s position has rather broad implications, to put it mildly. For instance, DOJ endorsed the view that the government can apply this rationale to virtually any public official with immigration-related responsibilities—ranging from a local police commissioner to the governor of a border state—and determine that they are essentially immune from criminal liability. See id. at 32:22-34:8.

Where I’m most intrigued, Ho likens what DOJ is doing here — using the threat of prosecution to coerce states — to Congressional attempts to do the same.

Threatening federal indictment to compel compliance with federal regulatory objectives by a state or local official also raises significant federalism concerns. It is well established that “the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997). Although this prohibition has typically been applied to acts of Congress, the principles that underpin it—namely, federalism and political accountability—would similarly preclude an attempt by the federal executive branch to coerce a state or local official into implementing federal policy objectives. 58

See U.S. Dep’t of Just., Just. Manual § 9-16.110 (2020) (cautioning that “[p]lea bargains with defendants who are elected public officers can present issues of federalism . . . when they require the public officer defendant to take action that affects his or her tenure in office”). Here, the fact that, after DOJ made the decision to seek dismissal of his case, Mayor Adams decided to issue an executive order in alignment with current “federal immigration initiatives and policies,” Rule 48(a) Mot. ¶ 6, but in apparent conflict with New York City law, see N.Y.C. Admin. Code § 9-131(h)(2), is troubling to say the least. It suggests that the federal government is using the pendency of a federal indictment to override the City’s laws in favor of its own policy goals.

58 That prohibition applies even where state or local officials consent to federal compulsion, because “[t]he interests of public officials . . . may not coincide with the Constitution’s intergovernmental allocation of authority.” New York v. United States, 505 U.S. 144, 183 (1992). “The Constitution does not protect the sovereignty of States for the benefit of the States . . . as abstract political entities, or even for the benefit of the public officials governing the States.” Id.

But this is what Trump is doing left and right: Threatening states, cities, and private entities to try to get compliance with Trump’s orders. And while federalism would only apply this holding to government entities, Trump has already retaliated against New York’s other elected leaders for personal grievances. Pam Bondi has even threatened criminal prosecution in the immigration context.

So don’t be surprised if you see this opinion cited down the road.

Emil Bove attempted to force through his corrupt deal quietly, with pretextual excuses for doing so. When that failed, he turned to retaliation against at least Sassoon and Scotten. Whatever else this opinion does — no matter how unsatisfying it is that Adams will escape accountability, and it is — Ho used this opinion to lay out judicial record that Bove’s claims are bullshit.

Ho can’t stop Bove’s corrupt deal. But this opinion may forestall follow-on weaponization of this case.

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Elon Musk Steps in It in Wisconsin

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Susan Crawford beat Brad Schimel by ten points last night in significant part by yoking Schimel to Elon Musk, who dumped millions into the race.

As I’ve been saying for months, this could undercut Elon’s efforts to silence right wing opposition to his destruction using primary challenges; if last night was any indication, that would backfire.

But there are several ways Elon’s involvement in the race could have further repercussions. After WI didn’t (yet) pursue legal action after Elon offered the same kind of soft bribes he used in last year’s election, the winner of his $1 million check posted a video effectively confirming that her vote was one of the things she did for the money.

On Tuesday, Musk’s super PAC, America PAC, pulled a video from X featuring $1 million giveaway winner Ekaterina Deistler in which she said she received the money, in part, to “vote.” X is owned by the tech billionaire.

“My name’s Ekaterina Deistler,” she said in a video posted Monday morning. “I did exactly what Elon Musk told everyone to do: sign the petition, refer friends and family, vote, and now I have a million dollars.”

But the video was taken down yesterday, and America PAC posted a new video of Deistler on X on Tuesday afternoon.

“My name’s Ekaterina Deistler, and I’m from Green Bay, Wisconsin,” she said in the new video. “I did exactly what Elon Musk told everyone to do: sign the petition, refer friends and family, and now I have a million dollars.”

Then there’s the backlash from comments Elon and Antonio Gracias made, claiming that someone would be arrested the next day, at a rally for Schimel.

Tech billionaire and senior Trump adviser Elon Musk appeared to boast of advance knowledge of a planned arrest related to alleged Social Security fraud during an appearance on a live stream Monday night promoted to his more than 200 million social media followers, frustrating top law enforcement officials, multiple sources told ABC News.

“Yes. In fact, I believe someone is going to be arrested tomorrow,” Musk said in response to a question about whether U.S. Attorney General Pam Bondi would prosecute fraud found within the Social Security system.

Musk, discussing the alleged planned arrest, said, “This is someone who actually stole 400,000 social security numbers and personal information from the Social Security database, and was selling social security numbers and all of all the identification information in order for people to basically steal money from Social Security.”

[snip]

Musk did not say how he came to know about the alleged planned arrest, but sources familiar with the matter told ABC News that Musk was referring to an ongoing federal investigation, and that his public disclosure of the matter disturbed top law enforcement officials with knowledge of the probe.

Previewing an arrest before it takes place would conflict with standard practice intended to protect potentially sensitive law enforcement operations and those involved in carrying them out. [my emphasis]

ABC’s story on the blabbing suggests this is just about law enforcement worrying about tipping someone off. But when you add in Gracias’ comments, it may turn out to be more. Gracias effectively leaked details not just of Social Security data, but of Social Security data collated with data from other sources, such as DHS databases.

Gracias alleged that they had identified and reported undocumented immigrants improperly receiving Social Security and registering to vote — allegations that ABC News has not verified.

“The defaults in the system, from Social Security to all of the benefit programs, have been set to max inclusion, max pay for these people, and minimum collection. That’s what’s happening. We found 1.3 million of them [undocumented immigrants] already on Medicaid, as an example,” said Gracias.

“We actually just took a sample and looked at voter registration records, and we found people here registered to vote in this population, yes, and we found some by sampling that actually did vote, and we have referred them to prosecution at the Homeland Security investigation service already,” Gracias said.

These are the kinds of DOGE claims that always collapse upon review (and Elon and his DOGE boys seem not to understand that undocumented workers actually keep Social Security afloat with payments they will never recoup). But they also evince visibility into data from several agencies (and state voting records) at once — the kind of intra-agency dissemination that unions have posited as a heightened privacy risk, one that would require additional privacy assessments. And the theory of fraud here doesn’t match the claimed actions DOJ has laid out in response to lawsuits. So this may help unions and others as they try to fight back against DOGE.

Elon’s intervention in Wisconsin didn’t help Schimel. And he may have caused himself further problems along the way.

Update: FedScoop confirms that DOGE, including Big Balls, has access to USCIS data.

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The Four Kinds of Fuck-Ups Kristi Noem Committed on March 15

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The case of Kilmar Abrego Garcia has justifiably gotten a lot of attention. [docket]

Yesterday, the government confessed it sent him, on the third deportation flight on March 15, to El Salvador, in spite of a 2019 order prohibiting his deportation to El Salvador based on real fears of persecution, including gang targeting.

Here’s how Acting Field Office Director Enforcement and Removal Operations in Harlington, TX, Robert Cerna, described Abrego Garcia’s deportation in a declaration submitted to support the government’s claim that it fucked up but it can’t be forced to do anything about it.

5. On March 15, 2025, President Trump announced the Proclamation Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua.

6. On March 15, 2025, two planes carrying aliens being removed under the Alien Enemies Act (“AEA”) and one carrying aliens with Title 8 removal orders departed the United States for El Salvador. Abrego-Garcia, a native and citizen of El Salvador, was on the third flight and thus had his removal order to El Salvador executed. This removal was an error.

[snip]

12. The operation that led to Abrego-Garcia’s removal to El Salvador was designed to only include individuals with no impediments to removal. Generally, individuals were not placed on the manifest until they were cleared for removal.

13. ICE was aware of this grant of withholding of removal at the time AbregoGarcia’s removal from the United States. Reference was made to this status on internal forms.

14. Abrego-Garcia was not on the initial manifest of the Title 8 flight to be removed to El Salvador. Rather, he was an alternate. As others were removed from the flight for various reasons, he moved up the list and was assigned to the flight. The manifest did not indicate that Abrego-Garcia should not be removed.

15. Through administrative error, Abrego-Garcia was removed from the United States to El Salvador. This was an oversight, and the removal was carried out in good faith based on the existence of a final order of removal and Abrego-Garcia’s purported membership in MS-13. [bold]

One thing complicates this case: In 2019, an immigration judge took the hearsay word of an informant sufficiently seriously to detain Abrego Garcia based on a claim that he had ties to MS-13; the decision was upheld on appeal. But, as noted, Abrego Garcia also got a ruling that he legitimately feared deportation because he had refused to join Barrio 18 after they extorted his family and shut down their business. After that (and after his marriage to his US-citizen spouse) he was released from custody in 2019, during the first Trump term.

Here’s how Abrego Garcia himself described things.

Plaintiff Kilmar Armando Abrego Garcia (“Mr. Abrego Garcia”) won an order from an immigration judge (“IJ”) prohibiting his removal to El Salvador, after he established it was more likely than not that he would be persecuted in that country on account of a statutorily protected ground. The government could have chosen to appeal that order, but did not. The government could have chosen to remove Mr. Abrego Garcia to any other country on earth, but did not. The government could later have filed a motion to reopen proceedings against Mr. Abrego Garcia and seek to set aside the order of protection, but did not. Instead, the government put Mr. Abrego Garcia on a plane to El Salvador, seemingly without any pretense of a legal basis whatsoever. Once in El Salvador, that country’s government immediately placed Mr. Abrego Garcia into a torture center—one that the U.S. government is reportedly paying the government of El Salvador to operate. This grotesque display of power without law is abhorrent to our entire system of justice, and must not be allowed to stand.

The government, however, says the onus was on Abrego Garcia and his spouse to challenge his detention with a habeas petition, but they cannot here because he is no longer in US custody.

Because Plaintiffs seek Abrego Garcia’s release from allegedly unlawful detention on the grounds that it was effected illegally, they make a core habeas claim, and they must therefore bring it exclusively in habeas.

But there is no jurisdiction in habeas. Plaintiffs admit—as they must—that the United States does not have custody over Abrego Garcia. They acknowledge that there may be “difficult questions of redressability” in this case, reflecting their recognition that Defendants do not have “the power to produce” Abrego Garcia from CECOT in El Salvador.

This adopts an argument DOJ made in the main El Salvador deportation case before the DC Circuit, one Justin Walker took as credible.

But it exposes the legal gimmick Trump is creating. He’s trying to deport people before they avail themselves of what Trump claims is their recourse, habeas, but once they’ve been deported, they can no longer avail themselves of a habeas petition because they’re no longer in US custody.

The government also argues that they’re helpless to convince Nayib Bukele to send Abrego Garcia back.

Despite their allegations of continued payment for Abrego Garcia’s detention, Plaintiffs do not argue that the United States can exercise its will over a foreign sovereign. The most they ask for is a court order that the United States entreat—or even cajole—a close ally in its fight against transnational cartels.

[snip]

There is no showing that any payment made to El Salvador is yet to occur; no showing that El Salvador is likely to release CECOT detainees but for any such payment; no showing that El Salvador is even inclined to consider a request to release a detainee at the United States’ request.

This case is particularly interesting given questions raised weeks ago about Bukele’s own ties to MS-13.

Some say Bukele is trying to hide his government’s own involvement with the gangs.

More than two dozen high-ranking Salvadoran gang leaders have been charged with terrorism and other crimes in a Justice Department investigation that has lasted years. Several of them are jailed in the United States. One of the indictments details how senior members of Bukele’s government held secret negotiations with gang leaders after his 2019 election. The gang members wanted financial benefits, control of territory and better jail conditions, the court documents say. In exchange, they agreed to tamp down homicides in public areas and to pressure neighborhoods under their control to support Bukele’s party in midterm elections, according to the 2022 indictment.

Bukele’s government went so far as to free a top MS-13 leader, Elmer Canales Rivera, or “Crook,” from a Salvadoran prison, according to the documents — even though the U.S. government had asked for his extradition. (He was later captured in Mexico and sent to the U.S.)

Last weekend, the Trump administration sent back one of the MS-13 leaders named in the indictments, César Humberto López Larios, alias “Greñas,” along with the 238 Venezuelans and nearly two dozen other Salvadorans allegedly tied to gangs.

Some Salvadoran analysts believe Bukele wants the gang leaders back so they won’t testify about his government’s involvement with them — and potentially put him in legal trouble.

“If these returns [of Salvadoran gang members] continue, it takes away the possibility that the U.S. judicial system will open a case against Bukele for negotiations and agreements with terrorist groups,” said Juan Martínez d’Aubuisson, an anthropologist who has studied the gangs.

That is, it so happens that Abrego Garcia got “accidentally” sent back to El Salvador based on a ruling that he might have ties to MS-13, even though a judge found he demonstrated a real fear of Barrio 18, the kind of complexities of organized crime that implicates Bukele himself.

Abrego Garcia wasn’t on the manifest, but then he was.

And note, above, Cerna’s inexplicable invocation of the Alien Enemies Act — the legal basis, he notes, for the deportation of those on the other two planes sent to El Salvador that day, but not, purportedly, the one Abrego Garcia was sent on. He was sent on a plane full of people with final removal orders, allegedly. So why raise the AEA, which is not at issue in this case?

That kind of seeming non sequitur is often a tell, that the current story — the story about the third plane — is not what we’re being told.

Abrego Garcia’s case is more complex than some are making out.

But his story needs to be put in context with all the other stories of that day.

Thus far, we know that Kristi Noem demonstrated the incompetence of her DHS in a number of ways on March 15.

She sent women on flights even though Bukele would only accept men.

She sent a Nicaraguan even though Bukele refused to accept other Central Americans.

She sent a slew of men, including a gay makeup artist and a professional soccer player, based primarily on their tattoos. (ACLU liberated one of the checklists showing the centrality of tattoos to determinations of Tren de Aragua membership.)

And she sent Abrego Garcia to El Salvador in defiance of a ruling that she couldn’t do that.

Everything we’ve learned about the flights on March 15 show how utterly incompetent Kristi Noem’s DHS is.

DOJ is trying to hide Noem’s incompetence via a range of legal ploys. Or, in the case of Abrego Garcia, they’re just disclaiming any responsibility to reverse her failures.

But as we discuss the Trump’s Administration’s assault on due process, it bears notice that they’re trying to eliminate due process even as Noem proves, over and over, that she’s utterly incompetent to do even what she claims she’s trying to do competently.

Update: Corrected gang that extorted Abrego Garcia’s family.

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Trump’s Threats to the Constitution Are Happening in Real Time, Not (Just) in a Third Term

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There is no doubt in my mind that the intent of the Trump team is to retain power indefinitely, via whatever means.

To fight that effectively, you should focus your action and words on the most pressing issues before us — elections on Tuesday, legal cases before appeals courts, legal US residents in detention — rather than trying to discern the means by which Trump will codify all the actions he is taking today, yesterday, last week. The actions he is taking in real time, and their goals, are utterly transparent.

Which is why I think it a colossal waste of time that the punditocracy spent much of Sunday talking about Kristen Welker’s “report” that Trump says he wants a third term.

You don’t say?

Rather than spending the day discussing Trump’s Executive Order presuming to dictate to states how they — with the involvement of DOGE!! — must start suppressing the vote over the next months, we talked about something that might happen in 2028. Rather than spending the day talking about how Trump is already using federal funding and immigration law to silence speech protected by the First Amendment, we discussed what gimmick Trump might use in the future to evade the 22nd Amendment.

Almost no one even tried to use Trump’s comments about a third term as a way to explain the end goal of assaults on civil society, speech, and voting — to connect the actions Trump took in the last week to what he says he’ll do in 2028 — something that would at least make use of Trump’s own rhetoric to educate low-information voters. Instead, they talked about Trump’s assault on democracy in the way Trump wanted it framed — distant, allegedly constitutional, and uncertain, rather than an imminent unconstitutional assault on democracy.

What the fuck are we doing here, folks?

It’s not even clear to me what the comments were. Welker introduced her “exclusive phone interview” during the introduction to Meet the Press, specifying that Trump called her. In that intro, she focused on Trump’s threat to maybe get angry at Vladimir Putin but maybe not. It was more than a phone interview though: She played video of Trump’s comments promising to impose tariffs. The call provided almost two minutes of pure transcription of Trump’s comments — so much so that Welker repeated Trump’s claims that the Signal chat story was fake news twice, uncontested.

Trump used his phone call to Kristen Welker to get her to call journalists, to call herself, fake news.

But the comments about the third term — with or without video — were not in that clip; they were published separately, Meet the Press scooping itself, with no live pushback.

The fact that Welker brought up this plot for a third term herself, mentioning Steve Bannon (who was presenting it on another channel), suggests that was the entire point: Trump called her, she dutifully brought it up, she got video but used almost none of it, leaving only Markwayne Mullin on camera (who should never be invited as a credible interlocutor in any case) to answer for the Administration on MTP itself. Not that it mattered; Welker was even more solicitous than usual yesterday.

Trump’s genius is in managing attention: both keeping it, and directing it away and towards topics of his choosing. He has long integrated assertions about a third term into his political spiel. This is nothing new (indeed, NBC linked an earlier instance in the story). And yet NBC — along with a pack of credulous pundits — chose to focus on Trump’s third term comments all day Sunday rather on the things he did in the last week, covering up disappearances on Monday, tampering in elections on Tuesday, assaulting the independence of another law firm on Wednesday, attacking unions and whitewashing history on Thursday, compromising DC self-rule on Friday, that are obviously about a third term and beyond.

How can you have lived through that week, or any of the last nine, and have doubts about the intent here? Why do you think hypothetical discussions about assaults on the Constitution will better serve fighting back than concrete discussion and organizing about specific assaults on it?

This seems to be yet another instance where journalists and liberals, both of whom institutionally presume that language is transparent, misunderstand how authoritarians use language instrumentally and therefore forgo the most effective response to instrumental language.

Consider the following rubric as applied to yesterday’s stunt.

What is instrumental

Trump’s comments about a third term were almost certainly instrumental: part of his larger authoritarian project, perhaps an attempt to distract from the specifics of the effort and to falsely claim he has popular support, perhaps something Bannon told him to do as part of Bannon’s own pitch, perhaps an attempt to expand the Overton window on such legal gimmicks.

A decade into Trump’s authoritarian attack on democracy, pundits still let Trump hijack their attention with the spectacular nature of his speech, willfully helping to disseminate Trump’s most outrageous statements in the form he packaged them up in, almost always without filter. In doing so, they treat Trump’s power as spectacle, something to be gaped at passively, and in the process forego the rational discussion journalists and liberals claim to hold dear.

What is true

With the exception of court filings, there is almost never a reason to use Trump’s own speech as a statement of truth. In part, that’s because he lies so often, such efforts simply decline into a form of Kremlinology: “How does Trump plan to serve a third term? Will he ask JD to front for him? Will he try to change the Constitution?” This almost always has the effect of accepting the premise Trump offers, in this case that the 2028 elections would be free and fair even if Trump succeeds in dictating how states must count the vote and sharply constrains speech and civil society, the project of his last week.

This fight will be won or lost long before the 2028 election. Both Orbanism and Putinism — two of Trump’s select models — stage elections largely (in the former case) or utterly (in the latter) devoid of real contest. This fight will be won or lost in the defense of civil society, not in discussion of constitutional gimmicks years in the future.

Relying on Trump’s speech to determine what is true is all the more foolish given the abundance of evidence in plain sight you could rely on instead. Why bother with the Kremlinology when you can point to any one of six attacks on democracy in the last week? More importantly, why bother with the Kremlinology when each of those six attacks on democracy invite specific kinds of active response, whether organizational or legal? The Kremlinology invites impotence when relying instead on the plain facts invites many ways to fight back.

How to fight back against instrumental language

Every time I point out how Trump recruits self-imagined journalists to serve as his data mules, people accuse me of claiming we should ignore Trump’s speech, or that of his flunkies.

I’m not.

I’m asking people to recognize instrumental speech as such and either repurpose it or at least identify it as a way to strip its power.

In this case, for example, you could simply take Trump’s claim as a given — “Trump confirmed he wants to defy the Constitution and remain in power indefinitely” — as a way to raise the stakes for his daily assault on democracy. “His EO attacking state administration of elections is one thing he’d need to do to give illusory sanction to such an effort,” you might explain, truthfully. Or, “See? I’m not alarmist. These things Trump is doing really are about keeping power longterm. I told you so!” Use Trump’s spectacular speech, without disseminating it, to reinforce the message about the fight right in front of you.

Or you could point out how Trump succeeded in hijacking the Sunday discussion (whether or not that was the specific intent). We should have been focused exclusively on how his national security team made the US insecure by conducting sensitive discussions on Signal and how imminent tariffs will shift the tax burden away from billionaires and onto consumers. Instead, by offering Welker this claim to exclusivity, he got her to repeat lie (he’s very cross with Putin) after lie (annexing Greenland will be necessary and easy), and twice got her to call herself fake news. With no rebuttal!

When someone lies, don’t focus alone on fact checking (which only works in limited circumstances). Instead, explain the purpose of the lie. Stephen Miller lies non-stop on Xitter, and he does so because the lies about immigration he told to get Trump elected (for example, that Tren de Aragua has overrun places like Aurora, CO) are being undermined on a daily basis, in the Global Threats Assessment that doesn’t even mention the gang, much less treat it like an invasion, and in court filings showing that Miller and Kristi Noem can’t even distinguish women from men, and are using soccer tattoos as a way to attempt to claim migrants are something other than they are, and with that claim, to accrue new ways to evade due process and produce fascist propaganda. Thus far, Miller is winning this propaganda fight, hands down, because he is left largely to himself as he keeps reiterating his false claims, even in a week when he was debunked by Trump’s own Director of National Intelligence. But rather than fact checking the lies — which would treat these claims as a contested issue — simply point out that he’s telling the lie because his past lies keep getting debunked. He’s telling them to keep confusing his rubes.

As to the Welker call, the primary purpose of it may have been Trump’s claim to be cross with Putin. Trump has made a lot of effort to spin his abject capitulation to Putin as something else. He needs to do so to keep Republicans from revolting over it. Both John Cornyn and Jerry Moran raised concerns about Ukraine at the Global Threats hearing, and even John Ratcliffe offered up evidence in the Senate hearing that Ukraine is far more resilient than Trump and JD Vance are claiming publicly. But Trump’s claim to be angry is utterly discredited given the way he changed the terms of the minerals deal last week, dramatically moving the goal posts on Ukraine again, asking for further subjugation in the guise of peace. Trump’s latest emotional tantrum is not something you can fact check; maybe he really is angry that Putin is obviously dicking him around! But you can — and should — use his actions to show his tantrum is nothing more than theater, designed to hide his consistent weakness in the face of Putin’s disinterest in a deal.

Do not gape at spectacular language. Do not let it distract you from more concrete reality that can be directly addressed. That is the goal of it. Rather, neutralize it, point to it as such, rob its power.

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Honesty, Humility, Integrity: Pete Hegseth Fails to Meet Standards He Claims Trans Service Members Lack

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Amid the torrent of scandal and legal fights characterizing Donald Trump’s second term, the United States faces a moral and ethical question about what it means to be honest, humble, to have integrity.

On the one hand, you have over forty (thirty-two, eight, two) plaintiffs, challenging Donald Trump’s ban on their service in the military. They include Commander Emily Shilling, a naval aviator who flew over 60 combat missions before serving as a test pilot and now leading acquisition programs, Lieutenant Colonel Ashley Davis, who serves as an Air Battle Manager flying the E-3 AWACS, Major Minerva Bettis, who serves as an Air Force weapons instructor at Nellis Air Force Base, First Lieutenant Sean Kersch-Hamar, who serves as an Air Force weapons systems officer, Master Sergeant Logan Ireland, who serves as Flight Chief in the Air Force’s Office of Special Investigations, Staff Sergeant Vera Wolf, who serves as an Air Force weapons specialist.

While this is just a selection of the 40 plaintiffs, these happen to be the kinds of people who make strikes like those launched against the Houthis on March 15 happen.

These plaintiffs are being kicked out of the military for no other reason than because they are transgender. To justify kicking out these service members, Donald Trump accused all transgender people of lacking the honesty, humility, and integrity, not to mention the “warrior ethos,” to serve in the armed forces, a claim adopted in DOD’s implementation of Trump’s order.

They are being kicked out by Pete Hegseth.

During his confirmation hearing to be Secretary of Defense, Pete Hegseth confessed to serial adultery. He confessed to that as a way to dodge questions about drinking before work, spousal abuse, and sexual misconduct. He confessed to serial infidelity but denied the other allegations.

After denying the allegations, Hegseth refused to say whether showing up to work drunk, engaging in spousal abuse, or sexually assaulting a woman would disqualify him from serving as Secretary of Defense.

Pete Hegseth refused to say whether showing up to work drunk, engaging in spousal abuse, or sexually assaulting a woman would prove he lacked the honesty or integrity to work at DOD, much less lead it.

But questions about Hegseth’s fitness did not end with his confirmation hearings.

In his time as Secretary of Defense, Pete Hegseth has brought his spouse to sensitive international meetings. To be fair, he may simply not know better. Along with serial infidelity, in his confirmation hearing, Hegseth confessed that he had conducted almost no such international negotiations in the past. Maybe he simply doesn’t know that including spouses undermines candor and security?

Hegseth also hired his brother, Phil, who did PR at the non-profit which Hegseth financially ruined, to a senior position at DOD. This at least looks like nepotism, the hiring of someone because of who he is, other than merit. As he has with his spouse, Hegseth has toted his brother along to meetings: to his first big overseas trip, to Gitmo, to the Conor McGregor meeting at the White House.

All that might not have been enough to revisit questions about Hegseth’s honestly, humility, and integrity.

But then, Pete Hegseth — the guy kicking out every trans service member based on a claim they lack honesty, humility, and integrity — shared National Defense Information on an insecure Signal chat that happened to include a journalist. While the compromise of attack information did not, in real time, get anyone killed, between his comments on the chat and those of Vice President JD Vance and National Security Adviser Mike Waltz, the compromise may expose service members — people like Commander Shilling, Lieutenant Colonel Davis, Major Bettis, First Lieutenant Kersch-Hamar, Master Sergeant Ireland, or Staff Sergeant Wolf —  to possible legal danger going forward, because they raise questions about the presidential authorization for an operation that knowingly targeted a civilian residence.

Just as troubling, after his reckless actions were exposed, Hegseth has persistently lied about how sensitive the information is.

He has refused to accept responsibility for his own actions.

As the NYT describes, Hegseth’s intransigence has led those flying such missions to question whether the Secretary of Defense is going to get them killed, in part because he lacks the humility to admit that he did something wrong.

On air bases, in aircraft carrier “ready rooms” and in communities near military bases this week, there was consternation. The news that senior officials in the Trump administration discussed plans on Signal, a commercial messaging app, for an impending attack angered and bewildered men and women who have taken to the air on behalf of the United States.

The mistaken inclusion of the editor in chief of The Atlantic in the chat and Mr. Hegseth’s insistence that he did nothing wrong by disclosing the secret plans upend decades of military doctrine about operational security, a dozen Air Force and Navy fighter pilots said.

Worse, they said, is that going forward, they can no longer be certain that the Pentagon is focused on their safety when they strap into cockpits.

“The whole point about aviation safety is that you have to have the humility to understand that you are imperfect, because everybody screws up. Everybody makes mistakes,” said Lt. John Gadzinski, a retired Navy F-14 pilot who flew combat missions from aircraft carriers in the Persian Gulf. “But ultimately, if you can’t admit when you’re wrong, you’re going to kill somebody because your ego is too big.”

And that’s why I keep obsessing about the fact that Hegseth continues to lie about the Signal chat even as DOJ continues to insist that Commander Shilling, Lieutenant Colonel Davis, Major Bettis, First Lieutenant Kersch-Hamar, Master Sergeant Ireland, or Staff Sergeant Wolf lack honesty, integrity, and humility.

Hegseth is relying on such claims even though there’s absolutely no evidence to support it in the case of these 40-some named plaintiffs.

Here’s how Judge Benjamin Settle, a George W. Bush appointee, described it in the third of three orders freezing the trans ban.

Commander Emily “Hawking” Shilling, for example, transitioned within the Navy beginning in the fall of 2021 in reliance on the Austin Policy. She has been a Naval Aviator for 19 years. She has flown more than 60 combat missions, including in Iraq and Afghanistan, and was a Navy test pilot. She has 1750 flight hours in high performance Navy jets—including the F/A-18 Super Hornet—and has earned three air medals. She asserts without contradiction that the Navy already spent $20 million training her. There is no claim and no evidence that she is now, or ever was, a detriment to her unit’s cohesion, or to the military’s lethality or readiness, or that she is mentally or physically unable to continue her service. There is no claim and no evidence that Shilling herself is dishonest or selfish, or that she lacks humility or integrity. Yet absent an injunction, she will be promptly discharged solely because she is transgender.

Settle reached his conclusion via different means that Judge Ana Reyes, whose injunction focused on the clear animus targeting trans service members.

Settle didn’t deny there was animus; he just didn’t rely on it, focusing instead on DOD’s failure to present any evidence to support the stated goals of the trans ban, a ban that goes further even than the Mattis policy approved in Trump’s first term, which permitted trans members already serving, including some of the plaintiffs, to remain. DOJ relied on suppositions made in formulating the Mattis policy during Trump’s first term and ignored the reality of the last seven years — the honorable service of the plaintiffs who’ve served openly — that debunked those suppositions.

But Settle did hold that the stigma of being fired based on these shoddy claims would likely support a due process claim, even if DOD ousts these plaintiffs via an honorable discharge, which the government claims would eliminate any stigma.

The Military Ban and Hegseth Policy’s demeaning language is repeated even here in the government’s response: “The Commander has determined that it is ‘the policy of the United States Government to establish high standards for troop . . . honesty, humility, uniformity, and integrity,’ and that this policy is ‘inconsistent with the . . . constraints on individuals with gender dysphoria.’” Dkt. 76 at 41 (quoting Military Ban). In effect, the government, in line with the Military Ban and Hegseth Policy, posits that, as a class, transgender service members are only in the military as the result of a radical, insane, false gender ideology. See, e.g., Military Excellence and Readiness Fact Sheet (“During the Biden Administration, the Department of Defense allowed gender insanity to pervade our military organizations.”). There is no evidence in the record supporting these assertions.

One discharged from service based on these grounds is plainly stigmatized. The accuracy of the government’s proclamations is obviously contested, and plaintiffs are about to lose their military careers because of them. An honorable discharge does not erase or sanitize the language the government uses to describe the character of separated service members under the Military Ban and Hegseth Policy.

Plaintiffs have demonstrated the Chaudhry elements of a stigma-plus Procedural Due Process claim. They have also demonstrated that the Military Ban violates “bedrock” Due Process fairness principles precluding arbitrary or vindictive measures that upset settled expectations. On the record before the Court, they are likely to succeed on the merits of their Procedural Due Process claim.

There’s been a lot of attention to the arbitrary claims Trump has used to target one after another law firm (even while protecting Jones Day), though in my opinion far too many journalists have treated these grievances as real, ignoring the falsehoods Trump used to manufacture grievance. There has, similarly, been a lot of attention on the protected free speech that the government has used to justify kidnapping Mahmud Khalil, Rumeysa Ozturk, and others.

That’s all justified attention.

But there’s something especially noxious about this manufactured claim — the enthusiasm with which Hegseth has adopted Trump’s slander of all trans people as dishonest and lacking integrity.

When it came to his own alleged conduct, for which there was at least credible (if aggressively contested) evidence, Hegseth refused to concede whether dishonesty would disqualify him. Yet since then, Hegseth has used baseless insinuations about honesty, integrity, and humility to kick out people who’ve served honorably for two decades.

Pete Hegseth is lying about how dangerous his actions were. In doing so, he’s putting his career above those doing the riskiest work.

And all the while he’s slandering others about lacking honesty, integrity, and humility.

Talbott v. Trump docket

Ana Reyes opinion granting preliminary injunction

Shilling v. Trump docket

Benjamin Settle opinion granting preliminary injunction

Ireland v. Hegseth docket

Christine O’Hearn order granting TRO

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Stephen Miller’s Presumed Babysitting of JD Vance’s European Animosity … and DOD’s Potential War Crimes

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Tulsi Gabbard’s testimony at the threat hearings was clear: After falsely claiming that fentanyl was the top threat to the United States, she said the second threat was China. That’s important background to the most interesting comment I’ve seen about the chat.

The Trumpsters on the chat were obsessed with making Europe pay for the operation. But — as  Nathalie Tocci noted in this NYT story focused on the Trumpsters’ obsession — the entire conversation ignored the import to China of transit through the Suez Canal.

“It is clear that the trans-Atlantic relationship, as was, is over, and there is, at best, an indifferent disdain,” said Nathalie Tocci, director of Italy’s Institute of International Affairs, who formerly advised a top E.U. official. “And at worst, and closer to that, there is an active attempt to undermine Europe.”

[snip]

He and others, like Anna Sauerbrey, the foreign editor of Die Zeit, noted that the explicit demand for payment, rather than just political and military support, as in Iraq and Afghanistan, was new. And it ignored the fact that “the U.S. depends on global trade,” she said, and that “France, Britain and the Netherlands have deployed ships to the region” for the same purpose. The Americans, she said, “are constantly overlooking European efforts.”

China, for example, gets most of its oil imports through the Bab el-Mandeb Strait and does much of its export trade with Europe through the same sea route. But no one is asking China to pay, Ms. Tocci noted.

In the texts released by Atlantic, there’s actually even more focus on the trade that transits the canal than the original story.

Indeed, it was at the center of debates over whether the strikes should go forward, which decision Tulsi Gabbard claimed had been made long before the chat started, and which debate, in yesterday’s cover story, was hailed as a policy process working.

Eleven minutes after Mike Waltz kicks off the thread with instructions that Joint Staff is sending “a more specific sequence of events in the coming days,” JD Vance piped in to say he thought the strikes were a mistake.

He focused on the fact that (he claimed) just 3% of US trade goes through Bab el-Mandeb, whereas 40% of Europe’s does.

Both Joe Kent (Tulsi’s unconfirmed aide) and John Ratcliffe respond that they could wait; indeed, in an arguably classified text, Ratcliffe says that more time would “be used to identify better starting points for coverage on Houthi leadership.” Kent also offers to provide unclassified details on shipping, perhaps to correct JD’s claim.

Remember, the person most likely to have been the “JG” whom Waltz tried to add to the chat instead of Jeff Goldberg is Jamieson Greer, Trump’s trade representative, who likely would have had the precise details (and also might be sufficiently grown up to point out how stupid this Signal chat was).

Then Pete Hegseth pipes up to second JD’s specific concerns about messaging, including his worry that (ha!) the plans will leak and “we look indecisive.”

Waltz responds to JD’s original point, correcting him about how much US traffic transits Bab el-Mandeb, accounting for the fact that the stuff transiting the canal ends up in trade with the US.

That’s the first 27 minutes of the substantive discussion. Somewhere between 8:32 and 8:42AM, Waltz adds “SM,” believed to be Stephen Miller.

After adding Miller (but without mentioning he added him), Waltz returns to the issue of sea lanes, asserting that unless the US reopens them, they won’t get reopened.

JD suggests that if Hegseth is okay with the strikes, “let’s go.” He suggests Houthi targeting of Saudi oil facilities are one downside risk, not Saudi involvement, which is why the US has often chosen to lead on Houthi strikes.

Then Hegseth agrees that the Europeans are “free-loading It’s PATHETIC,” and says “we are the only ones on the planet (on our side of the ledger) who can” reopen the shipping lanes — which may suggest he believes China could do it too.

As Tocci pointed out to NYT, there’s no discussion of asking China to pay for these strikes. No discussion of how doing so for China helps China build its influence in Europe. No discussion at all in how this might affect China.

These boys purportedly intent on confronting China simply don’t consider the policy decision’s affect on China. JD and Whiskey Pete, at least, are interested primarily in hurting Europe.

Another 46 minutes elapse before SM — added after JD was wailing about the Europeans — comments. He offers an interpretation of what Trump said: a green light on the operation, he opines, but the US would harass Egypt and Europe after the fact to extort a payback.

Eleven minutes later, Hegseth — the guy to whom JD appealed on this issue — agreed with SM’s interpretation of the President’s intent.

That settled it. As I noted, SM’s — presumed to be Stephen Miller, Trump’s top domestic policy advisor — interpretation of the President’s intent is the sole backup in this now public document that the President authorized the strike at all: “As I heard it, the president was clear: green light.”

And the next thing we know, after Waltz resets how long until this PRA/FRA-covered communications will be destroyed illegally — DOD is flattening the apartment of someone’s girlfriend.

Fist-flag-fire!

By March 17, locals in Sanaa were claiming 53 people had been killed in this and ensuing strikes, including five children.

Even ignoring the foreknowledge of a civilian target, that makes the whole thing legally precarious, because everyone on the list is relying on SM’s interpretation of presidential intent. With the foreknowledge, it puts everyone involved in the strike at much greater legal risk because the legality of it, seemingly a target with significant civilian exposure, is so fragile.

But the other thing it does is show SM — again, believed to be Trump’s top domestic policy advisor — serving as the surrogate for Trump, and doing so in a way designed to shut JD up.

Like wormtongue, his mere gloss of the leader’s intent is treated with uncontested authority.

 

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Clean on OpSec: Pete Hegseth Spilled Specific Details of an Attack in Advance

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The Atlantic has published the texts (except for one naming a CIA officer whose name John Ratcliffe insists is not classified) it earlier withheld.

The White House is frantically spinning, claiming these attack plans — the likes of which both Tulsi Gabbard and Ratcliffe claimed not to recall in sworn testimony yesterday — don’t amount to “war plans.”

Karoline Leavitt is even sniping at the Wall Street Journal for its shock that Steve Witkoff was on the Signal chat thread while meeting with Putin at the Kremlin.

A real security scandal is that the Signal chat apparently included Steve Witkoff, Mr. Trump’s envoy to wars in the Middle East and Ukraine. Press reports say Mr. Witkoff was receiving these messages on the commercial app while in Moscow. This is security malpractice. Russian intelligence services must be listening to Mr. Witkoff’s every eyebrow flutter. This adds to the building perception that Mr. Witkoff, the President’s friend from New York, is out of his depth in dealing with world crises.

The meaning of Leavitt’s rebuttal is not remotely clear.

.@SteveWitkoff
was provided a secure line of communication by the U.S. Government, and it was the only phone he had in his possession while in Moscow.

If the Wall Street Journal Editorial Board cared about the truth, they could have reached out to our team for comment before running these lies.

This is classic Fake News from an outlet clearly determined to knock Steve Witkoff, who is a great patriot working effectively on behalf of President Trump to secure world peace.

She’s not denying he had Signal on the device with which he traveled (nor explained what devices he has had on his other international travels).

Update: Witkoff makes it more clear. The personal phone on which he was discussing military operations was at home.

I am incredulous that a good newspaper like the@WSJ would not check with me as to whether I had any personal devices with me on either of my trips to Moscow. If they had, they would have known the truth. Which is, I only had with me a secure phone provided by the government for special circumstances when you travel to regions where you do not want your devices compromised. That is why CBS News reported that Goldberg himself said that he “has not recounted Witkoff making any comments in that group chat until Saturday, after he left Russia and returned to the U.S.”. Guess why? Because I had no access to my personal devices until I returned from my trip. That is the responsible way for me to make these trips and that is how I always conduct myself. Maybe it is time for media outlets like the Journal to acknowledge when some of their people make serious reporting mistakes like this. I would appreciate it if the WSJ and other media outlets check with me the next time they make serious allegations. Thank you.

The desperate panic to deny the gravity of this situation, however, is a real testament to the contempt in which the White House holds the men and women whose lives were put at risk — may still be at risk — because their Defense Secretary is so incompetent he can’t bother with the least little OpSec.

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Patronage Is a Lucrative Way to Attack Rule of Law

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Yesterday, Trump issued another Executive Order targeting a law firm, this time Jenner & Block.

His rationale is even thinner than the other manufactured reasons to target law firms. The EO alludes to Jenner’s support for trans people and migrants.

More extensively, it complains that Jenner rehired Andrew Weissmann for a period after he convicted Paul Manafort for being a tax cheat, a money launderer, and a foreign influence peddler.

Jenner was also “thrilled” to re-hire Andrew Weissmann, a prosecutor known for his unethical behavior, including his role in engaging in partisan prosecution as part of Robert Mueller’s entirely unjustified investigation.
Weissmann’s career has been rooted in weaponized government and abuse of power, including devastating tens of thousands of American families who worked for the now defunct Arthur Andersen LLP, only to have his unlawfully aggressive prosecution overturned by the Supreme Court.

The numerous reports of Weissman’s dishonesty, including pursuit of nonexistent crimes, bribery to foreign nationals, and overt demand that the federal government pursue a political agenda against President Trump, is a concerning indictment of Jenner’s values and priorities.

The crimes for which Manafort was actually prosecuted were suspected crimes identified long before Trump started pursuing help from Russia to get elected. Weissmann never succeeded in getting Manafort to tell the truth about his relationship with Konstantin Kilimnik and other alleged Russian agents.

And while Weissmann has been a loud champion for accountability for Trump since January 6, he left Jenner in 2021, before most of his criticism.

Nevertheless, a lot of coverage of the EO (like Devlin Barrett’s here) has dutifully rehearsed Trump’s transparently thin claims as if they are the real reason for the attack.

They can’t be. After all, Jones Day continues to boast about doing the same kind of pro bono work, including supporting migrants, that Trump cites in his Jenner EO.

In 2021, Jones Day expanded our work to serve migrant children, women, and families by opening a new office in the Rio Grande Valley. We call our newest phase of our work—The Border Project 3.0.

Jones Day has provided legal education to over 10,000 migrants, and has managed more than 600 individual cases for women, children, and families. Over 1,100 lawyers from every domestic office and Mexico City have dedicated more than 280,000 hours to these cases.

We continue to provide aid and support to vulnerable migrant populations. When dangerous circumstances in the Middle East and Africa resulted in waves of refugees in Lesvos, Greece, Jones Day deployed lawyers from the region to help ensure that the laws governing humanitarian relief are properly applied, particularly women and children. More than 20 lawyers have dedicated in excess of 2,800 hours to this project.

It continues to celebrate its own diversity initiatives.

And yet Trump has left the Republican Party’s main law firm unscathed.

Which is why I think more focus should be given to this passage from Brad Karp’s cowardly letter explaining why he capitulated when Trump similarly focused on Paul Weiss. It’s not just that Trump’s EOs scare existing law firm clients from working with the targeted firms. It’s that other firms — firms protected from Trump’s wrath — have exploited the EOs to attempt to expand their business and talent.

We were hopeful that the legal industry would rally to our side, even though it had not done so in response to executive orders targeting other firms. We had tried to persuade other firms to come out in public support of Covington and Perkins Coie. And we waited for firms to support us in the wake of the President’s executive order targeting Paul, Weiss. Disappointingly, far from support, we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys.

Yes, these EOs are designed to deprive Trump’s most vulnerable targets of good legal representation.

Yes, these EOs are designed to delegitimize efforts to hold corruption like Manafort’s (and by extension, that of anyone in Trump’s loyal orbit or willing to turn on his adversaries) accountable.

But they’re also designed to give affiliated firms patronage, business opportunities dependent on loyalty. That turns these law firms into little more than lobbying firms, little different than Ballard Partners, a Trump-connected lobbying firm that experiences a bonanza every time Trump gets in office (and not coincidentally, that employed Pam Bondi until her confirmation as the lawyer enforcing this patronage). Once law firms have become indistinguishable from lobbying firms — something that was trending anyway — then rule of law is only accessible to those with proper ties.

You’re paying for influence, not for legal acumen.

And in the process firms loaded with legal acumen will rely increasingly on their blind fealty.

Deborah Pearlstein renews the call for law firms to exercise some solidarity in the face of Trump’s persistent attacks. But thus far, the rush for spoils has undermined any such solidarity and adherence to law, not fealty.

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Kristi Noem Invokes State Secrets to Cover-Up Her Inability to ID Women as Women

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One of the transphobic right wing’s most annoying taunts is that Democrats can’t decide whether women are women. It is central to the long-running campaign to demonize trans people to claim that birth sex, which transphobes claim is a person’s true and immutable sex, is always immediately apparent.

Yet yesterday, Kristi Noem invoked State Secrets to cover-up the fact that she — and the agencies she runs — were unable to identify women as women. DOJ included Noem’s declaration as part of package invoking State Secrets in the Alien Enemies Act lawsuit yesterday.

The declarations, in general, are ridiculous given filings submitted by ACLU earlier yesterday.

Both Rubio and Noem’s declarations include language claiming that official acknowledgement of details of the deportation flights — the kinds of details Judge James Boasberg might use to hold them in contempt — is different than, “assumptions, speculation, public investigation, or informal statements.” This, mentioning “informal” reports or statements five times, is from Noem’s declaration:

Disclosure of the information sought in the Court’s Minute Order would cause significant harm to the United States’ national security even assuming some of that information has already entered public sources as a result of assumptions, speculation, public investigation, or informal statements. It is both true and well known that official acknowledgement of a fact may be damaging to national interests in a way that informal suggestions or speculation about that information is not. If the government were to confirm or deny the information sought by this Court’s Minute Order, there would arise a danger that enemies of our national security would be able to stitch together an understanding of the means and methods used to thwart their unlawful and sometimes violent conduct.

[snip]

There is a difference between official acknowledgement and informal reports: Official disclosures or acknowledgements threaten the United States’ national security interests in a way that informal reports or statements do not, because informal statements leave an important element of doubt that provides an essential layer of protection and confidentiality. That protection would be lost if the United States were forced to confirm or deny the accuracy of unofficial disclosures or speculation. [my emphasis]

But the plaintiffs’ declaration notes that after Nayib Bukele posted a propaganda video showing three planes that had brought detainees to El Salvador, with tail numbers visible, both Trump and Rubio effectively ratified by reposting the video.

In addition, public information shows that two planes were still in the air when the Court issued both its oral and written Orders. Most significantly, based on information publicized by U.S. government officials and publicly available flight data, at least two flights took off during the hearing on March 15—one at 5:26pm EDT and the other at 5:45pm EDT—and landed well after this Court’s written Order had been filed. See Pls. Resp. to Defs. Notice (ECF No. 21); see also Joyce Sohyun Lee and Kevin Schaul, Deportation Flights Landed after Judge Said Planes Should Turn Around, Wash. Post (Mar. 16, 2025). 2 And the video released by President Bukele that shows Plaintiff class members being hauled off the planes in El Salvador includes each plane’s tail number.3 That video was then reposted by both President Trump4 and Secretary of State Rubio.5

2 https://www.washingtonpost.com/immigration/2025/03/16/deportation-flights-trump-elsalvador [https://perma.cc/Q6NH-ATY8]

3 https://x.com/nayibbukele/status/1901245427216978290 [https://perma.cc/BM73-547H].

4 https://truthsocial.com/@realDonaldTrump/posts/114173862724361939 [https://perma.cc/67LY-FREW].

5 https://x.com/SecRubio/status/1901252043517432213 [https://perma.cc/RXH4-XH4R].

The Xitter post from Rubio, using his official Secretary of State Xitter account, specifically says, “Thank you for your assistance and friendship, President Bukele” in response to his claim that 238 members of Tren de Aragua “arrived in our country” effectively ratifying that those planes were the ones used, and that the number Bukele used was the one given to him.

Perhaps the government is prepping a claim that these are “informal” statements. But Donald Trump has fired people by tweet, over and over, and nominated a good number of cabinet members by tweet, including Noem herself.

Trump’s tweets have official effect. To claim Trump’s tweet didn’t ratify Bukele’s post is nonsense.

Rubio and Noem’s focus on the danger of official confirmation is about refusing to provide Boasberg details showing that DHS had not done adequate vetting of the detainees to sustain the claim they really were members of Tren de Aragua. Again, this is from Noem’s declaration:

In addition to flight operations, the number of TdA members on a given removal flight is also information that, if disclosed, would expose ICE’s means and methods, thus threatening significant harm to the national security of the United States. Revealing and/or confirming the number of TdA members involved would reveal key details about how the United States conducts these sorts of operations and would allow other aliens (members of TdA and otherwise) to draw inferences about how the Government prioritizes and uses its resources in immigration enforcement and counterterrorism operations.

[snip]

When the United [sic] seeks to remove individuals to a foreign country, the United States must negotiate the details of that removal with the foreign country. This requires nonpublic, sensitive, and high stakes negotiation with the foreign State, particularly where, as here, the aliens being removed have been deemed enemy aliens and members of a foreign terrorist organization. Those negotiations cover sensitive issues, including representations regarding the bases on which the individuals are being removed from the United States, which can impact the foreign State’s willingness to accept the removed aliens and the procedures it will employ in doing so.

[snip]

Similarly, if sensitive information covered by a compelled disclosure — for example, the number and nature of aliens removed to the foreign State — were to come to light — the receiving foreign State’s government could face internal or international pressure making that foreign State and other foreign States less likely to work cooperatively in the future with the United States on matters affecting its national security.

Moreover, if a disclosure were to in any way undercut or, in the eyes of a foreign State (fairly or not) cast doubt on representations made by the United States during sensitive negotiations, that could likewise make that foreign State and other foreign States less likely to work cooperatively with the United States on matters affecting its national security.

Noem is not entirely making shit up (nor is she lying, elsewhere in her declaration, that confirmation that the flights landed in Honduras could cause problems).

Bukele said he was given 238 members of TdA. It was key to his propaganda campaign. If Boasberg now finds that’s false, it might well embarrass Bukele (though he’s pretty immune from embarrassment).

The problem for Noem and Rubio, is ACLU already presented two sworn declarations asserting that the Trump Administration’s public representations were false. EEPB, for example, described being told that El Salvador would not accept him, a Nicaraguan, because it would cause “conflict.”

I overheard a Salvadoran official tell an ICE officer that the Salvadoran government would not detain someone from another Central American country because of the conflict it would cause. I also heard him say that they would not receive the females because the prison was not for females and females were not mentioned in the agreement. I then saw the ICE officer call someone, and after the call, I overheard him saying we had to be sent back.

They included a guy whose accent undoubtedly makes it clear he’s not Venezuelan, but claimed he was a Venezuelan anyway.

More alarming still, Venezuelan woman SZFR — who, like other women on one of the planes, had not yet been formally deported and so by definition should only have been on one of the planes alleged to carry TdA members — described guards on the plane acknowledging that they knew an order prohibited the departure of the plane. She also described that guards were trying to force the male detainees on the plane to sign forms admitting they were TdA members.

10. When we got on the plane there were already over 50 men on the plane. I could see other migrants walking to the plane but we took off before any additional people boarded.

11. Within a couple of minutes of take off I heard two US government officials talking and they said “there is an order saying we can’t take off but we already have.”

12. I asked where we were going and we were told that we were going to Venezuela.

13. Several other people on the plane told me they were in immigration proceedings and awaiting court hearings in immigration court.

14. We were not allowed to open our window shades.

15. We landed somewhere for refueling. We were there for many hours. We were arm and leg shackled the whole time.

16. We took off again and landed fairly quickly. I was then told we were in El Salvador.

17. While on the plane the government officials were asking the men to sign a document and they didn’t want to. The government officials were pushing them to sign the documents and threatening them. I heard them discussing the documents and they were about the men admitting they were members of TdA.

18. After we landed but were still on the plane a woman opened the shade. An officer rushed to shut the shade and pushed her down by her shoulders to try and stop her from looking out. The person that pushed her down had HOU-02 on his sleeve.

19. I saw out the window for a minute and I saw men in military uniforms and another plane. I saw men being led off the plane. Since I’ve been back in the U.S. I have seen news coverage and the plane I saw looks like the one I’ve seen on TV with migrants from the U.S. being delivered to El Salvador.

20. All the men got off the plane. The remaining women asked what happens to us? I was told that the President of El Salvador would not accept women. I was also told that we were going back to detention in the U.S. [my emphasis]

But the most important part with respect to Noem’s sworn statement that she can’t reveal details about who was on the plane is that the agreement with Bukele said he would not accept women.

And yet Kristi Noem’s DHS sent women — around nine of them — anyway.

There’s a lot that Noem is trying to cover up with her State Secrets declaration, starting with how incompetent her DHS is.

But one of the key details she’s trying to cover up is that a committed transphobe like Noem couldn’t even properly identify the sex of the detainees she was sending to El Salvador.

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