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Today’s Difficult Budget Negotiations Will Be Far More Difficult as Shelves Go Bare

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There’s a detail that often gets missed from slobbering transcription of DOGE propaganda. When Elon Musk first said DOGE would save $150 billion, he said that money would be saved in FY26 — that is, the year starting in October, the year for which Republicans are pushing through a budget now.

That’s important background to the expected release today of Trump’s topline proposed budget, which cuts … $163 billion from discretionary spending, largely consisting of the things that Elon has been putting through a woodchipper.

The fiscal 2026 budget proposal, which the White House is planning to release on Friday, is a largely symbolic wish list that lays out the president’s spending and political priorities. Congress, which Republicans control by narrow majorities in both chambers, will spend months debating which elements of the proposed plan should be turned into law.

The budget plan will propose $557 billion in nondefense discretionary spending, officials said. It would reduce nondefense discretionary spending by $163 billion, the officials said. The administration said that represents a 22.6% cut from projected spending in fiscal 2025, which ends Sept. 30. It wasn’t clear how the administration calculated that percentage.

[snip]

According to administration officials, Trump’s proposed budget cuts include:

  • Eliminating offices at the Cybersecurity and Infrastructure Security Agency
  • Defunding “environmental justice” initiatives at the EPA
  • Closing USAID and reallocating grant funding
  • Eliminating a federal program that provides grants to nonprofits that help people who face housing discrimination
  • Defunding the National Endowment for Democracy, a nonprofit that supports democratic institutions around the world
  • Cutting what it calls “wasteful and woke FEMA grant programs”
  • Closing the U.S. Institute of Peace, a congressionally funded think tank that seeks to prevent global conflict
  • Refocusing the National Institutes of Health on research that aligns with Trump’s “Make America Healthy Again” agenda
  • Eliminating a $315 million grant program for preschool development that the administration contends pushed DEI initiatives
  • Cutting $77 million in grant funding for teacher preparation and professional development the administration says pushed “Critical Race Theory” and DEI initiatives
  • Eliminating the Minority Business Development Agency, which promotes minority-owned businesses
  • Eliminating the Community Development Financial Institutions Fund, which promotes economic growth in poor communities
  • Cutting $5.2 billion from the National Science Foundation
  • Canceling $15 billion in funding in the infrastructure law signed by former President Joe Biden for renewable energy technology
  • Eliminating U.S. investments in global funds to help developing countries deal with the effects of climate change
  • Eliminating EPA research grants to nongovernmental organizations
  • Cutting $2.5 billion from the Energy Department’s renewable energy program
  • Cutting $80 million from renewable energy programs at the Interior Department
  • Eliminating grants at NOAA, which forecasts weather and monitors oceanic and atmospheric conditions, among other things

If these cuts aren’t made, it’s not clear whether DOGE will have saved anything, even while incurring hundreds of billion in costs.

There’s already some discomfort between Congress and the Administration about this process.

Tom Cole and other budget Chairs were supposed to meet — and provide advance feedback — both about the prospective budget and the rescissions (the money not spent in this current year for which Trump needs Congress’ retroactive sanction). But Russ Vought rescheduled the meeting to do so from Thursday morning to Thursday afternoon, after members go home for the week.

House Appropriations Chair Tom Cole vented Thursday about the White House’s seemingly inattentive approach to its relations with congressional funders, saying that President Donald Trump is not the “commander” of Congress and that top Republicans need the White House to quickly share their funding plans.

The unusually tart comments from Cole (R-Okla.) came after White House budget director Russ Vought canceled a planned Thursday morning meeting with the House’s GOP funding leaders because of a “presidential request,” Cole said.

While a White House official said that was “fake news” and that the meeting was rescheduled for later Thursday, Cole noted that most lawmakers would already be headed back home.

“It’s not going to be happening with all the cardinals later today, because we’re not going to be here later today,” Cole said of the dozen chairs of the House’s appropriations panels.

Those leaders are increasingly vexed that the White House budget office has not shared details of the funding cuts it is already undertaking at federal agencies and its plans for the fiscal year that starts in October.

“Look, no president — and administrations — don’t get to dictate what’s going to happen here,” Cole told reporters Thursday morning. “Congress is not the Army. And the president is the president, but not the commander in chief of Congress.”

Having advance influence on the rescissions package is particularly important because there are some things that DOGE cut (and more specifically, Pete Marocco cut while Marco Rubio claimed he had not) that Republicans don’t want to sanction, starting with PEPFAR.

The administration initially floated sending $9.3 billion of DOGE cuts to the Hill, which would encompass DOGE’s elimination of the main agency providing foreign aid, the U.S. Agency for International Development, as well as zeroing out some money for public broadcasting. The cuts would take just 51 votes in the Senate to pass, which means lawmakers would not need to worry about a Democratic filibuster to make the cuts permanent, under a provision in the 1974 budget law that allows requests for rescinded funding to be expedited. Musk has claimed $160 billion in savings so far.

This week, however, lawmakers began to raise concerns about even that smaller effort, with Sen. Susan Collins (R-Maine) telling colleagues she would have trouble supporting cuts to PEPFAR, an effort to combat HIV/AIDS abroad that other foreign-policy minded senators also support.

“I think it depends what’s in it precisely,” Collins said of the package’s chances of passing in the Senate. “For example, the $8.3 billion in foreign aid cuts, if that includes the women’s global health initiative as is rumored, if it cuts PEPFAR as it may, I don’t see those passing.”

[snip]

Rep. Tom Cole (R-Oklahoma), the chairman of the House Appropriations Committee, said passing DOGE cuts could be difficult even in the Republican-controlled Congress, given the chamber’s tiny majority. He’s asked the administration to review the package before it is submitted to ensure the cuts have political support.

“Do you really want to roll out and have a failure?” Cole asked. “I think if they put it out there, they need to succeed at it.”

The futility of this process — having someone like Elon cut a bunch of things, in hopes Congress would take the politically risky vote to sanction it — has people like Rand Paul and Tom Massie mocking the whole process, to say nothing of Mike Johnson’s servitude to Trump.

“One of the most surreal moments this year was at the State of the Union, when my colleagues all got up and clapped because DOGE found all of these cuts and all this wasteful spending,” Rep. Thomas Massie of Kentucky, who often wears an electronic national debt-tracker clipped to his suit, told NOTUS on Thursday. “It was all stuff they funded, and all stuff they were going to fund again in the CR. And they were just, like, clapping.”

“They didn’t realize it was actually an insult and an indictment of their own performance,” Massie said. “Not only do we write the checks, we’re responsible for the oversight after we do write the checks. And clearly we failed.”

[snip]

Massie, for his part, thinks there are plenty of institutional changes that could help Congress do more work to monitor spending, instead of relying on an outside panel like DOGE. One tweak he’d like to see would allow members to hire contractors to do short-term oversight projects instead of relying only on full-time staff.

But, he said, getting serious about spending would also “take a speaker who wants to breathe life back into this institution.”

“Mike Johnson’s stated goal is to carry water for Trump,” Massie complained. “That’s not going to get it done.”

But it may be bigger than that.

If Congress doesn’t approve of Trump’s rescissions — the gutting of foreign aid that is popular with Republicans by boys who know nothing about it — it will make Trump’s legal justification for having made these cuts before a score of judges around the country far more fraught. In the same period Congress will be debating these rescissions, judges will be considering whether the cuts were legal.

This may be Russ Vought’s goal, to treat Congress as an appendage. But in theory, at least, it should create a Constitutional crisis. And this time, the courts will have a say.

This is one of many reasons why I think it so important that Trump’s self-imposed tariff disaster will start causing excruciating pain before Congress works through retroactively codifying the things he has been doing.

Right now, it looks increasingly likely that Trump’s tariff emergency will pre-empt — and likely dramatically disrupt — both the effort to codify his agenda and his bid to get SCOTUS to neuter Congress entirely.

[snip]

The shit is going to start hitting the tariff-inflated fan in the next few weeks. We’re beginning to see spikes in certain items (including toilet plunger parts). We’re beginning to see increasingly large layoffs tied to the expect drop in shipping. In the coming weeks, we expect to see expanding shortages.

Unless something dramatic changes, the US will experience a COVID-like crisis without the COVID, and with no appetite or excuse to start throwing money at people to stave off further crisis.

[snip]

[M]aybe Trump will get a deal and convince people who can’t buy fans and toilet plungers — to say nothing about small businesses who will be filing for bankruptcy and farmers watching their crops go to waste — that his tariffs aren’t a disaster. Maybe he will make a humiliating reversal on tariffs, one of the few things in which Trump actually believes. Maybe that will happen. Republican members of Congress, in particular, have a near-infinite ability to allow themselves to buy rank bullshit and that may well happen here.

Or, maybe, the economy will be in meltdown by May, June, July, when the Administration needs near-total unity from Congressional Republicans to codify Trump’s policies into law.

How’s that going to work out?

[snip]

What I am certain of, though, is that the wavering unanimity we’re seeing as everyone rubbernecks at the car crash of Trump’s trade policy may dissolve if Trump continues to willfully destroy the US economy.

Tom Cole is already pissy at Russ Vought, and pissy especially because Vought has snubbed Congress’ power of the purse. Susan Collins, his counterpart on appropriations in the Senate, is already warning Trump things may not work out like he imagines.

That’s this week, when the impact of Trump’s tariff emergency is mostly anxiety and initial lost jobs.

Next week, when the Chairs who had a meeting with Vought that he unilaterally rescheduled will return to work,  is when the shit hits the tariff-inflated fan.

Some of the last cargo ships carrying Chinese goods without crippling tariffs are currently drifting into US ports. Come next week, though, that will change.

Cargo on ships from China loaded after April 9 will carry with them the 145% tariff President Donald Trump slapped on goods from that nation last month. Next week, those goods will arrive, but there will be fewer ships at sea and they will be carrying less cargo. For many importers, it is too expensive to do business with China.

[snip]

“Starting next week is when we begin to see the arrivals off of that (tariff) announcement on April 2,” said Gene Seroka, executive director of the Port of Los Angeles, where nearly half of the business comes from China. “Cargo coming into Los Angeles will be down 35% compared for a year ago.”

Again, I’m not saying this will grow Republicans a spine (though this negotiation was always going to be difficult given the majorities). I’m not saying this will change the outcome.

I am saying that the already-testy negotiating environment is going to get far testier as shelves start to go bare.

Update, May 12: In a very good state of play on the fragile status of negotiations, David Dayen notes:

There’s a mechanism in the reconciliation instructions that ties the amount available for tax cuts to the spending cuts; if Republicans fail to hit $2 trillion, they have to pull the tax cuts back. That could mean time-limiting them, pulling parts out, or raising taxes elsewhere in the package, like the tax increase for millionaires that Trump has gently proposed. “Gently” is precisely the word, as on Friday Trump spat out a word salad about such a tax increase that concluded, “Republicans should probably not do it, but I’m OK if they do!”

Slightly increasing the top marginal rate on taxpayers who make above $2.5 million in income, as a policy matter, does not offset the large loophole on pass-through income, the lack of a wealth tax to deal with capital income, all the tax avoidance strategies (like “buy, borrow, die”) rich people use to skip taxes, and the gutting of the IRS that would track that money down. But it would close off a Democratic talking point about how the Trump tax cuts are only for the rich, while humiliating the last part of the Republican establishment Trump hasn’t corralled: the “no new taxes” fiscal zealots.

But that ideology is embedded in Republican DNA; while a couple of Freedom Caucus right-populists like Rep. Andy Harris (R-MD) might go along with it, there are few others. As an example of the bind he and his party are in, Trump also floated closing the “carried interest” loophole that lowers the tax rates for hedge funders. Within days, four committee chairs and the head of the Republican campaign arm in the House joined a letter saying, basically, “No way.”

That incident shows that Trump’s falling approval ratings and the likelihood of a recession are diminishing his ability to dictate terms to Congress. The initial Energy and Commerce proposal I scooped last week included a White House proposal for “most favored nation” status for prescription drugs, a measure Trump tried by executive order in his first term that would attempt to limit drug purchases in Medicare to the price other countries pay.

But suddenly, Trump declared that he would announce the most favored nation initiative today, by executive order. As Bill Scher says correctly, this is a sign of weakness, that he couldn’t get the idea past Republicans in Congress and the phalanx of drug company lobbyists who surround the Capitol. Republican congressional opposition takes away one of the few budget-reducing measures that is actually popular, by dropping the cost of prescription drugs. [my emphasis]

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Trump’s Article I Management

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There have been a few stories in the wake of last week’s effective town halls about Trump’s efforts to reach out to increasingly uncomfortable Republicans.

First, HuffPo got a number of Republicans to express concern about Trump’s latest trade war with its closest trading partners. While “Most Republicans in Congress, however, either said Trump’s tariffs were a good idea or offered only muted criticism,” Chuck Grassley and House Ag Committee Chair Glenn Thompson expressed confidence farmers would be protected somehow.

Sen. Chuck Grassley (R-Iowa) suggested he would be seeking an exemption for his state, which is a leading producer of corn, soybeans and pork in the United States. Farmers in Iowa and other states rely heavily on Canadian potash, a key fertilizer ingredient, for their crops.

“Potash coming from Canada would be 25% higher,” Grassley said. “I assume I’m going to hear from farmers to contact the secretary of commerce to try to get a waiver.”

[snip]

Rep. Glenn Thompson (R-Pa.), chair of the House Agriculture Committee, said he believed Canada and Mexico had already stepped up border security. Canada had announced a $1 billion border security plan that included new helicopters, while Mexico said it would deploy 10,000 national guardsmen.

“I’m not sure what additional, like — the 25% tariffs of Canada — they’ve really stepped up. So has Mexico, actually, on the border. But I’m not a part of those negotiations, so I don’t know exactly what the president is trying to extract additionally,” Thompson told HuffPost.

The farm sector exports a lot of produce and is uniquely vulnerable in a trade war. When Trump imposed tariffs on Chinese imports during his first term, and the Chinese government retaliated with tariffs on U.S. exports in kind, the Trump administration bailed out agriculture producers with nearly $30 billion worth of direct payments.

Thompson said if there’s another protracted trade war, the government would once again help out farmers.

“I’m hoping that we won’t find ourselves in a situation of sustained retaliatory tariffs on our farmers. If we are, we’ll be prepared to deal with that.” he said.

Aside from one lawsuit seeking to force the government to restore access to climate information, I know of no lawsuits representing the many farmers whom Trump’s freeze on Inflation Reduction Act spending has harmed, though many risk bankruptcy because approved spending has not been reimbursed. These comments suggest that farmers imagine they’ll be made whole via other means, political favors.

There’ve already been signs that Trump has placated Republicans whose own constituents were targeted by his rash cuts. For example, it didn’t take long for elimination of Indian Heath Services that would have disproportionately hit Alaska, Oklahoma, and South Dakota to be reversed. By offering cuts and waivers, Trump uses preferential treatment for Republicans to sustain support for actions that harm the entire country.

Yesterday, Trump took a similar approach with DOGE, sending Elon Musk to meet with Republican Senators and House members (but not Democrats) to placate them on DOGE cuts. The reports from the Senate meeting reveal how meek key, purportedly powerful, Senators were in the meeting with Musk, begging that he adopt a more considered approach.

“Every day’s another surprise,” Sen. Susan Collins (R-Maine) said of the daily bombshells from Musk’s Department of Government Efficiency (DOGE).

“It would be better to allow Cabinet secretaries to carefully review their departments and then make surgical, strategic decisions on what programs and people should be cut and then come back to Congress for approval,” she said.

Collins argued a methodical approach to reforming government would be better than what she called Musk’s “sledgehammer approach.”

A second GOP senator said colleagues raised concerns about Musk’s leadership of DOGE and shared stories about how funding freezes and firings have impacted constituents.

“They were presenting some of the compelling stories and some of them shared about terminations at VA hospitals and how it impacted constituents and how there was no answer” from Musk’s team, the senator said.

“Another question was, ‘Who do we bring it to when we have these issues?’” the source added.

One of the Republican senators digging for answers is Senate Veterans’ Affairs Committee Chair Jerry Moran (R-Kan.), who told The Hill he’s trying to find out whether the firing of 2,400 probationary VA employees would impact services for veterans.

“We’re asking that question,” he said. “We want to know [what] positions [are affected]. We’ve been reassured that it doesn’t affect direct care, but we’re looking for more information.

[snip]

“If I get confirmed as the head of an agency, a Cabinet-level position, [and] I’ve got somebody else that is pretending — or that is acting as my boss, that’s a real problem,” [Thom Tillis] added. “At the end of the day, you’ve got to have all those employees thinking that you’re looking out for the agencies and their best interests.”

Tillis said that if Trump’s Cabinet officials “want to be viewed as the heads of these agencies,” they need to balance Musk’s recommendations to cut staff with their missions to provide services and advance U.S. interests.

“They need to say, ‘This is all good stuff, but now it has to go into the context of everything else I’m doing to run this agency, not just efficiencies.’ Because you’ve still got to keep the lights on, you’ve still got to provide acceptable service levels for the people that you’re tasked with serving,” he said.

Other reports describe suggestions, started by Rand Paul, to codify all DOGE’s cuts in a recission package.

“I love what Elon is doing. I love the cutting of the waste. I love finding all the crazy crap that we’re spending overseas. But to make it real, to make it go beyond the moment of the day, it needs to come back,” the Kentucky Republican said.

Musk huddled behind closed doors with House Republicans on Wednesday evening and spelled out DOGE’s efforts to uncover wasteful spending, an initiative that many Republicans applauded.

But others emerged with a more skeptical view.

“When you have a very small group with a broad set of powers, able to inflict dramatic change on institutions without a lot of knowledge, that means the process of cleaning up afterwards is going to be extensive,” said Representative Frank Lucas of Oklahoma.

Senate Republicans said Musk, a top adviser to Trump, was “elated” by Paul’s suggestion that the White House request congressional approval to rescind spending through a legislative process that would circumvent the Senate’s 60-vote filibuster.

“He was, like, so happy,” said Senator Lindsey Graham, who chairs the Senate Budget Committee.

“What we’ve got to do as Republicans is capture their work product, put it in a bill and vote on it. So, the White House, I’m urging them to come up with a rescission package,” the South Carolina Republican added.

None of this is surprising: That Trump is placating Republicans with doubts about his destructive attack on the US with direct outreach. Indeed, we’ve seen hints that it has been going on this entire time.

For now, it’s simply confirmation that even the most powerful Republicans, like Appropriations Chair Susan Collins, are asking for no more than this, meekly suggesting that maybe Cabinet Members should be allowed to act like Cabinet Members. And also confirmation that more members of Congress are willing to share, under their own name.

Thus far, Trump is making a sustained attack on the United States and Republican Members of Congress are still easily bought off with tailored exemptions rather than policies that serve the common good. That may change, but thus far, Article I remains solidly and easily co-opted.

Update: I should have included this story, which focuses more in House members, including this wisdom from House Appropriations Chair Tom Cole:

“With all due respect to Mr. Musk, he doesn’t have a vote up here. … [Give] courtesy to the members. They’re the ones that have to go home and defend these decisions, not you. So why don’t you give them a heads-up,” Rep. Tom Cole (Oklahoma) said Tuesday before the meeting. “You are certainly complicating the lives of individual members, and you might be making some mistakes and hurting some innocent individuals in the process.”

[snip]

Cole, who as chair of the House Appropriations Committee is responsible for funding the government, said that while he believes DOGE has “uncovered some amazing things,” he has observed that some staffers “clearly don’t know what [they’re] talking about” based on some fiscal decisions he has seen them make.

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How to [Attempt to] Get Republicans to Object

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Axios did a piece the other day on the pressure by progressive groups on Democrats to fight harder. It included several quotes saying, “you’ve got the wrong focus.”

Why it matters: Some lawmakers feel their grassroots base is setting expectations too high for what Democrats can actually accomplish as the minority party in both chambers of Congress.

  • Sen. Richard Blumenthal (D-Conn.) told Axios: “What I think we need to do more is: Put the onus on Republicans, so that the calls that we’re getting are directed toward Republicans.”
  • “There has definitely been some tension the last few days where people felt like: you are calling the wrong people. You are literally calling the wrong people,” said one House Democrat.

Blumenthal and his anonymous colleague are not wrong. While Democrats have had some splashy events this week — staging protests at one after another Agency that Musk’s DOGE [sic] has taken over, sending letters and more letters, and filibustering all night before Russ Vought was confirmed on a party line vote — such efforts had the sum effect of getting press attention, laying a foundation going forward, and killing time until the inevitable Vought confirmation. But it didn’t stop the inevitable — nor could it.

Indeed, in the time since Dems have ratcheted up their efforts, Trump has actually had more success with wavering Republicans, security party line votes for two of his most outrageous nominations, Tulsi Gabbard and RFK Jr, from Senators like Susan Collins, Bill Cassidy, and Todd Young. Trump is doing something — it may be primary threats, it may be quiet concessions on other issues, like the Canada tariffs — to get these Senators to vote against their own power.

Meanwhile, contra a really asinine column from Ken Klippenstein conflating a legal strategy largely pursued by civil society with the  media strategy described above, with a few exceptions (like one of two lawsuits that have enjoined Trump from halting grant funding), the lawsuits that have succeeded in slowing the implementation of Trump’s work have been launched by civil society, including unions.

Some of what has been achieved in recent days (see JustSecurity’s Litigation Tracker for others):

  • A bunch of retirees got Judge Colleen Kollar-Kotelly to limit any access and dissemination of Treasury data to two DOGE people (one of whom resigned after WSJ exposed his support for eugenics), until further litigation. This suit also got statements from DOJ about the access that conflict with public reporting, which may be useful going forward.
  • Some unions got Judge George O’Toole to delay the deadline for the “fork” resignation offer until Monday, allowing further legislation.
  • A dispute over whether DOJ can share a list of FBI agents who worked the January 6 cases outside of DOJ will continue until tomorrow.
  • Both Judge John McConnell (in a case brought by Democratic Attorneys General) and Judge Loren AliKhan (in a case brought by NGOs) enjoined Trump from withholding grant funds.

These are legal judgments, though, and in at least the latter case, Trump seems to be either defying it or unable to reverse steps already taken. Most notably, Head Start programs around the country are having problems accessing their funding, in spite of both the dual injunctions and the Trump administration claims that Head Start would have been exempt anyway.

[A] growing number of Head Start grant recipients, which operate on razor-thin margins, have reported delays in accessing approved grant funding, according to the National Head Start Assn. While most Head Start programs have not experienced major disruptions, some have had no other option but to close down services, while others are scrambling to find other funding sources to keep their doors open, the association said.

As of Thursday — 10 days after the federal freeze was announced — the association said at least 52 programs across 22 states, D.C., and Puerto Rico are still experiencing funding delays. The programs, which serve nearly 20,000 children from birth through age 5, report receiving “pending” or “in process” messages when they request to draw down funds from their grant from an online payment system.

Something more certain happened with USAID. When DOGE [sic] started IDing things to defund, Republicans like John Cornyn and Bill Cassidy called to exempt PEPFAR, the George HW Bush program funding AIDS drugs in poor countries. But even though PEPFAR reportedly got a waiver from cuts, AIDS drugs nevertheless remained in warehouses, inaccessible.

Marco Rubio, who like the sucker he is was belatedly named Acting USAID Administrator just as this started to blow up, tried to avoid accountability for the problems, suggesting that programs were simply incompetent to ask for a waiver.

But Rubio, on a Latin America tour, also said he was issuing waivers which would allow for “immediate” and “life-saving” aid to continue after President Donald Trump ordered a 90-day suspension on taking office.

“I don’t know how much more clear we can be than that,” he told reporters in Costa Rica.

“I would say if some organization is receiving funds from the United States and does not know how to apply a waiver, then I have real questions about the competence of that organization, or I wonder whether they’re deliberately sabotaging it for purposes of making a political point,” said Rubio, a former Republican senator who long voted for foreign assistance.

Nevertheless, Rubio fired all but around three hundred USAID workers (of more than 10,000), waggling around a word, “insubordination,” Trump flunkies elsewhere are using.

Secretary of State Marco Rubio, who took control of U.S.A.I.D. as acting administrator on Monday, insisted during a Fox News interview this week that the takeover was “not about getting rid of foreign aid.”

“But now we have rank insubordination,” he said, adding that U.S.A.I.D. employees had been “completely uncooperative, so we had no choice but to take dramatic steps to bring this thing under control.”

On Thursday, he reiterated the promise that some workers would be offered exemptions to minimize the hardship of the sudden recall. The pledge was made first in a notice put on the U.S.A.I.D. website Tuesday night that announced that employees around the globe would be put on administrative leave or let go by Friday.

Two unions that represent some of those affected — represented by Democracy Forward, the same legal NGO behind some other lawsuits — sued. In their complaint, they described some of the havoc caused already and explained why Rubio’s chaotic efforts to disclaim the damage fail.

23. As a result of these actions, most functions of the agency immediately halted, with life-threatening consequences. Clinics stopped distributing HIV medication.12 Staff who operate humanitarian operations at refugee camps in Syria were told to stop work, leaving thousands of people vulnerable to instability and violence at the hands of ISIS.13 Soup kitchens that feed nearly a million people in famine-stricken Khartoum were shut down.14 Toddlers in Zambia were deprived of rehydration salts to treat life-threatening diarrhea.15 Doctors at U.S.-funded medical facilities in Sudan that treat severely malnourished children were forced to choose whether to obey Defendants’ orders and “immediately stop their operations or to let up to 100 babies and toddlers die.”16

[snip]

25. Second, on February 1, 2025, the State Department announced a “limited waiver” for “[l]ife-saving HIV care and treatment services, inclusive of HIV testing and counseling, prevention and treatment of opportunistic infections including TB, laboratory services, and procurement and supply chain commodities/medicines” and “[p]revention of mother-to-child transmission services, inclusive of commodities/test kits, medicines and PrEP for pregnant and breastfeeding women.”19

26. These waivers offered little –to no relief for USAID partners who suffered from defendants’ freeze in funding. They were not “self-executing by virtue of the announcement,”20 so contractors and grantees scrambled to reach USAID contacts to ascertain if they were covered by the waiver. But because agency staff had already suffered severe cuts, groups doing lifesaving work were unsure how to request a waiver and received little to no information about the status of such requests.21

Because of the chaotic nature of the attack on the US government, because this is all being done by men who excel, first and foremost, at dodging accountability for their failures, this will continue to happen. Even if Trump claims to exempt stuff, things will still get shut down.

It will not change without some (more public and more aggressive than they’re already provably doing) pushback from Republicans, too. Particularly if and when it becomes clear that Trump is simply defying court orders.

And that’s why Richard Blumenthal is not wrong. There needs to be far more attention focused on Republicans. It’s far too easy — and defeatist — for Democrats to imagine that screaming louder at Democrats will fix this, because the most it will do is provide some nice PR moments.

That’s a huge task. But not impossible, particularly not if more people focus on better messaging to Republicans rather than louder yelling at Democrats.

Make the damage visible and accountable to Republicans

I said from the start of this that the effort to shut down government will make visible things that government does that most people ignore. And the effects are already being felt — and felt in red states. As one example, in the lawsuit against OMB’s recision order, plaintiffs provided this declaration from a tiny West Virginia non-profit helping disabled people stay in their own homes, describing how losing funding has led it to lay off staffers and contemplate withholding services. Among the people affected are an 86-year old woman they bring to her dialysis appointments and a 19-year old who just aged out of foster care who is being trained to work at Goodwill.

These aren’t AOC or Chuck Schumer’s constituents. They are represented by Shelley Moore Capito, Jim Justice, Riley Moore, and Carol Miller (the latter of whom took to YouTube the other day insisting that Trump would take care of WV).

It is more urgent for progressive groups to identify these stories and get calls to Republicans than to flood Democrats with more calls. Better yet, buy billboards advertising how these members of Congress are letting the richest man in the world disrupt the life of an 86-year old diabetes patient.

Importantly, much of this needs to be predictive. Rather than saying, “Trump gave access to grandma’s social security and granny may not get her check,” Democrats should always pin this on Republicans: “Mike Crapo did nothing after DOGE [sic] seized control of Treasury’s computer, and that may lead to Idaho small businesses losing their government loans.

As one of a handful of Senators who’ll always be among potential swing voters, Susan Collins needs to be a specific focus — not because it’ll work, but because she needs to be held accountable for the effect of her capitulations. In an interview with a local outlet, she listed a number of actions she deems illegal, but said she’d still vote for Russ Vought, even though he promised to pursue those illegal activities.

“I do intend to support his nomination,” Collins said. “If there are impoundments, I believe it will end up in court, and my hope is the court will rule in favor of the 1974 impoundment and budget control act.”

Time to start listing all the ways Vought’s foreseeable impoundments of appropriations will hurt Maine residents. More importantly, time to point out that Collins’ role atop the Appropriations Committee — one reason Maine voters might prefer her against a Democrat — is useless if Vought makes her role meaningless.

Until Republican Members of Congress are made to answer to the harm they’re allowing Trump do to their constituents, they’ll instead continue to respond to Elon’s more visceral threats. That vacuum needs to be filled with localized accountability.

Demonstrate the hypocrisy

Republicans know these cuts are disastrous. Most are just too cowardly to say that in public, making it more likely that any lobbying they’re doing to reverse course is in direct conversations with Trump where other quid pro quos (such as votes for unqualified nominees) might be arranged.

But there are ways to make them do so: by relying on their past statements. For example, CNN has a compilation of all the things Marco Rubio has said about USAID.

Rubio on Monday accused the agency of operating as a “global charity,” telling Fox News, “They have basically evolved into an agency that believes that they’re not even a US government agency.”

But a CNN KFile review of Rubio’s past comments shows he has been for more than a decade a major supporter of foreign aid and USAID, which in fiscal year 2023 distributed more than $40 billion in foreign aid to more than 160 different countries.

Rubio’s most recent comments directly contradict years of support and praise he has directed toward USAID, including a tweet he posted in February 2017 that said, “Foreign Aid is not charity. We must make sure it is well spent, but it is less than 1% of budget & critical to our national security.”

During his Fox News interview Monday, Rubio also dismissed concerns that scaling back USAID’s presence could allow China to expand its influence in developing nations.

But just three years ago, Rubio argued the exact opposite, urging the Biden administration in a 2022 letter to prioritize USAID’s funding as a key tool to “counter the Chinese Communist Party’s expanding global influence.”

>A longtime defender of US foreign aid, Rubio pushed back against criticism of the agency in repeated comments uncovered by CNN — defending aid as both vital and a small part of America’s overall fiscal budget.

“We don’t have to give foreign aid. We do so because it furthers our national interest. That’s why we give foreign aid. Now obviously there’s a component to foreign aid that’s humanitarian in scope, and that’s important too,” he said in February 2013.

These comments — and similar ones from other Republicans — can be used as a way to respond to the flood of disinformation from Elon and Karoline Leavitt.

Get hawkish

By abandoning US soft power overseas, the US creates a vacuum for China to fill. Many of the other actions Trump has taken — like insisting that a list of recent CIA recruits, many focused on China, be sent in unclassified email — imperil US efforts to counter China.

Both Elon and Trump have their own venal reasons to suck up to China. And Trump appears to be preparing to sell out Taiwan to China.

This is a specific example of the effort to warn of potential effects, one that could and should deploy the most hawkish language Republicans adopt (albeit focused on the country and the harm to US standing Republicans say China’s rise poses, not the people), not least because it’s an easy way to make Republicans look weak.

Unlike the focus on the 86-year old granny in West Virginia, this is divorced, somewhat, from the pain affecting Americans. But it is nevertheless a visceral issue for many Republicans and their self worth. Trump is selling them out. Make that clear.

No focus on Republicans will have an immediate effect. I’m not saying it will. But when things start falling apart, it’ll mean Democrats have already laid the groundwork for holding Republicans — all of them, not just Musk — accountable. That may not be enough, in the short term, to cure them of their terror of Trump and Musk. But it stops letting them off easy.

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On Background Checks for Trump Appointees, The Magic Number Is “Four”

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Yesterday, Hugo Lowell reported that Trump wants to bypass FBI background checks until he has gutted the FBI.

Trump officials to receive immediate clearances and easier FBI vetting
Exclusive: president-elect’s team planning for background checks to occur only after administration takes over bureau

Donald Trump’s transition team is planning for all political appointees to receive sweeping security clearances on the first day and only face FBI background checks after the incoming administration takes over the bureau and its own officials are installed in key positions, according to people familiar with the matter.

The move appears to mean that Trump’s team will continue to skirt FBI vetting and may not receive classified briefings until Trump is sworn in on 20 January and unilaterally grant sweeping security clearances across the administration.

Trump’s team has regarded the FBI background check process with contempt for months, a product of their deep distrust of the bureau ever since officials turned over transition records to the Russia investigation during the first Trump presidency, the people said.

But delaying FBI vetting could also bring ancillary PR benefits for the Trump team if some political appointees run into problems during a background check, which could upend their Senate confirmation process, or if they struggle to obtain security clearances once in the White House.

In the days before this story, as I laid out here, up to five Senators have spoken with various degrees of fortitude in support of requiring FBI background checks before confirming any Trump appointee. Lisa Murkowski did so in an Alaskan interview. Then the Hill quoted four Senators at least expressing support for background checks, with Susan Collins, Kevin Cramer, and Mike Rounds joining Murkowski in questioning the value of a private firm’s review as opposed to the FBI’s.

“The FBI should do the background checks, in my judgement,” said Sen. Susan Collins (Maine), who serves as the ranking Republican on the Senate Appropriations Subcommittee on Defense and as a senior member of the Senate Intelligence Committee.

Sen. Kevin Cramer (R-N.D.), a member of the Senate Armed Services Committee, argued that the FBI has access to information gathered by law enforcement on the federal, state and local levels that private firms don’t.

“If you wanted to supplement it with a private firm, I’d say OK. But the FBI does have access to information that probably a private firm wouldn’t have, even a really good savvy one,” he said.

Cramer said a private firm could help the FBI in its background investigations, but he “sure wouldn’t leave it” entirely outside the FBI’s hands.

[snip — click through to see Murkowski’s comments]

Sen. Mike Rounds (R-S.D.) said not having the FBI conduct background checks for high-level nominees by the time Trump formally appoints them next year “would come under scrutiny at the congressional level.”

He said lawmakers “would want to know the validity of those individuals doing the background checks.”

“Just because the White House doesn’t request a background check out of the FBI wouldn’t then mean perhaps some committees might not ask for it,” he said.

A different Hill story, which focuses on Scott Caucus member Bill Hagerty scoffing at the value of background checks, also quotes Joni Ernst saying FBI checks would be “helpful,” at least for Pete Hegseth.

Other Senate Republicans, however, say the FBI should retain its leading role in conducting background checks, and Sen. Joni Ernst (R-Iowa), a member of the Armed Services Committee, says an FBI background check of Hegseth would be “helpful.”

I get that Susan Collins has a history of backing down from principles she claims to care about. I get that some of these statements are squishy. It is also true that right wingers are already targeting Murkowski’s more categorical statement as some kind of Deep State plot.

But even as the pressure on Murkowski ratchets up, those seeking to prevent the wholesale takeover of the government by conspiracy theorists need to understand that it will take more than journalism about the risks of entrusting the intelligence community to a woman who finds Bashar al-Assad persuasive and the largest military in the world to a guy slathered with white supremacist tattoos (though experts have pointed out that for some of these positions, a proper vetting would require further intelligence involving).

It requires convincing four Republicans in the Senate to insist on doing the bare minimum by requiring background checks. In a 53-47 Senate, any four Republican block of voters, joining the Democrats, would be enough to thwart Trump’s crazier plans.

Want proof that can work? After four Republicans (and then six) came out against Matt Gaetz’ nomination, Trump conceded he didn’t have and never would get the votes.

Realizing this — understanding that the Magic Number to guard against Trump’s crazier plans is four — makes things both easier, and harder. Easier, because we know that only a quarter of Senate Republicans (including Hagerty) will reflexively support everything Trump does, at least as measured by support for Rick Scott over one of the more institutionalist Senate Majority Leader candidates. And harder, because most of these people have a history of caving and Trump will bring a great deal of pressure on them to do so again.

But that’s no reason to cede the fight ahead of time. On the contrary, it’s all the more reason to spend the time, now, to call Republican Senators who might demand background checks — to call your Republican Senator — and insist that exercise at least that minimum level of due diligence for the most powerful positions in government.

Get used to that magic number, four. Because trying to persuade four-Senator blocks of Republicans to oppose something is one of the most obvious ways to protect the country.

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On the Benefits of Having a Career Diplomat Run CIA: “This Is One Information War that I Think Putin Is Losing”

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Thus far during Russia’s invasion of Ukraine, the intelligence community has declassified at least four major reports and a slew of smaller ones:

I would bet a fair amount of money that, when the history of these events is told twenty years from now, we’ll learn of similar, but non-public, selective declassification with NATO-plus-Sweden-and-Finland partners, starting at a NATO summit in February, immediately after which a number of European countries (most spectacularly, Germany) took dramatic and unified action.

There has been a slew of commentary about the aggressive use the US has made of declassified intelligence. The triumphalism of such commentary may yet prove premature.

After all, it’s possible that Putin arrested two FSB officers because he suspects they were sources for some of the intelligence that got shared to undermine Russia’s efforts. It’s possible that Russia’s focus on neutralizing western support for Ukraine in recent days, particularly its attack on the western training base in Yavoriv yesterday, reflects a counterintelligence crackdown responding to declassified US intelligence.

But for now, such declassification has been tremendously successful. It allowed the US and its European partners to repeatedly undercut Russian efforts to gain surprise or legitimize their invasion with disinformation. It has exposed specifics about China’s support for the invasion, raising the costs of such support and, potentially, providing leverage to convince China to distance themselves both publicly and privately from Russia’s efforts. And it seems to have provided a basis for Western countries to unify quickly.

This most recent instance — the organized sharing of information about Russian pleas to China for help just before Jake Sullivan meets with Yang Jiechi in Rome — makes this comment from CIA Director William Burns at least week’s Global Threats hearing resonate.

In response to a question from Susan Collins about Russia’s efforts to use false flag attacks, he tied his own years losing information wars with Russia to decisions to declassify information now.

Well, thanks very much Senator. I think it underscores the concern that all of us need to focus on those kind of issues, whether it’s the potential for a use of chemical weapons either as a false flag operation or against Ukrainians. This is something, as all of you know very well, is very much a part of Russia’s playbook. They’ve used those weapons against their own citizens, they’ve at least encouraged the use in Syria and elsewhere, so it’s something we take very seriously, and it’s one of the reasons, as Director Haines said earlier, that I’m convinced that our efforts at selective declassification, to pre-empt those kind of false flag efforts and the creation of false narratives have been so important.

In all the years I spent as a career diplomat, I saw too many instances in which we lost information wars with the Russians. In this case, I think we have had a great deal of effect in disrupting their tactics and their calculations and demonstrating to the entire world that this is a premeditated and unprovoked aggression, built on a body of lies and false narratives. So this is one information war that I think Putin is losing.

Among other posts Burns served in, he was Ambassador to Russia in the final years of the Bush Administration (months before Russia’s invasion of Georgia) and he served as Deputy Secretary of State during Russia’s response to Viktor Yanukovych’s ouster, including its annexation of Crimea.

He knows how successful Russia has been at lying in the last twenty years.

And he explicitly tied his experience of attempting to diplomatically negotiate with Russia and others while Russia’s lies held sway to the decision to declassify information here.

Normally, CIA Directors protect such secrets with knee-jerk obstinance. But under this former diplomat, the Intelligence Community is actually using the intelligence it gathers to gain tactical leverage. After years of Russian intelligence operations designed to split American alliances, that has had the effect of raising US credibility with allies.

This is assuredly not just Burns. Even under Trump, Paul Nakasone was much more aggressive about taking credit for NSA or CYBERCOM operations than past NSA Directors. And Avril Haines, whose background is more diverse, promised a more open Intelligence Community during her confirmation as well.

But after the two decades of paranoid secrecy that followed the Iraq intelligence debacle, the United States is actually using the intelligence it makes such efforts to collect.

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The Government Screws Up Attempt to Distinguish between January 6 Insurrection and Anti-Kavanaugh Protests

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The government is obviously getting fed up with some of Ethan Nordean’s legal challenges. I can’t blame them for being impatient with Nordean’s claims that, so long as cops at one of four barricades he passed on his way to insurrection weren’t knocked down, it means he had no way of knowing he wasn’t welcome.

But they fucked up, badly, in what would otherwise be an important argument to make. In his reply brief to his motion to dismiss his entire indictment (here’s the government’s response), Nordean made an argument that right wingers love to make, that the Kavanaugh protests were just like the insurrection, yet those protestors weren’t charged with the same felony charges that January 6 insurrectionists are being charged with.

About two years before the January 6 events, in October 2018, Congress held confirmation hearings for now Justice Kavanaugh. Of course, confirmation hearings are not ceremonial functions like the Electoral College vote count but are rather inquiries held pursuant to Congress’s investigatory power. Subpoenas are issued, sworn testimony is given. See, e.g., United States v. Cisneros, 26 F. Supp. 2d 24, 38 (D.D.C. 1998). As on January 6, Vice President Mike Pence was present and presiding over the confirmation vote.4 Hundreds of protestors broke through Capitol Police barricades.5 They burst through Capitol doors and “stormed” the Senate chamber. N.Y.Times, Oct. 6, 2018. There, they disrupted and delayed the Senate proceedings by screaming and lunging toward the Vice President and other people. As a report described the day, Saturday’s vote reflected that fury, with the Capitol Police dragging screaming demonstrators out of the gallery as Vice President Mike Pence, presiding in his role as president of the Senate, calmly tried to restore order. “This is a stain on American history!” one woman cried, as the vote wrapped up. “Do you understand that?” N.Y. Times, Oct. 6, 2018. Here are some of the images of protestors who broke through Capitol Police barricades and entered Congress that day, about 26 months before January 6:

Roll Call, Oct. 6, 2018 (VP Pence presiding in Capitol Building)

NBC News, Oct. 6, 2018 (VP Pence presiding in Capitol Building)

Though they intentionally delayed the congressional proceedings, these protestors, numbering in the hundreds, were not charged with “obstruction of Congress” under § 1512(c)(2). Certainly, if the lack of case law supporting the government’s interpretation of “official proceeding,” the absence of any legislative history pointing towards that interpretation, and the DOJ’s own internal inconsistent position do nothing to provide “fair notice” to an “ordinary person” that such political protests constitute “obstruction of official proceedings,” the fact that hundreds of protestors were charged with no offense at all for conduct for which the indictment here charges Nordean does not provide that notice either. Moreover, the naked charging disparity between the episodes—legally similar, according to the government here—also implicates the vagueness doctrine’s concern for arbitrary and discriminatory law enforcement enabled by vague, shifting standards that allow “prosecutors and courts to make it up,” particularly in the context of the rights of free speech, assembly and petitioning of the government. Dimaya, 138 S. Ct. at 1212 (Gorsuch, J., concurring); United States v. Davis, 139 S. Ct. 2319 (2019) (Gorsuch, J.) (residual clause of § 924(c) unconstitutionally vague); Johnson v. United States, 576 U.S. 591 (2015) (residual clause of Armed Career Criminal Act unconstitutionally vague).

4 Kavanaugh is sworn in after close confirmation vote in Senate, N.Y. Times, Oct. 6, 2018, available at: https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaugh-supremecourt.html.

5 See, e.g., Kavanaugh protestors ignore Capitol barricades ahead of Saturday vote, Roll Call, Oct. 6, 2018, available at: https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore[-]capitol-barricades-ahead-of-saturday-vote/.

[my italics]

Nordean is conflating two different things in an attempt to draw this parallel. There were the protestors who were in the actual hearing room, who briefly yelled and then were removed. And then there were protestors who broke through a barricade at the Capitol (there were also protestors who broke through a police line at the Supreme Court and knocked on the door). The “hundreds” of protestors Nodean mentions were watching from below and then were on the steps.

Protesters broke through Capitol Police barricades and rushed up the steps to the Capitol Rotunda Saturday afternoon amid large demonstrations ahead of a Senate vote on Supreme Court nominee Brett Kavanaugh.

The metal barricades were erected Thursday to keep demonstrators on specific areas of the Capitol grounds.

[snip]

As each batch of arrestees walked down the stairs, the cheers rose from the hundreds assembled below on the east front stretching out to the street.

In an effort to conflate the two, Nordean invented things that weren’t in the NYT story he claimed to rely on, both that the people inside the hearing had “stormed” the Senate chamber and that those protestors were “lunging” at the Vice President.

As a chorus of women in the Senate’s public galleries repeatedly interrupted the proceedings with cries of “Shame!,” somber-looking senators voted 50 to 48 — almost entirely along party lines — to elevate Judge Kavanaugh. He was promptly sworn in by both Chief Justice John G. Roberts Jr. and the retired Justice Anthony M. Kennedy — the court’s longtime swing vote, whom he will replace — in a private ceremony.

[snip]

Republicans are now painting Democrats and their activist allies as angry mobs. Senator John Cornyn, Republican of Texas, delivered a speech on Saturday assailing what he called “mob rule,” while the majority leader, Senator Mitch McConnell of Kentucky, told reporters that “the virtual mob that has assaulted all of us in this process has turned our base on fire.”

The bitter nomination fight, coming in the midst of the #MeToo movement, also unfolded at the volatile intersection of gender and politics. It energized survivors of sexual assault, hundreds of whom have descended on Capitol Hill to confront Republican senators in recent weeks.

[snip]

Saturday’s vote reflected that fury, with the Capitol Police dragging screaming demonstrators out of the gallery as Vice President Mike Pence, presiding in his role as president of the Senate, calmly tried to restore order. “This is a stain on American history!” one woman cried, as the vote wrapped up. “Do you understand that?”

The government makes some of these points in their surreply, notably pointing out that the protestors who actually interrupted the hearings were all legally present in the public gallery, and had all gone through security to get there.

Defendant’s attempts to manufacture a parallel between the criminal activity during confirmation hearings for Justice Kavanaugh and the events of January 6 should remain on the Internet—they do not fare well when included in a legal brief. Among the distortions of fact and law in his brief, Defendant claims that on October 6, 2018, protestors “burst through Capitol doors and ‘stormed’ the Senate chamber” during confirmation hearings for Justice Kavanaugh. That is not accurate.2 The confirmation hearings were public, and the gallery of the Senate Chamber was open to the public on the day of the vote to confirm Justice Kavanaugh. See C-SPAN, Final Confirmation Vote for Judge Brett Kavanaugh, Oct. 6, 2018 available at https://www.cspan.org/video/?452583-11/final-confirmation-vote-judge-brett-kavanaugh. Indeed, Vice President Pence twice reminded the “guests” in the Gallery that expressions of approval or disapproval were not permitted. Id. Protestors who demonstrated inside the Senate Chamber on October 6 did so after lawfully accessing the building and being subjected to security screening. 3 See, e.g., Public seating at Kavanaugh hearing cut in half, then restored again, PBS News Hour, Sept. 5, 2018, available at https://www.pbs.org/newshour/politics/public-seating-at-kavanaugh[-]hearing-cut-in-half. No serious parallel can be drawn between the two events.4

[snip]

3 Those entering the earlier confirmation hearings reportedly had to pass through multiple identification checks. Members of the public were required to “first wait in line outside the building to go through an initial screening” before being “escorted in small groups to a holding area outside the committee room itself.”

The government twice mocked Nordean for using the wrong pictures in his brief.

While Defendant can claim to have “images of protestors who broke through Capitol Police barricades and entered Congress” on October 6, 2018 (Id. at *14), the Court will immediately recognize that one of the images depicts protestors on the steps of the Supreme Court.

[snip]

2 In his Reply, Defendant included two pictures of protestors who had “stormed” the Capitol. The pictures alone underscore the frivolous nature of Defendant’s argument. But there is another problem—the protestors in the second photograph were on the steps of the Supreme Court.

It would be a great gotcha if it were true.

It’s not. While there were protestors that day at the Supreme Court, and while the story Nordean mistitles and doesn’t include a URL for does describe protestors storming past a police line on the Supreme Court stairs, the picture Nordean used was, indeed, from the Capitol steps.

Here’s what the view of those same steps looked like after mobsters occupied them on January 6 (from the NYT documentary on it); by this point several windows were already broken:

I can think of no instance where rioters who only occupied those East steps were even arrested (there were several people who occupied the more violent West Terrace who were arrested, most commonly in association with a conspiracy or assault charge), suggesting the equivalent January 6 “protestors” were in fact treated more leniently than the protestors — some of whom were arrested — from the Kavanaugh protests. For example, Proud Boy Ricky Willden may never have entered the building from the East stairs, but he is accused of spraying cops with some toxin.

Here’s what the protest at the Supreme Court looked like (again, from the same NBC article), with the caption that makes this incidence of “storming” seem quaint by comparison:

It’s an unbelievably embarrassing error to make — to accuse Nordean of an error when in fact the government was in error, especially while suggesting that Judge Kelly would immediately recognize the Supreme Court. All the more so given that Joe Biggs’ re-entry through the East door is charged in this indictment. Getting this wrong is a testament that the government didn’t spend as much thought responding to Nordean’s comparison as they need to, not just to rebut his argument, but to reflect seriously on what the line between the civil disobedience of the Kavanaugh hearings and the terrorist attack of January 6 is such that the former resulted in over a hundred misdemeanor arrests onsite whereas the latter resulted in delayed arrests and felony charges.

There are clear differences, differences that go beyond the fact that the entire Capitol was shut down on January 6 whereas (as the government notes) protestors were legally present when they interrupted the Kavanaugh hearing. There’s no evidence any of the Kavanaugh protestors were armed, whether with baseball bats or bear spray or guns. There were no reports that protestors assaulted police, much less continued to march past them after causing injuries that required hospitalization. Contrary to Nordean’s invention, protestors did not lunge at Pence, and certainly didn’t threaten to assassinate him. In general, protestors were more compliant upon arrest than January 6 rioters (which is one of many reasons why the police succeeded in arresting them, whereas several charged January 6 defendants escaped or were forced to be released by other rioters). While protestors definitely criticized Kavanaugh’s alleged actions (and his own screaming), I’m not aware of any who threatened to injure much less assassinate him onsite. The threats against Senators — most notably, Susan Collins — were electoral, not physical.

This surreply brief provided the government an opportunity to make that case, make it soberly, and make it in such a way to respond to legitimate questions that right wingers who aren’t aware of these real differences might raise. The surreply also provided the government an opportunity to explain why Neil Gorsuch won’t find this to be a charging disparity when he eventually reviews this challenge — because he almost certainly will, which is obviously why Nordean put that nod to Gorsuch right there in his brief. How do you screw something like that up???

But the government didn’t do that. Instead, in rebutting Nordean, the government tried to dick-wag. And failed, badly.

I’m tired of some of Ethan Nordean’s bullshit arguments myself. But the legal question about what makes the insurrection bad enough to treat its masterminds as terrorists is a very serious one, one that needs to be treated with more care than the government did here.

Update: I’ve updated the comparison image for the East stairs and added the observation that few if any January 6 protestors who only climbed the East stairs were charged.

Update: emptywheel gets results.

The United States files this notice of correction along with the refiling of its Surreply to Defendant Nordean’s Motion to Dismiss. In its original filing, the United States asserted that Defendant Nordean had misidentified a photograph of the protests on October 6, 2018. Such assertion was incorrect and has been removed from page 1 and footnote 2 of the corrected filing.

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In Dire Need of Creative Extremists

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MLK Memorial on the national Mall
(h/t Mobilus In Mobili CC BY-SA 2.0)

While many would point to Martin Luther King’s “I Have a Dream” speech on the steps of the Lincoln Memorial  in August 1963 as his most powerful, the words from King that most move me come from a letter written four months earlier, as he sat in the Birmingham jail. It was a letter written to local pastors, who expressed support for his cause but concern for the manner in which he came to Birmingham to protest. When looking back at historical letters, there are some that are products of their time that illuminate the events of that day, but which need footnotes and commentary to explain to contemporary readers.

King’s “Letter from a Birmingham Jail” is *not* one of those letters. I wish it was, but it isn’t. It’s all too clear, and speaks all too clearly even now.

In that letter, King identified “the great stumbling block in the stride toward freedom” not as the hoodwearing Klanners or the politically powerful White Citizens Council folks, but the white moderate. These are folks who

  • are more devoted to order than justice
  • prefer a negative peace – the absence of tension – to a positive peace – the presence of justice
  • constantly say they agree with your goals but not your direct methods for achieving them
  • feel no problem in setting a timetable for someone else’s freedom
  • live by the myth of time, constantly urging patience until things are more convenient

Anyone who has watched the news at any time over the last three years knows that this great stumbling block to freedom and justice, the Moderate, is an all-too-familiar presence, appearing in various guises. For example . . .

  • police officers who, as one African-American after another is beaten, abused, and killed by one of their colleagues, silently watch the attack as it unfolds, who refuse to intervene, who write up reports to cover for this conduct, and who by their silence and their words defend and justify assault and murder done under the color of law;
  • staffers at ICE facilities who, as children are separated from their parents, as people are crammed into unlivable facilities, as basic necessities like toothbrushes and soap are withheld, clock in and clock out without saying a word;
  • personal assistants, co-workers, and superiors who watch as victim after victim were abused by powerful men like Harvey Weinstein, Roger Ailes, Charlie Rose, Matt Lauer, Jeffrey Epstein, and untold others, and who said nothing;
  • Susan Collins, hand-wringer extraordinaire, who expresses her deep concerns about this rightwing nominee or that destructive proposed policy, and nevertheless puts her concerns aside time and time and time again to confirm the nominee or enact the proposal into law;
  • media figures who practice “he said/she said journalism,” who twist themselves into pretzels in order to maintain their “access” to inside sources, and who refuse to call a lie a lie in the name of “balance”;
  • corporate bean counters, who place such things as quarterly profits and shareholder value ahead of worker safety and well-being, ahead of environmental concerns, or ahead of community partnership, saying “we can’t afford to . . .” when what they really mean is “we choose not to spend in order to . . .”;
  • lawyers who provide legal cover to those who abuse, torture, and terrorize, and the second group of lawyers who “let bygones be bygones” in order to not have to deal with the actions of the first group;
  • bishops and religious leaders who privately chastise abusive priests and pastors, but who fail to hold them publicly accountable and seek justice, out of a concern to not cause a scandal that would bring the religious organization into disrepute; and
  • leaders of sports programs who value winning so much that they are willing to look the other way when coaches, trainers, and doctors abuse athletes.

The tools of the Moderate are things like Non-Disclosure Agreements, loyalty to The Team, and the explicit and implicit power of the hierarchy. The Moderate may not be at the top of the pyramid, but as long as the Moderate can kiss up and kick down, they think they will be OK. They’ll keep their powder dry, waiting for a better time to act. But all too often, the Moderate refuses to use what they’ve been saving for that rainy day, even when they are in the middle of a Category 5 hurricane.

But there are signs of hope, and we’ve seen some of them as well over the last three years:

  • career government professionals – at the State Department like Marie Yovanovitch, at the Department of Defense like Captain Brett Crozier of the USS Theodore Roosevelt, at the Department of Health and Human Services like Dr. Richard Bright, at the Department of Justice like Brandon Van Graak, and others like them – who refused to worry about personal consequences to themselves and fudge the data, ignore the facts, shade the advice,  or stand silently by while others do so;
  • passers-by to acts of injustice, who not only document what is being done but who take action to hold perpetrators to account (NY dog walkers, represent!);
  • young voices like Greta Thunberg who refuse to go along to get along, who ask the tough questions of those in power, and who question the answers that mock the truth, and old voices like Elizabeth Warren who do the same; and
  • voices of political relative newcomers like Katie Porter, AOC, Stacy Abrams, who do not let their low spot on the political totem pole (or lack of a spot at all) keep them from speaking out for justice.

This past week, longtime AIDS activist Larry Kramer passed away. He founded the Gay Men’s Health Crisis to care for gays stricken with AIDS, while the government turned its eyes away from the problem. Later on, he founded ACT-UP, when he saw GMHC had become too domesticated and unwilling to rock the boat when the boat desperately needed rocking. He called out the gay community and he called out government officials, even those who were trying to help like Anthony Fauci, for not doing anywhere close to what was needed.

And in many respects, it worked. Maybe not as fast as it should have, or as well as Kramer would have liked, but it made a difference. From Kramer’s NY Times obituary:

The infectious-disease expert Dr. Anthony S. Fauci, longtime director of the National Institute of Allergy and Infectious Diseases, was one who got the message — after Mr. Kramer wrote an open letter published in The San Francisco Examiner in 1988 calling him a killer and “an incompetent idiot.”

“Once you got past the rhetoric,” Dr. Fauci said in an interview for this obituary, “you found that Larry Kramer made a lot of sense, and that he had a heart of gold.”

Mr. Kramer, he said, had helped him to see how the federal bureaucracy was indeed slowing the search for effective treatments. He credited Mr. Kramer with playing an “essential” role in the development of elaborate drug regimens that could prolong the lives of those infected with H.I.V., and in prompting the Food and Drug Administration to streamline its assessment and approval of certain new drugs.

In recent years Mr. Kramer developed a grudging friendship with Dr. Fauci, particularly after Mr. Kramer developed liver disease and underwent the transplant in 2001; Dr. Fauci helped get him into a lifesaving experimental drug trial afterward.

Their bond grew stronger this year, when Dr. Fauci became the public face of the White House task force on the coronavirus epidemic, opening him to criticism in some quarters.“We are friends again,” Mr. Kramer said in an email to the reporter John Leland of The New York Times for an article published at the end of March. “I’m feeling sorry for how he’s being treated. I emailed him this, but his one line answer was, ‘Hunker down.’”

Which brings me back to King’s letter and the title of this post:

. . . though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: “Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.” Was not Amos an extremist for justice: “Let justice roll down like waters and righteousness like an ever flowing stream.” Was not Paul an extremist for the Christian gospel: “I bear in my body the marks of the Lord Jesus.” Was not Martin Luther an extremist: “Here I stand; I cannot do otherwise, so help me God.” And John Bunyan: “I will stay in jail to the end of my days before I make a butchery of my conscience.” And Abraham Lincoln: “This nation cannot survive half slave and half free.” And Thomas Jefferson: “We hold these truths to be self evident, that all men are created equal . . .” So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary’s hill three men were crucified. We must never forget that all three were crucified for the same crime–the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jesus Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists.

We’ve got plenty of extremists like Stephen Miller and the cop who knelt on George Floyd’s neck until he died. We’re in dire need of more creative extremists.

Which leaves me with one question: how will you be a creative extremist today?

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Chuck Grassley and His Two Republican Friends

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After spending several days hemming and hawing about it, Chuck Grassley has sent a letter to President Trump, asking that he “provide more detailed reasoning for the removal of Inspector General Atkinson no later than April 13, 2020.”

The letter cites the basis for which Congress can make such demands: Inspector Generals work for both Congress and the Executive.

Further, the IC IG and indeed all inspectors general (IG) are designed to fulfill a dual role, reporting to both the President and Congress, to secure efficient, robust, and independent agency oversight. To ensure inspectors general are fully capable of performing their critical duties, and in recognition of their importance both to efficient administration and to the legislative function, Congress set clear, statutory notice requirements for their potential removal.

And it lays out how Trump’s move — not just putting Michael Atkinson on 30-day administrative leave (something Obama did , but also naming Thomas Monheim as Atkinson’s replacement immediately, something without precedent that Adam Schiff also raised concerns about.

Further, according to public reports, Mr. Atkinson already was placed on administrative leave, effectively removing him from his position prior to the completion of the statutorily required notice period.

[snip]

Please also provide your views on how the appointment of an acting official prior to the end of the 30 day notice period comports with statutory requirements.

The letter is precisely the kind of Congressional pushback on a removal that laws governing the appointments of Inspectors General envision. This is not just a show; Grassley has a long history of caring deeply about this stuff (and twice defended Schiff’s efforts to keep the identity of the Ukraine whistleblower secret).

The problem with his letter is this:

Just two of the Senators who co-signed this letter, Susan Collins and Mitt Romney, are Republicans (Gary Peters, ranking member on Homeland Security and Governmental Affairs Committee, also signed). Grassley unsurprisingly didn’t get the hackish Ron Johnson, who as the Chair of HGSAC should make a pretense of giving a damn about oversight, to sign on. He didn’t get the Senator with the biggest role in overseeing the ICIG, Senate Intelligence Chair Richard Burr, to sign on (though Mark Warner is Ranking Member on the committee). And he didn’t get any of the other Senators — like Lisa Murkowski or Lamar Alexander — who purportedly considered voting for impeachment to sign on.

And that means, without enough Republicans to be able to threaten that a majority of the Senate would back an effort to enforce this request, Trump can and might well just blow this request off.

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Three Things: Day After Night Before Day of Disaster [UPDATE-2]

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[NB: Updates will appear at bottom of post. /~Rayne]

What a flaming mess.

Bet you can’t really tell which mess I’m referring to — the Iowa caucuses, the State of the Union Address, or the rolling not-trial of Donald J. Trump.

But there they are, the three things this post will address.

~ 3 ~

What can I say that you don’t already know about Iowa?

You already know right-wing assholes began a negative influence operation before the caucuses began, spreading from the Epoch Times to Judicial Watch, Charlie Kirk to the Trump boys, amplified by Hannity and Twitter accounts.

And you already know that for some stupid reason badly-designed, poorly-tested mobile technology was pushed into production after too little time in beta. Just too many variables not reduced in advance of the crunch-time roll-out.

The fallout was and is messy, made worse by a commercial media model based on hyper-competition — who ever gets and publishes the story first wins is completely diametric to democracy’s need for accurate reporting for an informed electorate.

The caucus app developer, Shadow Inc. — yeah, you’d think this would be an over-the-top name for a software business which keeps its ownership opaque — has apologized today, explaining,


Let’s assume IDP = Iowa Democratic Party. This was not the DNC’s work, which more right-wing trolls tried to claim last night along with blaming former Clinton campaign manager Robby Mook for the app failure although Mook is NOT a software developer.

A lot of character assassination by the right-wing over the last 24 hours bears a strong resemblance to the character assassination of former ambassador Marie Yovanovitch. Trump-friendly mouthpiece makes egregious false accusation, picked up by Trump-friendly media, repeated by Trump’s family members, propelled even further by Trumpists and trollbots. What a coincidence.

Of course everybody has completely forgotten it took the Republicans more than two weeks — from January 3 to January 21 — to sort out who won their caucuses in 2012. How convenient the right-wing horde has something else they can bloviate about instead of their own failings. How convenient they were able to set up and complain about “rigged elections” laying the ground for their approach to November’s general election.

Once again we hear complaints about how grossly unfair Iowa caucuses are — they prevent disabled and working people from participation, and the state is the first to select winning primary candidates although it’s a small (31st in population) and non-diverse (90.7% white), unrepresentative of the rest of this country.

There’s also head scratching about apparent low turn-out. Can’t imagine why voters (who may have accessibility issues, lack transportation, work afternoons/evenings, can’t afford or find childcare) won’t turn out to caucus and sort through a large field of candidates even though they may already lean toward voting Democratic no matter which candidate wins the primary.

One piece worth reading and pondering, published in the aftermath of this year’s Iowa caucus, is this three-year-old article by David Auerbach, Confirmation Bias: Did big data sink the Clinton campaign? Auerbach thinks the Ada data analysis program was screwed up and both the Clinton campaign and DNC were prone to confirmation bias, failing to suspect the app could be bad.

But what if like Iowa’s IDP-organized caucuses relying on a mobile app which had not been adequately stress tested the big data program was simply too new and untried for its intended purposes?

One thing also bothered me re-reading Auerbach’s piece, given that he also wrote an essay in 2012, The Stupidity of Computers. Are folks designing and implementing these apps for politics failing because they’re like other software-based platforms? Have they “created their own set of inferred metadata, the categories propagate, and so more of the world is shoehorned into an ontology reflecting ad hoc biases and received ideas,” to the point where threats and risks outside of their imagination easily destroy their aims?

Is it at all possible that the same kind of lack of foresight and imagination that led to last night’s failure cascade also underpinned a big data analysis program which couldn’t see new foreign-born influences manipulating output?

Do read Auerbach, but with your eyes wide open; even Auerbach didn’t anticipate his own credibility being undermined by right-wing provocateurs. Yet another lesson about the impact of technology on human relations.

And yet another lesson about the difference between the chronically underfunded Democratic Party and the wealthy fascistic GOP. How much did the collapse of Obama for America after the 2008 election combined with Tim Kaine’s tepid DNC leadership contribute to the conditions which set up Iowa’s application meltdown — the absence of an adequately-funded national party-wide technology platform?

~ 2 ~

House impeachment managers made closing arguments in the Senate’s not-a-trial yesterday. Rep. Adam Schiff’s speech will be remembered well into the future for its excellence as American oratory.

The Senate debated the charges today. Michigan’s Sen. Gary Peters may have redeemed himself:

West Virginia’s Sen. Joe Manchin was his craven self again, introducing the alternative of censure rather than conviction.

No. Hell no. Manchin isn’t up for re-election this year; he has no good excuse for offering the possibility Trump could crow about a bipartisan acquittal if any Democrat votes for something other than conviction and removal.

Further, Manchin’s sucking up to Trump won’t do a thing for his state. If he thinks this will sway the MAGA base in any way he’s unmoored from data showing Trumpists will not be moved. They believe what Fox News’ talking heads like Sean Hannity and Tucker Carlson tell them and that’s enough.

Nor will GOP senators vote for censure. They’re simply too bought, owned, corrupt, and spineless.

And of course both senators Lisa Murkowski and Susan Collins have played their roles as drama queens, vacillating on whether to vote for or against acquittal. Murkowski blamed partisanship while making the partisan decision to vote with her party for acquittal.

Collins was bought. For the right price — $150,000 laundered through a front corporation in Hawaii — she will play stupid and give women a bad name in general.


Do get a load of the name of the front corporation. Sure. Like women suddenly forgot that Collins approved Justice Kavanaugh’s nomination to the Supreme Court.

Tomorrow’s vote will be unpleasant — brace yourselves.

~ 1 ~

In about an hour the tangerine hellbeast will shake off his sundowning and step up to the podium in the House to deliver what should be his last State of the Union message.

I refuse to watch that lying malignant narcissist. I’ll check for observations by people watchers like Dr. Jack Brown who will monitor Trump’s body language and Tom Joseph who follows Trump’s mental and physical decline.

I will not enjoy being reminded the dementia-addled wretch has the nuclear codes. Nor will I enjoy knowing Trump may use the podium of the people’s house not to communicate the progress made in governance but to campaign for his re-election.

What are the odds he has the moxie to ask another nation-state for help in his re-election right under our noses tonight?

~ 0 ~

This is an open thread. Begin kvetching below.

~ | ~ | ~

UPDATE-1 — 05-FEB-2020 12:45 P.M. —

Yeah, yeah, yeah…Jesus Christ, Jonathan Turley, let it go.

Since last night Turley’s posted ten tweets and an op-ed in The Hill bitching about the Speaker of the House not behaving like a compliant little Handmaid. He makes me wonder if he doesn’t have enough work and he’s bucking for a new paying gig.

By all means ignore the pussygrabber-in-chief’s multitude of disgusting behaviors, wretched political acts, and his slide into dementia, focusing instead on an effective female leader who doesn’t lick your reality TV narcissist’s toes.

Speaking of paying gigs, it occurred to me well after Turley appeared in December as an expert witness in front of the House Intelligence Committee that we don’t know if HIC asked Turley if he was a fact witness.

In his written statement Turley never mentions he wrote an article for The Hill, Could Robert Mueller actually be investigating Ukrainian collusion?

Nor did he mention the same piece was published the very same day in Kyivpost.

Also not mentioned is that this piece ran on February 21, 2019 — the date is roughly one week after Rudy Giuliani met with then-prosecutor general Yuriy Lutsenko in Warsaw, Poland, and almost one month to the day before John Solomon conducted a character-assassinating interview with Lutsenko for Hill.TV.

Turley’s piece furthers the idea that Ukraine was involved in collusion rather than Russia.

… But what is remarkable is how all investigative roads seem to lead to Kiev, not Moscow, in terms of key figures. It raises the question of whether Russian hacking efforts in the American election in 2016 were little more than what they seem as a clumsy leak and trolling operation. …

How did Turley end up fitting so neatly into the timeline?

UPDATE-2 — 05-FEB-2020 1:00 P.M. —

Though I linked to it in my previous update, I should probably share this here more overtly. This is very troubling; this man has the nuclear football within reach.


Today GOP Senators will likely acquit this person who can barely get through a speech and certainly not without lying repeatedly.

As mentioned before, this is an open thread. I’ll put up another post shortly dedicated to the vote today in the Senate.

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Pat Cipollone Believes the Golden Rule Is for Chumps

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The question and answer phrase of the Senate trial is far more interesting than the presentation of the cases. Both parties are obviously feeding their own side questions to rebut the other, or posing questions they think will make the other stumble (Chief Justice John Roberts has reportedly censored only one kind of question: any question that probes for the whistleblower’s name).

Later last night, the questioning became interesting for the whip count. There were a couple of questions posed by large numbers of Senators on record supporting Trump, including vulnerable swing state Senators like Martha McSally, Thom Tillis, and Cory Gardner, and it was interesting to see who else jumped on questions that obviously served only to suck up to Trump.

Over the course of several questions, there was a discussion on whether Roberts could rule on the appropriateness of witnesses or Executive Privilege. Pat Philbin argued that he could not, on EP (contrary to the rules), in response to which Schiff came back and said he could. Schiff argued that the Democrats would accept Roberts’ views without challenge. Jay Sekulow piped in to say Republicans would not. I keep thinking about how Roberts will be ruling on some of these issues on other appeals, and I think Schiff is playing to him on some questions as much as to the Senate.

Questions being asked by leaners (people like Lisa Murkowski and Susan Collins, who have asked a number together, though it seems like Mitt Romney went from leaning to supporting questions) are of particular interest. At one point, Collins asked why the House didn’t include bribery in its articles. Hakeem Jeffries gave an answer that Collins visibly responded to by saying, “he didn’t answer my question,” but Schiff came in shortly after and did answer it, pointing out that all the elements of bribery are included in the abuse of power article. Collins also asked the President’s lawyers what Trump had done on corruption in Ukraine prior to last year, which Philbin didn’t answer and then, when the question was re-asked by Democrats, said he couldn’t answer because it’s not in the record (though he has relied on non-public information elsewhere).

Then there are the alarming answers. Alan Dershowitz was asked, after he argued that if the President thought something that benefitted him personally was good for the country, whether that extended to nuking democratic states because he believed his reelection was good for the country and he agreed in theory.

Pat Philbin answered a question about whether it was okay to accept dirt to win an election. He said it was.

I was most interested, however, in a response Sekulow gave to a question offered by Marco Rubio and others, people who presumably were just feeding softballs to strengthen the President’s argument. They referenced a claimed principle espoused by Dersh and Sekulow, wherein you should always imagine how it would feel if the other party were impeaching a president of your party on the same fact set, which was originally a way to excuse Dersh’s flip-flop on abuse of power and impeachment. Rubio and others asked where the limiting factors on this would be — basically an invitation to repeat what Trump’s lawyers have said in the past, that you shouldn’t impeach within a year of an election or some such thing. Except Sekulow would not offer general principles. Instead of referencing the election — the right answer to the softball question — he focused on the claimed uniqueness of this impeachment (which is bullshit in any case). In other words, given an opportunity to answer a question about principles that would adhere beyond this impeachment, Sekulow answered that his Golden Rule only applies ot this impeachment.

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