Friday Round Up! 3/14/25

There's a really fine line separating the U.S. right now and...Chile 1973.

I’m currently in Kenya, and blissfully unaware (mostly) of the chaos that is continuing to unfold in the U.S. I’m sure it will hit me like a Mack truck as soon as I am back, so I am fine with being in a bubble for the rest of my break.

However, I did want to discuss some of the chilling implications of the arrest and deportation proceedings against Mahmoud Khalil, a graduate student at Columbia’s School of International and Public Affairs. Renato and I discussed this in our most recent pod (which will drop Monday). Our discussion centers around the “foreign policy loophole” in current immigration laws which Trump is seeking to exploit (using one of his tools, pun intended, in his cabinet, Marco Rubio) to punish and chill speech that his administration doesn’t like.

It’s interesting because this brought to mind an article I wrote back in 2017 for Politico, in those rosy days when the rule of law not only still existed but also applied to the President. The piece considered whether Trump could assert a “foreign policy defense” to potential charges of obstruction of justice for firing then-FBI Director James Comey. I described how this defense would work:

A foreign policy defense would rest on the separation of powers principle that the president enjoys relatively unfettered discretion in the realm of foreign affairs. This idea is most powerfully expressed in language from a 1936 Supreme Court case in which the court acknowledged ‘the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.’ Under this view, courts should not second-guess the president on foreign policy decisions, not only because the United States must speak with ‘one voice’ when dealing with the outside world, but also because to do so would hinder the executive’s ability to make critical and fast-paced decisions in which he alone possesses the necessary information and expertise to act in the country’s interests. Presidents of both parties have long relied on this principle to defend challenges to executive actions like negotiations for hostages, designation of groups as foreign terrorist organizations or formal recognition of foreign governments.

But, I wrote, to allow a broad claim of “foreign policy” to act as a shield for criminal and unconstitutional conduct could open the door for some very problematic scenarios:

A typical—meaning, extreme and unrealistic—law school hypothetical can illustrate this. Say that the leader of North Korea, Kim Jong Un, is willing to stop further development of nuclear weapons— except that he finds a particular American citizen, who keeps posting obnoxious memes about him on the internet, to be especially irksome. The supreme leader tells the U.S. president that, if that citizen is ‘eliminated,’ he will dismantle his nuclear arsenal once and for all. Can the president murder the citizen in the interest of establishing international security and world peace? I’m going to go out on a limb and say no. Allowing the president to engage in illegal acts even for the loftiest of foreign policy goals would be an unwise precedent to set, to say the least.

You’ll notice that at the time, I considered this hypo to be “extreme and unrealistic” — though after the Supreme Court’s immunity decision, it is still extreme but not so unrealistic. After all, we all know Trump could order Seal Team Six to murder his political opponent, so of course he could order some random dissident killed, as long as he gave the order to the military and made it an “official act.” But if a President’s Article II authority to conduct foreign policy is construed as broadly as the Trump administration believes, it would make the scope of “official acts” even broader, allowing foreign governments to exploit an American president’s immunity for their ends.

How could this happen? Well, as I mention in the pod, many countries already actively target dissidents and critics of those countries living in the United States. We are familiar with the Saudi murder of Jamal Kashoggi, a U.S.-based journalist, in Istanbul. And then there was Turkey, which allegedly wanted U.S. officials to help kidnap a cleric, Fetullah Gulen, who lives in Pennsylvania, accusing him of being behind a coup to overthrow President Recep Erdogan. China was running a secret police station in New York City, monitoring pro-democracy activists living in the United States. And India has been accused of targeting a U.S. resident and Sikh separatist, Gurpatwant Singh Pannun, for assassination. I mean, wouldn’t it be a lot easier for them to just ask the Trump administration to just hand these folks over, you know, for some favorable “foreign policy” terms between the countries?

Right now, the Trump administration appears to be hanging its hat on delegated authority from Congress in the Immigration and Nationality Act, which gives the president the power to remove or exclude people under certain criteria (Trump also used provisions of this act for his travel bans). But Trump’s view of executive power doesn’t leave a lot of room for Congress, as we have seen in other areas. In fact, back in Trump 1.0, the administration tried to float the foreign policy defense to claim that the president could unilaterally withhold funds to Ukraine, in violation of The Impoundment Act. So they’ve been trying to get this dog to hunt for a little while.

If the Trump administration is not successful on its statutory grounds in court, I have no doubt they will ask SCOTUS to (re)interpret the President’s “core” foreign affairs authority to include the ability to detain, remove, and exclude people that the administration doesn’t like or want in the country. In fact, I could see the administration using national security grounds, already a “core” function of the executive branch, to bolster its argument. (We already see a version of this developing with the impending invocation of the Alien Enemy Act against migrants.)

You might be thinking, even if that were to happen, surely it could not affect actual U.S. citizens, right? Ehhhhhh, I don’t know . During Trump’s first term, he expressed a willingness to hand over former U.S. ambassador Michael McFaul and Bill Browder, a vocal critic of Vladimir Putin, to Russia for “questioning” at Putin’s request. I’d like to think that if these guys were rounded up in the middle of the night and sent to Russia on a military plane, that the Trump administration would have to answer for it in court, as they are doing with the Khalil case. But man, if that is just an “official act,” well…OK let’s not go there. Let’s assume the Constitution will mean something, and still means something.

That’s why lawyers are the front lines of defense right now — and why they are the ones Trump is going after. Renato and I discuss the attack on the legal profession in this week’s pod:

Articles I am quoted in this week:

• The stuff in this piece might sound like a broken record at this point, but I was quoted in this Salon piece about how Kash Patel could take the FBI rogue — and still be within the bounds of the law

Upcoming events:

• Freedom Academy Book Club, Tuesday, March 25, 6 p.m. ET. I’m so excited that the Freedom Academy Book Club selection for this quarter is Breaking Twitter: Elon Musk and the Most Controversial Corporate Takeover in History by Ben Mezrich. You are likely already familiar with Ben’s work, as his book, The Accidental Billionaires: The Founding of Facebook was the basis for the hit movie The Social Network, and his more recent book, The Antisocial Network, was the basis for the hit movie Dumb Money. I am fortunate to get to hang with Ben and his wife, Tonya, up in Quechee, Vermont, and we are very lucky to have him join us (sometime in March) to discuss Elon, Twitter, social media, and billionaires more generally! (I am actually also reading his other book, Bitcoin Billionaires, because I’m now kind of obsessed with the rise of the broligarchs.) The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted after in case you can’t make it live!

• NEW! Zoom Office Hours on Tuesday, April 1, at 6 p.m. ET. We’ll discuss actions steps and responses to what is happening. Zoom link will be sent three hours before the discussion. This will not be recorded.

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 and Musk’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. Start a democracy group! Check out the Contrarian’s weekly Democracy Index, which can help track the stories you need to pay attention to. Let them (us) do the work, because it’s too much to keep up with on your own (plus it can include good news, like this week)!

3. Self care tip of the week: UNPLUG. Honestly being out of the country and mostly offline this week has been really good for my mental health. We are all going to need frequent breaks over the next four years. Remember that there are a lot of people in the fight, it’s OK to step out if you need it!

‘Rise like Lions after slumber
In unvanquishable number—
Shake your chains to earth like dew
Which in sleep had fallen on you—
Ye are many—they are few.’

— The Masque of Anarchy by Percy Bysshe Shelley, stanza XXXVIII