I am currently in Munich, Germany, where I was invited by the Yale Club of Germany to give a talk as part of the Munich Dialogues on Democracy (arranged by one of your fellow subscribers, Bartley Grossrichter!). I came to give a talk on the themes I am writing about in my book regarding complicity and courage. Munich is, quite literally, ground zero for complicity — I had not realized this before but the Nazi Party headquarters are here, not in Berlin. One of those buildings, the Fuhrer Building, now houses the Munich University of Music and Performing Arts, a way to try to replace a incubator of death and evil with creativity and beauty.

Still, the city is a palimpsest with reminders of the past everywhere, often deliberately — the flagmasts that used to wave the Nazi flag now extend empty from the Fuhrer Building, and the “Temples of Honor” where people who were killed in the Beer Hall Putsch were mythologized as martyrs are empty patches of land overgrown with brush. Nearby, the Munich Documentation Center for the History of National Socialism chronicles the country’s descent into Nazism as Hitler took power in an exhibition that begins on the 4th floor and, fittingly, moves in chronological order as you descend floor by floor.

What’s impossible to ignore are the parallels between the slow normalization of extremism from 1918 onwards and what we see happening in the United States now. This includes the naming of anyone who opposed Nazism as “traitors” — an entire gauntlet of profiles chronicles professors, activists, and clergypeople who began speaking out in the Nazi party’s earliest days and resisted — and were eventually targeted, arrested, or even killed. As the time progresses, the museum highlights other acts of resistance and courage, but also observes the complacency and complicity that engulfed the majority of the population.

The following paragraph is the one that struck me the most as the lesson we need for this current moment:

I hope we can remember it before it’s too late.

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In my talk on complicity, I explain the “moral disengagement” strategies that allow people to rationalize the unthinkable. (I cover these strategies in the context of disinformation in this class lesson.) One of those, “dehumanization,” is a moral disengagement strategy that was deployed with full force in Nazi Germany but which we are also seeing surface in the justifications offered for the extrajudicial murders of survivors in the Caribbean. This week, Renato and I were joined by ’s to discuss the “second strike” — and why calling it a “war crime” (as opposed to “murder” or “extrajudicial killing”) actually serves to legitimize an underlying action that is, in itself, a crime:

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Join me and Renato in Alaska!

It’s Complicated is cruisin’! Come join me and Renato as we explore the stunning beauty of Alaska and discuss how we can work together to protect our democracy! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. Stay tuned for our next happy hour/info session!

My clips from the previous week:

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Upcoming events:

• NEW! Wine & Fries Holiday Happy Hour (date/time TBA — soon after I am back from Thailand on December 20!). We’ll close out 2025 with our usual no-politics-allowed wrap up of the year. Zoom link will be sent to Wine and Fries (founding) members three hours before the event.

• Freedom Academy Book Club, Agents of Change: The Women Who Transformed the CIA by Christina Hillsberg (Date/Time TBA, sometime in January 2026). Christina interviewed women from different eras of the CIA and paints a picture of what being a female spy in the agency was really like. Zoom link will be sent to paid subscribers three hours before the event. The talk will be recorded and posted for those who cannot make it live.

I will be traveling in Thailand for the next two weeks so I will return with the next Round Up after Christmas. Please stay tuned for some new guest lineups as I take The Freedom Academy in a new direction in the New Year!

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I know it’s Round Up day but I wanted to use this post to celebrate the three year anniversary of The Freedom Academy! Thanks to all of you who have been dedicated subscribers since I launched this project and found my footing on this platform. Today, The Freedom Academy has subscribers from all 50 states and 171 countries around the world — our speaker events and Zoom office hours (and happy hours!) have allowed many of you to connect with each other. I love the community we have created here!

This Substack has been a labor of love, and I am so proud of the 52-lesson “course” it has allowed me to create over the past three (!) years. For those of you who have been a part of that journey, I hope you have enjoyed learning through it (and thank you!). The online course is in the final stretch, though, and the final two lessons will be posted by the end of this year. (Though don’t worry, all of it will remain accessible via the “Democracy and Disinformation” tab on the home page and the syllabus anytime for anyone who has recently joined or wants to check it out!) And for those of you who actually complete all of the lessons (you’re on the honor system!), you can, upon request, get this fun Freedom Academy digital diploma:

I’ll provide more details on how to request yours in the last lesson, so stay tuned!

On Complicity and Courage

So…what’s next? As many of you know from one of my previous Round Ups, I am writing a book about complicity and moral courage to answer two big questions:

1. Why do people go along with things they know are wrong?

and

2. What makes people resist those forces and speak out?

(Topical much?)

My book will bring together psychological research, case studies across various contexts (some you know, and some you might not), interviews with truth-tellers and moral rebels, my own insights from the FBI and my works as an admissions dean, and more to offer a new lens through which to understand the crazy that is going on all around us — I hope that once you read my book, you’ll never look at scandals, misconduct, or illegal behavior the same way again.

I’m so excited to bring this book out into the world, but since publication isn’t scheduled until spring 2028, I want to take my Substack subscribers along in my research as I write it. To this end, beginning in January, I plan to have two speakers each month. One will give us special insight into complicity — how people become corrupted or manipulated, the psychology of decision making, the vulnerabilities created by weak moral identities, how autocrats entrench complicity, and more. The other will be someone who has shown moral courage in our current moment — I want to share their stories so we can all learn from them! I am still lining up these speakers now, but look for them in the “Upcoming Events” as we head into the New Year. I’ll still do monthly Zooms (I’ll call them happy hours instead of office hours since we are no longer in class) and The Freedom Academy Book Club will continue.

All of those features will be available to paid subscribers. But if you are a free subscribers, have no fear! I will still continue my weekly Round Ups and and free posts on current events, and also hope to do more Substack lives (that’s apparently what all the cool kids seem to be doing these days). Whatever you choose, I hope you will continue to be a part of this community as we complete another trip around the sun. Thank you for your support!

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OK, so back to the here and now. In this week’s episode of It’s Complicated, Renato and I delve into The Case of the Phantom Indictment (and Other Grand Jury Mistakes), and also discuss what might be ahead in the release of the Epstein files:

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Join me and Renato in Alaska!

It’s Complicated is cruisin’! Come join me and Renato as we explore the stunning beauty of Alaska and discuss how we can work together to protect our democracy! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. Stay tuned for our next happy hour/info session!

Podcasts I was on this week:

I had a great conversation with one of my favorite people, , host of (you can download the audio here):

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Upcoming events:

• THIS WEEK (note updated time): Zoom Office Hours, Tuesday, November 25, 12 p.m. EST with special guest Ruth Ben-Ghiat! Zoom link will be sent to paid subscribers three hours before the event. Office hours are not recorded.

• Wednesday, December 3, 12 p.m. EST. Class Guest Speaker and author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Wine & Fries Holiday Happy Hour (date/time TBA — soon after I am back from Thailand on December 20!). We’ll close out 2025 with our usual no-politics-allowed wrap up of the year. Zoom link will be sent to Wine and Fries (founding) members three hours before the event.

• Freedom Academy Book Club, Agents of Change: The Women Who Transformed the CIA by Christina Hillsberg (Date/Time TBA, sometime in January 2026). Christina interviewed women from different eras of the CIA and paints a picture of what being a female spy in the agency was really like. Zoom link will be sent to paid subscribers three hours before the event. The talk will be recorded and posted for those who cannot make it live.

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. I have to be honest, I’m writing this right after Zohran Mamdani completely mesmerized Trump in the Oval Office so I have no idea what’s happening anymore. Maybe the path forward is easier than we thought?? Keep the faith.

3. Self care tip of the week: Hoo boy. I know many of you will be with family this week, and that can often be…stressful. I give you permissions to give yourself a time-out and extricate yourself from unproductive conversations (particularly ones about politics) if necessary!

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A few quick notes up front: First, next Saturday is my birthday! So, I will be taking a break from the Round Up to spend the weekend with my kids. (I might send a pic, though!) Second, I have some exciting announcements coming up soon after that about some fun changes to the Substack for the New Year, so stay tuned!

It’s 9:16 p.m. on Friday as I write this (I do often actually write these on Friday), and I’m waiting to see whether the Supreme Court is going to give the Trump administration yet another assist in its effort to break the country. This time we’re not talking about deportations or racial profiling, but about funding SNAP benefits so Americans don’t starve until the government opens up again. You’d think this would be an easy one, but this Court may not think so.

Others have written about the procedural nuts and bolts of the lawsuit, so I won’t rehash them here. The main substantive issue centers around two buckets of money available to the U.S. Department of Agriculture to fund SNAP benefits in the event of a government shutdown. The first includes about $6 billion in “contingency funds” that can be used to cover a shortfall in appropriations for SNAP. The second includes $23 billion in “Section 32” funds, which are designated for nutrition programs (and which the administration has stated an intention to use for programs like WIC and the Child Nutrition Program), and which under the law can be used “interchangeably” by the USDA for other nutrition programs, like SNAP.

*A key point here is that the contingency fund alone cannot fully fund SNAP, so relying only on that would require “partial funding” — meaning that the amount allocated to states across the board would need to be reduced by 35%. And, according to the administration, the payment system isn’t set up for partial funding, and would therefore require administrative adjustments that might result in delays of several months. (Again, this is just the administration’s claim.)

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On October 31, a district judge in Rhode Island issued a TRO, giving the Trump administration two options: 1) partially fund SNAP using the contingency fund only, as long as it was done “expeditiously” (i.e., deal with the administrative problems ASAP) and no later than last Wednesday AND as long as the administration could provide a reason for partial funding that was not “arbitrary and capricious”; OR 2) fully fund SNAP using one or both of the available funds no later than last Monday. Well, the administration chose Option 1. Except that on Wednesday, the administration basically said (I’m paraphrasing), “Yeah sorry, this is going to take a while, because we’ve never partially funded SNAP before so it might be months to get this all figured out.”

In short, they chose the one option provided offered by the judge that they knew they couldn’t (or wouldn’t) comply with. The administration also claimed that the reason it could not choose Option 2 and dip into the Section 32 funds is because to do so would take money away from the Child Nutrition program — leaving that program “with an unprecedented and significant shortfall.”

It sounds compelling on its face, in a Jedi-mind-trick sort of way. The problem is that the math on this claim just doesn’t add up. Remember that there is $23 billion in Section 32 funds. According to the district court, the contingency fund leaves a deficit of $4 billion to fully fund SNAP for November. It costs $3 billion per month to fund Child Nutrition program. So even moving over $4 billion to SNAP would leave $19 billion in Section 32 funds, allowing the Child Nutrition Program to still continue for November (and beyond). To put a finer point on it, the court noted:

Contrary to what the Defendants claim, 29 million children who participate in the Child Nutrition Program are not at risk of immediately going hungry in the event of a transfer of Section 32 funds. Instead, SNAP recipients—16 million of whom are children—will go hungry if they do not receive their SNAP benefits this month…In other words, it defies belief that the Defendants would prioritize a hypothetical disruption in child food assistance, projected to occur no sooner than May of 2026 (if at all), over the very real and immediate risk of children being deprived of their food assistance today.

In short, the court is saying, the administration’s argument is bullshit.

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So on Thursday, the district court issued a second TRO, basically calling the administration’s voodoo math out and concluding that its reasons for not fully funding SNAP — and not “expeditiously” funding it even partially — were political, and ordered the administration to implement Option 2: Fully fund SNAP using both buckets of money, by Friday.

As usual, the administration ran to the Supreme Court, asking for a stay of the TRO, and without even waiting for the First Circuit Court of Appeals to issue a decision on the appeal to them, first. (As I write this, I’ve learned that Justice Jackson has issued an administrative stay, to give the First Circuit a chance to rule first on whether to stay the TRO — has a write up on that here.)

In its application to the Court, the administration rehashes its voodoo math. But what’s really rich is the other part of its argument. THIS administration is claiming that the district court has usurped Congress’ power of the purse by ordering how money should be spent, arguing that its “unprecedented injunction makes a mockery of the separation of powers.” HA! It gets better. The administration goes on,

Put simply, the district courts’ orders are not short-term emergency measures keeping existing affairs in place. They are a single judge’s attempt to commandeer billions of dollars in federal funds to address the consequences of the government shutdown as he sees fit, and to do so in a way that would force the transfer and expenditure of billions of dollars that would otherwise go towards other worthy ends on a timetable guaranteed thwart meaningful appellate review.

Pot-kettle, anyone? And not sure about you, but I had a flashback to this scene from Ghostbusters:

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Reading between the lines, it also seems like the administration has #$%! up, even in its attempt to starve people across the country. It appears that precisely because the SNAP system is not set up for “partial payments,” once the USDA opened the contingency fund (or whatever it did on the backend to let that money flow into SNAP), several states that were waiting in the wings, like California, Kansas, Oregon, New Jersey, and Wisconsin, moved like the wind to submit their full SNAP requests as per the district court’s Thursday order — resulting in their states getting full funding. Which is great! Except that some other states are still “waiting for federal guidance.” So…if some states have gotten full funds and the contingency fund is potentially already dry, where does it leave the ones that haven’t gotten anything?

In its application for a stay, the government argues — to support its claim of “irreparable harm” — that if it is required to use Section 32 funds to fund SNAP, it can never recover this money from the states since they will be disbursed immediately. If that is true, then the only issue that should be in front of the Court is one of equity — if some handful of states have received full SNAP funding for November, then it would only seem fair that the others do too if there is no way to claw any of the money back and redistribute evenly, if only partially.

But “fair” is not this Court’s strong suit, so don’t get your hopes up. Stay tuned for more updates as this unfolds.

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Meanwhile, in this week’s pod Renato and I discuss the Comey “Choose Your Own Adventure” Indictment, as well as the skepticism from SCOTUS (finally!) in the tariffs case. Plus I make mild progress on my knowledge of Major League Baseball.

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Join me and Renato in Alaska!

It’s Complicated is cruisin’! Come join me and Renato as we explore the stunning beauty of Alaska and discuss how we can work together to protect our democracy! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. Stay tuned for our next happy hour/info session!

Upcoming events:

• COMING UP! Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Tuesday, November 11, 7:30 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Zoom Office Hours, Tuesday, November 25, 4 p.m. EST. We will discuss the latest. I hope to bring in another special guest, so stay tuned! Zoom link will be sent to paid subscribers three hours before the event. Office hours are not recorded.

• Wednesday, December 3, 12 p.m. EST. Class Guest Speaker and author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Wine & Fries Holiday Happy Hour (date/time TBA — soon after I am back from Thailand on December 20!). We’ll close out 2025 with our usual no-politics-allowed wrap up of the year. Zoom link will be sent to Wine and Fries (founding) members three hours before the event.

• Freedom Academy Book Club, Agents of Change: The Women Who Transformed the CIA by Christina Hillsberg (Date/Time TBA, sometime in January 2026). Christina interviewed women from different eras of the CIA and paints a picture of what being a female spy in the agency was really like. Zoom link will be sent to paid subscribers three hours before the event. The talk will be recorded and posted for those who cannot make it live.

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. I think it’s worth reupping from last week: If you have not already and are able, donate to a local food bank to help those who will have their SNAP benefits cut off as of today. (Also check schools and your local libraries, which may be running food drives or offering free pantries.)

3. Self care tip of the week: Enjoy your (or a) pet. I realize not everyone owns a pet, but I have to admit I have been extra snuggly with mine this week. I haven’t posted a picture of Pancake in a while, so am doing so here. If you are not fortunate to have this kind of cuteness in your home, visit a kitty cafe, a friend who owns a pet, or hey, adopt one. Why not? Would love to see your fur babies in the comments!

   

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First, if you want just a quick refresher on why what the administration is doing is basically cold-blooded murder, here is an Ask Asha video I did a few weeks ago:

Since then, the administration has both tipped its hand and tried to engage in more weird legal gymnastics.

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First, about two weeks ago, the military briefly held two survivors of a drone strike in the Caribbean before repatriating them to Ecuador and Colombia. This is telling: Although the administration claims that it is targeting people on whom it has substantial evidence that they are transporting illegal narcotics (which, as I note in the video and my prior pieces, would not make them legitimate military targets even if true), it chose not to prosecute them in court. ??? If these drugs traffickers are as dangerous as the administration claims — so dangerous that it was imperative to drop a missile on them — why would we let them go? If there was so much evidence, why not charge them in court? The administration is implicitly conceding that it had no evidence of crimes for these men and in doing so, that it is basically just killing innocent people on the high seas. (Ecuador released its national after he was repatriated, finding no evidence to prosecute him there, either.)

Then, last week, President Trump and Defense Secretary Hegseth referred to these military targets as the “ISIS and al Qaeda of the Western hemisphere.” Which means they are still trying to make “fetch” happen. The attempt here is, I think, to do a rhetorical sleight of hand, characterizing these drug traffickers as an armed group, similar to terrorists — the basic argument here is that in such a case, the U.S. would be justified in targeting them, based only on their status as members of that group. As I have explained, though, drug cartels are, quite simply, not armed groups. But I think there might be an even crazier play going on here, which is an implicit argument that the drug cartels actually fall under the 2001 Authorization for Military Force against al Qaeda and associated forces. (This would be an incredibly stupid and baseless argument, which is precisely why I can’t rule out that this is what they are trying to suggest.)

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OK — so as bad as all of that is, at least these attempts are trying to repurpose a legal justification that has been used before. But now they are going completely off the rails. This New York Times piece reports that Pentagon officials — without any lawyers present — briefed members of Congress, but could not provide a legal justification:

Representative Sara Jacobs, Democrat of California, said the Pentagon officials conceded that the administration did not know the identities of all of the individuals who were killed in the strikes….Ms. Jacobs said Pentagon officials said they needed to prove only that the targeted people were connected to designated terrorist organizations, even if the connection is ‘as much as three hops away from a known member’ of a designated terrorist organization (emphasis mine).

Yeah, read that again. “Three hops away.” The Trump administration is now claiming that the military can strike anyone who is three degrees removed from a drug trafficker, which even on its own is not a valid basis to use military force. In other words, the administration is now basically saying that it can just extrajudicially kill whoever it wants.

“Extrajudicial killings” is exactly how the U.N. High Commissioner for Human Rights, Volker Türk, characterized the Trump administration’s strikes, and called on the U.S. to halt them. Instead, the administration has just shifted its strikes to the Pacific, hoping to find a stronger link between the targets and actual drug trafficking to continue to try to make its ad hoc legal theories stick. Still trying to make “fetch” happen.

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This week, Renato and I took a break from the Trump news to focus on the indictments brought against the basketball and poker rigging schemes involving NBA players last week (I’ll have a CAFE Note coming on this next week, as well). We also discussed why Trump continues to float his fantasy of a third term:

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NEW! Freedom Academy Book Club Selection: Agents of Change: The Women Who Transformed the CIA by Christina Hillsberg

I’m so excited to have my friend and former CIA officer Christina Hillsberg join the Freedom Academy Book Club to discuss her latest book! I have been wanting to read this ever since I met Christina at the Spied, Lies, and Nukes Conference two years ago (yes, that’s a real thing) while she was still writing it. If you want to hear some great “Jane Bond” war stories gleaned from exclusive interviews and learn about the evolving (and often challenging) role of women in the agency, you’ll want to tune in! (Also, don’t you just love this cover??) Check in on “Upcoming Events” in the Round Up for the date and time (TBA, January).

Join me and Renato in Alaska!

It’s Complicated is cruisin’! Come join me and Renato as we explore the stunning beauty of Alaska and discuss how we can work together to protect our democracy! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. Stay tuned for our next happy hour/info session!

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Podcasts I was featured in this week:

• If you didn’t get a chance to watch the video last week of the Stanfield Conversations I was a part of at Dalhousie University, you can listen to it on the CBC’s IDEAS podcast, here!

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Upcoming events:

• NOTE NEW DATE/TIME (sorry I had to accommodate a conflict!): Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Tuesday, November 11, 7:30 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• Wednesday, December 3, 12 p.m. EST. Class Guest Speaker and author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Freedom Academy Book Club, Agents of Change: The Women Who Transformed the CIA by Christina Hillsberg (Date/Time TBA, sometime in January 2026). Christina interviewed women from different eras of the CIA and paints a picture of what being a female spy in the agency was really like. Zoom link will be sent to paid subscribers three hours before the event. The talk will be recorded and posted for those who cannot make it live.

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. If you have not already and are able, donate to a local food bank to help those who will have their SNAP benefits cut off as of today.

3. Self care tip of the week: Celebrate some wins. It’s so hard to think positive these days — I know that for me, the dumpster fire that is our democracy can seep into my feelings about everything. Reminding myself daily of my (small) “wins” in the sphere of the world that I can control (getting to the gym, doing some writing, crossing off the thing I have been meaning to do for a while) can help me refocus and feel like I have agency and impact.

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I’ve been traveling this week (see below for my panel with our Canadian cousins on how concerned we, and they, should be about what’s happening here), and I found myself a little overwhelmed with everything that had happened when I finally got a chance to catch up. So I asked you on the Substack chat to let me know what you wanted me to focus on this week. Among the common themes:

• Trump’s claim that the Justice Department “owes” him $230 million for bringing prosecutions against him (a “settlement” that he himself would be in a position to authorize)

• The Defense Department’s apparent acceptance of a private gift of $130 million to pay federal troops during the shutdown

• The demolition of the East Wing of the White House to build a ballroom based on specs provided by President Trump, financed by private donors

I will get to the common thread in all of these, but to do that I’m going to start with a criminal case which may not even be on your radar — the charges brought against six NBA players who allegedly participated in a sports betting scheme in which they threw games for profit. You can read the indictment here, but the upshot is that the defendants, and nine unnamed co-conspirators, coordinated in advance that key players would not to play in certain games, thereby ensuring that bets predicting that that player would score under the “betting line” set by booking agents — made by those with this insider knowledge — would make money.

The defendants are charged with conspiracy to commit wire fraud and money laundering, but the technicalities of the charges are less relevant than what anyone would intuit from reading the allegations: The conduct of the players, and those who conspired with them, violate basic tenets of fairness and the rules under which they are expected to play. When people watch a game, and especially when they bet on its outcome, they are counting on a “presumption of regularity,” to use a phrase — that everyone playing is going to play to the best of their ability. At the very least, they expect that those who don’t play because they are injured, are actually injured. Needless to say, when players don’t perform their assigned positions in the most robust way possible, the entire team fails.

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The charges against the NBA players are interesting on two levels. The first is the revelation that these players were, according to the charges, deliberately not functioning as they should. The second is that the U.S. Attorney’s Office for the Eastern District of New York, which brought these charges, is functioning as it should, at least in this case — which is a pleasant surprise, amidst everything that is going on otherwise.

So what does this have to do with the news stories you all flag for me? Well, I think it’s safe to say that, whatever technical laws might be broken, we know that every one of them violates our sense of fairness and the rules under which our government works.

To wit:

• A President should not be able to pay himself out of the U.S. Treasury. Do we need to say more? (Not for nothing, but the 27th Amendment doesn’t even let Congress give itself a pay raise without the approval of their constituents.)

• Apart from the Appropriations Clause (Art. I, Sec. 9, Cl. 7) which requires that Congress have the power to determine public expenditures (which means that outside funds have to be deposited in the Treasury first), the Army Clause limits appropriations for the Army to two years, precisely to ensure that Congress has a frequent check on the President’s command authority, to prevent him from abusing it. I mean, imagine if George Washington had gone rogue, and wanted to be a dictator and turn the armed forces against the country. If Congress refused to give him money, could he have simply turned to King George III and said, hey man, help a brother out? I don’t think so. The same thing applies to whatever “private donor” is at play here.

• The White House is federal property, and Trump is a tenant, not an owner. I don’t know the specific rules and regulations that govern White House remodeling — it may well be that if a sitting President wants to paint the walls of every room chartreuse, he has the power to do that — but I suspect that latitude doesn’t extend to major structural alterations. When I got my downstairs bathroom upgraded from a half to a full I had to get a permit and two visits from the city (and my house is old but not a historical landmark or part of our country’s cultural heritage). I mean, if this is OK, what’s the logical stopping point? Can Trump build condos in federal parks? Blow one of the faces off of Mt. Rushmore and add his own? Start renting the White House for weddings?

So, we all know this is wrong. And the natural inclination is to ask, How can he doe this? What laws are being broken? Who has standing to sue?

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Here is the thing: Our constitutional system is not designed to handle this kind of extra-constitutional lawlessness. We encountered a version of this when Elon Musk was taking his proverbial chainsaw to the federal government. Our system has two major checks in place, and one failsafe: the two major checks are the courts saying what the law is and Congress exercising its power of the purse. If court decisions are disobeyed and the power of the purse is meaningless, then the failsafe is impeachment, also in the hands of Congress. That’s it. That’s the system.

The point here is, we have a system that does work…but only when everyone on the team is doing their part. But if the people assigned to their positions on the team refuse to fulfill their role, or fake injury and don’t perform at all, the whole thing falls apart. And if that happens, we are being defrauded from the honest services of our government.

I say all this to highlight that at some point, we need to stop focusing only on Trump and retrain our sights on the relatively small number of people who could put a stop to this insanity — tomorrow. We’re talking about a dozen people. They, not Trump (or at least, in addition to Trump), need to be named, shamed, and held to account, just as the NBA players were in the indictment that was just filed. The question isn’t (just) what the mad kind is doing or what laws he is breaking, it’s why the people who are assigned to stop it aren’t doing anything.

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This week, Renato and I are joined by a special guest to break down the recent voting rights case argued in the Supreme Court and provide the historical backdrop for it, and we discuss why the Bolton indictment is not like the other “revenge prosecutions” which have been brought so far:

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Join me and Renato in Alaska!

It’s Complicated is cruisin’! Come join me and Renato as we explore the stunning beauty of Alaska and discuss how we can work together to protect our democracy! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. Stay tuned for our next happy hour/info session!

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My events this week:

I was honored to be a featured panelist and speaker for Dalhousie University’s 2025 Stanfield Conversations on the challenges to the rule of law and threats to liberal democracy. I was joined by CBC reporter and producer Mary Lynk and Dalhousie Law’s Professor Wayne MacKay. It was a great, if sobering, discussion — you can watch it here:

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Upcoming events:

• THIS WEEK! The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age, Tuesday, October 28, 8 p.m. (sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

• Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Wednesday, November 5, 7 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Time/Date TBA (likely late November/early December). Class Guest Speaker , author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and post for those who cannot make it live.

  Your paid subscription makes the Freedom Academy possible — unique analysis based on my experience at the intersection of law, national security, and law enforcement. Plus, get access to guest speakers and book authors, and interactive discussions. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. It’s easy to feel like nothing matters, and I have heard a lot of people question in the last week why public protest makes any difference. This article, by Professor for reminds us why.

3. Self care tip of the week: I got this in a newsletter this week and am going to try to put it into practice: “Trade one autopilot habit, like late-night scrolling or rushing breakfast, for a small savor, such as tea, a walk, or a book you love.” My autopilot habits are going straight to my laptop in the a.m. (and often skipping meditation) and late-night scrolling. What are yours?

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As I wrote in my piece, the legal justification for these strikes rests on highly dubious grounds — unless I am missing something, they are actually outright illegal under both domestic and international law. Indeed, also on Thursday, the head of the U.S. military’s Southern Command, Adm. Alvin Hosley, is stepping down, reportedly after expressing concerns about the military strikes on the alleged drug boats (which are now up to five). This came one day after the New York Times reported that the Trump administration has authorized CIA covert actions against Venezuela.

This is bad. (As in, worse than what the military was doing before.)

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To explain, let’s go back to the beginning. The CIA, as you probably know, is our primary peacetime intelligence gathering agency. “Intelligence gathering” is the operative term here — about 85% of the agency’s work involves using human, and to a lesser extent, technical, sources to gather information that can be analyzed and used by “consumers,” i.e., U.S. policymakers, to inform their political, diplomatic, and military decisions.

A small part of its mission, though, involves “covert action,” which is a term used to describe secret operations used to affect the political, economic, or military conditions in a target country. The legal basis for covert actions come from a provision of the National Security Act of 1947 known as “the fifth function” (so named because of its place on the list of things that the CIA was authorized to do in the original act), which says that in addition to gathering intelligence and doing a few other things, the CIA can perform “other such functions as the president may direct.” The reason it’s not spelled out, and why it’s “covert,” is because the U.S. wants its hand in these operations to remain concealed — the idea is to have plausible deniability.

Beginning with the Truman administration, the “fifth function” was interpreted to allow the CIA to do a bunch of crazy #@^&$, many of which are likely familiar with from our history. (See, e.g., Italy, Iran, Cuba, and Chile, to name a few countries where the CIA conducted covert ops.) When I teach covert action in my National Security Law class, I teach the “covert action ladder,” which is the theoretical model of the kinds of things undertaken in this capacity (and how plausible deniability becomes harder to maintain the more violent the operation):

(A good history of CIA covert ops, if you are interested, is Tim Weiner’s Legacy of Ashes — Weiner was also a speaker for my Substack class and has a new book out, The Mission, which looks at covert ops since 9/11).

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In the wake of Watergate, the CIA released a 700-page report to Congress which detailed its covert ops over the previous decades. The revelations led to increased oversight and some prohibitions, such as the one on assassinations which was included in Executive Order 12,333 by President Reagan (which also explicitly authorized covert actions approved by the president).

But the real guardrails on covert action didn’t come until after Iran-Contra, when it became clear that President Reagan’s NSC was evading appropriations prohibitions on providing arms to the Contras in Nicaragua. Without going down the whole rabbit hole of the scandal, the upshot was that Congress increased oversight of covert actions through the Intelligence Oversight Act of 1991, which prohibited the use of appropriated funds for covert actions unless the following requirements were met:

1. A contemporaneous written finding by the President that it is “necessary to support an identifiable foreign policy objective” and

2. Specifies all the agencies involved and

3. Reported to the House and Senate Intelligence Committees “as soon as possible” or, in “extraordinary circumstances,” it only needs to be reported to the chair and ranking members of these committees “in a timely fashion”

Importantly, covert actions can’t be used to influence U.S. political processes (i.e., no covert propaganda against Americans) and cannot violate the laws of the U.S. or the Constitution. More on that in a minute.

All of this provides some background for why, just a couple of weeks ago, Michael Ellis, the Deputy Director of the CIA, mysteriously (and somewhat unethically) installed himself as the general counsel of the CIA. Ellis’ name might sound familiar because he is the “Where’s Waldo” of the Trump administration, often surfacing when something sketchy has happened (I explained more in this Round Up). I surmised at the time that Ellis was replacing the career lawyer in the agency in order to ensure that the intelligence to support the required presidential finding for covert actions got though.

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It looks like I was right, and here’s why this matters: Military actions implicate congressional war powers and could be subject to limitations under the War Powers Act. At the very least, introducing the armed forces into “hostilities” — which is the word the Trump administration itself has used to describe the strikes — triggers ongoing reporting requirements and the so-called “60-day clock” within which congressional approval is required. Senate Democrats have already tried to use congressional war powers to stop the strikes, with Republicans Rand Paul and Lisa Murkowski joining them. (The measure failed, 48-51, with Ted Cruz missing…of course.)

Using the CIA essentially allows the Trump administration to end-run these requirements. Although the Intelligence Authorization Act of 1991 prohibits the CIA from using its covert action authority to conduct “traditional military activities,” it’s not clear what that means and frankly, any distinction between covert action and military action was blurred by the CIA’s conducting of drone strikes, along with the military, in the war on terror. So now the chickens are coming home to roost from the failure to cabin or put any meaningful oversight or guardrails on that.

Apart from evading the War Powers Resolution and congressional oversight, using the CIA also gives the administration a more pliable foot soldiers, as it were. CIA officers aren’t constrained by — to use Defense Secretary' Hegseth’s words — “stupid rules of engagement” or the Geneva Conventions or a clear professional obligation not to follow unlawful orders. In a prescient Washington Post op-ed written after the Supreme Court’s immunity ruling in 2024, a former NSA lawyer and former CIA clandestine officer wrote that the danger of putting a president above the law was not him giving illegal orders to the military, but rather turning to the CIA to accomplish its objectives:

Because of the inherent difficulties involved in ordering the military, with its separate judicial system under the Uniform Code of Military Justice, to engage in illegal activities, it is far more likely that a president would turn to the CIA or engage with private paramilitary groups to carry out any questionable ‘official acts.’ The CIA has the authority to provide the kind of clandestine support necessary to fund a private paramilitary organization (e.g., offshore bank accounts, corporate structures) for both domestic and foreign operations. With approval from the attorney general, such operations could fall under the National Security Act as ‘other functions and duties related to intelligence affecting the national security as the President . . . may direct,’ which would place them outside the existing laws dealing with covert action.

On that last point, it’s worth highlighting that the National Security Act of 1947 states that the CIA may not engage in “internal security functions” inside of the geographical United States. However, Executive Order 12,333 (the same one signed by Reagan that prohibits assassinations) allows for such activity with the attorney general’s permission. You think Pam Bondi is going to say no?

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The big tell in this whole CIA thing is…the administration isn’t denying it! Remember the part about “plausible deniability”? The ENTIRE POINT of using the CIA to conduct covert operations is so that as the President, you can say “it’s not us.” Obviously, by openly providing reporters this information, plausible deniability is not the point — in fact, the administration seems eager for it to be known. That leaves trying to end-run Congress as the only reason to use this route.

One heartening sign is that Congress is not giving up — well, at least not the Democrats, and Senator Rand Paul. They are teaming up to pass a resolution to prevent Trump from using the CIA for military strikes without a congressional declaration. Unfortunately, the time to clarify the CIA’s role in military actions was probably a decade and a half ago — let’s hope it’s not too late now.

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This week, Renato and I discussed the holes in the Letitia James indictment and the implications of NPSM-7, which purports to designate “domestic terrorist organizations”:

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Join me and Renato in Alaska!

It’s Complicated is cruisin’! Come join me and Renato as we explore the stunning beauty of Alaska and discuss how we can work together to protect our democracy! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. Stay tuned for our next happy hour/info session!

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Upcoming events:

• THIS WEEK! Zoom Office Hours, Thursday, October 23, 5 p.m. EDT with special guest Molly Jong-Fast! I am so excited to have Molly join us to discuss the latest. Zoom link will be sent to paid subscribers three hours before the event. Office hours are not recorded.

• The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age, Tuesday, October 28, 8 p.m. (sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

• Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Wednesday, November 5, 7 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Time/Date TBA (likely late November/early December). Class Guest Speaker , author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and post for those who cannot make it live.

  The Freedom Academy is a reader-supported publication. Become a paid subscriber to receive unique analysis, access to guest speakers and book authors, and interactive discussions. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Get out to the No Kings march today!! Find the one near you here.

3. Self care tip of the week: Phone a(n old) friend. This weekend is my 25th law school reunion and it is so nice to connect with someone who knew you in the Before Times. It’s a great reminder that there was life before this time of chaos and there will (most likely) be life after. Plus, some of the people I am connecting with actually worked in Trump 1.0 and it’s a good meditative practice to be able to try to set that aside for a little while to reminisce about old times and talk about our kids. (Hey, we all need to practice for Thanksgiving, amirite?)

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Those of you who have subscribed to my Substack for the last month or so know that my approach now is to focus my Round Ups on one things at a time, for my own mental health and, hopefully, yours. This week I’ll give you a short primer on the latest indictment brought by Trump’s lackeys in the Justice Department, this time against New York Attorney General Letitia James. You can read the indictment here, it’s pretty short (I guess one good thing about the practically baseless charges this Justice Department is bringing these days is they don’t have a lot to put in their filings so they are pretty quick reads).

The indictment is based on a Virginia property that James purchased in 2020 for use, according to mortgage documents, as a second home. (This is a different Virginia property than the one she bought in 2023 and which was teased as a possible basis for charges.) Instead, prosecutors allege, James used it as a “rental investment property” in violation of a rider on the mortgage, which is backed by Fannie Mae, that prohibited James from using the property as a “timesharing or other shared ownership agreement that requires her to either rent the property or give any other person control over the occupancy or use of the property.” The indictment indicates that James’ tax returns indicate rental income in violation of the rider, and alleges that her misrepresentations allowed her to obtain a rate .815% lower than an “investment property” mortgage, saving her close to $19,000 in interest over the life of the loan.

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So if all that is true, it sounds like it could be a colorable violation of the law, i.e, bank fraud and false statements. Except that this very helpful Wall Street Journal article explains that in 2019, Fannie Mae clarified its second home riders on its mortgages to make clear that owners could rent out a second home. The clarification came about because many people were confused about whether they could rent out second homes through AirBnB — lenders interpreted the language as prohibiting it, even though, according to Fannie Mae, it was always allowed. The article states:

The new rider now clearly states that some renting is permitted. It says, ‘Borrower will maintain exclusive control over the occupancy of the Property, including short-term rentals.’ Turning a property over to a management company, rental pool or timeshare arrangement that calls the shots isn’t allowed—a condition that was also clearly stated in the previous version of the rider. Even more significantly, the new version of the rider also puts a time limit on rental restrictions, saying that ‘Borrower will keep the Property available primarily as a residence for Borrower’s personal use and enjoyment for at least one year’ unless other terms are negotiated and permitted in writing by the lender. After one year, the rider no longer precludes any kind of renting—including by a management company—and no permission needs to be sought, said the Fannie Mae spokesman.

Even the “one-year restriction” on rentals makes an exception for “short-term rentals,” and the WSJ article notes that Fannie Mae clarified its language and intent specifically to make clear to lenders that an owner who rented the property themselves — for example through sites like AirBnB — did not need to obtain an “investment mortgage.”

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It’s not clear from the indictment when James reported rental income and for how much (although this Lawfare analysis notes that James’ financial disclosures to New York only indicate that she received $1,000-$5,000 in rental income in 2020. That would fall within the one-year restriction, but it seems like if it was a short-term rental and James had leased it directly to whoever rented it, this would be allowed.

So, I’m confused. It’s possible that Lindsay Halligan, who, like the case against former FBI Director James Comey, brought the indictment on her own, is confused, too — she apparently didn’t even inform Attorney General Pam Bondi or main justice that she was bringing the case, as federal prosecutors normally would. Then again, Halligan perhaps knows more about insurance law, her speciality, than I do, so perhaps I am missing something. (The fact that she couldn’t find anyone else in the department to bring these charges suggests to me that I’m not.)

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This week, Renato and I analyzed the thru-lines in the various National Guard deployments (or attempts at deployments) across the country, some of which have just had opinions handed down as I write which I will dissect later. We also discussed the legal endgame in Trump’s military strikes on drug boats (on which I will have a longer piece coming out next week):

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ANNOUNCEMENT — I’m writing a book!!!

I’m so excited to announce that I am writing a book on the mechanics of complicity and how to resist it, which will be out in 2028! I know, I know, you want and need this book now. Please stay tuned — I will be wrapping up the Substack course by the end of this year (it will still be available in The Freedom Academy archives for all paid subscribers). After that, I’ll be exploring some of the questions, ideas, and people I am researching for the book in my posts, so you’ll get a taste of what’s to come along the way!

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Join me and Renato in Alaska!

It’s Complicated is cruisin’! Come join me and Renato as we explore the stunning beauty of Alaska and discuss how we can work together to protect our democracy! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. Stay tuned for our next happy hour/info session!

Share

Upcoming events:

• Zoom Office Hours, Thursday, October 23, 5 p.m. EDT. We will discuss the latest. I hope to bring in another special guest, so stay tuned! Zoom link will be sent to paid subscribers three hours before the event. Office hours are not recorded.

• The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age, Tuesday, October 28, 8 p.m. (sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

• Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Wednesday, November 5, 7 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Time/Date TBA (likely late November/early December). Class Guest Speaker , author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and post for those who cannot make it live.

  The Freedom Academy is a reader-supported publication. Become a paid subscriber to receive unique analysis, access to guest speakers and book authors, and interactive discussions. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Go be in community with others — in person — who share your concern about and commitment to our democracy. I am currently at my alma mater, Princeton, for an alumni conference, and so many of the panel discussions have turned to what is happening right now in the U.S., both in higher education and everywhere. Not only was it reassuring and inspiring to hear Princeton’s president, Christopher Eisgruber, speak forcefully about the need for moral courage in this moment, but seeing people around me nodding, asking questions about what they can do, and generally remarking (over and over again) that we are not in a normal moment is validating and helps remind you that no, you are not crazy and no, you are not alone. (Protest can do this also, so make sure to get out for the No Kings marches on October 18 — but I did love the chance to be able to sit and reflect and listen in this kind of setting.)

3. Self care tip of the week: Check out the fall leaves! (Or depending where you are in the world, the changing of whatever season it is now.) It wasn’t until I moved up tot he northeast that I really realized how beautiful fall colors can be — the air is also different and it’s great to be out for walks in the cooler air. (And if the seasons don’t change where you are, enjoy the beach/pool and a mojito for me!)

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As we continue our free fall into autocracy, there still appears to be no rock bottom in sight. This past week Secretary of Defense told the Justice Department to hold his beer while he surpassed the crazy of the Comey indictment by lecturing 800 senior military officers about facial hair, pushups, and anything that involves too much “individual expression” (except, of course, tatoos).

It was even more alarming than that, as Renato and I discuss with our fantastic guest, Lt. Gen. (ret.) Mark Hertling, in this week’s pod. But it’s clear that there is a strategery afoot in Hegseth’s decision to bring back hazing and corporal punishment of recruits, eliminate confidential whistleblowing channels, and dispense with military rules of engagement altogether: Trump followed up Hegseth’s speech by telling the assembled military brass that the real enemy they were fighting was the “domestic enemy within” (not, you know, China or Russia) and that the streets of America should be the military’s “training ground.”

Then yesterday, the Minneapolis Star Tribune reported that a senior White House aide to Stephen Miller had been observed, in public, chatting on Signal about plans to deploy the 82nd Airborne Division — an elite parachuting unit that was deployed in Vietnam and Afghanistan — into [checks notes]…Portland. According to the reporting, Hegseth wants Trump to give him explicit instructions to send in the unit. Trump right now appears to be mobilizing National Guard troops in Portland (as well as Memphis), but I have a feeling it is not going to end there.

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So what’s the endgame here? I think three things:

1. First, this is about content creation, and it seems like there is some competition among Trump’s cabinet to provide him with the best propaganda to disseminate on social media. Authoritarianism scholar has explained that strongmen rule through a “politics of spectacle.” If you watch carefully, you’ll notice that when ICE is out making arrests there are a few people following, filming their actions in order to turn them into propaganda videos after. In the last few days an FBI supervisor was fired after he refused to facilitate a “perp walk” of former FBI Director James Comey in front of TV cameras, shackled in handcuffs and flanked by FBI agents in full raid gear. (The Justice Department policy prohibits “perp walks,” and they are in any case unnecessary for non-violent defendants.) Hegseth is already tweeting out videos of the unlawful targeting of alleged drug boats on the high seas. He no doubt wants clips of the military doing more “cool shit” domestically — and what’s cooler than elite special forces parachuting behind the “enemy lines” of a blue city?

   

2. Second, Trump needs a reason to escalate his takeover of blue states and cities. If he can provoke confrontation between civilians and the military — perhaps one where there is open gunfire or anything that he can use to claim that our military is under attack or in harm’s way — he can then justify arbitrarily designating Americans as military targets. We are already seeing this with his executive order declaring Antifa a “domestic terrorist organization” (this is not a real thing). Now take another look at the Hegseth tweet I screenshotted above. Notice how he states that they struck people of a “Designated Terrorist Organization” (again, not a real thing)…but he doesn’t say which organization. This is a move to begin conflating ordinary crime, and even ideological beliefs, with “terrorism,” and then using the “terrorist” label as an excuse to use military force.

3. Third, America is a big country. To bring it under his total control and target Americans using military force the under the guise of combating “terrorism,” Trump would need a military that is willing to follow illegal orders and commit war crimes. Silencing dissent by eliminating reporting channels and getting rid of the agreed-upon rules for warfare (which includes things like determining what is an appropriate military target, when lethal force can be used) are intended to eliminate the guardrails that stand in the way of this. (For more background, see my 2023 Substack post on the three features that make the military an institution that is especially resistant to authoritarian tactics.)

I know a lot of people are in denial and will believe what I’ve laid out above is alarmist and hyperbolic. But anyone who is paying attention can see how the pieces fit together, at least in some “theory” concocted by Miller and Hegseth and other unwell people in this administration. It doesn’t mean that it (especially #2 and #3) will be successful — but understanding your adversary’s ultimate goal is crucial to knowing how to counter it.

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In fact, I think the most important “battlefield” right now is the information space (#1), and people opposed to Trump and his policies (which includes not just Democrats, but independents and entities and people targeted by Trump) are pretty much ceding this ground. There are ways to neutralize the “spectacles” Trump seeks to capitalize on and even make them backfire with the right kind of strategy and organization. One example of someone who has done this incredibly effectively is Ukrainian President Vlodymyr Zelensky, as described in this study.

I think we can take some lessons from this. To this end, I hope you’ll tune into my talk on Tuesday with psychologist Jay Van Bavel, author of The Power of Us, where I’ll discuss with him how these moments could be an opportunity to create shared identities and solidarity that help promote dissent and resistance. (see “Upcoming Events,” below, for more information!)

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In the meantime, tune in to me and Renato and breaking down Hegseth’s speech with Gen. Hertling:

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Join me and Renato in Alaska!

It’s Complicated is cruisin’! Come join me and Renato as we explore the stunning beauty of Alaska and discuss how we can work together to protect our democracy! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. Stay tuned for our next happy hour/info session!

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My clips this week:

• In the middle of everything, one of Trump’s cabinet members brought Epstein back into the spotlight. I discussed with Melissa Murray and Andrew Weismann on MSNBC:

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Upcoming events:

• COMING UP! Class Guest Speaker Professor , co-author of The Power of Us: Harnessing Our Shared Identities to Improve Performance, Increase Cooperation, and Promote Social Harmony and co-author of the Substack, Tuesday, October 7, 11:00 a.m. EDT. I am loving this book, and feels like it offers a path forward out of our current dystopia. Please join to find out more about how social identities shape the way we perceive the world, and how we can use that for our collective benefit! Zoom link sent to paid subscribers three hours before the event. A recording will be posted for those who cannot make it live.

• NEW! Zoom Office Hours, Thursday, October 23, 5 p.m. EDT. We will discuss the latest. I hope to bring in another special guest, so stay tuned! Zoom link will be sent to paid subscribers three hours before the event. Office hours are not recorded.

• The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age, Tuesday, October 28, 8 p.m. (sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

• Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Wednesday, November 5, 7 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Time/Date TBA (likely late November/early December). Class Guest Speaker , author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and post for those who cannot make it live.

  The Freedom Academy is a reader-supported publication. Become a paid subscriber to receive unique analysis, access to guest speakers and book authors, and interactive discussions. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. It’s becoming increasingly clear that developing media literacy is something that we are going to have to take on as individuals. This “harm-reduction playbook for covering populists” from the Reuters Institute and the University of Oxford is a great guide that can help you recognize when the media is falling down on the job of correctly framing and covering populist tactics. Here is a helpful chart:

3. Self care tip of the week: In the spirit of my Substack post earlier this week on cultural touchstones, enjoy something — a concert, sporting event, movie or TV show (in person or at home) — that generates a sense of connectedness. I find nostalgia always helps! Feel free to list recommendations in the comments (I know that the Netflix documentary, The Greatest Night in Pop, that many folks recommended in the post’s comments is on my view list for this weekend!)

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Look unafraid, because that sets an example for others.

— Professor Timothy Snyder

So we have crossed yet another Rubicon (can you cross more than one?) with the indictment of former FBI director James Comey on Thursday, for perjury and obstruction of justice regarding a line of testimony he provided Congress five years ago, about events that happened three years prior to that. So yeah.

I’ve written my thoughts about the charges and what they portend separately, but what is more important right now is how we collectively respond to this moment in our country’s history. And to that end, I think Professor Snyder’s words, quoted above, are critical. They come from his interview earlier this week with Chris Hayes on the importance of Jimmy Kimmel returning on air and doubling down on his criticism of Trump. (Kimmel’s monologue is worth watching in its entirety, noting that at 14:22 he, too, emphasizes the importance of speaking out.) Here is what Professor Snyder said about how to resist Trump and his dismantling of democracy:

Notice Professor Snyder’s emphasis on the following components of effective resistance:

• speak up

• do so in large numbers

• find surprising ways to do it

• take over the opposition’s language

• look unafraid

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You might be wondering what any of this has to do with Charlie Kirk, as I suggest in my tagline to this Round Up. Well, soon after Kirk was killed, I came across this Substack post that offered an explanation of why Kirk was so revered by his followers. I think it goes without saying that I am not a Kirk fan or follower myself, but understanding him through “MAGA eyes” was very illuminating. I was especially struck by the following passage, about why Kirk’s on-campus events were so important:

For years progressives have looked at Charlie Kirk’s campus events and lampooned him for spending so much time debating 18-year-olds. They missed the point of these events. By walking onto hostile campuses and planting TPUSA chapters, Kirk showed young conservatives that they were not alone. By arguing with anyone willing to stand in line—professor or protester, heckler or hanger-on—Kirk was demonstrating that conservative beliefs could withstand the scrutiny and social pressure of the college environment…Every time Kirk or his proxies praised Trump or made some inflammatory declaration, they were showing young conservatives that they could not be silenced.

Behind all of this was one overarching message: Do not fear. You have truth behind you. An entire fellowship of young conservatives stands behind you too. Charlie is here today to show you that conservatives like you can stand tall in hostile spaces. You can also do this. You should also do this. They do not own the public square. You do not need to be afraid.

Now look, I disagree with the premise: I have been working in higher education for almost twenty years, and at least on my campus I have not personally seen any evidence of conservatives being “silenced” (in fact when I was the dean of admissions at Yale Law School I created special recruiting events and outreach specifically for conservative students!).

But that’s not the point. The point is that, according to the author, Kirk emboldened the masses by showing people who perceived they were being targeted that they could speak truth to power. Basically, he used the same tactics that Snyder describes, except the “resistance” in his case was against the liberal establishment or woke universities or whatever. And it was clearly powerful for some of the people who witnessed it. In short, Kirk “modeled” what it looked like to be unafraid, and it made others less afraid. In the process, he mobilized thousands of people.

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But two (and hopefully millions more of us) can play at that game, for more noble ends. Right now there are people actually being persecuted, like the migrants who are being rounded up, the law firms and universities and individuals being coerced into falling in line, and individuals who are being investigated or threatened with investigations (or, in Comey’s case, actually indicted on Trumped-up charges). And so every instance of someone standing up to Trump, and being unafraid, is a model for all of us. I think this is exactly why Comey posted this video last night:

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I think we are all aware that our political leadership is sorely lacking the courageous leadership to meet this moment right now. So we need to notice, amplify, and emulate the people and institutions in civil society who are — the law firm that pushes back, the university that doesn’t cave, the political opponents who are being charged with made-up crimes. Comey is demonstrating the fearlessness Professor Snyder describes and that Kimmel displayed earlier this week. These need to be models for all of us in the coming months, as our situation deteriorates (which it will).

Most importantly, this courage has to be manifested in large numbers. In The Origins of Totalitarianism, Hannah Arendt writes:

It has frequently been observed that terror can rule absolutely only over men who are isolated against each other and that, therefore, one of the primary concerns of all tyrannical government is to bring this isolation about. Isolation may be the beginning of terror; it is certainly its most fertile ground; it is always its result….Isolation is that impasse into which men are driven when the political sphere of their lives, where they act together in the pursuit of a common concern, is destroyed.

Fear is the tool of tyrants, and it only works when we aren’t united in our efforts and organized against it. To turn the words in the piece cited above back to us:

We can also do this. We should also do this. We do not need to be afraid.

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Renato and I previewed what the Comey indictment means for him and for the Justice Department generally in this week’s pod (we recorded before Comey was officially indicted but the discussion is still salient!):

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Join me and Renato in Alaska!

It’s Complicated is cruisin’! Come join me and Renato as we explore the stunning beauty of Alaska and discuss how we can work together to protect our democracy! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. Stay tuned for our next happy hour/info session!

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My pieces this week:

• My op-ed for the San Francisco Chronicle on why, whatever we think about Comey and his actions in the past, the indictment against him is dangerous and an outrage

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Upcoming events:

• Class Guest Speaker Professor , co-author of The Power of Us: Harnessing Our Shared Identities to Improve Performance, Increase Cooperation, and Promote Social Harmony and co-author of the Substack, Tuesday, October 7, 11:00 a.m. EDT. I am loving this book, and feels like it offers a path forward out of our current dystopia. Please join to find out more about how social identities shape the way we perceive the world, and how we can use that for our collective benefit! Zoom link sent to paid subscribers three hours before the event. A recording will be posted for those who cannot make it live.

• The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age, Tuesday, October 28, 8 p.m. (sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

• Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Wednesday, November 5, 7 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Time/Date TBA (likely late November/early December). Class Guest Speaker , author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and post for those who cannot make it live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Practice fearlessness. One of the things I do when I start feeling bouts of anxiety or fear about the uncertainty of everything that’s going on is to pick one thing I am afraid to do, but have control over, in my life. I’m talking something small, like having a conversation that I’ve been avoiding, or something like that. And I just sit down, and confront it: What is making me afraid? What’s the worst that could happen if I did it? How would I respond if the worst-case scenario unfolded? This practice alone often dissipates the anxiety, and can even give me the push to just do it. Courage is like muscle we can strengthen in small steps — find something you are afraid of, and practice confronting it (and if you can, doing it)!

3. Self care tip of the week: Read something inspirational. As a corollary to the above, sometimes I need to find something that lifts me up. I know many people turn to scripture, and I have a copy of the Bhagavad Gita next to my bed to get clarity on things. But poems, quotes, memoirs, and so many other resources are out there as well. Please share in the comments! One of my favorites is Mahatma Gandhi’s Morning Prayer, which I have posted on my bulletin board:

Let the first act of every morning be to make the following resolve for the day:

- I shall not fear anyone on Earth.
- I shall fear only God.
- I shall not bear ill will toward anyone.
- I shall not submit to injustice from anyone.
- I shall conquer untruth by truth. And in resisting untruth, I shall put up with all suffering.

(Full disclosure: I am still working on the “not bearing ill will” part)

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In 1351, the English Parliament passed a law called the Statute of Treasons. The statute specified seven different crimes that could be considered either “high treason” or “petty treason.” Six of them actually required some kind of criminal action, like levying war against the king, or sleeping with his wife, or killing one of his ministers.

But one of them didn’t require any action at all: It was a thought crime. Known as “compassing the death of the King,” merely imagining the king’s death (or the queen’s, or their heir’s) was a crime unto itself. Professor Carlton Larson, author of On Treason: A Citizen’s Guide to the Law (an excellent book and a must read, especially for these times), writes that in defining treason in the Constitution, the Framers easily dispensed with including compassing the king’s death, because “[n]ot only was there no king in America, but this provision had generated some of the worst abuses under English law.”

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The crimes against the king — including thought crimes — are an interesting juxtaposition against the role of the court jester, who could get away with quite a lot apart from providing entertainment, including criticizing, mocking, and even insulting the king directly (and perhaps referencing his death, I suppose, if they were funny enough). Shakespeare’s plays have many examples of this “jester’s privilege,” from As You Like It’s Touchstone to King Lear’s Fool. This delightful TED-Ed video narrated by Beatrice D. Otto, author of Fools Are Everywhere: The Court Jester Around the World, shows how close to the line jesters could come across various cultures:

One of the main purposes of the jester — the entertainer and comedian of the court — was to speak truth to power…even if you were a king or an emperor.

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But that role doesn’t extend, apparently, to being a comedian under a U.S. president. Disney’s suspension of late night host Jimmy Kimmel under pressure from the Trump administration follows in the footsteps of autocrats around the world, who are clearly more thin-skinned than their divinely-appointed historical counterparts.

For instance: In 2000, soon after coming to power, Putin became incredibly irked by a late night political satire show featuring puppets called “Kukly” — watched by over half the households in Russia — that mercilessly critiqued his administration. Kukly had also skewered Putin’s predecessor, Boris Yeltsin, when he was president; Yeltsin apparently hated the show too but, as the first post-Soviet president who had made claims to support free speech, he “ground his teeth and bore it all.” Putin, not so much. This contemporaneous New York Times article describes the shift after Putin took office:

'Things changed dramatically,' [the program’s writer] said. ‘There were no requests for physical changes. But we've received threats from his political family — not threats to close the program but that the program may have some “difficulties.” And this Russian phrase, “to have difficulties,” can mean many things.’

The threats peaked this March in a private conversation between a senior Kremlin official and a top executive at NTV. Yevgeny Kiselyev, the network's general director, said the official proffered a list of tasks the network would have to meet to escape the government's wrath, including less skeptical political coverage and toned-down reporting on the war in Chechnya. ‘One of those demands was to get Mr. Putin's look-alike — his rubber look-alike, that is — off the “Kukly” show,’ Mr. Kiselyev said in an interview.

At the time of the article’s publication, NTV’s chairman, Vladimir A. Gusinsky, had just been jailed. The show was still on the air, and the show writer was quoted as stating, “I'm not saying we don't have freedom of speech. I'm saying that the field of that freedom is being narrowed. There are fewer and fewer who can speak the truth. And maybe ours is one of the last.”

The show was later canceled, and replaced with milquetoast programs that were allowed to criticize people — as long as they were popular celebrities or enemies of the Kremlin, like President Obama.

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Since then, everyone is joining the Autocrat Crybaby Club. Turkey’s Erdogan prosecuted a Turkish man for making a meme that compared him to Gollum. Egypt’s Abdel Fatah al-Sissi threatened to fine a comedian dubbed as “Egypt’s Jon Stewart” with a $10 million fine (he Feld to the U.S….oops). Professor writes at Lucid that Berlusconi brought the power of the state against media outlets in Italy.

Of course, all of them are following the OG fascist playbook:

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With Trump, don’t forget that this has been something he been trying to do for a long time. Comedian Michelle Wolf got canceled for her jokes about Sarah Huckabee Sander’s eyeshadow at the 2018 White House Correspondent’s Dinner (which was in my opinion a pretext for the real reason, which was that she roasted Trump, a lot). This year’s dinner’s comedian was canceled after she criticized the Trump administration on a podcast. In fact, the WHCA president decided they wouldn’t have a comedian, at all.

The crackdown at ABC is one that is sure to be the beginning of many more, especially if we don’t resist and speak up, now. Perhaps the silver lining of Disney’s actions against Kimmel is that it might get some ordinary folks who have been in denial that we have crossed a Rubicon to finally wake up and take notice.

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Renato and I discuss more about the legal implications of Kimmel being taken off air, as well as the charges against Charlie Kirk’s alleged killer, Tyler Robinson, in this week’s pod:

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Join me and Renato in Alaska!

It’s complicated is cruisin’! Renato and I will be hosting an Oceania cruise to Alaska! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. We’ll also be doing another happy hour for people book and/or interested in the cruise on Tuesday, September 23, at 7 p.m., so please join us!

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My podcast, radio, and TV appearances this week:

I did a lot of chatting about the FBI under the leadership of Director Kash Patel this week:

• I joined Greg Sargent on his podcast at The New Republic, The Daily Blast

• I was on NPR’s Here and Now to discuss Patel and the Kirk murder investigation

• And I was on PBS News Hour to talk about Patel’s testimony in front of the Senate Judiciary Committee, as well as claims about where on the political spectrum extremist violence comes from:

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Upcoming events:

• COMING UP! The It’s Complicated Cruise happy hour, with Renato Mariotti, Tuesday, September 23 at 7 p.m. EDT. Interested in our “democracy cruise” to Alaska? Join the happy hour to learn more — we are so excited to get on board with like-minded people to have important conversations and also see a beautiful part of our country! RSVP here.

• COMING UP! Class Guest Speaker, Georgetown Professor Dan Nexon on Authoritarianism, Democratization, and Coalition Politics, Wednesday, September 24 at 5 p.m. EDT. I read this thread by Professor Nexon on BlueSky about how coalitions are the key to defeating authoritarianism, and had to have him speak to our class. Come listen to a clear-eyed assessment of where we are and the challenges and possibilities for getting our democracy back on track. Zoom link will be sent to paid subscribers three hours before the event. A recording will be posted for this who cannot make it live.

• Class Guest Speaker Professor , co-author of The Power of Us: Harnessing Our Shared Identities to Improve Performance, Increase Cooperation, and Promote Social Harmony and co-author of the Substack, Tuesday, October 7, 11:00 a.m. EDT. I am loving this book, and feels like it offers a path forward out of our current dystopia. Please join to find out more about how social identities shape the way we perceive the world, and how we can use that for our collective benefit! Zoom link sent to paid subscribers three hours before the event. A recording will be posted for those who cannot make it live.

• The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age, Tuesday, October 28, 8 p.m. (sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

• Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Wednesday, November 5, 7 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Time/Date TBA (likely late November/early December). Class Guest Speaker , author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and post for those who cannot make it live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Resist the encroachment on our First Amendment freedoms by exercising your rights! Share satire and humor — particularly stuff that mocks Trump and the companies that are caving. Why? Because you (still) can. I personally loved this fantastic clip from Late Night with Stephen Colbert:

3. Self care tip of the week: Practice gratitude. I got a reminder to do this early last week and my initial thought was, “The country is going to hell in a handbasket and you want me to be grateful?!?!” But then I tried to be intentional and do it, every day…and you know what? It works. When my mind is spinning out, reminding myself of the things in my life I am grateful for (at this moment, the fact that you have read to the bottom of this Round Up!) helps me feel more centered, calm, and…OK. Try it (and feel free to share in the comments!).

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I’ve been spending most of this week writing the next class lesson which I will post on Monday, and to be honest the news this week is just…too much. I’ll be doing a Substack live with tonight at 8 p.m. ET to discuss the latest on the Charlie Kirk shooting, the FBI’s investigation, and anything else that might come up between now and then, so please tun in!

In the meantime, Renato and I broke down the latest Supreme Court administrative stay regarding the roving ICE stops in Los Angeles. I won’t delve too far into it here, since we unpack it in some detail in the pod, but I do want to elaborate on one point that Renato notes in the discussion, which is the difference between Kavanaugh’s (and presumably the Court’s, though we don’t know for sure since no one else offered any reasoning or explanation) reasoning with regard to the use of race for determining reasonable suspicion, and the Court’s rationale for barring the use of race as a consideration in college admissions.

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As a recap, here is what the Court said in Students for Fair Admissions, Inc. v. Harvard (2022) about the use of race in admissions (citations omitted and emphasis added):

We have long held that universities may not operate their admissions programs on the ‘belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.’ That requirement is found throughout our Equal Protection Clause jurisprudence more generally. (“In cautioning against ‘impermissible racial stereotypes,’ this Court has rejected the assumption that ‘members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike . . . .’”

Yet by accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, respondents’ programs tolerate the very thing that Grutter foreswore: stereotyping.

By contrast, here is Kavanaugh’s argument for why using race and ethnicity, along with things like speaking Spanish, being present in a particular location, or having a certain kind of job, are permissible criteria for ICE to conduct a stop (citations omitted and emphasis added):

Here, those circumstances include: that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors.

Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States.

It’s “common sense,” folks!

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Now, look. There are important differences between these cases, legally speaking. The admissions case concerns the Equal Protection Clause of the Fourteenth Amendment; the ICE case concerns the Fourth Amendment. These two constitutional provisions have different doctrinal frameworks and jurisprudence: racial classifications under the Equal Protection Clause are analyzed under a “strict scrutiny” standard, while the Fourth Amendment is governed by whether the conduct constitutes “reasonable suspicion” of a crime. Arguably, the admissions context involves assumptions about how someone thinks, while the ICE context involves assumptions about how someone behaves. Fine.

But the fact remains that racial stereotypes are OK in one context, but not the other. Not only is this difficult to reconcile at a fundamental level, but they are actually inconsistent when viewed together, even under their respective frameworks. Here’s why:

What the Court was saying in the affirmative action context is that you can’t make assumptions about a person’s lived experience based on their race — we can’t assume, for example, that Blacks or Latinos, as a group, face discrimination. To take those kinds of experiences into account, applicants have to articulate their own, individualized experience.

However, what Kavanaugh is saying in his concurrence in the ICE case is that it’s totally fine to discriminate using race, to determine “reasonable suspicion” of criminal activity based on group characteristics. Here, no individualized suspicion is necessary. And as Renato and I point out in the pod, the actual demographics of Los Angeles mean that statistically, far more “legal” residents (about 80%) will be potentially subject to Fourth Amendment seizures than are actually warranted under the law.

To put this a different way, the Court in the affirmative action case is denying the existence of systemic racism, while in the ICE case it is actually sanctioning…systemic racism. It’s judicial gaslighting at its finest. And this Court seems to be perfectly OK with it.

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More in our breakdown of the case:

Join me and Renato in Alaska!

It’s complicated is cruisin’! Renato and I will be hosting an Oceania cruise to Alaska! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. We’ll also be doing another happy hour for people book and/or interested in the cruise on Tuesday, September 23, at 7 p.m., so please join us!

Share

Upcoming events:

• TONIGHT! Substack live with , author of the Substack, at 8 p.m. Confused on what a “Groyper” is? Is the FBI up to the task? Join us as we discuss. Open to all subscribers!

• Zoom Office Hours, Tuesday, September 16, 6:30 p.m. EDT with special guest Mimi Rocah! So excited to have my friend Mimi join us to discuss, well, everything. Zoom link will be sent to paid subscribers three hours before the event. Office hours are not recorded.

• The It’s Complicated Cruise happy hour, with Renato Mariotti, Tuesday, September 23 at 7 p.m. EDT. Interested in our “democracy cruise” to Alaska? Join the happy hour to learn more — we are so excited to get on board with like-minded people to have important conversations and also see a beautiful part of our country! RSVP here.

• NEW! Class Guest Speaker, Georgetown Professor Dan Nexon on Authoritarianism, Democratization, and Coalition Politics, Wednesday, September 24 at 5 p.m. EDT. I read this thread by Professor Nexon on BlueSky about how coalitions are the key to defeating authoritarianism, and had to have him speak to our class. Come listen to a clear-eyed assessment of where we are and the challenges and possibilities for getting our democracy back on track. Zoom link will be sent to paid subscribers three hours before the event. A recording will be posted for this who cannot make it live.

• Class Guest Speaker Professor , co-author of The Power of Us: Harnessing Our Shared Identities to Improve Performance, Increase Cooperation, and Promote Social Harmony and co-author of the Substack, Tuesday, October 7, 11:00 a.m. EDT. I am loving this book, and feels like it offers a path forward out of our current dystopia. Please join to find out more about how social identities shape the way we perceive the world, and how we can use that for our collective benefit! Zoom link sent to paid subscribers three hours before the event. A recording will be posted for those who cannot make it live.

• The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age, Tuesday, October 28, 8 p.m. (sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

• Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Wednesday, November 5, 7 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for those who cannot make it live.

• NEW! Time/Date TBA (likely late November/early December). Class Guest Speaker , author of the Substack, on Local Affairs and the Habits of Democracy. So excited to have my friend, law school classmate, and colleague David — who has been a previous guest speaker for my Substack class on the role of state politics in facilitating autocracy — come and talk to us about how we can effect change at the local level. Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and post for those who cannot make it live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. I came across this video while doing research for the next Substack post, and it’s an interesting conversation (I also included it as the “assignment” for Class 45). It’s some food for thought on the relationship between empathy and democracy, which I will go into more in my Monday lesson:

3. Self care tip of the week: Put away your phone. In watching the above video and also listening to Utah Governor Spencer Cox’s exhortation about social media being a “cancer,” I’m trying to be more intentional about my consumption. We control our devices, not vice versa! I’m not sure how long I’ll be able to unplug, but going to try to at least be off social media for the day.

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Hope you enjoyed that. I’ve got another chart and explainer coming to you soon, as well as an upcoming class lesson. On that front, please see below for a bunch of new class speakers coming up!

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In the meantime was a big news week, and Renato and I discussed the threatened showcase showdown between Texas and Illinois, and how Trump is attempting to exploit ambiguities and loopholes (surprise!) in the patchwork of laws regarding the National Guard to essentially create a second standing army that can be used against Americans and states he doesn’t like. We also discussed the horrifying abuse of his military command authority to (very illegally) strike a boat in international waters. Please check it out!

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Join me and Renato in Alaska!

It’s complicated is cruisin’! Renato and I will be hosting an Oceania cruise to Alaska! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. We’ll also be doing another happy hour for people book and/or interested in the cruise on Tuesday, September 23, at 7 p.m., so please join us!

Upcoming events:

• NEW! Zoom Office Hours, Tuesday, September 16, 2 p.m. EDT. We’ll discuss the latest. (I hope to have a special guest, stay tuned!) Zoom link will be sent to paid subscribers three hours before the event. Office hours are not recorded.

• NEW! The It’s Complicated Cruise happy hour, with Renato Mariotti, Tuesday, September 23 at 7 p.m. EDT. Interested in our “democracy cruise” to Alaska? Join the happy hour to learn more — we are so excited to get on board with like-minded people to have important conversations and also see a beautiful part of our country! RSVP here.

• NEW! Class Guest Speaker, Georgetown Professor Dan Nexon on Authoritarianism, Democratization, and Coalition Politics, Wednesday, September 24 at 5 p.m. EDT. I read this thread by Professor Nexon on BlueSky about how coalitions are the key to defeating authoritarianism, and had to have him speak to our class. Come listen to a clear-eyed assessment of where we are and the challenges and possibilities for getting our democracy back on track. Zoom link will be sent to paid subscribers three hours before the event. A recording will be posted for this who cannot make it live.

• NEW! Class Guest Speaker Professor , co-author of The Power of Us: Harnessing Our Shared Identities to Improve Performance, Increase Cooperation, and Promote Social Harmony, Tuesday, October 7, 11:00 a.m. EDT. I am loving this book, and feels like it offers a path forward out of our current dystopia. Please join to find out more about how social identities shape the way we perceive the world, and how we can use that for our collective benefit! Zoom link sent to paid subscribers three hours before the event. A recording will be posted for those who cannot make it live.

• The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age, Tuesday, October 28, 8 p.m. (sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

• NEW! Class Guest Speaker Professor John Witt, author of the forthcoming The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, Wednesday, November 5, 7 p.m. EST. Our current moment has many parallels to the Gilded Age. The Progressive Era, which followed, generated many grassroots movements and jumpstarted our democracy towards what Scholar Robert Putnam calls an “upswing.” Professor Witt’s book is about one of those movemements, which may hold lessons for us today. Please join! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and post for those who cannot make it live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. I recently attended a Rule of Law workshop that provided a comprehensive overview of upcoming election threats. I will spare you the nightmare fuel for now (I’ll do a post about it soon), but one of the things that was emphasized was how much local election officials need to know that their community has their back — these are folks on the front lines of a thankless job, and increasingly subject to threats and harassment. Learn about the people in your town who administer elections and send them your thanks and support for what they do.

3. Self care tip of the week: Drink water. This is one of those basics that I am soooo bad at. Somehow I never hit my target by the end of the day (despite getting this helpful water bottle that’s supposed to keep me on track), but on the days that I do I sleep better and feel more energized overall.

Here is your bonus Triangle Club picture for making it all the way to the bottom of this Round Up (from the sketch, “Procrastination Island”)!

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Below I’ll explain who comprises each of these MAGA sub-factions, the playbooks they are using, and areas of overlap and potential conflict.

WARNING: Pretty much everything you are about to read is bats**t crazy and will be nightmare fuel…because it’s already underway.

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Group 1: Right-Wing Violent Extremists

This group includes the MAGA thugs, or what I like to call Trump’s “shadow army.” These include the folks who showed up to “fight like hell” for him on January 6 in his attempted self-coup. The purpose of Trump’s blanket pardon for all January 6 insurrectionists is to make sure they know that Trump has their back if he needs to call upon them again.

The Biden’s administrations 2021 National Strategy for Countering Domestic Terrorism refers to right-wing extremists as “domestic violent extremists” (DVEs) and categorizes them into two groups: racially-motivated violent extremists (RMVEs) and militia violent extremists (MVEs). The distinction is important because they have differing (though overlapping) ideologies and different tactics. According to the NSC report, RMVEs are more likely to conduct mass-casualty attacks and DVEs are more likely to attack law enforcement personnel and facilities (though perhaps not right now, since they feel they are in control of it). RMVEs also have the most transnational connections since there are white supremacist groups and movements around the globe.

The Playbook: The Turner Diaries

Historian and University of Chicago Professor Kathleen Belew, author of Bring the War Home: The White Power Movement and Paramilitary America (a MUST READ), described The Turner Diaries as a novel that functions as “a foundational how-to manual for the [white power] movement.” The book is set in the 1980s and 1990s, written from the perspective of a “soldier” attempting to overthrow the government during a race war. Below describes the plot as follows:

Presented as a diary found and published after a white racist revolution has overthrown the U.S. government, it describes an all-white utopia. It recounts a series of terrorist attacks leading up to the partitioning of a white homeland in California and the use of nuclear weapons to clear first the United States and then the world of nonwhite populations. In the future world, in which the diary serves as a historical artifact of the revolution, the white supremacist army, called the Organization, has abolished the dollar, started a new calendar at year zero, and made women subservient. At various moments, the novel describes the forced migration of all people of color out of California, the genocide of Jews, the nuclear bombing of high-density black populations in the South, and the public lynching of all people in interracial relationships.

Belew observes that The Turner Diaries surfaces repeatedly in acts of racially motivated and anti-government violence, such as the Oklahoma City bombing: It was apparently one of Timothy McVeigh’s wares that he sold at gun shows before he bombed the Alfred P. Murray building in 1995. (More on McVeigh in my analysis of Jeffrey Toobin’s Homegrown: Timothy McVeigh and the Rise of Right-Wing Extremism — also a must read — in this Substack post, Anatomy of a Mass Murder).

Indeed, references to The Turner Diaries have recently surfaced in DHS’s recruiting propaganda, which I discuss more below.

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Group 2: Christian Nationalists

You might wonder why I am separating the rightwing violent extremists from the Christian nationalists. There is definitely some ideological overlap, but where the former see violence as the means to their end, the latter have a “legal” blueprint on how to achieve it by subverting laws, institutions and norms from the inside. This allows them to subvert democracy while maintaining a veneer of legality. Maybe the way to think about it is that the violent extremists are the “brawn” and the Christian nationalists the “brain” (such as it is) to arrive at a similarly envisioned utopia.

The Playbook: Project 2025 (and Victor Orban)

We’ve all heard of Project 2025, or pieces of it, but probably not many people have read the whole thing in its entirety. I personally haven’t (the policy section is almost 1,000 pages), but I am currently reading a very helpful digest and analysis of it in The Project: How Project 2025 is Reshaping America, by The Atlantic’s David S. Graham (it’s a relatively short and quick read). Here’s what you need to know:

The Project 2025 blueprint was created by Trump acolytes in coordination with the Heritage Foundation. According to Graham, it is a “four-pronged plan that includes a detailed policy platform, a huge database of potential administration hires, training courses for aspiring staffers, and a playbook for a blitzkrieg takeover of the government on Day One.” The policy agenda, in turn, includes five pillars: 1) Gender, Family, and Rights (ban abortion, theocratic policies, anti-DEI, anti-science); 2) Immigration and Border Security (mass deportations); 3) Economy and Trade (tariffs); 4) Environment and Energy (deregulation); and 5) foreign policy and defense (purge the Deep State and defeat China). Graham details that to accomplish these goals,

the authors seek to politicize the executive branch, placing ideologues in charge of even the most quotidian functions, gutting the nonpolitical civil service, and grabbing power away from Congress….[T]hey plan to weaponize staid, sometimes obscure parts of the executive branch, including the Office of Management and Budget, the Office of Presidential Personnel, and the Department of Justice.

Yeah, so pretty much everything they have been doing over the last eight months. But Project 2025 actually mimics another playbook — that of Victor Orban in Hungary. Orban visited Trump in March 2024 and spoke at the Heritage Foundation’s headquarters, having successfully gained an influential foothold at the think tank over the previous years. (You can read about how the rule of law is going in Hungary — and basically where we are headed — in this Just Security piece.)

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Group 3: Tech Bros and Oligarchs

The biggest wild card in this administration that we didn’t have in Trump 1.0 are the tech bros and oligarchs and the super wacky and disturbing “philosophies” they bring with them. Honestly, they are so farfetched that they would be comical if the current Vice President and others in the administration didn’t consider these people their ideological gurus.

The Playbook: Curtis Yarwin

OK, buckle up. This is going to get weird, and I’ll do the best that I can to explain it. The tech bros and oligarchs (at least some of the most powerful ones) subscribe to something called “neoreactionary” (NRx) ideologies, described in this Platform article as ideologies “that seek to dismantle democratic structures in favor of hierarchical, authoritarian governance.” The leading “intellectual” in this space is one Curtis Yarvin.

Yarvin sees the media, universities, and the government (what he calls “the Cathedral”) as working in concert to indoctrinate people with progressive ideologies like “equality” and “representation” that suppress “real” freedom. In short, the article notes, “[t]his view seeks to erode public trust in democratic structures, paving the way for a model of governance centered on authoritarian control, with loyalty, submission and efficiency prioritized over collective decision-making and accountability.”

What does this look like? Well, democratic mechanisms are eliminated (i.e., no elections) and replaced with a “CEO” (i.e., a dictator) who runs the country like a business, called “GovCorps.” What could go wrong? The Platform article continues:

The corporate structures of GovCorps are to be embedded within Yarvin’s Patchwork model, which envisions the world divided into small, autonomous territories or ‘patches,’ each governed independently as a quasi-sovereign city-state. Under this system, each patch operates as a self-contained entity with its own policies, laws and societal norms. Governance within each patch is offered as a service, with citizens acting more as customers than as members of a community. Yarvin argues that this model creates a form of competition among patches, where territories vie to attract residents by providing desirable policies or services. Rather than engaging in the democratic process to influence governance, individuals express their preferences through a consumer-like choice: they can ‘exit’ a patch if they disagree with its policies and seek a more compatible governance model elsewhere. This transactional approach to governance reduces the citizen-government relationship to one of mere loyalty, devoid of democratic accountability. In Yarvin's view, democracy is supplanted by a form of corporate-style authoritarianism that diminishes the role of public participation.

Guess who will be providing the “desirable policies and services” in each sovereign “patch”? That’s right, the tech bro billionaires. They want to privatize government services and replace their administration with AI and other technologies, with the profits going directly to them.

Folks, I want to reiterate that this ideology has significantly influenced the current Vice President. Incidentally, Yarvin also believes that the State Department should be dismantled, Harvard University (specifically) should be shut down, and that Elon Musk should run the executive branch. So, obviously someone’s listening. (Also among Yarvin’s other beliefs is that slaves were better off before they were freed — he openly admits to believing in “race science” — and that there should be a “humane alternative to genocide” for undesirable groups.)

Speaking of Elon, I don’t want to take up more space going down another NRx rabbit hole, but his dad was an adherent to a kooky NRx philosophy called “technocracy,” which has some parallels to Yarvin, including that universities are untrustworthy, equality is a dumb idea, and there is no need for voting. You can read more about it here.

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The Overlaps:

It’s probably clear that there are some natural affinities between these three major factions — namely that they are all quite explicitly antidemocratic, racist, and, in my opinion, intellectually lazy. But their overlaps help explain a lot of what we have seen unfold.

Violent Extremists + Christian Nationalists: Stoking Culture Wars and Radicalizing Government Agencies

The Cracker Barrel logo. The green M&M’s shoes. The “woke wars” and “DEI hires.” These are only some of the idiotic culture wars that MAGA has stoked, but they are strategic. I’ve done a lesson for my Substack course on the intersection of identity and politics (Class 34), and am going to have some speakers discuss this topic more in an upcoming class (see my syllabus), but the basic thrust is that the culture wars are designed to activate certain identities, typically race and religion and gender. When people’s sense of self is centered around being white, or male, or Christian, and believe that these identities (even if not them personally), are under “attack,” it’s easier to trigger their tribal loyalties.

This, of course, then makes it easier to attract them with certain propaganda campaigns. You remember The Turner Diaries, above? Well, the below is a DHS recruiting post on X, for ICE. The post asks, “Which way, American man?” which appears to be a reference to a novel by William Hayley Simpson, Which Way, Western Man?, which was also a foundational text for the white power movement and published by a press founded by the author of The Turner Diaries. Though perhaps it’s all a coincidence.

In short, ICE and other agencies are actively seeking people with whom these violent ideologies resonate. And it seems to be working, according to this Washington Post article. This is what one aspiring ICE applicant had to say:

I keep seeing these memes where Indians are bragging about taking our tech jobs,” said Ely, 36. “So I said, ‘Oh yeah? Well I’m going to work with these guys that are going to arrest you, slam your face on the pavement and send you home.”

ICE is hiring 10,000 of these people.

Christian Nationalists + Tech Bros and Oligarchs: Dismantling the Government

Meanwhile, Yarvin’s first step in achieving his corporate dictatorship is something called R.A.G.E. — Retire All Government Employees. As we witnessed earlier this year, this was executed summarily with USAID and other State Department entities y DOGE’s takeover of the Office of Management and Budget — one of the identified Project 2025 chokepoints for arrogating Congress’ powers — and cutting off of key funding streams. Since then, the purging of federal employees and dismantling of entire agencies has continued, often with an assist from the conservative wing of SCOTUS, which also has an antidemocratic vision of the supremacy of the executive branch over the others, and even above the rule of law.

Tech Bros and Oligarchs + Racial Violent Extremists: Allying with Global Fascism

Finally, this administration has demonstrated a natural affinity with far-right and extremist movements worldwide, as well as a redefined geopolitical worldview that promotes white supremacy. At Elon Musk’s urging, for example, Trump passed an Executive Order allowing for white farmers in South Africa to come to the United States as refugees, claiming (falsely) that they are being persecuted in that country in a “white genocide.” Meanwhile, J.D. Vance expressed his support for AfD, a far-right political party in Germany that espouses anti-Muslim and antisemitic views and gave a blood-and-soil themed speech to European leaders in Munich. And Steve Bannon has been promoting far right movements abroad since the first Trump administration.

And, of course, Trump himself has his ongoing bromance with Putin, Kim Jong Un, Orban, Modi, and other strongmen around the globe.

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The Conflicts:

I’ve put Trump in the middle of this diagram because I don’t think he has any particular preference among these three bubbles: Since he is antidemocratic, racist, and intellectually lazy himself, any of these will suit him just fine (especially if they help him get revenge on enemies and profit off the presidency).

However, there are potential for the different factions to clash. We have already seen one of these, where the far right extremists and Bannon got into a kerfuffle about H1B visas, which Musk supports — it turns out that in order to achieve the creepy NRx corporate autocratic vision, you actually need skilled labor, like computer engineers. The tech bros also aren’t completely aligned with the Christian nationalists, since the Yarvinian utopia is completely devoid of any appeals to family or morality or God (Yarvin is an atheist), which are the fundamental(list) underpinnings for the Christian nationalists. Yarwin also thinks culture wars are fake. Ruh-roh!

Indeed, the tech bro faction is the main outlier here ideologically, and we have already seen that play out to some extent with Musk’s excommunication from Trump’s inner circle. He still seems to be swimming in the MAGA pool, though, I’m assuming because the spending chokehold he helped create, as well as a weaponized Justice Department or regulatory agencies, can be turned back around on him.

Finally, I’m not sure where to put the Epstein files in this diagram. They clearly have cross-faction interest (all of them seem obsessed with pedophiles generally). And, perhaps because of their self-proclaimed concern for children, some Christian nationalists are having an intra-faction conflict, with Rep. Thomas Massie and Marjorie Taylor Green going up against Speaker Mike Johnson about releasing the Epstein files.

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Having said all of that, it’s probably still too early to get out the popcorn for the circular firing squad. For right now, these three factions have similarly aligned momentum, which is causing grave damage to our democracy and deep harm to people and communities in this country. But understanding how your adversary thinks is the first step in defeating them. As you watch the events unfold, I hope that my “MAGA Map” helps you locate them in the right place and illuminates the method behind the madness.

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I have to admit that every week I start these round ups unsure of what to address, because there is simply too much happening at once. This “shock and awe” approach of the Trump administration is intentional — to strain your bandwidth to the point where you can’t keep up or make sense of anything, so you just give up. It is indeed tempting.

But this is no time for wearing sweatpants. For now, I am going to slow down, and focus on one thing at a time, and this week it’s going to be tariffs.

First, the big picture up front. As I have mentioned previously, Trump’s consolidation of power rests on two main pillars to destroy our system of checks and balances: On the judicial side, it is to erode the role of the courts to “say what the law is,” to use the Supreme Court’s words in Marbury v. Madison, either by obfuscating in court, evading the courts’ requests, or defying their rulings altogether. On the legislative side, it is to arrogate Congress’ authority to exercise the power of the purse to the executive branch, including doing things like unilaterally withholding foreign aid and terminating grants appropriated by Congress. The current Supreme Court appears to be mostly on board with both objectives, including throwing their fellow lower court judges under the bus while so doing.

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The tariffs fall in the appropriation of congressional powers category. In a previous Round Up, I explained why Trump decided to use the International Emergency Economic Powers Act (IEEPA) as the basis for his claimed tariff power (spoiler: unlike other authorities that actually provide the authority to impose tariffs, this one is ambiguous and contains no limits). I also offered a video explainer in this Ask Asha:

In May, a number of small business sued the Trump administration over the tariffs in the Court of International Trade (CIT), arguing that IEEPA does not grant tariff authority and that even if it did, the exercise of such authority without any parameters was an unconstitutional delegation of power by Congress. (This is called “arguing in the alternative” — lawyers will typically offer several “even if” arguments so that judges have a number of choose-your-own-adventure legal rationales to follow.) The CIT found that IEEPA did not grant the president such unlimited tariff authority and enjoined the administration from imposing the tariffs. The government appealed to the Court of Appeals for the federal circuit, which stayed the injunction (meaning that Trump could continue with the tariffs until it ruled), but also expedited the appeal en banc, meaning that the entire 11-judge court would hear the case. (Normally a smaller panel hears the case, and at the request of the losing party and the court’s discretion, it can opt to re-hear the appeal en banc — so this process got fast-tracked.)

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Yesterday, the Federal Circuit issued its 127-page opinion, holding 7-4 that Trump exceeded his authority in imposing tariffs under IEEPA. It’s a long opinion (which is why I am writing this Round Up later than usual!), but here are the big takeaways:

• The opinion deals with only a subset of the tariffs the Trump administration has so far imposed, encompassed by five executive orders that impose two types of tariffs. The first involve “trafficking” tariffs, which deal with tariffs imposed on Mexico, Canada, and China based on the “national emergency” they have created by failing to prevent illicit drugs from entering the U.S. The other are the “reciprocal” tariffs imposed on a number of countries, based on the “national emergency” caused by the trade deficit them.

• The court looked at the history of IEEPA, and found that it was passed in order to rein in the tariff authority exercised by Nixon under IEEPA’s predecessor, the Trading With the Enemy Act (TWEA). (A court upheld Nixon’s imposition of a tariffs under that law.) The court was therefore interpreting the language of IEEPA against this legislative history, which is a canon of statutory construction by the courts in determining Congress’ intent behind the law.

• The court rejected the government’s argument that IEEPA’s authorization to “regulate…imports” includes tariffs, noting both the legislative history above but also the fact that the statute does not mention tariffs, or any other similar language, like “duties” or “tax.” The court also noted that no president other than Trump had ever tried to use IEEPA to impose tariffs (there a number of other statutes that authorize it, as noted in my explainers above), and that even under the prior TWEA which a court ruled did authorize tariffs for a limited duration, only one president (presumably Nixon) has used it for that. All of these supported the court’s view that IEEPA did not authorize the kinds of unbounded tariffs imposed in the “trafficking” and “reciprocal” EOs.

• The court also stated that the breadth of Trump’s tariffs implicated the major questions doctrine, which holds that when an action is so “unheralded” and “transformative,” and “where the government has never claimed powers of this magnitude,” it must point to clear congressional authorization for the use of this power. The court cited the recent Supreme Court decision in Biden v. Nebraska, which invalidated President Biden’s loan forgiveness program on these grounds. In that case, even though the statute Biden used gave the Secretary of Education the power to “waive” or “modify” the terms of federal loans, the Court found the administration’s actions to be outside what Congress intended. Here, the court observed, the statutory language is even more vague and wanting.

• Finally, the court rejected the Trump administration’s er, trump card, which was to tell the court that this had to do with “foreign affairs” so it should basically butt out. The court noted that the power to impose taxes and regulate foreign commerce belonged to Congress, and that simply saying that something was “foreign affairs” wasn’t some kind of magic wand that transforms an action into a core executive branch function.

• Three judges concurred to state that they would go farther and declare that IEEPA did not authorize the imposition of tariffs, period. And four judges dissented, stating that the “regulate…imports” language authorized tariffs, that the tariffs did not implicate the major questions doctrine, and that it was not an unconstitutional delegation of power.

So, it’s a victory…for now. Sort of. The Federal Circuit vacated the lower court’s injunction and remanded it, noting that “universal injunctions” are now prohibited (as per a recent Supreme Court decision) and instructing the lower court to re-tailor its remedy (basically to narrow it to the affected parties in the case). It also stayed its ruling until the lower court figures all this out, which means that the tariffs can continue in the meantime. So it’s not a total kibosh on Trump tariffs, and probably won’t be final until the Supreme Court gets its hands on it — and at that point, it’s a toss up on which way it will go.

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Now that we have covered that, lets turn our attention and focus on Trump’s attempt to fire Federal Reserve Board Governor Lisa Cook. Renato and I discussed this on the pod, along with whether the Supreme Court will also weigh in on the million (trillion?)-dollar question of the independence of the Federal Reserve:

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Join me and Renato in Alaska!

It’s complicated is cruisin’! Renato and I will be hosting an Oceania cruise to Alaska! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. If you missed our virtual happy hour last week, no worries, we hope to do them regularly so that we get to know each other before we sail!

My pieces this week:

• I joined Yale School of Management Professor, as well as several other co-authors, in this Fortune piece about the danger of using the military to fight street crime

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Articles worth reading:

• There is a strategy behind all of these EOs that are challenging the fundamental constitutional order as we know it. It’s part of Trump’s attempt to create a “counter-constitution,” as my colleague and Princeton Professor Kim Lane Scheppele explains in this piece:

Trump aspires to change the US Constitution quickly, following in the footsteps of Viktor Orbán, Hugo Chávez and Rafael Correa who each rewrote their constitutions in their first year of autocratic consolidation. The US Constitution is practically impossible to amend. Trump is therefore revising the Constitution in the only way that US law makes possible. First, he packed the Supreme Court with judges friendly to his new constitutional vision and now he is making outrageous constitutional claims that he hopes this Court will accept. So far, the lower courts are resisting his attempts to override statutes by executive order on procedural grounds but the Supreme Court may agree with Trump on substance.

In short, there is method to what seems to be madness in these first few weeks of the Trump administration. The executive orders create a coherent picture of what I’ve called a counter-constitution, an alternative constitutional reality proposed in place of a current constitution. In the place of checks and balances, Trump advocates the “unitary executive theory,” which seeks the primacy of executive power, unshackled from constraints from Congress or even the courts.

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Upcoming events:

• TOMORROW: Zoom Office Hours with Special Guest , Sunday, August 31, at 5 p.m. ET. I know I normally bring in special guests for my Wine & Fries gatherings, but since I have been hearing so much alarm and despair at our monthly office hours, I thought Joyce would be the perfect guest to help us rally. You know and love her from her legal commentary on MSNBC and she is also the author of the forthcoming book, Giving Up is Unforgivable: A Manual for Saving Democracy (available for preorder). Zoom link will be sent to paid subscribers three hours before event. Office hours are not recorded.

• NEW! I am going to host my first Substack Live On Tuesday, September 2, at 8:00 a.m. with General , to discuss his latest piece for the on the military funeral “honors” being given to insurrectionist Ashli Babbit, as well as his take on the increased militarization in D.C. and Trump’s threats to spread them nationwide. This will be open to everyone! The chat will be posted afterwards if you are unable to make it live — I hope you can tune in (and that I don’t screw it up…I am so bad with learning new features!)

• The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age (Tuesday, October 28, 8 p.m. — sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. If you’re like me, you are having feelings of despair as things seem to get darker and darker. I found this essay by , “The hard-won hope of the long defeat,” to be the pick me up I needed this week. I hope it will be for you, also.

3. Self-care tip of the week: Lift weights. Over the past weeks I have increased the frequency of my strength training workouts and have felt like it makes me feel more empowered. I think the sensation of lifting weights makes me feel physically stronger, and therefore like I am ready for battle psychologically, as well…like, don’t eff with me and my country! Definitely better than feeling powerless. Even on the days I don’t go to the gym, I try to do at least 5-15 minutes of something — these short circuits by lynne_fit on Instagram are great for that.

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The good news is that my New York Times oped and TV hits are all basically cover what I would have written for today’s Round Up, so there is plenty of content for you to consume! All the links are below (I hope you will find the last clip especially entertaining). Plus, make sure to scroll down to the upcoming events as I have the dates and times for our next office hours (with Joyce Vance!) and book club guest nailed down.

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This week, Renato and I discussed how mortgage fraud is the crime of choice for Trump’s Justice Department to go after his enemies. Plus, we debated whether Gavin Newsom’s new messaging strategy is effective (we disagree on this point, I am interested to hear your thoughts!):

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Join me and Renato in Alaska!

It’s complicated is cruisin’! Renato and I will be hosting an Oceania cruise to Alaska! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. If you missed our virtual happy hour last week, no worries, we hope to do them regularly so that we get to know each other before we sail!

My pieces this week:

• I wrote an opinion essay for The New York Times on what the Bolton search means for the public’s trust in federal law enforcement

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My clips from this week:

I had a busy day yesterday! I first joined Antonia Hylton, who was subbing in for Ari Melber, at MSNBC, to discuss the Bolton search:

Then I headed over the CNN’s studios to discuss the Maxwell “interview,” and why it is a total joke:

THEN I headed over to The Food Network because apparently on Friday nights over the summer Abby Phillips has her guests do a roundtable while chefs cook in the background and feed us after. I am only posting a short clip because there was a lot of crosstalk (read: yelling) throughout the show — a friend called it “Crossfire on mushrooms” — but all I can say is hooooo boy. Thankfully I got an amazing eggplant parmesan and a glass of wine after:

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Upcoming events:

• TIME AND DATE SET: Zoom Office Hours with Special Guest JOYCE VANCE! (Sunday, August 31, at 5 p.m. ET) I know I normally bring in special guests for my Wine & Fries gatherings, but since I have been hearing so much alarm and despair at our monthly office hours, I thought Joyce would be the perfect guest to help us rally. You know and love her from her legal commentary on MSNBC and she is also the author of the forthcoming book, Giving Up is Unforgivable: A Manual for Saving Democracy (available for preorder). Zoom link will be sent to paid subscribers three hours before event. Office hours are not recorded.

• TIME AND DATE SET: The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age (Tuesday, October 28, 8 p.m. — sorry for the late timing but David is in Jakarta!) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Remember that the goal of targeted investigations is not necessarily to put someone in jail, but to subject them to harassment and intimidation and simply drain their resources in the process. In my clip above for MSNBC with , he mentions two organizations. The first is End Presidential Revenge, which is a legal defense fund though you can also join and show your support without donating. The other is Whistleblower Aid. Again, even if you don’t have the resources to donate it is still a good site to read stories about people who are speaking truth to power, often at great risk to themselves, in defense of democracy.

3. Self-care tip of the week: Unplug from the news. This is what I am doing for the rest of the day — I realize the world is a s***show, but I trust that other people can hold down the fort while I take a break (and the show will still be there when I get back). Give yourself a break when you need it! You will be better able to know your next right step when your mind is clear and your body is present.

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Let’s be clear about something: FBI agents are authorized by law to enforce FEDERAL criminal law. The vast majority of criminal laws are at the state level, and local and state law enforcement are best trained to address it. As I wrote in my piece last week, the idea of a general “national police force” is really an exception to our constitutional design, made necessary by the rise in interstate crime (largely due to the invention of the automobile) at the turn of the 20th century and the expansion of federal criminal laws as the administrative state grew. But even so, its police powers are limited:

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There are of course some kinds of violent crime, like organized crime, gangs, and drugs, that have a significant interstate component that makes it appropriate for federal enforcement. These kinds of crimes involve networks and money flows which the FBI has tools to investigate which are much more limited at the state level.

Even so, what the FBI is best suited for is investigating cases that states are simply not designed to do, like counterintelligence, domestic and international terrorism, public corruption, interstate and international trafficking, and crimes with a clear federal nexus, like fraud. These involve complex investigations, which is why a college degree is, and should be, required of federal agents. When I went to Quantico, my class included lawyers, accountants, scientists (we had a literal rocket scientist), teachers, and others. Think about the kind of knowledge and skillset that comes with these backgrounds.

Finally, the bread and butter of the FBI’s work isn’t running around cities in raid gear arresting people, but quietly gathering information — data, forensic analysis, interviews (which requires emotional intelligence and strategy) — to put together a case. It’s hard to see how the kind of Bureau Kash Patel imagines will be able to do this kind of work. which leaves us, and the country, less safe.

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Meanwhile, the Justice Department is involved in efforts to further commandeer local law enforcement in D.C. This is a separate issue from the presence of both federal law enforcement and the military in the city. Here, President Trump has issued an executive order based on this provision of D.C. law, part of the D.C. Home Rule Act of 1973:

Earlier this week, Attorney General Pam Bondi issued an order purporting to appoint DEA Administrator Terrence C. Cole as D.C.’s “Emergency Police Commissioner” for the duration of the “emergency” declared by Trump. The District went to court to enjoin her order, arguing that Section 740 (above) does not allow the Attorney General to simply supplant the Metropolitan Police Chief with some rando and take over the department.

The District got a (limited) victory, because the judge agreed — although he gave the Justice Department a chance to rewrite the order to be in compliance with the law rather than issuing the temporary restraining order. The good news is that the Justice Department caved and did just that: The Attorney General’s new order states that Terrence Cole is her “delegate” for the purpose of directing the mayor in assisting with law enforcement. But the new order now also includes language indicating that the D.C. police must assist with enforcement of federal immigration law, and that the Attorney General (or her delegate) can direct D.C.’s enforcement of local ordinances about “occupancy of public spaces.”

The judge is going to hold an evidentiary hearing on whether there is even a predicate “emergency” that justifies using the statute, and on whether Section 5 — the part that purports to direct enforcement of local laws — counts as a “federal purpose.” But there are really two big takeaways in the meantime.

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The first is that we have waaaaaay too many laws on the books that delegate “emergency” authority to the President. At the next opportunity (if we are fortunate enough to get one), those need to be clearly defined —meaning there has to be criteria on what constitutes an “emergency” (Section 740 does not do this which allows Trump to say “BIG CRIME!” is enough) — or severely limited or even rescinded altogether.

The second is that Trump is clearly testing to see how far he can push the envelope in D.C. To be clear, D.C. is the only place in the United States where he has some legal basis to directly commandeer local law enforcement (though for only a limited time of 30 days). But as you know, that won’t stop him from claiming that he can do it in Chicago or Los Angeles or wherever, if he thinks he can. And to tie this back in with what Kash Patel is doing with the FBI, that is clearly the goal — to turn the FBI into “national cops” who claim to have the authority to enforce local laws, if the states push back.

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This week, Renato and I had a great special guest to look at the other parts of the D.C. “takeover” — specifically with regard to Trump’s command of the D.C. National Guard in the city, and what that means for the rest of the country:

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Join me and Renato in Alaska!

It’s complicated is cruisin’! Renato and I will be hosting an Oceania cruise to Alaska! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and fill out your info here to have an agent call you with more information. If you missed our virtual happy hour last week, no worries, we hope to do them regularly so that we get to know each other before we sail!

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My clips from this week:

I was thrilled to be back on CNN last week to discuss the VERY disturbing ad campaign being pushed out by the Department of Homeland Security:

Upcoming events:

• Zoom Office Hours with Special Guest JOYCE VANCE! (Time/Date TBA, likely the last week of August, still trying to nail it down!) I know I normally bring in special guests for my Wine & Fries gatherings, but since I have been hearing so much alarm and despair at our monthly office hours, I thought Joyce would be the perfect guest to help us rally. You know and love her from her legal commentary on MSNBC and she is also the author of the forthcoming book, Giving Up is Unforgivable: A Manual for Saving Democracy (available for preorder). Zoom link will be sent to paid subscribers three hours before event. Office hours are not recorded.

• The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age (Time/Date TBA) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers. Thank you for your support!

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. I’m updating my syllabus for my Russian Intelligence, Information Warfare, and Social Media Course (the same course that I offer on this Substack!) and came across this great TEDx talk by Peter Pomerantsev that is worth a watch. (You can learn more about “identity threat” and the limits of fact checking in Class 36.)

3. Self-care tip of the week: Get near the water. So my theory is that everyone is either a water person or a mountain person (some are both). I’m a water person, and nothing makes me happier than being on a beach or lake, or even at a pool, if that’s what’s closest. (As I’ve gotten older, I’m less enthusiastic about actually getting in the water, though I am a water sports girl and love to scuba dive and water ski.) Today I am headed to Lake Pattagansett in Old Lyme for a college send-off party for my son. It’s supposed to be a beautiful day and I can’t wait.

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There is not a lot of great news these days and so, on the heels of my (depressing) piece on the FBI I published yesterday, I’ll highlight piece of good news: A court win regarding the separation of powers in our government.

The basic thrust of the underlying lawsuit deals with the way appropriated funds are disbursed to government agencies. Basically, Congress can appropriate capped funds for a finite time period. Once it does that, the executive branch, through the Office of Management and Budget (OMB) manages those funds though “apportionment,” i.e., dividing the funds to various parts of the executive branch along with guidance to agencies on how the money should be spent to make sure that it lasts for the period the money is authorized. In 2022, Congress passed a law requiring the executive to publish its apportionment decisions, and any OMB guidance to agencies, on a website. This comes out of the Constitution’s Statement and Account Clause (Art. 1, Sec. 9, Cl. 7), which requires the government to regularly publish an accounting of how appropriated money is spent — the purpose here is to ensure transparency and accountability with the use of public funds.

Well, you’ll be shocked to know that in March of this year, the Trump administration decided that it didn’t want to do that, and it took down the website. It did so in response to multiple inquiries from the Government Accounting Office (GAO), which is part of the legislative branch and monitors government spending. The GAO was looking into violations of the Impoundment Act, which was passed in 1974 and states that the executive branch must spend funds the way Congress directs and cannot refuse to spend funds. The administration was sued and got benchslapped by a district court which ordered the administration to restore the website. And as usual, the administration appealed, asking the D.C. Circuit for a stay of the district court’s decision. The court denied it.

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Let’s pause here and review our separation of powers. We hear a lot about the “unitary executive” and its core functions, like national security and military command. OK. But the other branches have “core” functions as well. The judiciary has the power to say what the law is. And Congress has the power of the purse. In fact, even proponents of the unitary executive argue (at least they used to) that if Congress doesn’t like what the executive branch is doing, it can always take away the money.

The Trump administration doesn’t really love the idea of checks and balances, so almost everything it’s done so far can be viewed as an attempt to destroy them. We have seen the Trump administration neutralizing the judiciary’s check by simply deciding not to obey court decisions it doesn’t like. The control over spending, and disclosure, is an attempt to neutralize Congress’ check, as well. In fact, the Trump administration’s position is that the Impoundment Act itself is unconstitutional. Its actions in this case are an extension of that position, and it may well be trying to posture to get that underlying question in front of the Supreme Court.

The main argument made by the government in this lawsuit is that the law requiring the website is unconstitutional. Even though Article I gives Congress has the power of the purse, the administration argued, Article II gives the executive branch the power to take care that the laws are executed. By forcing the administration to disclose how funds are being spent, Congress is “intruding” on the executive branch’s prerogative to execute laws in the way that it wants to.

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It’s important to underscore the implication of the argument being made here. It is asserting a primacy of Article II powers over Article I — it would effectively mean that no law passed by Congress could be enforced, other than however the President felt like enforcing it. To question how the law was being enforced would be an “intrusion” into executive authority. It would also mean that the primary check that Congress has on the President — the power of the purse — would become meaningless. The U.S. Treasury would basically be a black hole, and neither Congress nor the public would know, once funds had been appropriated, whether they were being spent properly, being spent at all, or even whether they are just lining Trump and his cronies’ pockets.

Judge Karen Henderson — notably one of the most conservative judges on the D.C. Circuit — was having none of it. In fact, her order begins by comparing the Trump administration’s “struggle for control over the purse strings” to the battle between Stuart monarchs and Parliament which led to “civil war, regicide and a new wellspring of liberty in the Glorious Revolution of 1688.” Going through the history of ratification, and the importance that the Framers placed on ensuring that control of the U.S. Treasury remained in the hands of the people (via the legislature), she notes that “[t]he public interest is best served by maintaining the separation-of-powers balance struck by the Constitution and especially so if the challenged statutes keep the citizenry abreast regarding duly appropriated expenditures.”

The Trump administration will no doubt now ask the Supreme Court for an emergency stay — it will be an interesting test of whether the so-called unitary executive theory of which six judges are so fond does, in fact, have any limits.

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This week, Renato and I looked at the different shiny objects Trump has been throwing out to distract from the Epstein scandal, as well as the gerrymander showcase showdown in Texas:

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Join me and Renato in Alaska!

It’s complicated is cruisin’! Renato and I will be hosting an Oceania cruise to Alaska! It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and also scroll down to the attend our virtual happy hour on August 13 at 6 p.m., with me, Renato, and agents on hand to answer your questions!

NEW! Freedom Academy Book Club Selection:

At our last office hours there was a question about why we are ceding AI dominance to China by allowing export of Nvidia chips (which were previously restricted), a move that the Trump administration claims is part of its negotiations over rare earth minerals, a market largely controlled by China (and which we need, for a number of things). As I mentioned on the call, I’ve been diving into critical and rare earth minerals (yes, they are different categories) and the geopolitical struggle around them. In May, I attended a panel sponsored by the Council of Foreign Relations on the topic which featured David S. Abraham, and afterwards picked up his book, Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age. I thought it would be great to share David’s knowledge with my Substack subscribers. Check out the book and/or make sure to attend our talk next month (to be scheduled, since David is currently in Jakarta) to find out more about the tug of war over rare earths and the U.S. role in it. (Warning: This will probably be a talk that will keep you up at night after.)

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Podcasts I was in this last week:

• I posted the link to the audio last week but the YouTube version of my discussion with Michael Cohen on his Mea Culpa podcast is now up (with looking glamorous because I had my fan on since I don’t have A/C):

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My clips from this week:

I joined Ali Velshi to discuss why the mass firings undertaken by FBI Director Kash Patel at the behest of Trump will irrevocably change the agency as we know it:

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Upcoming events:

• It’s Complicated Cruise Meet & Greet! Wednesday, August 13, 6 p.m. EDT. Join me and Renato to talk about our Alaska cruise next summer and get info from agents! Since this will be a fairly small ship, we wanted to start creating a sense of community with those who might go. If you’re interested, please sign up at this link — we hope to see you there!

• NEW! Zoom Office Hours with Special Guest JOYCE VANCE! (Time/Date TBA, likely last week of August) I know I normally bring in special guests for my Wine & Fries gatherings, but since I have been hearing so much alarm and despair at our monthly office hours, I thought Joyce would be the perfect guest to help us rally. You know and love her from her legal commentary on MSNBC and she is also the author of the forthcoming book, Giving Up is Unforgivable: A Manual for Saving Democracy (available for preorder). Joyce just talked me down from the ledge a couple of days ago so I know she will work her magic during office hours! Zoom link will be sent to paid subscribers three hours before event. Office hours are not recorded.

• NEW! The Freedom Academy Book Club with David S. Abraham, author of Elements of Power: Gadgets, Guns, and the Struggle for a Sustainable Future in the Rare Metals Age (Time/Date TBA, likely mid- or late- September) If you’re trying to follow the debate about critical and rare earth minerals (or want to know the difference between the two), you won’t want to miss this talk! Zoom link will be sent to paid subscribers three hours before event. The talk will be recorded and posted for paid subscribers.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Watch American Idol. OK this might seem like a weird pro-democracy tip, but bear with me. I don’t know about you, but particularly over the last six months, I am sort of distrustful of people — given what I see on the news, I wonder who the hell I am sharing this country with. I hadn’t watched Idol in a long time and decided to watch the latest season just for mind candy. But honestly, it has been such a mental tonic to see people from so many different backgrounds in one place, with so much talent, and supporting each other. It’s diverse, multicultural, and celebratory, and for me it has been a really good reminder that this is what most of the country is really like.

3. Self-care tip of the week: Read something for fun. Maybe many of you have the luxury to do this often. I don’t. Between keeping up with the news, reading court cases and filings, and getting up to speed on things like rare earth minerals — on top of my book research into complicity — I read a lot of pretty depressing stuff. And I suspect that many of you read a lot for work, too, whether its sales or medicine or whatever. Well, recently I picked up a random book I had bought a while back that is completely unrelated to anything I do (it’s There She Was: The Secret History of Miss America — I love beauty pageants, don’t judge me), and it has really provided me with a needed escape. What fun stuff are you reading?

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As I noted in last week’s Round Up, DNI Tulsi Gabbard attempted (unsuccessfully) to distract from the Epstein mess by bringing back and oldie-but-goodie: The so-called Russia “hoax.” As I noted, Gabbard attempted to conflate findings regarding to separate election interference issues into one — not clear if she doesn’t actually understand the difference herself, not gonna lie she does not seem like the brightest bulb in the box — and why nothing she “released” was new or particularly interesting.

This week, we learned that Tulsi’s release of newly declassified information actually debunks some of the conspiracy theories that MAGA have been salivating about over the past decade. Specifically, the Intelligence Community released a 29-page Annex to the Special Counsel Report produced by John Durham, who, as you will recall, was charged with “investigating the investigators.” Durham doggedly pursued verifying the preordained conclusion that the 2016 Russia investigation was a plot instigated by the Clinton campaign, which colluded with the FBI in order to make sure that he was never elected.

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Except that literally everything he uncovered disproved this theory. Back in June 2022, I wrote a Cafe Note on Durham’s failed attempt to prosecute Michael Sussman, a former Assistant U.S. Attorney and former partner at Perkins Coie (this is the reason that it was the first law firm attacked by Trump, as well). You can read the piece for more details on the basis for the prosecution, but it was more or less brought to give a veneer of credibility to MAGA’s conspiracy theories. (The jury acquitted Sussman.) Durham later charged a Washington-based Russian analyst, Igor Danchenko, who provided material for the so-called Steele Dossier, for making false statements to the FBI — he was acquitted also. (Durham only got one conviction against former FBI lawyer Kevin Clinesmith, who pleaded guilty to altering an internal FBI email regarding the Russia investigation.)

The long-awaited (by MAGA) “Durham Report,” which followed a four-year, $6.5 million dollar investigation — longer than the Mueller investigation itself — was a whopping 306 pages. It spent a lot of time discussing the “Clinton Campaign Plan,” which I described in my Cafe Note about the report as follows:

Durham also unearthed a report from the Intelligence Community comprised of ‘Russian intelligence analysis’ (meaning, from Russian sources) indicating that Hillary Clinton had a plan to ‘stir up a scandal’ against Trump ‘by tying him to Putin.’ Durham notes that the IC did not know whether the intelligence was accurate or even potential Russian disinformation. Nevertheless, Durham dubs this one piece of intelligence ‘the Clinton Campaign Plan’ and uses this as a basis to compare the FBI’s handling of Clinton to Trump. According to Durham, the FBI did not treat Russian intelligence about the Clinton Campaign Plan similarly to how it treated the information it received about Russia’s possible targeting of the Trump campaign. Moreover, the FBI’s failure to question the information received about Trump’s campaign as itself potentially part of the Clinton Campaign Plan reflected, in Durham’s view, the FBI’s confirmation bias against Trump. (Both of Durham’s failed prosecutions were vehicles to promote the theory that the Clinton campaign had lured the FBI into opening the Russia investigation.)

In other words, according to Durham, the proof that the FBI had it in for Trump is in the fact that it did not investigate the “Clinton Campaign Plan” more carefully.

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Well, thanks to the newly-released annex to Durham’s report, we now know why: According to The New York Times, the FBI knew that “a foundational document for that theory was most likely stitched together by Russian spies.” The Times goes on to note:

Mr. Durham’s report also mentioned that Mrs. Clinton and others in the campaign dismissed the allegation as ridiculous, positing that it was Russian disinformation. But Mr. Durham banished to the annex concrete details he had found that bolstered her campaign’s rebuttal, burying until now the conclusion that the email he called the ‘Clinton Plan intelligence’ was almost certainly a product of Russian disinformation.

In other words, the reason that the FBI didn’t spend a lot of time on this “intelligence” is because it knew it was disinformation. It’s almost like the Counterintelligence Division knew what it was doing.

You know, I had been thinking in recent months whether the early part of my Substack course, which focuses a lot on Russia’s tactics in the 2016 election, was too dated, or no longer relevant. Thanks to MAGA, though, it will always be evergreen.

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OK, now back to Epstein and Maxwell. This week, Renato and I discussed Maxwell’s potential pathways out of jail:

Join me and Renato in Alaska!

It’s complicated is cruisin’! If you listened until the end of our pod, you know that next summer Renato and I will be hosting an Oceania cruise to Alaska! (Yes, we had planned to do one this summer but between the election and some conflicts and difficulty with bookings, we pushed it to next summer. But this time it will happen, we promise!) It’s a small ship, and there will be lots of opportunities to talk to us both, plus we will have an opening and closing reception and dedicated democracy discussion tables throughout the cruise. You can find out more at this link, and also scroll down to the Upcoming Events to learn about our virtual happy hour on August 13, with agents from Oceania on hand to answer your questions!

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Podcasts I was in this week:

• I joined Michael Cohen for his Mea Culpa podcast to discuss all things Maxwell and Epstein

• And then I joined Stay Tuned with Preet with Mimi Roach, Elie Honig, and Preet Bharara to discuss…all things Maxwell and Epstein (audio link here)

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My clips from this week:

You’ll never guess what I talked about this week. Oh wow, you guessed! That’s right, Maxwell and Epstein and Trump (oh my!) First up, a couple of clips from Alex Witt:

Later in the week I joined Ari Melber to explain why I think Congress is the best vehicle for releasing this information:

And finally, I joined The Brief with Jim Sciutto on CNN International to discuss the breaking news that Maxwell had been moved to a minimum security prison in Texas. WTF

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Upcoming events:

• It’s Complicated Cruise Meet & Greet! Wednesday, August 13, 6 p.m. EDT. Join me and Renato to talk about our Alaska cruise next summer and get info from agents! Since this will be a fairly small ship, we wanted to start creating a sense of community with those who might go. If you’re interested, please sign up at this link — we hope to see you there!

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. I know the constant dismantling of norms and rules is getting us all down. Here is a great TED Talk that got my spirits up, I hope it will for you, too:

3. Self care tip of the week: Get lost in a movie. For real, I think we all need to check out for a couple of hours (or three — why are movies so long, these days?). I am going to see Superman with my kids this afternoon, and I can’t wait. Superman is my favorite superhero of all time. As a kid who sometimes felt like I was an outsider, I loved the idea that he fought for and helped everyone. (Apparently, this is now “woke”…though a reminder that Superman is literally an illegal alien, I mean, he’s basically on DHS’ D-list for deportation to El Salvador.) Anyway, I know the idea of truth, justice, and the American way feels like a pipe dream right now, but I’d like to be reminded of it, even for just a short while.

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