May This Week Be a Pivot

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I just wanted to share three lists I’ve made about this week so far.

Wednesday’s hearings

The first was about the range and magnitude of hearings on Wednesday.

4 court hearings today:

1) Review of Trump’s tariffs in SCOTUS

2) Hearing on FBI’s review of Jim Comey material w/o new warrant

3) Closing arguments and deliberation for sandwich guy in DC

4) Preliminary injunction hearing for CBP/ICE invasion of Chicago, featuring Greg Bovino vids

As I noted here, not only did it sound like there are at least five votes to throw out Trump’s tariffs, Neil Gorsuch also said some important things about whether Congress can abdicate its power to declare war.

The Comey hearing did not go well for the government. Magistrate Judge William Fitzpatrick ordered the government to hand over everything by end of day yesterday, to load up the grand jury transcripts to the docket, and to answer a bunch of questions.

ORDERED that, by 5:00 p.m. on November 6, 2025, the Government shall produce to Defendant, in writing, the following information:

  • Confirmation of whether the Government has divided the materials searched pursuant to the four 2019 and 2020 warrants at issue into materials that are responsive and non-responsive to those warrants, and, if so, a detailed explanation of the methodology used to make that determination;
  • A detailed explanation of whether, and for what period of time, the Government has preserved any materials identified as non-responsive to the four search warrants;
  • A description identifying which materials have been identified as responsive, if any; and
  • A description identifying which materials have previously been designated as privileged; and it is further

Fitzpatrick also forbade the government — which should apply both to this investigative team and the one trying to do the conspiracy against rights case in Florida — from searching the materials.

The government filed a notice of compliance, noting Fitzpatrick’s written order was filed just after noon, confirming it had handed him the materials, but not confirming that they had explained the scope and filter questions.

1 The Order at D.E. 161 was received via CM/ECF at 12:13 p.m. on November 6, 2025.

But after that, they filed an appeal of Fitzpatrick’s order to load the grand jury transcript that claimed Fitzpatrick had not filed a written order they noted in their earlier docketed filing.

1 A written order pursuant to the Magistrate Judge’s oral order at the November 5 hearing has not been entered on the docket.

They didn’t say whether they had answered Fitzpatrick’s questions (which, in any case, don’t reveal whether the investigative team had access). Fitzpatrick could simply file a response saying that Comey has an indvidualized need to figure out if Miles Starr relied on privileged information to get the indictment before he moves to suppress these warrants; in any case, stay tuned.

As you’ve no doubt heard, sandwich guy Sean Dunn was acquitted. Kudos to Sabrina Shroff, who is one of the most ferocious defense attorneys in the country.

In Chicago, Judge Sara Ellis enjoined CBP and ICE from continuing to abuse the First and Fourth Amendments of people in the city. Here’s Chicago Sun Times’ report on the hearing.

After Wednesday, we got two horrible decisions — one at SCOTUS, one in the Sixth Circuit — for trans people. All was not good. But there was important movement in some places.

Will Millennials finally lead us beyond the War on Terror?

The second list marked four things that suggest we could move out of the world Dick Cheney significantly created.

  • Monday: Dick Cheney kicks it
  • Tuesday: 34-yo Muslim becomes mayor of NYC
  • Wednesday: Gorsuch raises grave concerns abt Congress abdicating the power to declare war
  • Thursday: Pelosi announces retirement

Even assuming SCOTUS will throw out Trump’s tariffs, I’m sure we’ll be disappointed by whatever opinion they release doing so. Nevertheless I have hopes that this kind of language from Gorsuch makes it into that opinion.

JUSTICE GORSUCH: — we shouldn’t be concerned with — I want you to explain to me how you draw the line, because you say we shouldn’t be concerned because this is foreign affairs, the President has inherent authority, and so delegation off the books more or less.

GENERAL SAUER: Or at least —

JUSTICE GORSUCH: And if that’s true, what would — what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war to the President?

[snip]

JUSTICE GORSUCH: Can you give me a reason to accept it, though? That’s what I’m struggling and waiting for. What’s the reason to accept the notion that Congress can hand off the power to declare war to the President?

GENERAL SAUER: Well, we don’t contend that. Again, that would be —

JUSTICE GORSUCH: Well, you do. You say it’s unreviewable, that there’s no manageable standard, nothing to be done. And now you’re — I think you — tell me if I’m wrong. You’ve backed off that position

How to pay for free buses

Finally, there’s this observation.

Wednesday: The incoming Mayor of NYC names Lina Khan a key advisor

Thursday: Corrupt shareholders of Tesla create the Trillion dollar Keta-Man

When Jerry Nadler announced his retirement, Lina Khan was one of the first people mentioned as a worthy replacement. She almost immediately said she was not interested.

I’m wondering if she was already thinking about what more she can accomplish as an advisor to Mamdani.

This sure feels like a week that — if we survive long enough to look back at it — was a pivotal one.

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Donald Trump and His Speaker-Puppet

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I want to talk about some implications of this Annie Karni story, describing the background to what is plain as day: Donald Trump, who jokes in private that he — not Mike Johnson — is the Speaker of the House, runs the nominal Speaker.

Karni pitches the story in terms of Johnson’s “decision” to keep the House on vacation for the entirety of the government shutdown. But it has larger implications of the possibility of peeling Republican Congresspeople away from Trump.

He has argued that the House, which under the Constitution has the sole power to initiate spending legislation, has no reason to meet as long as Senate Democrats are blocking a bill to reopen the government. He has refused to swear in Representative-elect Adelita Grijalva, a Democrat who won election a month ago and has sued in federal court to be allowed to take her seat, claiming he lacks the power to do so.

His strategy of indefinite hiatus means that Mr. Johnson has not engaged in the typical political theater that speakers often employ during shutdown fights to jam the party out of power: scheduling tricky votes on bills to reopen parks or pay certain categories of federal workers, like agents for Immigration and Customs Enforcement or Customs and Border Protection.

[snip]

The absenteeism, people around Mr. Johnson said, is a strategic calculation that the best way to keep his unruly rank and file in line is to place them on an extended leave.

[snip]

Mr. Johnson appears to be using the considerable power of the speakership to render the House irrelevant.

Karni quotes New Gingrich saying that the strategy serves to prevent other issues from “clutter[ing] up” Republican messaging on the shutdown. And while Karni provides an incomplete census of those complaining about this strategy, she doesn’t explain what that other clutter might be.

  • Kevin Kiley, who’ll likely be ousted if the CA redistricting passes
  • Far right Texan Beth Van Duyne, who thinks they need to come back to work
  • Elise Stefanik, who wants to pay the troops
  • Steve Bannon, who wants to codify some of what Trump did with EOs

Stefanik’s concern, paying the troops, suggests a potentially much bigger concern, such as that Trump is sending service members into a wildly stupid, illegal war in Venezuela without any legal cover.

Given Johnson’s refusal to swear in Adelita Grijalva, one of those other issues is Epstein.

Johnson’s utter silence on a Trump pardon recipient, Christopher Moynihan, threatening Hakeem Jeffries, and Johnson’s cheerleading for George Santos’ commutation hints at another one: the way that Trump’s corruption fosters crime.

Another thing keeping the House on vacation keeps buried is healthcare, which Karni elsewhere describes as “a political vulnerability for the party.” CNN reports more members getting squeamish about the impending healthcare increases.

And Trump’s selections about what to fund and not to fund — his decision to reopen Farm Services Agency, so it can keep farmers afloat while his trade war kills their markets, but not SNAP, are an attempt to game this process. But thus far he has proven wildly tone deaf about what his members are really exposed to. SNAP may be one such example.

All that’s to say that if members were in town, then they might be pushing back more aggressively against Speaker Mike and through him, Trump.

Trump, though, really is trying to neuter Congress. His demands that Republican state after Republican (or, in the case of North Carolina, swing) state redistrict, effectively eliminating democracy and enshrining polarization at the state level would serve his interest in completely defunding blue states which also happen to pay the bills for red states.

Perhaps most tellingly, Trump says that the Big Ugly Bill (Karni focuses on the tax cut part of it, not the creation of a goon army currently invading blue cities) was the only piece of legislation he needed Congress to pass.

Mr. Trump, [] has an iron grip on congressional Republicans and this week told G.O.P. senators that after they pushed through his marquee tax cut law, “We don’t need to pass any more bills.”

Republicans would do well to consider the implications of this, particularly as Trump and Russ Vought continue to violate funding rules. Congress has funded his army. There’s no reason to believe they’ll be entirely immune from targeting by it, as LaMonica McIver already has been.

This all underscores one reason voters should be focusing on Republicans, not Democrats, in the weeks ahead, as SNAP shuts down and a second DOD paycheck arrives. Because Trump really is proposing he proceed without his Republican members of Congress — or without them serving any real function. And at least some of these Republicans do care (or can be made to care) that Trump is destroying their communities.

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19 Years On

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Next year it will be twenty years on. A few minutes ago it was exactly 19 years to the minute. The first plane hit the North Tower at 8:46 am EST. We now suffer a 9/11 every couple of days in the US thanks to Trump’s bungling of the Coronavirus response.

Fires are decimating some of the most beautiful parts of the country on the west coast. Corona is almost certainly set to rage again with the great “re-opening”.

But let’s take a minute to remember what happened 19 years ago, and how the nation came together and responded then. Imperfectly, and sometimes tragically, from the Bush/Cheney regime. It has all been covered here on these pages. The moment could have created a lasting unity and, instead, was exploited to the opposite. But for a couple of days, it felt different. Let us remember why.

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Maybe Trump Really Is Never Going To Leave

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Now that Rayne has you all festive for the holidays, I am gonna leave you with one more little nugget of joy. Trump really is planning on not leaving even if he loses badly to Biden. I have kind of poo poohed this kind of talk, but this morning on Morning Joe, there was a discussion with former Colorado Senator Tim Wirth and Tom Rogers, a journalist and original founder of both CNBC and MSNBC. These are two very smart and credible people, and they are pretty convincing. If you can find a video clip of their appearance, post the link and I’ll add it in to the post, it is harrowing.

But they have an article out together now in Newsweek entitled “How Trump Could Lose the Election—And Still Remain President”. Also harrowing, and they are convinced that this is really Trump’s plan.

Wirth and Rogers lay out two paths they expect Trump to take. The first is the obvious one pretty much everybody is aware of, severe voter suppression and goon poll watchers challenging voters pretty much anywhere and everywhere, along with claiming fraud as to the vote by mail. But it is the second path that is truly frightening.

This spring, HBO aired The Plot Against America, based on the Philip Roth novel of how an authoritarian president could grab control of the United States government using emergency powers that no one could foresee. Recent press reports have revealed the compilation by the Brennan Center at New York University of an extensive list of presidential emergency powers that might be inappropriately invoked in a national security crisis. Attorney General William Barr, known for his extremist view of the expanse of presidential power, is widely believed to be developing a Justice Department opinion arguing that the president can exercise emergency powers in certain national security situations, while stating that the courts, being extremely reluctant to intervene in the sphere of a national security emergency, would allow the president to proceed unchecked.
…
With this, Trump has begun to lay the groundwork for the step-by-step process by which he holds on to the presidency after he has clearly lost the election:

1. Biden wins the popular vote, and carries the key swing states of Arizona, Wisconsin, Michigan and Pennsylvania by decent but not overwhelming margins.

2. Trump immediately declares that the voting was rigged, that there was mail-in ballot fraud and that the Chinese were behind a plan to provide fraudulent mail-in ballots and other “election hacking” throughout the four key swing states that gave Biden his victory.

3. Having railed against the Chinese throughout the campaign, calling Biden “soft on China,” Trump delivers his narrative claiming the Chinese have interfered in the U.S. election.

4. Trump indicates this is a major national security issue, and he invokes emergency powers, directing the Justice Department to investigate the alleged activity in the swing states. The legal justification for the presidential powers he invokes has already been developed and issued by Barr.

5. The investigation is intended to tick down the clock toward December 14, the deadline when each state’s Electoral College electors must be appointed. This is the very issue that the Supreme Court harped on in Bush v. Gore in ruling that the election process had to be brought to a close, thus forbidding the further counting of Florida ballots.

6. All four swing states have Republican control of both their upper and lower houses of their state legislatures. Those state legislatures refuse to allow any Electoral College slate to be certified until the “national security” investigation is complete.

7. The Democrats will have begun a legal action to certify the results in those four states, and the appointment of the Biden slate of electors, arguing that Trump has manufactured a national security emergency in order to create the ensuing chaos.

8. The issue goes up to the Supreme Court, which unlike the 2000 election does not decide the election in favor of the Republicans. However, it indicates again that the December 14 Electoral College deadline must be met; that the president’s national security powers legally authorize him to investigate potential foreign country intrusion into the national election; and if no Electoral College slate can be certified by any state by December 14, the Electoral College must meet anyway and cast its votes.

9. The Electoral College meets, and without the electors from those four states being represented, neither Biden nor Trump has sufficient votes to get an Electoral College majority.

10. The election is thrown into the House of Representatives, pursuant to the Constitution. Under the relevant constitutional process, the vote in the House is by state delegation, where each delegation casts one vote, which is determined by the majority of the representatives in that state.

11. Currently, there are 26 states that have a majority Republican House delegation. 23 states have a majority Democratic delegation. There is one state, Pennsylvania, that has an evenly split delegation. Even if the Democrats were to pick up seats in Pennsylvania and hold all their 2018 House gains, the Republicans would have a 26 to 24 delegation majority.

12. This vote would enable Trump to retain the presidency.

Is this nuts? Sure. Is it possible? Yes, given who and what Trump and Barr are, it may well be.

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Charles Cooper’s Letter about Pre-Publication Review Discounts Any Executive Privilege Claims

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In the wake of yesterday’s NYT story revealing damning details about John Bolton’s book manuscript, his lawyer, Charles Cooper, released the letter sent on December 30 laying out what they expected from the pre-publication review.

In it, Cooper (who while he was at the Office of Legal Counsel wrote at least one opinion laying the foundation for the unitary executive, one that helped cover up Iran-Contra) suggests there is only one basis on which the White House can object to the content of his client’s manuscript: classification.

I appreciate your assurance that the sole purpose of prepublication security review is to ensure that SCI or other classified information is not publicly disclosed. In keeping with that purpose, it is our understanding that the process of reviewing submitted materials is restricted to those career government officials and employees regularly charged with responsibility for such reviews.

Cooper leaves unstated his assertion that the White House cannot object to material in the book on Executive Privilege grounds, or any Absolute Immunity grounds that Pat Cipollone might dream up.

Such an assertion is wholly inconsistent with Cooper’s previous assertion (made for his other client, Charles Kupperman but which Bolton adopted by association) that the White House has any say over whether Bolton must respond to a dually authorized Congressional subpoena. Normally, a subpoena can overcome Executive Branch demands that the subpoenaed person not testify, if they want to testify. Here, Cooper is suggesting that the only restriction that the White House can impose on Bolton’s non-subpoenaed speech is classification review.

I get why he said it. He was trying to lay the groundwork for the statement he released last night, in which he suggested the White House had circulated Bolton’s manuscript outside those career civil servants who are entitled to review it.

But it will make it far harder to ignore future subpoenas, whether from the Senate, the House, or SDNY (in a Rudy Giuliani investigation).

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The SCO Statement and Why Cohen Should Not Testify Feb. 7

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Marcy wrote a great post this morning titled “Peter Carr Speaks“. I agree with almost all of it, if not all of it, but feel compelled to add a couple of things.

As to what the motivation of Carr and Mueller was, it is, at this date, unclear, despite the high handed and dismissive sudden reactive reportage of Devlin Barrett, Zapotsky and Demerjian at WaPo and Ken Dilanian of NBC/MSNBC. They have shown even less sources and credibility than Buzzfeed that they now conveniently and eagerly dismiss. Maybe the Mueller statement is a tad more nuanced and unknown than that.

As to what the target of the Mueller/Carr statement was, when Marcy says:

But I suspect Carr took this step, even more, as a message to SDNY and any other Agents working tangents of this case. Because of the way Mueller is spinning off parts of this case, he has less control over some aspects of it, like Cohen’s plea. And in this specific case (again, presuming I’m right about the SDNY sourcing), Buzzfeed’s sources just jeopardized Mueller’s hard-earned reputation, built over 20 months, for not leaking. By emphasizing in his statement what happened in “the special counsel’s office,” “testimony obtained by this office,” Carr strongly suggests that the people who served as sources had nothing to do with the office.

Yes, this looks almost certain from where I stand. Wasn’t the only aim of Carr’s arrow on behalf of Mueller, but was a rather large one.

Secondly, and since many media outlets and commenters are clacking about how the proof of Trump directly telling Cohen to lie is the end all and be all as to necessity for discussion, that is just wrong.

The record before the Buzzfeed article already established, through signed and accepted court filings, that Cohen indeed lied to Congress with the express intent of supporting the lies Trump was fostering.

That is not in dispute at this point. As to whether Trump personally ordered Cohen to do so, face to face, (and there is still a decent shot of that being true, but we do not know), that is not the end of the discussion legally.

First off, if those around Trump, (think lawyers and family, if not Trump himself), discussed and encouraged Cohen to lie to Congress, that is a huge problem for Trump. Let me remind people of one of the most basic definitional provisions in the criminal code, 18 USC §2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

So,  all of the nonsense by Rudy Guliliani is simply nonsense. That is without even considering conspiracy law and implications thereof.

So, sure, the SCO hit on Buzzfeed hurt the narrative in the press. Did it really hurt the narrative legally? No, not so much.

Lastly, I would like to address the upcoming House Oversight Committee hearing Cohen is scheduled for on February 7. He was voluntarily appearing after restrictions Cummings and the Committee agreed to, purportedly, with Mueller. The ground has changed. Frankly,  I think the hearing this quickly was ill considered and premature grandstanding to start with, but now strikes me as nuts given the changed circumstances after the Buzzfeed piece, SCO brushback and Trump’s direct threats to Cohen’s extended family.

Given the aggressive nature of Trump’s followers, there is a credible threat to Cohen and his family. But, more than that, there is a threat to his credibility and usability as a witness in the future. The ranking member on the House Oversight Committee is the odious Jim Jordan. His other GOP minority members will undoubtedly fall in line to attack Cohen, especially after the vague pushback comment of Carr/Mueller last night. It is set up now as a clown show.

The hearing should either be affirmatively postponed by Cummings or withdrawn from by Cohen personally. There is nowhere near enough good that can come from Cohen’s appearance, and a lot to lose for both him and Mueller given the shitshow that the GOP members will bring to the affair. Cancel that February 7 hearing and testimony. Just do not do it.

[For the record, I originally lodged this as a comment on Marcy’s post, but for unrelated reasons, thought the points about criminal liability and conspiracy needed to be included in a separate post, and did not wish to step on hers at the time.]

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The NY Times, Sekulow and Dowd’s Sophistry and Trump’s King Like Viewpoint

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I have obligations that I seriously must run out the door for, but this need to be posted so that it can be dissected. The inestimable crew of Haberman, Schmidt et. al have posted a rather amazing letter 20 page letter issued on behalf of Trump by his attorneys at the time, Jay Sekulow and John Dowd. There is a minimum of mockery of the effort, which I will attribute to the contributions of Charlie Savage and Matt Apuzzo, who have the curious, too often for the Times, habit of actually appropriately reading legal things with an eye to what they really represent.

This “letter” is one of the most ridiculous pieces of legal sophistry I have ever seen in my life. It, without an iota of shame or self reflection, brazenly place Trump as not just a King, but a God like entity that far outstrips the importance of the rule of law or separation of powers the Founders intended.

So, I am leaving this here until either Marcy or I come back to it later. Read the damn thing. Weep for your country and the shreds of its Constitution before Trump and his lackeys burn what’s left.

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10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

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Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing 4 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2013

What a Targeted Killing in the US Would Look Like

Amid now-abandoned discussions about using the FISA court to review targeted killing, I pointed out that a targeted killing in the US would look just like the October 28, 2009 killing of Imam Luqman Abdullah.

Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You

When the second memo (as opposed to the first 7-page version) used to authorize the killing of Anwar al-Awlaki, it became clear that OLC never really decided whether the killing was done under Article II or the AUMF. That’s important because if it’s the latter, it suggests the President can order anyone killed.

John Brennan Sworn in as CIA Director Using Constitution Lacking Bill of Rights

I know in the Trump era we’re supposed to forget that John Brennan sponsored a whole lot of drone killing and surveillance. But I spent a good deal of the Obama Administration pointing that out. Including by pointing out that the Constitution he swore to protect and defend didn’t have the First, Fourth, Fifth, and Sixth amendment in it.

2014

The Day After Government Catalogs Data NSA Collected on Tsarnaevs, DOJ Refuses to Give Dzhokhar Notice

I actually think it’s unreasonable to expect the government’s dragnets to prevent all attacks. But over and over (including with 9/11), NSA gets a pass when we do reviews of why an attack was missed. This post lays out how that happened in the Boston Marathon case. A follow-up continued that analysis.

A Guide to John Rizzo’s Lies, For Lazy Journalists

Former CIA General Counsel John Rizzo lies, a lot. But that doesn’t seem to lead journalists to treat his claims skeptically, nor did it prevent them from taking his memoir as a statement of fact. In this post I summarized all the lies he told in the first 10 pages of it.

Obama to Release OLC Memo after Only 24 Congressional Requests from 31 Members of Congress

Over the year and a half when one after another member of Congress asked for the OLC memos that authorized the drone execution of Anwar al-Awlaki, I tracked all those requests. This was the last post, summarizing all of them.

The West’s Ideological Vacuum

With the rise of Trump and the success of Russia intervening in US and European politics, I’ve been talking about how the failures of US neoliberal ideology created a vacuum to allow those things to happen. But I’ve been talking about the failures of our ideology for longer than that, here in a post on ISIS.

KSM Had the CIA Believing in Black Muslim Convert Jihadist Arsonists in Montana for 3 Months

There weren’t a huge number of huge surprises in the SSCI Torture Report for me (indeed, its scope left out some details about the involvement of the White House I had previously covered). But it did include a lot of details that really illustrate the stupidity of the torture program. None was more pathetic than the revelation that KSM had the CIA convinced that he was recruiting black Muslim converts to use arson in Montana.

2015

The Jeffrey Sterling Trial: Merlin Meets Curveball

A big part of the Jeffrey Sterling trial was CIA theater, with far more rigorous protection for 10 year old sources and methods than given to 4 year old Presidential Daily Briefs in the Scooter Libby trial. Both sides seemed aware that the theater was part of an attempt, in part, to help the CIA gets its reputation back after the Iraq War debacle. Except that the actual evidence presented at trial showed CIA was up to the same old tricks. That didn’t help Sterling at all. But neither did it help CIA as much as government prosecutors claimed.

The Real Story Behind 2014 Indictment of Chinese Hackers: Ben Rhodes Moves the IP Theft Goal Posts

I’ve written a lot about the first indictment of nation-state hackers — People’s Liberation Army hackers who compromised some mostly Pittsburgh located entities, including the US Steel Workers. Contrary to virtually all the reporting on the indictment, the indictment pertained to things we nation-state hack for too: predominantly, spying on negotiations. The sole exception involves the theft of some nuclear technology from Westinghouse that might have otherwise been dealt to China as part of a technology transfer arrangement.

Obama’s Terrorism Cancer Speech, Carter’s Malaise Speech

In response to a horrible Obama speech capitulating to Republican demands he treat the San Bernardino attack specially, as Islamic terrorism, I compared the speech to Jimmy Carter’s malaise speech. Along the way, I noted that Carter signed the finding to train the mujahadeen at almost the exactly moment he gave the malaise speech. The trajectory of America has never been the same since.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

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As We Face Our Current Emergency Let’s Not Forget How (and Who) Our Last One Contributed to This One

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All over Twitter yesterday, people introduced this Michael Hayden tweet decrying Trump’s “assault on truth, a free press or the first amendment” by emphasizing that he served as CIA and NSA Director.

They seem to forget that, in the name of supporting expansive executive authority, Hayden lied to Congress, targeted Thomas Drake for his unclassified communications with the press about Hayden’s support for profiteering contractors, and attacked journalists who have covered the Snowden leaks.

Also on Twitter, Ben Wittes wrote a long thread, advocating that “Americans do not need to be actively contesting right now across traditional left-right divisions” so long as “Americans of good faith collectively band together to face a national emergency.”

In a thread that singles out the First Amendment (though not, predictably, the Fourth), Wittes imagines two main entities that might conduct investigations into Trump: law enforcement and “men and women of the bureaucracy who are courageous enough to come forward and assist,” though he follows quickly with a generalized profession that this non-partisan truce he has unilaterally declared also involves supporting the spooks.

Having declared a truce on “important foreign policy questions,” he then emphasizes we have to keep our promises abroad.

And also we have to keep promises about rights.

The two, together, have set off a debate about what our national emergency really is — where Trump came from.

Remarkably, I’ve seen few pointing back to this remarkable Adam Serwer piece on the whiteness that got Trump elected. As he lays out, Trump got elected because white voters cared more about restoring “traditional” race, sex, and class roles than about all the horrible things Trump espoused.

Trump’s great political insight was that Obama’s time in office inflicted a profound psychological wound upon many white Americans, one that he could remedy by adopting the false narrative that placed the first black president outside the bounds of American citizenship. He intuited that Obama’s presence in the White House decreased the value of what W. E. B. Du Bois described as the “psychological wage” of whiteness across all classes of white Americans, and that the path to their hearts lay in invoking a bygone past when this affront had not taken place, and could not take place.

That the legacy of the first black president could be erased by a birther, that the woman who could have been the first female president was foiled by a man who confessed to sexual assault on tape—these were not drawbacks to Trump’s candidacy, but central to understanding how he would wield power, and on whose behalf.

Americans act with the understanding that Trump’s nationalism promises to restore traditional boundaries of race, gender, and sexuality. The nature of that same nationalism is to deny its essence, the better to salve the conscience and spare the soul.

Serwer’s piece is absolutely required reading.

But his exposition largely focuses on the domestic aspect of white supremacy. This paragraph is one of the few that focuses on the last emergency people like Wittes and Hayden screamed un-self critically about, the never-ending war on terror.

In the meantime, more than a decade of war nationalism directed at jihadist groups has shaped Republican attitudes toward Muslims—from seeing them as potential Republican voters in the late 1990s to viewing them as internal enemies currently. War nationalism always turns itself inward, but in the past, wars ended. Anti-Irish violence fell following the service of Irish American soldiers in the Civil War; Germans were integrated back into the body politic after World War II; and the Italians, Jews, and eastern Europeans who were targeted by the early 20th century’s great immigration scare would find themselves part of a state-sponsored project of assimilation by the war’s end. But the War on Terror is without end, and so that national consolidation has never occurred. Again, Trump is a manifestation of this trend rather than its impetus, a manifestation that began to rise not long after Obama’s candidacy.

And there’s no mention of white supremacy’s foreign counterpart, American exceptionalism, which has long led (white male) Americans to believe America had somehow earned its wealth and prestige without, at the same time, hurting the well-being of others around the world, one which has made Trump’s instinct to demand capitulation from other countries so popular.

Both are, after all, about assuming the capitulation of brown people is the natural order we deserve, whether in our neighborhoods or on the other side of the world.

I raise all this because, in addition to the whiteness problem Serwer lays out, I do think the exceptionalism and expansive executive power that Hayden and Wittes have championed are part of what created this emergency as well. Those who created and sustained that last emergency — those who insisted we needed exceptional measures the last time, exceptional measures that gave Trump far more tools with which to violate norms and persecute enemies — want us to divorce this emergency from their own actions that contributed to it and may make it harder to recover from.

By all means, those who newly admit problems with expansive executive power are welcome to join those of us who’ve long been fighting it. But I’m not sure why everyone wants them to take the lead.

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John Yoo Wishes Trump Abused Executive Authority More Effectively

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At the end of a John Yoo critique of Donald Trump’s abuses that a lot of people are mis-reading, he says this:

A successful president need not have a degree in constitutional law. But he should understand the Constitution’s grant of executive power. He should share Hamilton’s vision of an energetic president leading the executive branch in a unified direction, rather than viewing the government as the enemy. He should realize that the Constitution channels the president toward protecting the nation from foreign threats, while cooperating with Congress on matters at home.

Otherwise, our new president will spend his days overreacting to the latest events, dissipating his political capital and haphazardly wasting the executive’s powers.

John Yoo is not stating that, across the board, Trump has overstepped his authority. Indeed, the areas where Yoo suggests Trump has or will overstep his authority — exiting NAFTA and building a wall — are things Trump has not yet put into place. His concern is prospective. The only thing Trump has already done that Yoo believes abused power was firing Sally Yates, and that because of his explanation for firing her.

Even though the constitutional text is silent on the issue, long historical practice and Supreme Court precedent have recognized a presidential power of removal. Mr. Trump was thus on solid footing, because attorneys general have a duty to defend laws and executive orders, so long as they have a plausible legal grounding. But the White House undermined its valid use of the removal power by accusing Ms. Yates of being “weak on borders and very weak on illegal immigration.” Such irrelevant ad hominem accusations suggest a misconception of the president’s authority of removal.

Yoo doesn’t, for example, complain about Trump’s Executive Order on Dodd-Frank, which may have little effect.

But what Yoo is worried about is not abuse, per se, but that Trump will “waste the executive’s powers.”

That’s important given Yoo’s critique of Trump’s Muslim ban.

Immigration has driven Mr. Trump even deeper into the constitutional thickets. Even though his executive order halting immigration from seven Muslim nations makes for bad policy, I believe it falls within the law. But after the order was issued, his adviser Rudolph Giuliani disclosed that Mr. Trump had initially asked for “a Muslim ban,” which would most likely violate the Constitution’s protection for freedom of religion or its prohibition on the state establishment of religion, or both — no mean feat. Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers, he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge.

Yoo is saying that Trump could have implemented this policy if only he had gotten better advice about how to hide the fact that it was a Muslim ban, in the same way firing Yates would have been fine had Trump offered another explanation for it.

There’s a big rush among those who’ve abused executive authority in the past to rehabilitate themselves by seeming to criticize Trump. Many of them — including Yoo — are mostly complaining that Trump’s bad execution of abuse of executive power might give it a bad name.

 

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