What gets booed and who gets sued

Since Day One, Trump’s return to office has been an attempt to steamroll both law and custom to find out how far the U.S. political system can be warped to accommodate his allies’ desire to enrich themselves and their sick notions of government.

The torching of norms for appointed officials and established legal interpretation by the administration has happened in so many spheres it might well be impossible to identify and label them all. From Trump’s refusal to share his tax returns as a candidate or make a pre-election pledge to acknowledge the winner of the election if he lost, to the gutting of USAID and the shredding of the Constitution when it comes to Congressional appropriations, no tradition or policy has been too large or too small for Trump or his minions to try to undo.

And they seem to be trying everything they can think of. Just this week, Chris Geidner and Steve Vladeck wrote about first the hearing ever convened by the Alien Terrorist Removal Court. The court was established in 1996. But even during excesses of the War on Terror under George W. Bush, government attorneys were too intimidated to use it, fearing any case brought there would result in its being struck down as unconstitutional. And in fact, this week the judge concluded the Department of Justice would have to do more to make its case.

Over the weekend, we also learned that the Pentagon has been hiding the numbers of injuries from recent Iranian counterstrikes in the war, trying to play down the damage inflicted by Tehran. The Intercept has likewise been reporting on the same kinds of deception on casualties in Iran for more than three months now, leaving both the public—and likely lawmakers—in the dark about the cost of this war on every front.

Once the United States and the world are free of Trump, we’ll need to be ready to make changes in both laws and norms to better reduce our political system’s vulnerability to a cult of personality and the wave of corruption that’s been set in motion. Today, I want to write about ideas on how to use both to block and unravel the current harm, mistakes to watch out for, and what we can do right now that’s independent of getting control of Congress.

The rule of law has been taking it in the teeth for some time now. There’s the failure to impeach Trump and the failure to keep him off the Republican ticket for the or off the ballot altogether for the 2024 race. The U.S. boat strike atrocities in the Caribbean are continuing, as is the puppet government the U.S. helped install in Venezuela. Denials are endless when it comes to the lethal U.S. bombing of a girls’ school in Iran.

And this week, Whitney Curry Wimbish wrote for the American Prospect about massive violations of the Flores agreement by immigration officials. The 1997 agreement limits juvenile detention to twenty days, yet documented cases show detention often stretches much longer—weeks, months, or in at least one case, nearly a year. Reports include staff denying children emergency medical care, providing inadequate education, screaming at children detainees, tearing up their drawings, shoving them, coming into showers when children are naked, and harassing minors by repeatedly waking them up at night. The government is also accused of hiding actual detention figures in an attempt to subvert the Flores ruling.

Keeping the rule of law as a bedrock principle has also come under a different kind of attack by those organizers on the left who understand that the ways that “rule of law”—and even more so, “law and order”—has been used as a weapon to control or harm vulnerable communities. We cannot actually reestablish democracy until we not only summon the will to punish the powerful among us, but acknowledge the degree to which the law has often been upheld only for certain groups in society.

One concept I realized while writing my book on concentration camps was that few societies have existed in which rule of law wasn’t problematic. So I do think it’s critical to acknowledge history and work to make a law that is not primarily a tool to inflict harm on the poorest and most disadvantaged communities in any given country.

But I’ve also noticed that despite problems with the rule of law, end runs around it by governments consistently make any given crisis more dangerous, largely because of the combination of an even greater lack of accountability and lack of restrictions involved. It’s a vanishingly rare leader who won’t be further corrupted by the opportunity to wield more power with less oversight. And the loss of the rule of law rarely benefits the people whom the law persecuted before; it merely expands targeted classes to include groups that might previously have had some protections.

Over at Balls & Strikes, Madiba Dennie wrote about an ACLU report from last week that reviewed more than 1,200 incidents of immigration enforcement across eight states after Donald Trump’s return to office. “When immigration agents are free to break the law without personal consequence,” she wrote, “there are deadly consequences for everyone else.” 

Lawsuits matter

And yet, even in our lawless environment, the law can be a very useful tool and still matters. Three cheers for E. Jean Carroll, whose attorneys finally forced a payout of the $5.6 million owed to her by Donald Trump as damages for his sexual assault and defamation against her. It’s just one small part of his crimes, but the Supreme Court’s denial of his appeal, and the money transfer show that the system will not always bend for him at the highest levels, and he is not invincible, despite protection from the most powerful and wealthy people in the country.

Cheers, too, for the Attorneys General from twelve states coast to coast, who successfully won a temporary restraining order this week to halt the merger of Paramount with Warner Brothers while the lawsuit against it proceeds. Larry Ellison, the primary backer of the Paramount merger deal, has been a key supporter of Donald Trump. And his decision to install Bari Weiss at CBS News after a previous deal to acquire the network has led to tremendous changes in coverage, most of which appear to openly benefit Trump. Halting the consolidation of billionaires’ merger deals may well prove to be a key part of limiting propaganda and protecting free speech in the United States.

Perhaps even more importantly, last Friday, U.S. District Judge Kari Dooley became the sixteenth judge to rule against efforts by the Department of Justice to obtain states’ voter registration data. To date, no judges have ruled for the government in these cases, stymieing what appears to be part of a larger scheme to use illegitimate means to influence or upend the midterm elections this November.

(Unfortunately, the government did win an appeal related to U.S. Post Office rules for mail-in ballots, which could aid its efforts to upend free and fair elections from another direction. But another injunction already in place is still blocking the administration elsewhere for the time being.)

Trump’s own goals

In some cases, the Trump administration is accidentally reinforcing the rule of law, by bringing ridiculously vindictive cases for offenses that didn’t happen or aren’t crimes. In some cases, this has inadvertently helped maintain the better part of the rule of law by outraging judges, who then wind up not only protecting the accused against unfair prosecution but also calling the government’s conduct into question more broadly.

In previous posts, I’ve discussed the DC sandwich guy, the Broadview Six, and Marimar Martinez in Chicago, who was charged by the DOJ before video revealed that the case entirely misrepresented all the details of the encounter, in which she was shot multiple times.

In similar, even more recent developments, the Justice Department’s entire case against U.S. Olympian David Hearn involving felony charges claiming he deliberately caused more than $1,000 of damaged to the Reflecting Pool on the National Mall is on the brink of collapse, due to “missing” evidence. And on Monday, the New York Times published an overview of more than 550 cases in which, people were charged with assault by the Trump administration over immigration operations.

More than 400 cases have been decided so far, with almost half of them falling apart through acquittals or cases bounced by judges or withdrawn by prosecutors. The Times reporters calls this failure rate “abysmal” compared to prior administrations, noting that “the Justice Department seldom loses criminal cases, with more than 90 percent of defendants pleading guilty or being convicted at trial.”

Meanwhile, however, many other cases have not been dismissed. Some have resulted in staggering sentences for minor or inconsequential actions—in some instances over free speech. And even the cases that are brought but get tossed out serve to intimidate others who may not have the time or resources to defend themselves against the government.

Holding officials accountable

Last week, Radley Balko wrote about how it would be an ambitious undertaking—but one worth the attempt—if Congress greenlights lawsuits against officials responsible for creating and maintaining ICE’s culture of lawlessness. He cites incidents like the recent killings of Joan Sebastian Guerrero in Maine and Lorenzo Salgado Araujo in Houston as evidence of overreach and systematic corruption.

Balko—who wrote the book Rise of the Warrior Cop—wrote about the disingenuous nature of ICE accounts of encounters that ended in injury or even death. He notes the lies spread about immigrants by the highest officials in the administration, the lack of investigations when civilians are shot by immigration enforcement officers, the interference with state and local investigations into officer conduct, and the attempts instead to investigate those who oppose ICE’s freewheeling violence.

“The Supreme Court has essentially left it to Congress to determine the degree to which federal officials can be liable for constitutional violations,” he explained. “If the Democrats retake the House and the Senate in November, that will set the stage for individuals to sue ICE, Border Patrol and other agencies for constitutional violations and wrongful deaths. There has already been discussion about that. But the Democrats could also take it a step further and create a path to sue policymakers like Stephen Miller, one of the president’s top advisers; Tom Homan, his border czar; and Markwayne Mullin, the homeland security secretary.”

We must demand ahead of the November elections that candidates and elected officials alike openly oppose Trump and pursue this kind of accountability. Without it, malicious actors can abuse government positions with impunity, then leave office with no means of redress for the deliberate harms they’ve committed—whether against individuals, the office itself, or to civil right protections as a whole.

I’ve said dozens of times since starting this newsletter that in the end, two things typically determine how long the authoritarian maintains a strong grip and how quickly concentration camps are closed. When it’s not a question of government overthrow through war or invasion, those two things are almost always 1) independent judges who continue to rule according to the law, and 2) the actions of people on the ground.

What we can do now

While we should help support organizations fighting in the courts and representing people targeted by the government, there are many things we can do that don’t require new laws or willingness to enforce them.

Last week, the township council of Montclair, New Jersey, indicated it would pull more than $91 million from Citizens Bank over the bank’s funding of corporations heavily involved in ICE detention. As a result, Citizens announced on Friday that it would end its financial ties to CoreCivic and GEO Group, two of the key private partners for ICE.

It’s easy to forget how much power we have as consumers and political actors. But we can put the blame where it belongs today, by refusing to buy into the sham of supporting groups that help build or run camps that detain our neighbors.

There are ways to uphold our norms, too, but we have to be vigilant about them. Norms are never a question of one-and-done, but instead are about establishing a culture that doesn’t allow anyone to be thrown under the bus. I was heartened to see the feature in the Baltimore Banner this week recounting how local rugby teams are protecting their trans teammates.

The excellent story by Kyle Goon featured the Baltimore Ferals, and showed how the team—along with others around the country—is defying new rules that don’t allow trans players in US Rugby. The Trump administration has warned sports governing bodies to ban trans women or lose funding and Olympic team placement, or even face decertification of their authority over a given sport by the federal government.

But some local rugby teams are standing by the trans community and taking to the field with all their teammates. Between the successful action against Citizen Bank and league athletes protecting people at the individual level, there’s so much of this kind of work to be done in schools, in churches, and on community fields to protect those who are targeted nationally, and keep them safe close to home.

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