Donald Trump, Consequences, and Pretending to Obey the Law

A novella-length tome, mostly about Donald Trump . . . but also about Frederick Douglass, Alexei Navalny, and other courageous heroes

Above: what’s his name says, "Look! It’s a newsletter from Patterico! Finally!”

Hi there! It’s been a while. Like, over seven months. The thing is, as you will see, I have been writing quite a bit throughout that period. Today’s newsletter is, uh . . . frankly, I’m scared to tell you how long it is.

OK. It’s over 48,000 words.

That’s about 100 pages of a standard book. It’s over 1500 words a week during the last 7 1/2 months since I put out a post.

Yes, it’s ridiculous—both the length of the post and how long it has been since I have published one. For some reason I have had periods where I feel paralyzed and don’t know what to write about—and other periods where so much comes spilling out I don’t know what to do with it. It has all been in service of four larger narratives—but they are linked, and I don’t want to break them up.

So you get it all today. And I do mean all of it.

What follows is over 22,000 free words for the freeloaders, followed by over 25,000 additional words for the elite people who have been paying month after month without anything in their inbox.

Yes, it’s long, But in my defense, I think it’s one of the best pieces I have ever written.

Too Many Targets

Part of what has paralyzed me in writing about Trump lately is that there are too many targets to shoot at. So not only have I let things go too long, but there is too much to say about too many topics. Just look at what he is doing. I am a person who tends to be completist and OCD. I am someone who wants to list out every reason I am criticizing something. But that’s impossible with this guy. Just off the top of my head, I could be writing about any of the following topics (I won’t let my OCD require me to provide links for each but I will provide some):

• Deporting potentially innocent people to a torture prison in El Salvador without due process, in violation of court orders and clear statutory and U.S. Supreme Court law (I’ll be talking a lot about this one in this newsletter)

• Continually labeling immigrants as members of violent gangs and then losing big when forced to prove such things in court

• Successfully frightening law firms into not taking cases or clients that oppose his actions

• Issuing blatantly unlawful executive orders against law firms that exercise their freedom of association in ways he does not like

• Arrogating to himself the core Congressional power to decide how taxpayer money is going to be spent

• Relatedly, closing down various agencies that Congress has appropriated money for

• Randomly firing federal employees by the truckload, often including critical workers like those who protect the safety of nuclear weapons

• Trying to fire air traffic controllers when we have a shortage of them

• Firing experienced people because they were promoted to new positions for which they are on “probation” (because that’s how promotions work in the federal government: you’re “on probation” at the beginning of your new assignment)

• Sending masked agents in plain clothes to detain students for crimes such as co-authoring an op-ed in support of Palestine and opposing Israel

• Suing Ann Selzer for getting a poll wrong

• Barring the AP from certain White House events for refusing to use the term “Gulf of America” to an international audience that largely recognizes the body of water by its traditional name: the Gulf of Mexico

• Cutting off security details from people like Mark Milley and Mike Pompeo and John Bolton who face genuine threats from Iran based on an action Trump himself took in his first administration (killing Soleimani) and telling the world (including Iran) that he has cut off their security

• Seriously discussing lifting sanctions on Russia

• Berating the president of Ukraine in the Oval Office for the offense of leading a country that was invaded, and essentially making us allies of Russia rather than Ukraine

• Withholding intelligence from Ukraine for a period of time and forcing our allies to also withhold intelligence, causing many civilians to die

• Disabling F-16s given to Ukraine by the Biden administration by shutting down their ability to mask their presence while in the air

• Lying about how much aid we have given Ukraine and trying to foist an extortionate minerals deal on them

• Engaging in one-sided “negotiations” to end the war in Ukraine by bullying Ukraine and giving endless concessions to Russia

• Constantly repeating Russian propaganda about how they are winning the war, have troops encircled, etc.

• Repeatedly saying Zelensky started the Ukraine war

• Shutting down (temporarily; it has been restored after blowback) a program to track children kidnapped by Vladimir Putin’s Russia

• Detaining a Russian critic of the Ukraine war and threatening to send them back to Russia

• Suspending efforts to counter Russian sabotage, cyberattacks, and election interference

• Destroying our longstanding alliance with our nearest neighbor, Canada, to the point where Canada’s prime minister says our longstanding relationship of cooperation is “over”

• Making credible threats to militarily invade Greenland (!)

• Threatening to take back the Panama Canal by force

• Forcing out the top vaccine specialist at HHS, who has said RFK, Jr. is trying to spread misinformation

• Calling off a meeting of health care specialists who were to decide on the flu vaccine

• Shutting down clinical trials in the middle of those trials

• Bringing back measles by promoting vaccine skepticism

• Shutting down the only lab that could have helped address an outbreak of hepatitis (only to rehire a few people in what is becoming a typical practice of breaking things and then trying to put them back together again)

• Appointing a wacko wellness nut case as Surgeon General

• Imposing unrealistic caps on overhead on research which will shut down countless research programs including potential cures for cancer

• Allowing his HHS Secretary to suggest that bird flu should be allowed to spread rampantly on farms, which experts say would be disastrous

• Making plans to shut down food inspections by the FDA (in which case, what are they even there for?)

• Ending countless programs at USAID, like PEPFAR, which will end up in Africans dying by the hundreds of thousands and perhaps millions

• Sanctioning by inaction his top officials chatting in an insecure environment about top secret details of an imminent military strike while a journalist, unbeknownst to the group, watched it all unfold in real time

• Sanctioning blatant lies by his officials about that incident, including lies told under oath

• Allowing officials to use an app that automatically destroys government records in violation of the Presidential Records Act

• Issuing a blanket pardon to all the January 6 insurrectionists, including ones who beat cops

• Talking about setting up a fund to give those insurrectionists money

• Telling the leader of the Proud Boys to go thank the January 6 insurrectionists

• Giving a pardon to a fraudster who donated hundreds of thousands of dollars to him and who politically supports him—and who also owed $600 million in restitution but now no longer does because of the pardon

• Pressuring the government of Romania to allow Andrew Tate to travel here—a man credibly accused of sex trafficking who has boasted on video about how he beats women and chokes them to force them to have sex with him

• Selecting an interim U.S. Attorney for the District of Columbia who routinely sends threatening letters to lawmakers and others over their free speech

• Selecting another interim U.S. Attorney for the District of Columbia who guzzles wine out of a box and rants about the stolen 2020 election

• Dropping numerous cases against Republicans (and against his own co-conspirators in the classified documents case), and generally making it clear that his political allies are above the law while his political foes will be targeted

• Taking over the Kennedy Center and driving it into the ground financially

• Issuing a directive to the Smithsonian Institution to rewrite history so that America always looks like the good guys

• Threatening colleges with crippling deprivations of federal funds if they do not speak in ways he likes

• Releasing 2.2 billion gallons of water in California that farmers will need this summer, just to get a meaningless Twitter photo op

• Erasing images from the Department of Defense Web site thought to be connected to “DEI” including a picture of the Enola Gay, apparently because it had the word “gay” in it

• Causing a parade in honor of Frederick Douglass to be cancelled because of “DEI” guidance from the Department of Defense

• Issuing a memecoin at the beginning of his presidency and doing a pump and dump scheme that was almost certainly unlawful and very profitable—and then announcing a contest that would sell access to the president of the United States to the top holders of the memecoin, in a scheme that makes Clinton’s Lincoln Bedroom scandal look positively statesmanlike and non-corrupt

• Shutting down enforcement of laws against fraud

• Canceling an IRS audit of Mike Lindell and dismissing criminal cases and fraud investigations into donors, in a scandal that makes the selling of the Marc Rich pardon look statesmanlike and non-corrupt (this guy is great at making Bill Clinton look good by contrast)

• Holding a press conference to tell Americans to buy cars made by his biggest political donor

• Allowing that donor to fire people and shut down agencies that regulate his businesses

• Allowing that donor (it’s Elon Musk, but you knew that) to coerce government agencies into providing root access to twenty-year-olds who appear to have exfiltrated sensitive data and then covered their digital tracks . . . which activity was followed (coincidentally, I’m sure) by Russian hackers immediately trying to log in using DOGE credentials

• Imposing and threatening ruinous tariffs and thereby tanking the stock market and decimating people’s retirement savings

• Threatening to fire the head of the Federal Reserve

This is all just off the top of my head. I am probably missing dozens or scores more atrocities. Almost any of them would be a calamity and/or a major scandal in another administration. But each one gets lost in the wash of evil and incompetence and stupidity.

People used to (in my view ludicrously) say that Barack Obama was “trying” to destroy the United States. My reaction was: Really? I get that you disagree with what he is doing, but you honestly think he has a goal of destroying the United States? Doesn’t that seem implausbible? It did. And it’s hard to believe that about Donald Trump, too. BUT. Look at that list again. Take it all in. Honestly, if someone were deliberately trying to harm the United States in every possible way—trying to destroy our prestige, moral standing, ability to care for our citizens, and ability to perform the basic functions of a first-world country—I can’t imagine what such a person would be doing differently than Donald Trump.

People’s Reaction: Meh

Which brings us to the public’s reaction. To all of the above atrocities, it’s not clear to me that the public cares. I listen with rage to focus-group podcasts run by Sarah Longwell of The Bulwark, who speaks to swing voters (read: idiots) who seem impressed by Trump. They praise DOGE’s illusory and fraudulent cuts. They say that sure, they may be uneasy about things like tariffs or Trump alienating the entire free world, but they suspect that there is a master plan guiding Trump’s actions. After all, he’s a businessman! Also, he’s doing something on the trans thing!

They are morons.

On the other hand, many town halls in red districts feature hordes of angry voters. Have you seen these videos? Click the links above each video if you want to watch it:

Here’s one:

Here’s another:

And a third:

There are others. As the saying goes: Many such cases!

I get the impression many of these people are angrier about Elon Musk and his random cuts than about Donald Trump. But if you watch that last video, there appeared at one point to have been explosive anger about Pete Hegseth—you know, for a few days, before Trump did other stuff to distract you, like tank the global economy.

As I write this (weeks ago as of the publication of this newsletter), there are “Hands Off” protests going on across the country, in every city. The photos are pretty stunning. People are out in force.

That’s two cities (Boston and St. Paul) but the protests were happening everywhere. Again: Many such cases!

So maybe people do care. On the assumption that you, the reader, care about Trump’s abuses, I will concentrate on them primarily in this newsletter, which will be divided into four overarching parts, each with subparts. Here’s the outline of what we’re going to talk about:

• PART I: TRUMP’S ABUSE OF DEPORTATION LAW

  • PART I.A. J.G.G. v. Trump: Giving Due Process to Suspected Gang Members

  • PART I.B. Oopsie, We Illegally Sent Someone to the El Salvador Gulag—But It’s OK Because He’s Totally MS-13! Trust Us!

  • PART I.C. The Supreme Court Decision in J.G.G. v. Trump

  • PART I.D. PRETENDING TO OBEY THE LAW: Abrego Garcia, Giving Aliens Due Process, and Bringing Back Mistakenly Deported Aliens

• PART II: TRUMP AS MOB BOSS, AND THE TRUMP BRAIN WORM

  • PART II.A. Trump Has Emboldened Criminals

  • PART II.B. The Trump Brain Worm

• PART III: TRUMP AND CONSEQUENCES

  • PART III.A. Imposing Consequences on Trump’s Voters, or, the Fallacy of the “This Is the Thing That Will Finally Sink Trump” Trap

  • PART III.B. Consequences Imposed Against Trump

  • PART III.C. Consequences Imposed By Trump on His Enemies, and PRETENDING TO OBEY THE LAW

• PART IV: WHAT FREDERICK DOUGLASS COULD TEACH US ABOUT COURAGE AND HUMAN NATURE. . . AND WHAT HE COULD TEACH TRUMP ABOUT DIPLOMACY

  • PART IV.A. Frederick Douglass’s Lesson #1: Those Who Fight Back Are Less Likely to Be Whipped

  • PART IV.B. Frederick Douglass’s Lesson #2: The Newly Converted Are the Worst Fanatics

  • PART IV.C. Frederick Douglass’s Lesson #3: Teaching Donald Trump About How to Conduct Foreign Policy

Let’s dive in, shall we?

PART I: TRUMP’S ABUSE OF DEPORTATION LAW

I.A. J.G.G. v. Trump: Giving Due Process to Suspected Gang Members

With so many genuinely bad things happening in Trump’s second administration, it’s hard to focus on any single one. But let’s talk about deportations to El Salvador, because few things so well represent the administration’s disdain for the rule of law.

For weeks now, I have been livid about Trump’s invocation of the Alien Enemies Act. One case challenging the invocation of that law, J.G.G. v. Trump, began in the courtroom of Judge James Boasberg, the Chief Judge of the D.C. District Court, and then made its way to the D.C. Circuit Court of Appeals and finally to the Supreme Court.

In the D.C. Circuit, Judge Millett admirably summarized what is at stake:

In this appeal, the government seeks exceptional emergency relief from temporary restraining orders that do just one thing—prevent the summary removal of Venezuelan immigrants to a notorious prison in El Salvador or other unknown locations without first affording them some semblance of due process to contest the legal and factual bases for removal. Plaintiffs are Venezuelan immigrants who the government claims are members of a violent criminal gang known as Tren de Aragua. In the government’s view, based on its allegation alone, Plaintiffs can be removed immediately with no notice, no hearing, no opportunity—zero process—to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured and their lives endangered.

(As usual, all bold emphasis in block quotes in this newsletter is mine.)

The case subsequently went to the Supreme Court, which limited relief to habeas but, in a ruling that (as I will explain below) I think has gotten an unaccountable amount of praise, made clear that the people detained subject to this law should get due process before being sent out of the country.

There’s been a decent amount of confusion around this story, as I have learned from talking to friends who have not followed the story as closely as I have. So let me just make some basic points clear:

• Hundreds of people were sent to this prison with (as the judge said in the passage above) zero process. Zero. They were simply snatched off the street and put on a plane. The Government did not tell their families or their lawyers where they were going. The proclamation was signed in secret in the dark of night and aliens were on a plane hours later. It was done this way specifically to evade judicial review.

• The prison in El Salvador to which these aliens have been sent is so harsh it could never live up to constitutional standards in the U.S. NPR reports: “CECOT prisoners do not receive visits and are never allowed outdoors. The prison does not offer workshops or educational programs to prepare them to return to society after their sentences.” As Judge Millett says in her opinion linked above: CECOT is “reported to have a notorious reputation for human rights abuses and disappearance.”

• I have yet to find any immigration attorney who can explain under what legal authority a removable alien can be deported directly into a foreign prison, as opposed to the usual process where deportees are simply dropped off in the receiving country. The District Judge in one of the cases asked the DOJ attorney what authority there was to do this, and he could not answer. (As we will discuss, that attorney has since been fired.)

• There is good reason to believe that several people among the hundreds sent to this gulag were innocent of any gang membership or other serious wrongdoing. Indeed, at least of them was under a judge’s order not to be deported to El Salvador, because an immigration judge concluded that the person would face torture from gangs in El Salvador. Others also seem to have been swept up simply because of tattoos. Let’s talk about one of those folks.

The Gay Makeup Artist with Mom and Dad Tattoos

The New Yorker had a piece about one of the apparently innocent people taken without any process to the gulag: Andry José Hernández Romero, a gay makeup artist.

Andry eventually passed his preliminary asylum screening. Officials determined that he demonstrated a “credible fear” of persecution in his home country. But during a physical exam, they had fixated on his tattoos. A snake extending from a bouquet of flowers covers his left forearm and biceps. On each of his wrists is a crown, with the words “Mom” and “Dad” inked next to them in English. The photographs in his file show a thin man, slight of build, with a youthful face and dark hair; there are rings under his eyes, and he is standing before the government photographer without a shirt.

Andry José Hernández Romero.Photograph courtesy Lindsay Toczylowski

Andry denied belonging to any gang. The agent, who asked him about the tattoos, described his “demeanor during interview” as “uncooperative.” A note was added to his file: “Upon conducting a review of detainee Hernandez’s tattoos it was found that detainee Hernandez has a crown on each one of his wrist. The crown has been found to be an identifier for a Tren de Aragua gang member.” These crowns, according to the government, were “determining factors to conclude reasonable suspicion.”

I spent the better part of my career as a gang prosecutor. It’s unthinkable to me that I could use Mom and Dad tattoos to label someone as a gang member, with no other indicia of gang membership. And that’s before we get to the part where the government sent that person to a foreign prison where people are tortured.

Andry had a court date. ICE and Trump short-circuited that existing court process by just grabbing him before his court date, and sticking him on a plane and flying him to El Salvador, in direct violation of a court order from a judge to bring the plane back to the United States.

TIME Magazine had a photojournalist on hand when this gay makeup artist came in. Steel yourself:

The intake began with slaps. One young man sobbed when a guard pushed him to the floor. He said, “I’m not a gang member. I’m gay. I’m a barber.” I believed him. But maybe it’s only because he didn’t look like what I had expected—he wasn’t a tattooed monster.

The men were pulled from the buses so fast the guards couldn’t keep pace. Chained at their ankles and wrists, they stumbled and fell, some guards falling to the ground with them. With each fall came a kick, a slap, a shove. The guards grabbed necks and pushed bodies into the sides of the buses as they forced the detainees forward. There was no blood, but the violence had rhythm, like a theater of fear.

Inside the intake room, a sea of trustees descended on the men with electric shavers, stripping heads of hair with haste. The guy who claimed to be a barber began to whimper, folding his hands in prayer as his hair fell. He was slapped. The man asked for his mother, then buried his face in his chained hands and cried as he was slapped again.

I teared up reading that, and if you are unaffected by it, I’m not sure I want you as a reader any more.

An Order Was Violated

There is some confusion about whether the Government actually violated an order in refusing to turn the planes around. That is still being litigated as of this writing, but to me the answer is crystal clear: absolutely it did. I hear a lot of uninformed nonsense about how it would have imperiled the planes to be “turned around midair.” If you are making this argument, you are either a liar or you are not informed about what actually happened. This passage from the New Yorker article linked above makes it clear in two easy-to-read paragraphs.

At a quarter to seven, Boasberg issued a ruling to extend his temporary restraining order to anyone in federal custody, which meant that, until further notice, the Trump Administration could deport people under federal immigration laws but not under the Alien Enemies Act. “Particularly given the plaintiff’s information unrebutted by the government that flights are actively departing and plan to depart, I do not believe that I am able to wait any longer,” Boasberg said. He instructed the government’s lawyer “that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.” He added, “However that’s accomplished . . . I leave to you. But this is something that you need to make sure is complied with immediately.”

The judge’s verbal order was entered into the written record at 7:26 P.M. Shortly after that, the two planes that had left Texas during the adjournment arrived in Honduras, and a third took off from Texas. Within a few hours, each of those planes departed Honduras for El Salvador: one at 11:39 P.M., another at 11:43 P.M., and the last at 12:39 A.M. Just before eight o’clock on the morning of March 16th, Bukele posted a New York Post article about Boasberg’s order, adding in a comment, “Oopsie . . . Too late.” Rubio retweeted Bukele’s sarcastic post. Bukele soon began releasing footage of Salvadoran soldiers swarming the migrants as they got off the planes. Videos showed the men looking stunned, as their heads were shaved and they were frog-marched into prison.

Note that there is nothing there about turning the planes around mid-air whether they had fuel or not. Note that the judge said it was up to the Government how to get the planes back; they just needed to come back. Note that all the planes landed in Honduras before proceeding to El Salvador, that one took off from Texas after the order was issued, and that all of them took off from Honduras hours after the order was issued. Note that they easily could have refueled and returned to the United States. Note that in fact El Salvador refused to take some people (including women), who were in fact returned—meaning that the people deported under the Alien Enemies Act could have been returned as well.

If you want to read the full reasoning on why the Government appears to have deliberately defied the court’s order, you could do worse than to read Judge Boasberg’s order finding probable cause for a citation of criminal contempt.

The Constitution does not tolerate willful disobedience of judicial orders — especially by officials of a coordinate branch who have sworn an oath to uphold it. To permit such officials to freely “annul the judgments of the courts of the United States” would not just “destroy the rights acquired under those judgments”; it would make “a solemn mockery” of “the constitution itself.” United States v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809) (Marshall, C.J.). “So fatal a result must be deprecated by all.” Id.

Judge Boasberg lays it all out. His core finding? ‘Defendants’ conduct, moreover, manifests a willful disregard of the Court’s legally binding proscriptions.”

Sarah Isgur Appears to Misinform on Whether Judges Think the Court Order Was Violated

As is her wont on anything Trump-related, Sarah Isgur of The Dispatch weighed in with what appears to be inaccurate information favoring Trump on this controversy. Here she is in an episode of Advisory Opinions saying that the majority in the D.C. Circuit decision 1) did not think the Government violated the law and 2) believes the Government still has jurisdiction over the aliens even now, as they languish in the El Salvador torture prison:

ISGUR: An interesting part for me, David, about this was a point of disagreement between Henderson and Millett versus Walker. And it may be surprising, a little bit. Henderson and Millett, as best I can read, both believe that the Government here did not violate the district court’s order. Because as they interpret the district court’s order, it was simply that he was saying, you must maintain custody of these people. I.e., you can fly them wherever you want, you just can’t like drop them out of the plane, basically . . . [editor’s note: huh?]

FRENCH: Right.

ISGUR: .. . . and like, return them to some other country and then be like, aaaand, bye! We don’t have your number, please don’t call us. And so because they removed them to El Salvador, where they have control over this prison, they are still in U.S. custody to some extent, and therefore they didn’t violate the court order.

Very different read from Justin Walker. He says, for instance, “in Adams v. Vance, we held that when a court’s temporary restraining order threatens intrusions on executive discretion in the field of foreign policy, its order is immediately reviewable. That’s the case here. The district court told the executive branch to immediately stop executing a plan to repatriate or remove Venezuelan nationals pursuant to arrangements that were reached with El Salvador and representatives of the Maduro regime. Not only that, the district court commanded an unprecedented action from the bench. The district judge ordered aircraft to be turned around mid-flight in the middle of this sensitive ongoing national-security operation.”

[laughs]

So it’s a little bit of just the reverse of what you might think. Judge Walker is the most conservative judge on that panel, and he’s saying that they did violate the court order, but that the court order was nutso. You would think he would be the one being like, no, obviously they didn’t violate it! But in fact . . . anyway, like this weird jiu-jitsu with the members of the panel over what exactly that court order was . . .

Isgur goes on to say everyone was jumping up and down too much about the supposed violation of the court order, arguing that the court order could not have been that clear if judges could not agree about what the court order said. After all, she argued, three smart judges (Justin Walker is a hack, actually) cannot agree on what the court order was.

I have no idea what Sarah Isgur is talking about with any of this. In particular, I am confused by her claims 1) that “Henderson and Millett . . . believe the Government did not violate the district court’s order,” and relatedly and more specifically 2) that Henderson and Millet believe that “because they [the Government] removed them [the aliens] to El Salvador, where they have control over this prison, they are still in U.S. custody to some extent, and therefore they didn’t violate the court order.”

As to the first point, I cannot find anywhere in the opinion where either Henderson or Millett says the Government did not violate the TRO. Millett notes at page 52 (if you follow the link, understand that I am going to cite to the page numbers in red at the top right of the document, so you don’t get lost as a result of each opinion having its own numbering) that the Government claims oral orders are not enforceable, and says: “I leave the merits of that argument for the district court to resolve in the first instance.” I see nowhere where either Millett or Henderson opines on whether the Government violated the district court order; the above quote seems to be the closest either comes to saying any such thing.

As to the second point, I cannot find where Henderson or Millett say that the Government has control over the prisoners while they are incarcerated in El Salvador. I do see Millett saying at page 51 that the Government had custody of them while they were still on the planes:

The district court’s TROs only directed immigration officials to preserve their custody, and thus the court’s jurisdiction, over the Plaintiffs. The government does not dispute that the Plaintiffs on the non-military planes and the planes themselves were fully under its control at the time of the court’s oral order.

But that is a very different thing from saying that there is jurisdiction over the prisoners held in El Salvador. I don’t see where Millett or Henderson make this argument. Indeed, Millett says at page 40 that the removal to El Salvador is “potentially irreversible.”

Worst of all, the government has confessed that its preference that Plaintiffs use habeas corpus to challenge their eligibility for AEA removal is a phantasm: The government’s position at oral argument was that, the moment the district court TROs are lifted, it can immediately resume removal flights without affording Plaintiffs notice of the grounds for their removal or any opportunity to call a lawyer, let alone to file a writ of habeas corpus or obtain any review of their legal challenges to removal. Oral Arg. 1:44:04-1:45:51. It is irreparable injury to reduce to a shell game the basic lifeline of due process before an unprecedented and potentially irreversible removal occurs.

I cannot square Millett’s statement that the deportation to El Salvador is “potentially irreversible” with Isgur’s claim that Millett (and Henderson) have said the U.S. Government “ha[s] control over this prison” and therefore the aliens there “are still in U.S. custody to some extent.”

It is the “potentially irreversible” nature of these removals, together with the gulag-like conditions at the prison where the aliens are ending up, that is so troubling about the Trump administration’s actions.

I.B. Oopsie, We Illegally Sent Someone to the El Salvador Gulag—But It’s OK Because He’s Totally MS-13! Trust Us!

The “potentially irreversible” nature of these deportations is becoming even clearer with the case of Kilmar Armando Abrego Garcia. He is an El Salvadoran who was sent to CECOT (the El Salvador gulag) in a case in which the United States Government has admitted was an “administrative error.”

As with so many of these cases, there’s a lot of misinformation about the man floating around, largely because it appears that top Trump administration officials are lying about it.

MS-13? The Claim Seems Dubious

JD Vance, who has a law degree from Yale Law School (which could explain why he seems fuzzy on legal concepts) claimed, quite falsely, that Garcia was a “convicted” MS-13 member.

“[C]onvicted MS-13 gang member.”

That, my friends, is what they call in the legal profession a “f—-ing lie.”

Given the bad information floating out there, it’s probably worth taking a moment to dispel it. Even though it’s not legally relevant, it’s clearly relevant in the court of public opinion.

You may have seen a widely shared screenshot, originating with Vance, that purports to be the “conviction”:

Here Vance is a little more circumspect, using the term “determined” . . . but again, more content is important. As lawyer and mayonnaise fan Damin Toell explains: “The original determination about him being in a gang by an Immigration Judge was solely in a bond hearing—that is, whether there was enough to let this guy get out on bail pending the removal process. It wasn't a final determination on the merits of the issue.” A bond hearing takes a wide range of evidence into account and gives a lot of deference to the Government.

This finding sure as hell is not a “conviction.” Yet the Trump administration has cited this mere bond determination—and the fact that it was appealed and upheld—over and over and over again, as if it had some talismanic significance.

Mayo guy Toell had an informative Twitter thread about the case:

ICE admitted at his removal hearing in August 2019 that *all* the evidence they had about his alleged gang membership was a single interview report from a single local cop based on a single confidential informant who accused him of being involved with a gang that was active on Long Island, even though this was in Maryland.

Doesn’t make a lot of sense, does it?

The interview report came from a detention of several immigrants at a Home Depot. One of the other detainees, perhaps trying to curry favor with police, claimed that Abrego Garcia was an MS-13 member. In Abrego Garcia’s complaint seeking his discharge from the El Salvadoran gulag, Abrego Garcia’s lawyers explain the efforts they made to try to verify or dispel the allegation that he was an MS-13 member. Turned out that it was all based on the word of a single confidential informant who had talked to a detective who was later suspended:

The attorney for Plaintiff Abrego Garcia subsequently made multiple attempts to obtain additional information from law enforcement concerning these allegations. PGPD indicated that it did not have any incident report related to the Home Deport episode at all, nor did the Department have any incident reports containing his name. The Hyattsville City Police Department (“HCPD”), on the other hand, confirmed it had an incident report for the Home Depot incident, but that only 3 people were named and Plaintiff Abrego Garcia was not one of them, nor did it have any other incident reports with his name in its database. His attorney also contacted the PGPD Inspector General requesting to speak to the detective who authored the GFIS sheet, but was informed that the detective had been suspended. A request to speak to other officers in the Gang Unit was declined.

We later learned that, in fact, that cop was not just suspended, but also “indicted in June 2020 for misconduct in office. Court records allege he shared ‘sensitive and confidential information about an ongoing police investigation with a commercial sex worker.’” Seems like a prince of a guy, huh?

But let’s get back to Abrego Garcia.

After his initial detention, Abrego Garcia had an actual removal hearing and his lawyer presented a large body of evidence on his behalf. Based on the full record, the judge ruled that a gang in El Salvador had threatened Abrego Garcia and his family. The judge ruled it was more likely than not that he would be tortured if sent to El Salvador, and barred him from being sent to El Salvador.

The government knew this, and then . . . sent him to El Salvador. But we should totally trust them with unreviewable discretion!

By the way, as Toell explains, “the judge chose not to address the MS-13 issue because the gang threats to his family were enough to warrant a stay of deportation to El Salvador. . . . [W]e never got a final ruling on it.”

So the MS-13 accusation was based on the word of an anonymous confidential informant, speaking to a detective who was later suspended and then indicted, claiming that a man who lived in Maryland belonged to a Long Island gang. That issue was never fully adjudicated.

Since that time, the administration has flailed about trying to provide more evidence that Abrego Garcia is some kind of big-time MS-13 bigshot. But when you press them, they keep coming back to that 2019 bond hearing, which they never tell you was just a bond hearing.

Or they do laughable stuff like this: Trump displaying a photo of Abrego Garcia’s knuckles and claiming that they have MS-13 on them, when the MS-13 was very obviously typed onto the picture and does not exist on his actual knuckles:

“[H]e’s got MS-13 tattooed on his knuckles” is, like JD Vance’s claim that the man is a “convicted:” gang member, what legal experts call a “f—-ing lie.” You can see his actual knuckles on his left hand here:

These people love to lie about this man. Why do you think that is?

Trump’s so wedded to this story, he even maintained in an interview with Terry Moran that the photo literally shows the letters and numbers M, S, 1, and 3 on Abrego Garcia’s knuckles, misaligned, in Arial font, in a color not matching any other tattoos. If we weren’t so inured to Trump lying like this, this lie would be astounding.

Sent to the El Salvador Gulag by Mistake? Most Definitely

The one thing we do know about Abrego Garcia is that he was sent to El Salvador by mistake. As the New York Times explains:

The harrowing story of Kilmar Armando Abrego Garcia . . . took an even darker turn last month when Mr. Abrego Garcia, a 29-year-old father and a Salvadoran migrant, was accused of belonging to a violent street gang. He was summarily deported to a Salvadoran prison — even though an American immigration judge had already decided he could remain in the United States, concerned he might be tortured in his homeland.

. . . .

Even after making the rare admission, the administration has effectively thrown its hands in the air, saying there is little it can do to retrieve Mr. Abrego Garcia from the brutal prison where it accidentally sent him.

Karoline Leavitt’s snooty comment was: “We suggest the Judge contact [Salvadoran] President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.”

(Georgetown law professor Steve Vladeck says that, actually, Abrego Garcia might be in “constructive custody” of the United States government in a sense . . . at least to the extent that a judge could lawfully order the U.S. government to make its best efforts to secure such a prisoner’s release. In other words, rather than the judge contacting Bukele, as Leavitt haughtily suggested, it’s conceivable that the judge could order the Government to do so. And the judge may end up at least requiring a top Cabinet official like Kristi Noem to swear under oath that the Government has made its best efforts.

But nothing seems certain . . . and as Vladeck explains, the potential consequences are serious indeed, for everyone—even you and me.

A world in which federal courts lacked the power to order the government to take every possible step to bring back to the United States individuals like Abrego Garcia is a world in which the government could send any of us to a Salvadoran prison without due process, claim that the misstep was a result of “administrative error,” and thereby wash its hands of any responsibility for what happens next. Rather than providing fodder for snarky comments from the White House Press Secretary, that possibility should terrify all of us—and, hopefully, the Fourth Circuit and the Supreme Court as well—and push courts to provide whatever relief is possible under the circumstances, as Judge Xinis attempted to in yesterday’s ruling.

Vladeck is right. Trump is erratic and crazy enough to sign a proclamation saying that his critics’ citizenship is hereby revoked, and the critics are now considered to be the enemy of the people, and an invading force. Such an order could never be upheld in court, of course (I think)—but if Trump and his faithful toadies manage to load a Trump critic like you onto a plane before a judge finds out (or even after!), you could end up in a foreign gulag for as long as the authoritarian government of that country wants to keep you there.

Oopsie!

PART I.C. The Supreme Court Decision in J.G.G. v. Trump

The Supreme Court eventually took the J.G.G. case and vacated Judge Boasberg’s orders in a ruling that was praised by many commentators as a masterly bit of judicial jiu-jitsu. (As I will discuss, I am dubious about that.)

The majority sided with Judge Walker, the hack Trump judge from the D.C. Circuit, and held that the plaintiffs’ claims “sound in habeas” and can only be brought in habeas. This is a technical point that is not worth getting into with you, the mostly lay audience. I disagree with the Court, but the Court is the Court and I am not.

The part of the decision that garnered all the praise was the part where the Court held that “the detainees are entitled to notice and opportunity to be heard” meaning they must “receive notice after the date of this order that they are subject to removal . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”

I listened to the argument in the D.C. Circuit, in which the weaselly Government lawyer acknowledged that the detainees were entitled to a court hearing—but simultaneously insisted it was fine to simply throw them on a plane and whisk them out of the country without any notice at all. And so I was not particularly impressed with the Supreme Court’s language, which leaves it up to the Government to decide what amount of time a) is “reasonable” and b) allows the aliens to “actually seek habeas relief.” Since the issuance of the Supreme Court’s decision, the plaintiffs have informed Judge Boasberg that the Government has taken to giving Spanish-speaking aliens a notice in English only, that explains nothing about how to challenge the determination, and which gives the aliens all of 24 hours to contest the notice. The Government has tried this trick in other areas of the country as well.

Even Nazis got 30 days’ notice in World War II, as Judge Millet had noted in oral arguments at the D.C. Circuit:

At one hearing, before the U.S. Court of Appeals for the District of Columbia Circuit, Judge Patricia Millett pointed out that the last time the Alien Enemies Act was invoked, against suspected Nazis during World War II, those accused were provided a 30-day notice to contest the accusation, and a hearing.

“Nazis got better treatment under the Alien Enemies Act than what has happened here,” Judge Millett said last month.

Moreover, although few realize this, there was never any serious question that it was illegal for the Trump administration to simply spirit people out of the country with no notice or due process. The administration itself never maintained this in court, and that is because the statute’s language and the history of its application are clear. As Steve Vladeck noted last October, “even in the middle of the First and Second World Wars, courts were still open to review claims by those detained under the act who challenged whether they were properly within the statute’s scope.” So when everyone applauded the Supreme Court for saying this, my reaction was: yeah, you said what the obvious and longstanding rule was, so congratulations, I guess. What do you want, a cookie?

Probably the most obvious defect in the ruling from my perspective is the fact that the ruling says nothing about all the folks who were sent to CECOT in violation of both Judge Boasberg’s order that the planes be turned around, and the longstanding (and acknowledged by DOJ) statutory and decisional law making it clear that Alien Enemies Act detainees are entitled to process before removal. What about them?

And then came another case relevant to that issue: the case of Kilmar Abrego Garcia, which I will discuss next. (We discussed the evidence of his MS-13 membership already, but now we will discuss the litigation over his “mistaken” extraction to CECOT.) As we will see, the Abrego Garcia case does not as of yet settle the fate of the 150+ people illegally sent to the foreign gulag—but, it at least grapples with the issue of whether there is any way of bringing any of these people back . . . at least in a case where the Government itself has admitted that it sent the detainee to CECOT (and to the country of El Salvador) by mistake.

So the fate of Andry the gay makeup artist and other innocents like him depends at least in part on the outcome of the Abrego Garcia court case, which we’ll discuss now.

PART I.D. PRETENDING TO OBEY THE LAW: Abrego Garcia, Giving Aliens Due Process, and Bringing Back Mistakenly Deported Aliens

The Abrego Garcia case was first litigated in District Court, and ended up in the Supreme Court. As I talk about this case, I want to focus on the Trump administration’s schtick where they pretend to comply with court rulings, while making it perfectly obvious that they aren’t, and that it’s all a game.

(Trump pretending to obey the law, but not pretending very hard, is going to be a running theme throughout Part II of the newsletter. But this part fits here because it’s directly relevant to our immigration discussion.)

As most people know who have followed any of this at all, the Supreme Court has issued a ruling in the Abrego Garcia case, and—very much like the J.G.G. case, it’s being applauded as a victory for the rule of law. It is being portrayed as a unanimous decision holding that Abrego Garcia—a man who, as discussed above, was deported to El Salvador by mistake despite a court order saying he could not be—is entitled to have the Government try to bring him back.

Is it that simple? I’m not entirely sure. As I write this, it’s sure not playing out that way.

I’m going to give you the facts of the case, but we’re going to have to take a little digression into a side issue that I think is important: the advocacy of the Government lawyer, his treatment at the hands of the Trump administration . . . and the disgraceful opinions of Sarah Isgur on this subject.

The Hearing in the District Court

In proceedings before the United States District Court, a judge asked Department of Justice lawyer Erez Reuveni by what authority Abrego Garcia had been removed. Reuveni was admirably candid. You can read the transcript of the proceedings here (scroll down; it’s an exhibit to the filing). The comments made at the hearing are worth going into detail, because among the people punished in this case is . . . the DOJ lawyer Reuveni, who was initially placed on paid administrative leave and has now been fired, reportedly because the Trump administration felt his advocacy was insufficiently zealous.

Was it? Let’s look at what he argued.

Questioned by the judge, Reuveni immediately conceded that Abrego Garcia should not have been removed—something that the Government has since conceded at every level, no matter the attorney. U.S. District Judge Paula Xinis asked Reuveni by what authority Abrego Garcia had been removed. He replied: "Your Honor, my answer to a lot of these questions is going to be frustrating, and I'm also frustrated that I have no answers for you on a lot of these questions.” The judge told him she appreciated his candor.

The lawyer argued the case. He pushed back against the statement of Abrego Garcia’s lawyer that there was no removal order, accurately stating that there is a final order of removal—but he cannot be removed to El Salvador. He presented the best cases he had to support the argument he had.

There was a discussion about those precedents, and then the judge asked him a very important question: “Well, in what—what basis is he held in CECOT [the El Salvador prison]? And I hope I'm saying that right. But what basis is he held? Why is he there of all places?”

The DOJ lawyer responded:

MR. REUVENI: This is where I'm going to respond in a frustrating way: I don't know.

THE COURT: You don't know?

MR. REUVENI: I don't know. That information has not been given to me. I don't know.

He later repeated: “I also do not know, and therefore, cannot answer your question as to what authority Mr. Abrego Garcia is being held by in El Salvador.” Well, I don’t know either. It’s a mystery. To me, Reuveni was just telling the truth. As he was again when the judge asked:

THE COURT: Can we talk about, then, just very practically, why can't the United States get Mr. Abrego Garcia back?

MR. REUVENI: Your Honor, I will say, for the Court's awareness, that when this case landed on my desk, the first thing I did was ask my clients that very question. I've not received, to date, an answer that I find satisfactory.

THE COURT: Okay. Well, I, again, appreciate your candor.

The way I see the record, though, is that there is an agreement between your clients and El Salvador where your clients are the payor of $6 million. And the payor to house individuals who, but a couple of weeks ago, were in the custody of immigration, just happened to be in the United States, but there's nothing to suggest that they are still not in the custody of DHS and immigration, they are just being housed in El Salvador.

And what is more, is that the named defendants in this case have told the public, and I can take note of this, that plaintiffs have put it in their pleadings, that the facility is one of the tools in the United States' tool kit that the United States will use if an individual commits crimes against the American people.

The Republic of El Salvador has confirmed that they will hold individuals for one year pending the United States' disposition—decision on disposition; that the contract, or the agreement is renewable after one year. There were terms and conditions under which certain people were transported and certain people were returned.

The United States had the ability—we know this from JGG, the United States had the ability and in fact returned certain people. They are affiants now in JGG. All of this points to a functional control, and that if the United States, as a contracting party, can strike terms and conditions for the placement, then certainly they have the functional control to unwind that decision when—the wrong decision when it comes to Mr. Abrego Garcia. Those are the facts—the findings of fact that I'm prepared to make in terms of the practical implications of an order to—to return him.

Reuveni argued some more about issues relating to jurisdiction and habeas, but made it quite clear that the Government—his supervisors—had made a conscious choice not to put on any evidence about the arrangement with Bukele. He denied that there was any evidence “in the record” about a contract with Bukele, saying: “And I will say again, the government made a choice here to produce no evidence.” When the judge later said that would have consequences, he said: “My clients also understand that the absence of evidence speaks for itself.” It is clear that he had advised the Government to explain what the arrangement was, and had further advised them that a failure to put on evidence could lead to a negative inference . . . and they had said to him that they were fine with that.

In short, Reuveni’s supervisors put him in an impossible position, and he decided to tell the truth. What else was he supposed to do? Well, he did try asking for one last-ditch effort to get Abrego Garcia back . . . which, let’s be honest here, is obviously the decent and ethical thing to do:

MR. REUVENI: Give us 24 hours to—

THE COURT: You want to try to work it out to get Mr. Abrego Garcia here, you got it.

MR. REUVENI: That's my recommendation to my clients, but, of course, that's why that hasn't happened.

THE COURT: Okay. And, Mr. Reuveni, I very much appreciate your candor to the Court. Good clients listen to their lawyers.

The judge concluded, I think quite correctly, that “given the defendants' course of dealing in this matter, and the matter in which they have chosen to litigate this case, at least today it doesn't appear that they are taking it seriously.” She was not putting that criticism on Reuveni, to be clear, but rather on the Government itself.

The judge initially seemed inclined to try to give the Government the 24 hours, but after a recess announced (again, I think correctly) that she could not wait to issue her order. She entered an order directing the Government to “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.”

Digression: Sarah Isgur Is BIg Mad at This Lawyer for Answering the Judge’s Questions with Candor and Telling the Truth Right Away

In an Advisory Opinions podcast published April 8, 2025, Sarah Isgur and David French discussed whether the Government should have punished Reuveni for his advocacy. At that time, he had been placed on administrative leave, although as noted, he has since been fired.

I didn’t think this was a difficult question at all, based on what I knew about the case from media reports. I thought Reuveni did pretty damned well, especially given the hand he had to play. (As Donald Trump likes to say: he didn’t have the cards . . . thanks to Trump and his gang of lawless goons.) Now that I have read the transcript, I am even more certain in my opinion. As often happens, David French took a position I agreed with: that while in certain cases a lack of zealousness could be a problem in theory, a lack of zealousness did not seem evident in this case. Like me, French felt a government lawyer should demonstrate candor in an impossible situation.

Sarah Isgur thought the DOJ lawyer’s answers did not demonstrate sufficient zealousness. The judge asked on what basis Abrego Garcia was removed—and Isgur’s take seemed to be that because the Government’s position on that issue was weak, the lawyer should have evaded the judge’s question, and concentrated on the argument most important to the Government: we are in the wrong jurisdiction. If the judge asked again why Abrego Garcia had been removed, again the lawyer should have again maintained that the real issue was jurisdictional. Lather, rinse, and repeat. Isgur said, in a comment that deeply offended me:

I agree maybe on the fifth time the judge has asked, maybe you need a fallback answer like the one here. These aren’t fifth questions, David. These are first questions.

What she is saying is, evade the judge’s questions that are bad for you, four times in a row if need be . . . as long as possible, in other words, until you’re forced to give a “fallback” answer such as the lawyer did here. (The so-called “fallback answer”—just so we’re clear—is what I would call “actually answering the judge’s question, and telling the truth.”)

By contrast, I happen to think that the right thing to do is to answer the judge’s question the first time and to tell the truth the first time. That was David French’s view too.

It occurred to me that there is a good reason for the divide here: David French and I know what it is like to be courtroom lawyers, where your integrity is everything. By contrast, Sarah Isgur is a political operative with a law degree. She has been a Hill staffer and worked on Mitt Romney’s presidential campaign. She ran Carly Fiorina’s presidential campaign. She was a spokesperson for DOJ. I’m not aware that she has ever done a trial or been a real courtroom lawyer.

Political operatives tell their candidates: answer the question you want to answer. Even if they ask it two or three times, stick to your script and concentrate on the positives for you. It doesn’t matter that your answer is not responsive to the question. The interviewer will eventually run out of time, and you will have gotten your points across.

(Also, to many political operatives, lying is perfectly acceptable . . . as long as you don’t get caught.)

That nonsense won’t fly in a courtroom. Lawyers have a duty of candor to the court. They have their integrity and they have a reputation that, they hope, is shaped by that integrity. (By the way, I have often heard lawyers say “all you have is your reputation.” I reject that formulation. To me, even if your reputation suffers because you acted with integrity, that is not a reason to sacrifice your integrity. To me, all you have is your integrity. But then, that’s a rule, not just for lawyers, but for life . . . and, admittedly, I digress.)

Starting from the (flawed) premise that the DOJ lawyer’s answers were insufficiently zealous, because he did not do the political candidate’s trick of ignoring inconvenient questions four times in a row, Isgur then asked whether a client would accept this level of zealousness from a private attorney, and opined that the client would fire the lawyer. (Maybe!) Then she asked whether the analysis should be different for a Government lawyer.

Well, speaking as a government lawyer myself, of course it should. As a prosecutor, my client is the People of the State of California. They are always served well when I do justice. They receive good representation from me when I do the right thing—and I try to do so always. Zealously advocating a position I do not believe would be a monstrous thing for me to do. And while I am held to a higher standard as a prosecutor, I would like to think that even civil lawyers working for the government at any level would have a similar level of commitment to right and wrong.

Not so for Isgur, apparently. She asked: “Should we have civil servant lawyers at the Department of Justice?” She said there is a trade-off. On one hand, you want lawyers to be zealous. (Apparently “zealous” in the sense of “evade the judge’s questions until she asks them a fifth time.”) But, Isgur acknowledges, there is another side to the question. DOJ lawyers gain a lot of credibility by only zealously advocating solid positions. When they don’t have a solid position, they concede. Isgur’s description of this phenomenon seems to cast shade on the DOJ’s way of operating in court. Pay special attention to the bolded text in this quote:

The old, if the facts are on your side, argue the facts. If the law is on your side, argue the law. If neither is, bang the table. Sometimes you gotta bang the table, and DOJ is known for never banging the table. They just concede at that point. You either have the law or the facts or you concede. And in private litigation, you start banging.

Yes, that is why government service is different. You actually don’t have to “bang the table” if you are a DOJ lawyer who has neither the facts nor the law on your side. Especially in a case where not having the facts and the law means a person is rotting in an El Salvadoran gulag without any legal justification whatsoever. That’s not a time to bang on the table. That’s a time when it’s more important than ever to be honest and forthright.

(By the way, Isgur’s introduction to this segment is telling. She refers to the Abrego Garcia case as “that case of the guy who might have been wrongfully sent to that prison in El Salvador.” Excuse me: “might have been”? Nobody disputes he was wrongfully removed. Not ICE, not the Government, not anybody. Abrego Garcia WAS wrongfully sent to that prison. Full stop. That’s why the lawyer was in such a difficult position!)

Having set up the trade-off: zealousness on the one hand, and candor and trustworthiness on the other, Isgur declared herself . . . “torn.” No, really! She says she is “torn” on the issue of whether we should have civil service protection for DOJ lawyers in part because she thinks Republicans don’t benefit from a DOJ that shows candor to the court. Having described the special deference and credibility that judges have traditionally given DOJ lawyers because of their reputation for candor, Isgur says: “I think that Republicans right now are more than willing to chuck that because they don’t ever really get the benefit of that candor and credibility. I’m torn on the question, David. . . . This was not good advocacy.”

Never mind the unintentional irony of Isgur admitting that candor to courts typically plays badly for Republicans. (LOL. Why would that be, again?) By bringing Republicans and their views into the mix, and declaring herself “torn” in the next breath, Isgur gives away the game. She’s simply not concerned about zealous representation as an abstract principle. For her, the countervailing factor that causes her to be “torn” is: on the one hand, you get a reputation for candor. On the other hand, it doesn’t help Republicans. I’m torn!

This is not an argument about zealous advocacy. It’s about partisanship.

This segment was very revealing to me, in terms of how Sarah Isgur sees one’s duty to be forthright and honest, as contrasted with the need to push a particular point of view—even a political one.

Her attitude explains so much about her stubbornly recalcitrant attitude towards corrections of pro-Trump errors, doesn’t it? (Regular readers know what I mean; if you don’t, search for her name on this Substack and you will.) If you correct her, you apparently need to do so five times . . . because she will ignore you the first four times at least (I have experienced this with her), and in the meantime she will feel justified in banging the table and ignoring you.

Keep in mind that Isgur is a former DOJ spokesperson. (Real DOJ lawyers must be so embarrassed by these comments of hers.)

The Supreme Court Decision

So like I said, we now have a decision from the Supreme Court in the Abrego Garcia case. As I said, the legal pundits are applauding it as a unanimous victory for Abrego Garcia and the rule of law.

It’s time for me to explain why I said I’m not so sure about that.

The decision was not necessarily “unanimous.” Instead, it was issued as a per curiam decision with no recorded dissents. Three justices issued a separate statement regarding the ruling. Let’s see how we can read these tea leaves, starting with this key passage from the per curiam decision:

The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

I’m fine with showing “due” regard for the Executive Branch and its conduct of foreign affairs, to a point. But I suspect the point at which I deviate from that “due” regard is very different from the conservative majority at the Supreme Court, for at least two reasons.

First of all, the conservative majority is bonkers on issues of executive authority. They defer way, way too much to the Executive Branch. We saw this in the immunity decision. I’m not going to make the argument again; I already discussed it extensively in my post from last year about that decision. But they are truly out of their minds—and a big part of the problem is that, as Steve Vladeck has argued, the Court gives this administration a presumption of regularity (an assumption that it will act in good faith) that the administration has not earned. As Vladeck says:

[W]hat if the government, in response to questions about the arrangement between the United States and President Bukele, invokes the state secrets privilege (as it did before Chief Judge Boasberg in the J.G.G. litigation) to prevent Judge Xinis from answering them (even with respect to information that has already been publicly tweeted by Secretary Rubio)? What if the government instead files declarations from Trump appointees swearing that there are no steps they can take at this point to secure Abrego Garcia’s release, whether or not that is actually true?

As I expected it would, the Government has since done the first thing Vladeck mentions here (invoke the state secrets privilege), and will undoubtedly do the second thing (lie in declarations) if forced to.

The second reason I am skeptical of this opinion can be found in the other bolded part of the passage above (the blockquote before the latest one), which pairs the concern for the prerogatives of the executive with a concern that the District Court’s use of the word “effectuate” may be one of those things that impinges too much on the executive’s powers. Put in simple English, the Court has signaled that it is wary of an order that actually makes the Government bring Abrego Garcia back. That, they appear to be signaling, would be a step too far.

So, I believe the Court has sent a clear signal that it will not tolerate the kinds of orders that I would be inclined to issue if I were the judge—like rejecting a state secrets invocation, or forcing high-level administration officials to disclose the relevant aspects of the deal, or (above all else) ordering the administration to halt all payments to Bukele until Abrego Garcia is delivered back into the United States.

I think that becomes even clearer when you look at the separate “statement” (technically not a concurrence) signed by the three liberal justices. It ends with this statement:

In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.

Only three justices are willing to put their names to that contention.

How has the Trump administration reacted to the Court’s ruling? I predicted it would be by stonewalling. Always trust content from Patterico.

That was just the beginning. When Bukele showed up in the Oval Office, we were treated to one of the most disgraceful spectacles we had witnessed in the Oval Office in at least . . . well, at least since about six weeks earlier, when we were treated to the disgraceful spectacle of JD Vance and Trump berating Zelensky for having led a nation that was invaded by Vladimir Putin.

Remember what the Supreme Court said in the Abrego Garcia case: “The order properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” Other than asking the District Judge to clarify the meaning of the term “effectuate,” and vacating a deadline that had passed by virtue of the Supreme Court having issued an administrative stay, the Court had upheld the District Court’s order in all respects. What’s more, it was a per curiam decision with no noted dissents. While reporting that it was a “unanimous” decision was not necessarily accurate, because we don’t really know who has joined a per curiam decision, we do know that Justices Thomas and Alito (the most likely to dissent) are not shy about dissenting from per curiam decisions and other sorts of emergency docket decisions. So it may well have been a unanimous decision on the narrow issue, and the District Judge’s order was upheld in the main.

So what did Trump do? He had Stephen Miller stand up and lie to Bukele’s face about the content of the decision:

There is a transcript of the relevant exchange here which refers to Stephen Miller as an “unidentified speaker.” As I replicate the exchange below, I will identify Miller because we can see in the video that it’s him:

REPORTER: So will you return him, President Trump?

PRESIDENT TRUMP: You are doing a great job. Wait a minute. Can you just also respond to that question? Because it’s asked by CNN, and they always ask it with a slant because they’re totally slanted. They don’t know what’s happening. That’s why nobody is watching them. But would you answer that question also?

STEPHEN MILLER: Yes, gladly. So as Pam mentioned, there’s a legal alien from El Salvador. So with respect to you, he’s a citizen of El Salvador. So it’s very arrogant even for American media to suggest that we would even tell El Salvador how to handle their own citizens as a starting point.

As two immigration courts found that he was a member of MS-13, when President Trump declared MS-13 to be a foreign terrorist organization, that meant that he was no longer eligible under federal law, which I’m sure you know, you’re very familiar with the INA, that he was no longer eligible for any form of immigration relief in The United States. So he had a deportation order that was valid, which meant that under our law, he’s not even allowed to be present in The United States and had to be returned because of the foreign terrorist designation.

This issue was then by a district court judge completely inverted, and a district court judge tried to tell the administration that they had to kidnap a citizen of El Salvador and fly him back here. That issue was raised to the Supreme Court. And the Supreme Court said the district court order was unlawful and its main components were reversed unanimously, stating clearly that neither Secretary of State nor the President could be compelled by anybody to forcibly retrieve a citizen of El Salvador from El Salvador, who, again, is a member of MS-13, which, as I’m sure you understand, rapes little girls, murders women, murders children, is engaged in the most barbaric activities in the world.

And I can promise you, if he was your neighbor, you would move right away.

REPORTER: So you don’t plan to ask for any of us to get it? And what was the ruling in the Supreme Court?

STEPHEN MILLER: Yes. It was nine-zero in our favor. In our favor against the district court ruling, saying that no district court has the power to compel the foreign policy function of The United States. As Pam said, the ruling solely stated that if this individual at El Salvador’s sole discretion was sent back to our country, that we could deport him a second time.

No version of this legally ends up with him ever living here because he is a citizen of El Salvador. That is the President of El Salvador. Your questions about per the court can only be directed to him.

It’s hard to see how Trump is “facilitating” the return of Abrego Garcia to the United States by having Stephen Miller lie to the President of El Salvador about the content of the relevant Supreme Court ruling.

The “facilitating” has continued at the official White House Twitter account, with crap like this:

and this:

If they facilitate his return any harder, he’ll be teleporting back!

Meanwhile, the lawyers in court in front of the District Judge have been playing word games about what the Supreme Court order meant. They claim that “to ‘facilitate’ an alien’s return is to remove any domestic obstacles that would otherwise bar the alien’s ability to return.” This ridiculous view was directly at odds with what the Supreme Court ordered, as Reagan appointee J. Harvie Wilkinson noted in his excellent opinion: “Thus, the government’s argument that all it must do is ‘remove any domestic barriers to [Abrego Garcia’s] return,” Mot. for Stay at 2, is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.” The Government knows this. They are just playing games . . . with a man’s life.

Judge Wilkinson’s opinion has several notable passages, including one accusing the Government of “spurn[ing]” a court order:

Judge Wilkinson worries about Trump possibly sending U.S. citizens, including his “enemies,” to the same El Saldavor prison:

And Wilkinson says that the Trump administration’s actions should be “shocking” to Americans:

Just as Trump is playing games with Bukele, each claiming he has no ability to do anything about the situation, so is Trump playing a similar game with his lawyers. In an interview with TIME Magazine published on April 25, Trump blamed his lawyers. Italics here are mine:

The Supreme Court ruled 9-0 that you have to bring back Kilmar Abrego Garcia. You haven't done so. Aren’t you disobeying the Supreme Court?

Well, that’s not what my people told me—they didn’t say it was, they said it was—the nine to nothing was something entirely different.

Let me quote from the ruling. “The order properly requires the government to facilitate Abrego Garcia's release from custody in El Salvador.” Are you facilitating a release?

I leave that to my lawyers. I give them no instructions. They feel that the order said something very much different from what you're saying. But I leave that to my lawyers. If they want—and that would be the Attorney General of the United States and the people that represent the country. I don't make that decision.

Have you asked President Bukele to return him?

I haven’t, uh, he said he wouldn’t.

Did you ask him?

But I haven’t asked him positively, but he said he wouldn’t.

But if you haven't asked him, then how are you facilitating his release?

Well, because I haven't been asked to ask him by my attorneys. Nobody asked me to ask him that question, except you.

. . . .

Maybe, but Mr. President, whatever he might have done, whoever he might be affiliated with, doesn’t he deserve his day in court? Nazi saboteurs who came on our shores at Montauk during World War II had their day in court. Al Qaeda terrorists had their day in court.

I really give that to my lawyers to determine, that’s why I have them. That’s not my determination. It's something that, frankly, bringing him back and retrying him wouldn't bother me, but I leave that up to my lawyer. You could bring him back and retry him—

That’s exactly right. You could fix this simply by bringing him back and going through the legal process—

But I leave that decision to the lawyers. At this moment, they just don’t want to do that. They say we’re in total compliance with the Supreme Court.

Ah, the “facilitation.” You can just feel the power of Trump’s efforts to facilitate Abrego Garcia’s return. The games-playing continued in the aforementioned interview Trump did with Terry Moran:

"You could get him back. There's a phone on this desk," Moran told Trump, pointing to the phone on the Resolute Desk.

"I could," Trump conceded.

"You could pick it up, and with all--" Moran began to say.

"I could," Trump said again.

"--the power of the presidency, you could call up the president of El Salvador and say, 'Send him back right now,'" Moran explained.

"And if he were the gentleman that you say he is, I would do that," Trump offered, before saying, "I'm not the one making this decision."

Why are they fighting so hard? I suspect part of the answer lies in their fear that a court hearing will expose as lies their claims that Abrego Garcia is a horrible MS-13 gang member. An article in The Atlantic revealed that when the adminisration first analyzed the case, “[t]he thin evidence supplied in response was met with skepticism from the State Department lawyers.”

Some U.S. officials doubted Abrego Garcia’s alleged gang ties from the beginning. In their discussions, State Department officials repeatedly asked DHS and ICE to explain how Abrego Garcia had been identified as an MS-13 member; his possible affiliation with the gang would be a factor in Bukele’s willingness to consider releasing him should the ambassador make a pitch, the officials pointed out. (When Bukele appeared with Trump in the White House on April 14, Bukele called the notion that he would return Abrego Garcia to the United States “preposterous.”)

Abrego Garcia’s record had traffic violations but no criminal charges or convictions. Yet ICE officials told the State Department—falsely—that he had faced criminal charges. They pointed to records showing that Abrego Garcia had been suspected of human or labor trafficking after a traffic stop in Tennessee in 2022. State police had referred the incident to federal authorities because Abrego Garcia had been driving a van with eight passengers from Texas to Maryland. Abrego Garcia had told officers that he was driving the group to a construction job and that the vehicle belonged to his boss. He was cited for driving with an expired license but not charged with human trafficking or any other crime.

ICE said that Abrego Garcia was a member of an MS-13 group called the Western Clique, citing a 2019 report by a gang investigator in Prince George’s County, Maryland. The investigator who filed the report was suspended soon after and charged with misconduct in an unrelated sex-worker case. The document has not been treated as credible by the federal judge overseeing the lawsuit. The Western Clique operates in New York State; Abrego Garcia has never lived there.

In a recent case where the Government was put to the test to prove a different set of folks were Tren de Aragua gang members, more than one judge has rejected the Government’s position as so flimsy it made the judges angry. A sample quote:

But I also think something else may be going on, and it’s alluded to by Judge Wilkinson in the opinion quoted above. Namely, I think Trump may see this as a chance to establish possibly the most important principle of his entire presidency: the ability to exile his critics to a foreign prison without judicial review.

Think about it. Add up everything that Trump is claiming in these cases:

1. He claims he can decide who is an alien enemy with no judicial review

2. He is trying to show he can “mistakenly“ deport people to a foreign prison without consequence; and

3. (He hopes) he can convince the courts not to interfere when he says he can’t get them back.

If he can establish those three points, he will have the ability to effectively throw any critic of his, citizen or no, into a foreign prison for potentially the rest of their lives. And no court can stop him.

All that remains is finding agents who will carry these orders out.

If he can establish that kind of power, he will be a for-real no joke dictator, just like Putin and Xi and all the other strongmen he admires so much. I suspect he considers this possibility worth taking a shot.

I think the Supreme Court’s decision in the Abrego Garcia case hints that six justices may allow Trump to get away with failing to bring Abrego Garcia back, by claiming either that Bukele won’t do it, or that it harms foreign policy interests too much to make him really try. Early on in this case, after the Supreme Court issued its decision, I heard pundits like David Frum predict that Trump would not fight it. Why would he? they would opine. The Government has admitted error. It’s a loser for him.

I thought otherwise, for the reasons I just explained. If Trump can establish the principle that he can send people he doesn’t like to a foreign gulag without consequence, he has truly found that One Weird Trick to retaliate against his enemies that works every time.

As for other reasons I never thought Trump would back down: he never admits error. We know this. And in any event, what’s the downside in stonewalling? Trump‘s base likes the concept of torturing brown people. Trump’s continued defiance of court orders would also have the pleasing side effect of giving him the chance to test the Supreme Court’s resolve in a relatively low-stakes case. I think Trump senses weakness in the Justices’ tributes to the importance of foreign policy, and in their decision not to force him to “effectuate“ Abrego Garcia’s return.

And as Ed Whelan pointed out, fighting the return of Abrego Garcia serves Trump’s interests in other ways.

So, I predicted these games all along. I acknowledged that my cynicism could be misplaced—but I doubted it was. I rarely go wrong by assuming the worst about Donald Trump. And the dishonest antics of DOJ today have at no point dispelled my suspicions.

They pretend to comply.

But they only pretend.

We’ll return to this concept below.

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PART II: TRUMP AS MOB BOSS, AND THE TRUMP BRAIN WORM

What makes all of this lawlessness possible? The answer to that is easy. It is the consequence of putting a criminal in charge of criminal law.

Trump is a criminal and a mob boss. He aligns with criminals. He freed all of the January 6 insurrectionists—and in describing the battle between them and Capitol police, Trump has used the term “we” to refer to the insurrectionists. It has always been clear he was on their side. As I mentioned up top, Trump has even asked the head of the Proud Boys to thank the January 6 insurrectionists.

Trump has always talked like a mob boss. Those who listened to Trump’s secretly recorded conversations with Michael Cohen remember that when they discussed their illegal arrangement with David Pecker, they would talk about “our friend David” and worried what would happen to their arrangement if Pecker weren’t around. “Maybe he gets hit by a truck,” Trump would say.

The election of Donald Trump marks the first time America has put a mob boss in charge of the federal criminal justice apparatus. Unsurprisingly, the result has been to embolden the criminals and to intimidate those who enforce the law. We should see this as the natural consequence of the electorate’s decision to elect a criminal to office.

Mob bosses can be charming, I’m told. People found Tony Soprano lovable, and enjoy posting memes of the Godfather. (I’m guilty of that too. You’ll see this in short order.) Steve Witkoff, Chief Negotiator in Favor of Selling Out Ukraine, is mighty charmed by mob boss Vladimir Putin. And Bill Maher was recently quite charmed by a lovely dinner with the jackass mostly responsible for this screed numbering tens of thousands of words.

People love mob bosses, it appears.

But the man is still a criminal and he is still a mob boss.

Celebrating Criminals

One of the consequences of the environment Trump has created is the celebration of criminals and their criminal activity.

Here is a video of “Eagle Ed” Martin, until recently the interim U.S. Attorney for the D.C. Circuit, and a certified Trump goon whom I will discuss in more detail below, giving an award to a white supremacist anti-Semitic Nazi sympathizer convicted of crimes in connection with January 6.

You should click and watch the video:

In an opposition to defendant’s motion for conditional release filed in 2021, the Government noted that Naval investigators had interviewed dozens of Hale’s fellow seamen in the Navy. Here’s what some of them had to say:

Want to see that Hitler mustache? Here’s our “extraordinary leader” and award winner:

Above: the “extraordinary leader” (according to recent interin U.S. attorney Eagle Ed Martin) wearing his Hitler mustache.

NPR notes: “He [Hale] avidly supported former President Trump, and texted with friends about politics using racist, anti-gay, and antisemitic slurs. At one point, he texted a friend that Democrats might steal the 2020 election through ‘n***** rigging.’”

Oh, OK. I guess that’s what it takes for extraordinary leadership, in the eyes of one of our (former) top federal law enforcement officials.

By the way, once Eagle Ed started angling to become a real honest-to-goodness confirmed U.S. Attorney, he suddenly got religion about Hale. Why, Martin claimed, he had no idea about Hale’s Nazi sympathizing!

Too bad recordings show he is lying…

II.A. Trump Has Emboldened Criminals

It is not surprising that criminals are emboldened in this new atmosphere of crime celebration.

One example: some of you may have the video of Proud Boys leader and (until Donald Trump) convicted seditionist Enrique Tarrio (last seen thanking Trump for his pardon) stalking some of the cops who helped defend the Capitol. This occurred during the Principles First summit, a competitor to the insanity of CPAC. Principles First is a summit of people whose politics are essentially like mine. It’s a place where people like me, who read the Bulwark and The Dispatch, feel welcome. Former Capitol policeman Michael Fanone was in charge of security, and Tarrio wanted to make him feel uncomfortable. So he pursued Fanone and cursed at him:

(Not incidentally, Raiklin, who posted the video, is one of the key figures behind the idea that almost got Mike Pence swinging from a gallows. Raiklin tweeted out the “Operation Pence Card” memo that spurred John Eastman to advise Trump that Mike Pence could unilaterally reject a state’s slate of electors, as part of a scheme to help Trump take office after he had lost.)

In the video, Raiklin has a creepy schtick where he combines the obvious menace of his and Tarrio’s presence at the hotel near Fanone, on one hand, with a casual “hey why don’t you guys come to lunch with me?” kind of banter, on the other. It’s very much like a mobster who shows up unexpectedly at the next table over from the key witness and says “hey, Frankie, why dontcha pull up a chair and let’s chat it up, huh?” He ends the video with a soliloquy about how Fanone’s (entirely righteous) anger at being stalked just shows you what a hothead Fanone is. If Fanone was that wound up in a nice calm hotel, this sinister shitbag tells the camera, how bad do you think he was on January 6?

Left uncommented upon is Tarrio’s own repeatedly profane screaming and pointing of fingers, as Fanone got on an elevator. “Run from me, motherfucker! Run from me! Fuck you, bitch! Fuck you, you’re a goddamn shit!” (Criminals’ vocabulary sometimes leaves something to be desired.)

Tarrio knocked a phone out of a woman’s hand in the presence and full view of police officers, who arrested him on the spot for assault. But absolutely nobody thought that the federal government, operating out of a U.S. Attorney’s Office run by our friend Eagle Ed Martin, would prosecute Tarrio. And course they didn’t.

Then we have Trump himself gloating over his ability to punish a law firm for the offense of having worked with Jack Smith:

The glorification of criminality has gotten so bad that the Justice Department has even taken the position that people who were pardoned for January 6 crimes. but prosecuted for other crimes uncovered during the investigation, ought to have those convictions undone:

The Justice Department has not taken this position in every case. Sometimes the “other crime” is just too bad even for Trump’s DOJ. Like a plot to kill FBI agents. (That’s a crime under Kash Patel’s FBI and Pam Bondi’s DOJ? Apparently it is! For now!) Same goes for David Daniel, accused of possessing child p*rn. DOJ decided letting him off the hook for that might not be a political winner.

But when it came to Dan Wilson, a J6er who illegally possessed a gun, the Government tried to give him a free pass. The judge rejected this position and the Court of Appeal agreed (with Trumpist hack Neomi Rao dissenting), but that was possible only because the guy had already been convicted. Many other pending cases are being dropped and there is little judges can do about it.

Again, the criminals win.

II.B. The Trump Brain Worm

Watching the video above of Eagle Ed Martin extolling the virtues of an unrepentant white supremacist surely stirs in the reader a very familiar sentiment. It’s one I feel all the time. It goes something like this:

Wow, that’s crazy! Taking a guy who is obviously evil, and not just excusing his behavior but even applauding it and giving it an award. I mean, I know Trump and his cultists do that kind of thing all the time, but still . . . this is really crazy.

How many times a day do we have thoughts like these? I know they’re always crazy but man, this is really really crazy.

We see Trump praising Putin for being smart in invading Ukraine, a genocidal operation in which up to 35,000 children have been kidnapped and had their identities erased.

Or we see Trump playing a song at a rally recorded by a choir of criminals who invaded the Capitol on January 6, 2021 to help him overturn an election he had lost.

Or we see Trump threatening to take Greenland by military force—an island owned by an ally (or perhaps erstwhile ally), Denmark, that is part of a mutual defense treaty we are nominally part of that would obligate members to fight us if we attacked.

Or we see Trump posting a video that says he is deliberately crashing the stock market with ridiculous worldwide tariffs to force the Federal Reserve to lower interest rates.

I could probably list another dozen examples without breaking a sweat. Whether it’s nominating Matt Gaetz to run the Justice Department, or bringing criminal Steve Bannon, Russia money-taker and plagiarist Benny Johnson, and certified lunatic Mike Davis to the same Justice Department to talk about “politicization” of that Department, or a host of other things . . . you look at it and you just have to shake your head and say “what the actual f[vowel deleted]ck?”

I know they’re always crazy but man, this is really really crazy.

And each and every time, a gaggle of slack-jawed Trump supporters applauds. No matter how evil the position, Jesse Watters is there to defend it. Let’s invade Greenland! We don’t need friends in this world! We dropped the A-bomb on Japan and they’re our close ally! Jeanine Pirro will be there to say that, with her countless millions, she doesn’t worry if her 401(k) is decimated. Benny Johnson, also having earned countless millions through idiotic Internet bullshit, also proclaims that one’s life savings is just a set of numbers on a screen.

I know they’re always crazy but man, this is really really crazy. And all these voters still support it?

How often can we watch people line up to have Trump punch them in the groin, and then thank him for it, before we wonder if there is something else going on? How many times can we continue to utter a phrase like I know they’re always crazy but man, this is really really crazy before we wonder if there is something else going on?

Most people are aware that RFK Jr. has claimed that he has a brain worm.

I suggest that truly ardent Trump fans have a brain worm: the Trump brain worm.

There are parasites that make organisms do what the parasite wants. Annaka Harris discusses some of these in her audio documentary Lights On. For example, there is the horsehair worm:

Horsehair worms are known for their terrifying ability in some species to highjack their hosts nervous system, altering their behaviour to actively seek out water. Once near water, the horsehair worm causes the host to jump into the water drowning itself so the adult parasite can return to reproduce completing the lifecycle.

The horsehair worm needs to be in water. Water will kill a cricket. The horsehair worm doesn’t care. It needs to get to the water. So it causes the cricket to jump in the water, killing itself.

Imagine you were a cricket in a community of crickets that could communicate. One day you see a cricket drowning itself. That’s weird, you think, but I guess it’s happened before. But then the next day, four crickets drown themselves. And the next day a dozen do. Soon enough, you see hundreds of fellow crickets headed towards the water and you say to yourself: man, this is really really crazy. Don’t they know they’ll drown in the water?

I think you’d feel like you do watching Trump do all these totally evil and destructive things and get applauded for it. How can people applaud something so crazy?

Imagine you could make your case to cricket leaders who, you think, have the ability to talk the other crickets out of drowning themselves. And every cricket leader says that in the long run it’s good that this is happening, or otherwise defends it. Some of the leaders seem ashamed while making this argument. Some of them seem bold and proud. But nobody is saying it should not happen.

I think you’d feel like we all do watching GOP Congressmen and Congresswomen defending Trump on things like making us Russia’s ally against Ukraine, or on Trump singlehandedly crashing the stock market.

There are similar parasites for other species. Toxoplasma gondii or T. gondii can infect the brains of rats and cause them to become attracted to cat urine and even cat pheromones. Why? Again, because it helps the parasite:

By blocking the innate aversion of rats for cat urine, T. gondii increases the likelihood of a cat predating a rat, which increases the chances of the parasite re-entering the feline intestine, where it can reproduce sexually, completing its lifecycle.

T. gondii needs to be in a cat intestine. Being inside a cat intestine tends to kill a rat. T. gondii doesn’t care. It needs to get inside that cat. So it causes the rat to walk right up to a cat, which obviously makes it more likely that the cat will eat the rat.

Again, imagine trying to reason with the rats approaching the cats. “Didn’t you see what happened last week when Templeton walked right up to that cat? IT ATE HIM! What are you DOING? Have you gone INSANE?”

Now imagine that you learn about T. gondii. Does your knowledge make you better able to reason with the infected rats? Could you hop on Twitter and explain to the infected rats that “It’s that T. gondii doing this to you! Don’t listen to it! Stay away from those cats!”

Would you be able to bring facts, logic, and evidence to the debate and win?

No. The rats would first run to Twitter and type out an obnoxious reply like this:

And the rats would then log off and walk straight into the cat’s maw.

This is what is going on with Trump. His biggest fans have a Trump brain worm.

I don’t mean literally, of course. But we should think of it in the same way we would if the brain worm were a literal brain worm.

I have taken to labeling Trump superfans “cultists,” which I think is closer to the actual truth, as I do not believe that there is a literal parasite in their brains. The ones who believe he has unlimited powers as president; who believe that he was chosen by God; who cannot even fathom that he could be lying about anything; who believe in QAnon and similar insane conspiracy theories . . . these people are, I believe, literal cultists. They are indistinguishable from anyone else we would label an actual cultist. Asked to travel to Jonestown and drink the Flavor-aid, many would. There is no lie Trump could tell they would not believe, and no order he could issue that they would not follow.

But the problem with the cult analogy—although I think the analogy is incredibly apt—is that it quickly loses force . . . because it just sounds like an insult.

When you picture the cultist as having a brain worm, though, it makes it less surprising when they act like they have a brain worm. You stop saying I know they’re always crazy but man, this is really really crazy and you start saying well of course they approve of this. They have a brain worm!

And it makes it easier to identify the cure . . . or at least, to recognize what will not be a cure.

You’re not going to be able to cure them with facts, logic, or evidence, any more than you could cure an infected cricket or rat by explaining to them that they have a parasite inside their body. The parasite has to come out. You have to find a way to kill the parasite (insane Trumpist beliefs) without killing the host (the hapless cult members who hold those beliefs).

Now: the methods by which people deprogram cult members is a subject beyond my expertise. I’m not sure anyone is reliably good at it. My general understanding is that it takes an extraordinary amount of time and personal attention from someone who can build a relationship of trust with the cultist. It takes someone who can gently engage the cultist with indirect and subtle questioning, the subtle sharing of information, exposure to other former cult members, and a tremendous amount of patience (something I lack when speaking to cultists, I will admit).

Here’s what won’t work. There is no way I know of to deprogram people en masse, and I am certain it can’t happen over social media. And it certainly can’t happen just by presenting facts, logic, and evidence and expecting the cultist to reason themselves out of the cult.

As Jonathan Swift said: “Reasoning will never make a Man correct an ill Opinion, which by Reasoning he never acquired.” Or as you may have heard it expressed: “You cannot reason someone out of something he or she was not reasoned into.”

Alternatively, you could submerge their lower half in water and hope the parasite comes out their rear end. (Don’t watch the video if you ate recently.)

Next: Consequences

The fact that it’s tough to reason cultists out of their beliefs brings us to the concept of consequences. We ask ourselves questions like:

• Can any kind of consequences drag these people out of their belief system?

• And why do consequences seem to happen only to the voters and never to Trump?

• And how is Trump imposing consequences on his critics?

Watching the triumph of the criminals is not easy. Watching Trump do evil things and suffer no consequences is difficult.

In the next part of the newsletter, I explore the concept of consequences. We’ll start by exploring whether cultish voter behavior can be altered through the imposition of consequences stemming from Trump’s behavior. Then we’ll move on to a discussion of the importance of imposing consequences for Trump and his cabal of fascists. Finally, we’ll look at how Trump is using his power to impose consequences on everyone he doesn’t like—and how he does so by PRETENDING TO OBEY THE LAW . . . but not pretending very hard.

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PART III: TRUMP AND CONSEQUENCES

So you can’t reason cultists out of their beliefs. Is there another way?

III.A. Imposing Consequences on Trump’s Voters, or, the Fallacy of the “This Is the Thing That Will Finally Sink Trump” Trap

I am a fan of both the Dispatch and the Bulwark, and one topic I have seen repeatedly discussed at both places is the question of imposing consequences on Trump’s voters. When I say this, do I mean actively seeking to harm people who voted for Donald Trump? No, silly, of course I don’t mean that. That’s a conclusion bad faith people would take from my provocative headline, but it’s not what I’m talking about at all.

I’m talking instead about allowing Trump to impose consequences on his own voters, by failing to oppose the destructive policies he supports.

After all: this is what the people voted for. They want ruinous tariffs? Fine. They want HHS to ban vaccines? OK then. They want the government to give our intelligence secrets to Putin? Have at it! They want to convert the military and the federal law enforcement apparatus into instruments of Trump’s corrupt will? Why not? It’s what the voters are asking for, isn’t it?

The best-articulated argument for this rather shocking position came from Nick Catoggio, formerly Allahpundit, at The Dispatch, in a piece called Good and Hard. Published on November 8, nearly in the immediate aftermath of the election, when we were all feeling pretty depressed, Nick let loose a cri de coeur whose title reflects a well-known saying from H.L. Mencken. Here’s Nick:

DHS Secretary Greene? If Trump made that nomination and I were a senator, I would vote to confirm.

FDA Commissioner Robert F. Kennedy? I’d be a yes on him too. Attorney General Jeffrey Clark? Also yes. Supreme Court Justice Aileen Cannon? I don’t see why not.

“Democracy is the theory that the common people know what they want and deserve to get it good and hard,” H.L. Mencken famously said in another bit of prose I wish I’d written. I find that logic insuperable under the present political circumstances. The American people are MTG; MTG is mainstream America. By what right should their representatives in the Senate deny them the government they’ve asked for?

Give it to them. Good and hard.

The Mencken quote is a less genteel and more amusing version of Thomas Jefferson’s dictum: “The government you elect is the government you deserve.” So why not give it to the American people? They elected it; they deserve it. Good and hard.

The topic comes up all the time at the Bulwark. On an edition of Mona Charen’s excellent (and now sadly defunct) podcast Beg to Differ, a guest said we must all oppose Tulsi Gabbard, because she poses a serious risk of undermining our intelligence apparatus by giving our secrets to Putin. But, he said, go ahead and confirm RFK, Jr. The voters asked for it!

Jonathan V. Last and Sarah Longwell have had a variant of this conversation on and off for months now, with Tim Miller and Bill Kristol chiming in from time to time. The JVL position is definitively in favor of letting Trump voters “touch the hot stove.” How will they learn the stove is hot unless they touch it? Sarah Longwell, who speaks to actual voters much more often and is consequently more sympathetic to them, is wary about letting the government run wild with, say, banning vaccines. But ruinous tariffs? Sure, why not? Oh, so tariffs will drive up inflation? OK, maybe people need to see that happen, Longwell thinks.

These pundits have persisted in making this argument. Was Catoggio simply temporarily angry on November 8 when he wrote that the voters needed to get what they had chosen, and get it “good and hard”? Maybe, but he seems committed to the position. On November 14 of last year, Trump announced that he intended to choose RFK, Jr. for HHS Secretary—despite Trump’s campaign co-chair (now a buffoonish Commerce Secretary) having laughingly denied that possibility in no uncertain terms just a couple of weeks earlier (before the election, natch):

In response to the Trump announcement, on November 15, Catoggio wrote the following,

I meant what I said last week: Kennedy should be confirmed, just as Gaetz, Gabbard, and Hegseth should be. Americans deserve the administration they voted for, even if that means suspending standard background checks and suppressing damaging disclosures for the sake of shepherding them through.

I see similar arguments all over Twitter and Bluesky. Especially Bluesky. Let the voters touch the hot stove!

When it came to Trump’s Cabinet nominees, Catoggio got his wish as to all but Gaetz—who is, I’m quite sure, kicking himself for having withdrawn his nomination. Does anyone doubt he would have been approved if Senators had been forced to vote in public? And if you think Pam Bondi is a big improvement over Gaetz, you must have traveled back in a time machine to a time before she was confirmed, when many people were saying exactly that. Few people are still saying it today.

“This Is the Thing That Will Finally End Donald J. Trump”

The idea behind the Catoggio/JVL position is this: maybe a little suffering is what it’s going to take to break people of their attachment to Trump. Let me hand the mic to Catoggio:

The American people have done everything they could reasonably do to weaken the taboo against authoritarian criminality. The only thing left that might work to deter them from ever doing something like this again is making them live with the consequences of their decision.

Give them Trumpism red in tooth and claw, unsanitized this time. If he nominates out-and-out cranks for major Cabinet positions, confirm them. The Senate will confirm them, I think: Marco Rubio, a “good Republican,” all but admitted it this week when he was asked about the prospect of a Kennedy nomination. Once the GOP reached 52 seats on Tuesday night, rendering Sens. Susan Collins and Lisa Murkowski irrelevant, any chance of this party of geldings resisting Trump’s demands in the upper chamber disintegrated.

“The American people have chosen. They should not be insulated from the consequences of their choice,” Jonathan Last wrote on Friday, urging Democrats not to block elements of Trump’s agenda that will primarily harm his own voters. It’s really that simple. If you want to stop future generations from experimenting with postliberalism, they’ll need to see the results of the experiment that our generation is conducting. Let Trump carry it out.

Ah, there’s that word. “Consequences.”

This way of looking at things is, I think, flawed. And I think Catoggio knows it.

Before I explain why it’s wrong, allow me to say this: I understand the Catoggio/JVL position very well. I think I understand these guys because they sound a lot like me. Like me, they are idealistic people who believe passionately in basic principles of morality and decency. But, like me, they cover up that idealism under a veneer of despair, cynicism, and frankly dour unpleasantness about the hordes of cretin Trump voters who don’t care about these principles in the slightest.

But the notion that the electorate can be “deterred” from preferring Trumpism through the imposition of consequences strikes me as a variant of a fallacy that the rational portion of our electorate has clung to ever since Donald J. Trump rode down some form of gold-plated conveyance to a throng of faux supporters* in June 2015:

THIS IS THE THING THAT WILL FINALLY END DONALD TRUMP!

Since that time, observers have watched him say and do things that would end the political careers of any normal person. Trump’s secret appears to be that, after he says or does one outrageous thing, he does another later that day or the next day. So before the media can sink its teeth into any one “scandal,” there is another one. And like the Up dog (what’s the Up dog? Nothin’ much, what’s the up with you?), the press yells SQUIRREL! and is off to the next scandal, which they will dutifully focus on for, like, five whole hours until yet another one comes along.

We did not always know it would go this way. It’s hard to remember, but in the distant past, each time that a Trump scandal was sufficiently bad—and many of them have been—many of us, at least initially, had the idea: well, he can’t possibly survive this.

One of the first times I thought this was when Trump mocked John McCain’s capture as a prisoner of war. Remember that one? “I like people who weren’t captured.” How could he survive that? many of us thought.

Seems positively quaint now, doesn’t it? I started off this newsletter with a list of Trump’s atrocities from his second administration alone. And yet here again I find myself wanting to make another (shorter) list of the atrocities from his recent campaign and from his first administration—you know, the “good” Trump administration that was supposedly so very normal, our citizenry decided it was OK to elect him again. This very short list is just a handful of items that Trump got away with before he became president again. The actual total menu of such items is so large that I am necessarily failing to do justice to several dozen awful things that ought to disqualify anyone from the presidency. Whether it’s trying to steal an election, or riling up a mob to attack the U.S. Capitol, or shrugging at the mortal danger posed to his vice-president, or trying to have Hillary Clinton prosecuted after her case was closed, or stealing classified documents and ordering people to delete video evidence of that to hide it from the FBI, or committing 34 felonies in New York state, or years’ worth of violent rhetoric . . .

. . . or hundreds of corrupt little actions like sending Mike Pence to Doonbeg, a Trump property in Ireland that was 180 miles from Pence’s actual destination, so that a bunch of Secret Service agents would have to put taxpayer money directly in his pocket . . .

. . . or telling Jim Mattis to “screw Amazon” out of a $10 billion cloud computing contract after the Washington Post (owned by Amazon’s owner Jeff Bezos) criticized Trump . . .

Trump has survived it all.

“This is the thing that will finally end Trump!” is a chimera. I have already observed at some length that Trump may be the closest thing to a cult leader this country has seen as president. JFK (especially after his assassination) or FDR or Obama might have seemed like they were candidates for cult leader, but they really didn’t hold a candle to the hold Trump has on his cult.

And Catoggio knows it. He’s smart enough to be pessimistic:

Full Trump, no limits. We’ll get the deterrence I wanted in the end. It’ll just be much, much more expensive than it needed to be.

It’s not so simple, though, is it?

It’s not.

First of all, as Catoggio points out, a lot of vulnerable people will be hurt by Trump’s policies, if Trump finally gets to implement everything he has ever dreamed about implementing. And many of those vulnerable people are entirely innocent. Children who can’t get vaccines. Protesters who get shot in the legs if Trump has any say over how the federal government handles crowd control. Before this administration started, Trump’s goon border czar even talked about deporting children who are U.S. citizens.

Vega: "Why should a child who is an American citizen have to pack up and move to a country that they don’t know?"

Homan: "Because their parent absolutely entered the country illegally, had a child knowing he was in the country illegally, so he created that crisis."

(Homan wasn’t kidding, by the way. We’ve already seen people suffering under this administration—including concerns that the administration has, in fact, deported children who are U.S. citizens despite a Trump-appointed judge expressing concerns that this has happened with no meaningful process.)

But forget the innocents and the vulnerable. (That’s easily and commonly done in this country.) There is a more fundamental problem here, Catoggio notes:

The prospects for deterrence depend an awful lot on the decency of the American people, no? Most of us have spent our lives taking that decency for granted, but we really should stop.

If there’s a shining lesson from Trump’s reelection it’s that Americans no longer care even a little bit about decency in their leaders, at least not when eggs are more expensive than they used to be.

Exactly. And this especially applies if the people to suffer consequences are those whom Trump’s fans consider The Other:

The results of this election have given us every reason to believe Americans will tolerate Trump’s brand of politics to the extent it’s competent in administration and judicious in who it persecutes—“judicious” in this case meaning Them, not Us.

With apologies to Mencken, one might say that democracy under postliberalism is the theory that the common people get what they want while the less common people get what’s coming to them, good and hard. If that’s so, a Cabinet of cretins won’t put most Americans off of Trump. It might be just what they’re hoping for.

Ah, you say, but Patterico. You and Catoggio are entirely missing the point. We are here talking about imposing consequences directly on Trump supporters. Surely personal pain will cause them to finally change their minds. That’s the argument here! It’s not about abstract concepts of decency! It’s about letting the voters actually touch the hot stove and actually burning their own goddamned fingers!

That, Patterico, is the thing that will finally end Trump!

Is it?

They Will Not, in Fact, Learn — Even if They Are Personally Harmed

I’m not so sure that people are going to give up their fealty to Trump even if his policies have a direct deleterious effect on them.

To explain why, let’s take a little detour into COVID policy.

It seems to be taken for granted these days, at least on Twitter, that the U.S. government screwed up horribly in responding to the COVID crisis . . . by overreacting. If you believe what you read on Twitter, you would believe the following:

• Masks do nothing to prevent transmission

• Social distancing does nothing to prevent transmission

• Only the old were truly vulnerable

• Lockdowns were a terrible idea

This sort of thinking is what got the online Twitter world cheering for Trump’s appointee for the position of director of the National Institutes of Health: Jay Bhattacharya, one of the original heroes of the “hands off” approach to COVID. Bhattacharya was one of the authors of the Great Barrington Declaration, an October 2020 document in which the authors declared: “Current lockdown policies are producing devastating effects on short and long-term public health.”

I am going to pick on Bhattacharya here, who is in fairness among the least disastrous of Trump’s picks . . . mainly because he is still far from a tip-top appointee, and we don’t have to applaud him just because we grade everything Trump does on a curve.

It’s not my intent here to dive deeply into the content of the Great Barrington Declaration or debate studies about masking, etc. I merely want to stick a pin in the bubble of misinformation floating around about how our only real error was Too Many Lockdowns.

Few people seem to challenge this much these days. And the silence is a problem.

Breaking that silence, the Bulwark’s Cathy Young late last year wrote an excellent piece at the Bulwark about COVID policy and the Bhattacharya nomination. It’s worth your time.

TODAY, THERE’S A WIDESPREAD BELIEF on the right that Bhattacharya and his co-authors have been proven right in their critique of the lockdowns. Some of their views, such as the opposition to school closures, are indeed now widely accepted. (For what it’s worth, the right’s bogeyman, Dr. Fauci, argued as early as spring 2020 for reopening schools that fall, except in areas with active outbreaks.) But the Great Barrington Declaration’s larger view of how to deal with the pandemic is far from vindicated, as science writer David Wallace-Wells explained last month in the New York Times.

For one thing, Bhattacharya and his colleagues consistently lowballed COVID-19’s toll and fatality rates from the start. A March 2020 Wall Street Journal column co-authored by Bhattacharya argued that the virus was probably much less deadly than was being claimed and that it was likely to kill 20,000 to 40,000 Americans, on a par with the seasonal flu. (This was, of course, fully accordant with Trump’s own tendency to downplay and minimize the danger of the virus and to compare it to the flu.) The actual death toll by now is over 1.2 million.

Bhattacharya made his prediction of 20,000-40,000 COVID fatalities on March 24, 2020. Now I don’t have his medical expertise, but I can tell you that in that same time frame, I was arguing for a much bleaker scenario, and being mocked by people with medical credentials and who claim to have some kind of statistical expertise. Looking back on it is pretty eye-opening.

How did I know what Bhattacharya didn’t? I was listening to credible experts.

I heard an expert on Sam Harris’s podcast early in the pandemic predicting a worst-case scenario of 800,000 deaths in the United States in the next year. I took to Twitter to warn people. Note the date of my tweet: March 11, 2020, almost two weeks before Bhattacharya’s WSJ prediction of 20,000-40,000 deaths:

We reached over 800,000 deaths by the end of 2021. As of July 2023, we were at about 1,104,000 deaths, which is the most recent official data I could find.

Shanker/@neoavatara and I mutually block one another now, so the screenshot above lacks what I was retweeting, but here is the tweet of his that I was retweeting:

And here is that same tweet in context:

Note that this anti-anti-Trump M.D. was telling everyone that anyone claiming there will be a million deaths was wrong and that the situation was not apocalyptic. Meanwhile, Twitter account “PoliMath” (who published a largely COVID-related newsletter that you could subscribe to for money) was mocking anyone who predicted over 1 million dead, calling one such person "absolutely vile, evil garbage" who "should be fucking ashamed of himself."

But the scenario posited by Slavitt was hardly as ridiculous as PoliMath made it sound, even at the time. A March 13, 2020 New York Times article reported that the CDC had analyzed four scenarios the previous month, including one scenario where 1.7 million deaths was a possibility.

Super-expert Alex Berenson (559,000 Twitter followers as of this writing) on March 23, 2020 predicted fewer than 7,000 deaths by 2022:

So Bhattacharya was not alone in his complacency, but there were definitely credible experts who got it right while he (and the “calm down and avoid lockdowns” crowd of medical “experts” on Twitter) were getting it very badly wrong.

Somehow now Bhattacharya is now a prophet, and people have forgotten his incredible miscalculations at the beginning of the pandemic.

As for the disease affecting only old people and the obese . . . many of my readers are likely familiar with David Lat, an excellent Substacker and author whose signed novel I possess, and whose Substack is a favorite of mine. David got COVID early, and was on a ventilator—and that guy is fit enough to run marathons and was in his 40s. He almost died. Many like him did die. Do you remember the mobile morgues? At one point the bodies were piling up so fast, they needed to have mobile morgues to address the issue because standard morgues were overflowing.

It seems like a lot of people have forgotten just how bad it got. Over a million Americans died from this disease. We should keep that in mind. It was not the flu, the predictions of Jay Bhattacharya notwithstanding.

And while Bhattacharya warned about the risk to the elderly, which was a reasonable concern, it was not just the very elderly who were at risk. At the height of the pandemic, plenty of people in their 50s and even their 40s were dying. Over 200,000 deaths from the 50-64 age cohort were recorded by June 2023. These were not retired elderly people, but in many cases people still in their prime working years.

And then there were the deaths of those on the fever swamp right who rejected the vaccine. I don’t want to dwell on specific cases at length, but everyone remembers stories about people who mocked the vaccine . . . and then got COVID and died. You can find a group of representative examples collected at this page. The groups included many people popular with anti-vax conspiracists on the far right. There were conservative talk radio hosts, televangelists, loudmouthed social media users . . . and a lot of them died. There were deathbed conversions: examples of longtime vaccine critics texting people as they died encouraging them to get the vaccines.

But as a whole? Vaccine skeptics became ill at a greater rate, suffered more, and died more than those who took the vaccine.

It was the ultimate “let them suffer the consequences of the choice they have made” scenario. It was, in other words, the ultimate “don’t touch the hot stove” scenario. Many people chose to touch the hot stove. And for the most part, we let them. And many such people died as a direct result.

And the question I have for you is: what was learned?

To put it another way:

Are we now under the impression that vaccine skepticism has died out as a result of the data sets that have been compiled as a result of this grand experiment?

That’s a rhetorical question.

Touching the hot stove does not convert fanatics. They just burn their fingers and continue being fanatics.

If They Don’t Learn, Let Them Suffer Without Learning

So no. Consequences don’t cause people to change their minds about political beliefs that resemble the tenets of a cult.

RFK Jr. could ban the polio vaccine, polio could make a great comeback, and those of us who opposed RFK Jr. all along would then note that Donald Trump has Made Polio Great Again (#MPGA!). We would draw a clear conclusion about the reason that polio made a resurgence. We would make the following argument:

• Polio was nearly eradicated

• Then RFK Jr. banned the polio vaccine

• Now polio is back

• Therefore: duh

But I have confidence in the right-wing media noise machine to come up with some other explanation. What it could be, I have no idea. But whatever it is, people on the extremely online right would accept it. Of that I have no doubt whatsoever. They still think COVID vaccines are a harmful and poisonous foreign substance, rather than one of the greatest life-saving inventions in human history.

You think Trumpists will blame polio coming back on a ban on polio vaccines? I don’t.

You think Trumpists will blame skyrocketing inflation on tariffs and/or mass deportation of an inexpensive workforce? I don’t.

And if they don’t care about those consequences they certainly won’t care about consequences where the causal connection between bad policy and the direct consequences to them is even more tenuous.

You think Trumpists will care that the Trump family uses foreign policy to corruptly line their own pockets? Are you high?

__________________________________________________________________________

*I gave the link above, when when I mentioned the “faux supporters” that attended the launch of Trump’s campaign in 2015, I want to elaborate for the benefit of those who don’t know the story. Hence the asterisk.

The cliche generally used is “ever since Trump descended that golden escalator to a throng of supporters” but everything he does that looks like gold is gold-plated, including that throng, which was paid to be there. You knew that, right?

"That's a Michael Cohen special," Lewandowski told Insider. "Michael Cohen decided that he was going to go hire one of his buddies and pay his buddy without getting any campaign approval. You know, $50 for every person to come in, to stand in Trump Tower."

There was even a contemporaneous Hollywood Reporter item about it. From June 27, 2015:

Donald Trump‘s big presidential announcement Tuesday was made a little bigger with help from paid actors — at $50 a pop.

New York-based Extra Mile Casting sent an email last Friday to its client list of background actors, seeking extras to beef up attendance at Trump’s event.

“We are looking to cast people for the event to wear t-shirts and carry signs and help cheer him in support of his announcement,” reads the June 12 email, obtained by The Hollywood Reporter. “We understand this is not a traditional ‘background job,’ but we believe acting comes in all forms and this is inclusive of that school of thought.” (Read the full email at the bottom of the post.)

Everything about this guy is a fraud. Everything.

Next, let’s look at the idea of consequences for Trump himself. After all, consequences seem to be the only thing that really matters to Trump. His only thoughts when considering an action appear to be: will this benefit me? and can I get away with it? It’s clear that notions of right and wrong don’t enter his head—or the heads of most Trump fans and people in his orbit.

How is the project of imposing consequences on Trump going? I’ll give you a hint: not so well. But an effort was made—and part of my goal today is to convince you that the effort was legitimate and important.

III.B. Consequences Imposed Against Trump

“Let me know when the jail sentence starts.”

— Kellyanne Conway

Putting people in jail is an important way of showing that society means business.

We want wrongdoers to suffer. How else will they know they are doing wrong?

To illustrate this principle, let me take you back to the year 2019.

Since at least February 1, 2019, Ms. Conway has repeatedly violated the Hatch Act during her official media appearances by making statements directed at the success of your reelection campaign or at the failure of candidates for the Democratic Party’s nomination for President. In doing so, she has used her official authority to advocate for or against declared candidates for partisan political office. OSC has given Ms. Conway multiple opportunities to come into compliance with the Hatch Act. Ms. Conway has ignored requests. To make matters worse, Ms. Conway is a repeat offender.

(Full disclosure, the Special Counsel at the time—not a Jack Smith type DOJ Special Counsel, but the Special Counsel in charge of Hatch Act violations—was Henry Kerner, who has been a friend of mine for over 25 years. He is a conservative. I’d bet my house he voted for Trump in this last election. But he is a principled man who does his job regardless of politics. We need more people like that in public life.)

Kellyanne Conway didn’t care about violating the Hatch Act. To her, it meant nothing. Why? Because nobody was going to jail:

When reporters noted the Office of Special Counsel (OSC) found she violated the Hatch Act with two interviews she gave in late 2017, Conway was dismissive.

“Blah, blah, blah,” she said as one reporter recounted the OSC’s findings.

“If you’re trying to silence me through the Hatch Act, it’s not going to work,” Conway said.

“Let me know when the jail sentence starts,” she added.

I point this out, not to advocate for jail sentences for Hatch Act violations, but to make an observation about the Trumpy mindset about the rule of law.

They don’t care unless someone goes to jail.

At this point it’s clear that convicted felon Donald Trump will likely never to go jail.

There was a point when it seemed possible. And I supported the effort. Even if it took years to accomplish, I thought it needed to happen.

After all, the rule of law exists in large part to prevent people from imposing consequences through private acts of violence. Destroy the rule of law—even for what seems to you like justified partisan political gain—and I promise you won’t like what happens next.

The Lack of Consequences Imposed on Donald Trump, a Convicted Felon

As we all know, Donald Trump is a convicted felon. We also know that, not long before his presidency, he was sentenced to a term of “unconditional discharge”—which basically meant he suffered no punishment. Many people thought: well, at least he’s finally a convicted felon now. A typical story from the time had a caption to a video that read: “Donald Trump officially became a convicted felon with just 10 days before his inauguration.” So the fact that he was not punished was fine, right—because it officially made him a convicted felon for the first time?

No. Trump was a convicted felon the moment the jury rendered its guilty verdict.

I know this is an old story, but I think it matters even today, because the fact that he is a criminal—which so many people forget about—is, as I have already mentioned, a critical part of the problem we currently face. We have a criminal in charge of the levers of the federal government—including the federal criminal justice apparatus. That’s bad!

And I thought, and continue to think, that Trump deserved real consequences for his crimes, meaning jail.

And part of that is not settling for a sentencing proceeding without consequences, based on the mistaken notion that Trump was at least officially gaining the status of a convicted felon for the first time.

I know many people saw the phrase “convicted felon Donald Trump” before his sentencing and wondered: “wait, is he really? I thought I heard somewhere that you have to be sentenced to be convicted!”

If you thought that, you were wrong . . . but don’t feel bad. You could be pretty well informed and think that. Indeed, it is true in some jurisdictions, such as the federal system, that you do have to be sentenced to be considered a felon. (Just not New York, as we will see.) And because many of your favorite legal pundits are former federal prosecutors, many of them made the mistake of believing it’s true for all jurisdictions. For example, for some time I was a regular listener to the “Prosecuting Donald Trump” podcast hosted by former federal prosecutors Andrew Weissman and Mary McCord. (It’s now called “Main Justice” and I still listen to it quite a bit.) I think they’re great. I have a lot of respect for them. But they said on more than one occasion that a “conviction” is not really a “conviction” until sentencing. And they said it in connection with Trump’s New York convictions.

But they were wrong. Their declaration about what is required for a “conviction” is not true in New York, where Donald Trump was convicted. And I’m going to take a moment to prove it to you, because—well, because at the time, I took the time to look it up, and I argued about it with a lot of people, and I want to share what I learned with you. And it will help you understand why I wasn’t willing to settle for a no-punishment sentencing on the theory that “at least we can finally call him a convicted felon.”

Let’s start with how “conviction” is defined under New York law. New York’s Criminal Procedure Law, CPL 1.20 [13], defines “conviction” in this way:

13. “Conviction” means the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument.

Trump was indicted, so his “accusatory instrument” was an indictment and not a felony complaint. When the jury returned 34 guilty verdicts on that indictment, Trump suffered a “conviction” under New York law. There was never any need for a sentencing to call him a convicted felon.

Ah, but sometimes case law undermines what would otherwise appear to be clear statutory language. Not in this instance! In Kasckarow v. Bd. of Examiners of Sex Offenders of State, New York State’s highest court explained that the Legislature “meant what it said” when it gave the definition of “conviction” I just quoted:

New York distinguishes between a conviction and a “judgment of conviction,” the latter of which includes “a conviction and the sentence imposed thereon” (CPL 1.20 [15] ). As we have previously observed, the legislature intended the Criminal Procedure Law to provide the “definitive meaning” of the term “conviction” for other criminal statutes, and it meant what it said when it defined “conviction” separately from a judgment or sentence (People v. Montilla, 10 N.Y.3d 663, 668, 862 N.Y.S.2d 11, 891 N.E.2d 1175 [2008] ).

As if that weren’t enough, the New York State Criminal Justice Handbook published by the New York City Bar states:

If you are found not guilty of any of the crimes charged, you have been acquitted of those charges and can never be tried again in State court for those same charges. If you are in jail and are acquitted of all the charges, you will be immediately released from jail. If you are found guilty, you have been convicted and must be sentenced. Your case will then be adjourned for sentencing.

(All bold emphasis in this post is mine unless I say otherwise.) Trump's lawyers even admitted the fact of his conviction in a brief they filed on September 4, 2024:

There. I have given you statutory language, authoritative case law, supplementary materials from a New York bar association, and an admission against interest by the president’s lawyers. That’s what we call evidence and proof.

Before Trump was sentenced, you may have heard contrary opinions (read: uninformed yammering) on TV or social media. This commentary came either from randos, or from former federal prosecutors—who are a dime a dozen and are frankly close to being randos, as we will see when we discuss the opinions of one Elie Honig later in this newsletter. In any event, they don’t know state law—and often it appears that they . . . don’t know what they don’t know.

Donald Trump is a convicted felon. He was a convicted felon the second the jury returned its guilty verdict. He was a convicted felon before his sentencing. I think his case might still be on appeal, even today—but until and unless that conviction is reversed, vacated, or otherwise dismissed, he will remain a convicted felon. Don’t let anyone tell you anything different.

So no consequences were imposed on Donald Trump. Does that mean it was a bad idea to prosecute him? Was the prosecution of Donald Trump simply an example of the current regime prosecuting its political enemies on phony charges? Was the Supreme Court right to invent a criminal immunity for presidents beyond anything enjoyed by any other political position?

The answer to all of these questions is no.

In the next portion of the newsletter I will first defend the Trump conviction against some of the dumber (but widely accepted) attacks on it. Then I will provide contrast, by showing you an actual example of a regime prosecuting someone simply because he is an enemy: Putin’s prosecution of Alexei Navalny. That case provides a natural roadmap for circling back to the concept of PRETENDING TO FOLLOW THE LAW—pretending to follow existing procedures when the goal is truly to persecute one’s enemies.

The Case Trump Stands Convicted of Was a Good Case

It has become Gospel not only to Trump cultists, but on the part of grifter anti-anti-Trumpers, that the New York prosecution of Trump was “rigged” and bogus. I think it’s time to set the record straight on that.