The White House Correspondents Association has just capitulated to pressure from the Trump administration by removing comedian Amber Ruffin from its annual dinner. Their stated reason? “To ensure the focus is not on the politics of division.” This seemingly minor capitulation reveals something profound about how democracy dies—not through dramatic confrontation, but through a thousand small surrenders dressed up as civility, bridge-building, and institutional preservation.

Let’s be absolutely clear about what happened: A comedian called members of an administration implementing policies that deport people to face torture without due process “murderers” who aren’t “human beings.” The administration demanded she be removed. And instead of defending the principle of free expression—supposedly the cornerstone value of a press organization—the WHCA unanimously backed down.

Two plus two equals four. There are twenty-four hours in a day. And no amount of high-minded rhetoric about “re-envisioning our dinner tradition” can disguise what this represents: the normalization of autocracy through the quiet surrender of institutions that should be democracy’s strongest defenders.

This pattern has become distressingly familiar. Institutions faced with authoritarian pressure justify their capitulation as pragmatism, as bridge-building, as focusing on what “really matters.” But with each surrender, the space for democratic resistance narrows. With each concession, autocratic behavior becomes more normalized. With each institutional compromise, the cost of standing firm increases.

What makes this particular surrender so revealing is how it exposes the moral compromise at the heart of institutional responses to democratic backsliding. The WHCA isn’t some random organization—it’s a body explicitly dedicated to protecting press freedom. Its very purpose is to defend the right to speak truth to power. Yet when actually confronted with power’s displeasure, they didn’t just modify their approach—they unanimously abandoned it.

The language of their surrender is particularly telling. By framing a comedian’s criticism of an administration implementing objectively cruel policies as “the politics of division,” they implicitly position resistance to autocracy as equivalent to autocracy itself. This both-sides framing, where calling out authoritarian behavior is treated as equally problematic as the behavior itself, reveals a profound moral confusion about what democracy requires.

Democracy doesn’t depend on everyone being polite to each other. It doesn’t require critics of power to moderate their language so that those in power don’t feel uncomfortable. What democracy absolutely requires is that power be held accountable—that its abuses be named clearly, that institutions stand firm against authoritarian pressure, that the right to criticize those in power be defended even when that criticism is harsh.

What’s most disturbing about the WHCA’s capitulation is how it reflects a broader pattern of institutional surrender. From media organizations that prioritize access over accountability, to universities abandoning academic freedom in the face of political pressure, to corporations quietly accommodating authoritarian demands to maintain market position—our democratic institutions are failing at precisely the moment when they should be standing firm.

This dynamic creates what political scientists call “democratic erosion”—a process where democracy isn’t overthrown in a dramatic coup, but gradually hollowed out from within as its institutional guardians surrender its core principles one by one. Each surrender is justified as a practical necessity, as avoiding unnecessary conflict, as focusing on what “really matters.” But what could matter more than defending democracy itself?

The WHCA’s decision reflects a profound misunderstanding of the current moment. They appear to believe that by removing a potential source of conflict, they’re preserving their institutional role. But in an autocratic system, institutions don’t maintain their independence by accommodation—they survive only as long as they’re useful to power. By demonstrating their willingness to self-censor in response to government pressure, the WHCA hasn’t preserved its independence; it has signaled its fundamental malleability.

What makes this particularly dangerous is how it shifts the Overton window of acceptable government behavior. When an administration can successfully pressure a press organization to remove a critic, that success becomes a precedent for more aggressive interventions. Today it’s removing a comedian from a dinner; tomorrow it’s demanding the firing of reporters whose coverage is deemed unfair. Each successful intervention makes the next one easier.

To frame this capitulation as “bridge-building” rather than surrendering to power is, to use a term I don’t employ lightly, gaslighting. It’s attempting to convince us that defending basic democratic principles is somehow divisive, that holding power accountable is somehow partisan, that standing firm against authoritarian pressure is somehow counterproductive.

This isn’t bridge-building—it’s burning the bridges of democratic accountability while pretending to strengthen them. It’s abandoning the very principles that make a free press possible while claiming to celebrate them. It’s normalizing autocracy while pretending to preserve democracy.

The institutions we’ve trusted to defend democratic norms are failing us—not because they’re being violently overthrown, but because they’re voluntarily surrendering their independence in the name of civility, access, and institutional preservation. They’re choosing the appearance of normality over the reality of resistance, prioritizing their short-term institutional comfort over their long-term democratic purpose.

What’s perhaps most distressing is how quickly this surrender happened. One complaint from a White House official about harsh criticism, and an institution ostensibly dedicated to press freedom unanimously abandons its plans. When resistance collapses this easily, what hope is there for holding the line against more significant authoritarian pressures?

We must recognize these small surrenders for what they are: not pragmatic accommodations, but moral abdications that cumulatively threaten democracy itself. Every institution that bends to authoritarian pressure makes it harder for others to stand firm. Every principle abandoned in the name of civility weakens the foundations of democratic governance.

Two plus two equals four. There are twenty-four hours in a day. And no amount of institutional compromise will protect democracy if the institutions themselves abandon the principles they were created to defend. The path to autocracy isn’t paved with dramatic confrontations but with quiet capitulations justified as reasonable accommodations to power.

The WHCA’s surrender is a warning—not just about a dinner or a comedian, but about how democracy dies. Not with a bang, but with a careful, consensus-driven press release explaining why principled resistance to power is simply too divisive to maintain.

Mike Brock is a former tech exec who was on the leadership team at Block. Originally published at his Notes From the Circus.

If you’re a Techdirt reader, you’re probably familiar with Senator Ron Wyden. In January, he released his new book It Takes Chutzpah, offering up a call for political boldness that feels even more relevant with every day that passes. This week, Senator Wyden joins Mike on the podcast to talk about the book and the political moment we find ourselves in.

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Remember when government officials discussing sensitive information over unsecured channels was treated as a national crisis worthy of endless investigations? Apparently, those days are over. While Hillary Clinton’s email server spawned years of investigations and Attorney General Pam Bondi is still trying to rehash it, the White House wants us to simply forget about top officials planning potential war crimes over Signal just last week.

The contrast is striking. Clinton’s email server triggered multiple congressional investigations, FBI probes, and years of lawsuits. Yet when it comes to senior officials casually discussing military targeting plans over a consumer messaging app, we’re told there’s nothing more to see here.

And this isn’t just about partisan hypocrisy from the “lock her up” crowd, though that’s certainly on display. This is about national security officials casually planning military operations over a consumer messaging app — operations that may constitute war crimes in their targeting of civilian objects. The only reason we even know about this massive security breach is their stunning incompetence in adding Atlantic journalist Jeffrey Goldberg to their illegal chat group.

Even some top Republicans recognize this deserves serious investigation. But the White House has other plans.

The White House’s response? A dismissive wave of the hand and a “case closed” declaration from press secretary Karoline Leavitt:

“This case has been closed here at the White House as far as we are concerned,” press secretary Karoline Leavitt told reporters on Monday. “There have been steps made to ensure that something like that can obviously never happen again, and we’re moving forward,” she said.

And much of the media seems content to simply parrot this talking point:

Let’s be clear: uncritically reporting the White House’s “nothing to see here” stance isn’t journalism — it’s stenography. The press secretary’s statement isn’t just meaningless, it’s an active attempt to sweep serious actual violations under the rug.

This White House’s strategy is clear: lie, mislead, and deflect until the story dies. We’ve seen it with Bondi’s desperate “but her emails” deflection last week, and we’re seeing it again with this premature “case closed” declaration.

But there are plenty of things in this story that require investigation:

• How did multiple senior officials decide it was totally acceptable to plan military operations over a consumer messaging app?
• What other sensitive discussions have happened on unsecured channels such as Signal?
• Have these conversations been recorded, as required under the Federal Records Act?
• Have other illegal commercial chats been scrubbed to see how many outsiders were allowed in to them like Goldberg was?
• How did they fuck up so badly to add an external person (incredibly, a reporter) to this illegal chat?
• Who approved targeting civilian infrastructure, and what was their legal justification?
• What “steps have been made” to prevent this from happening again, and why should we trust them?

The media’s job isn’t to parrot White House talking points — it’s to uncover the truth. And the truth here is explosive: top government officials casually planned what appear to be war crimes over an unsecured channel, and we only know about it because they accidentally included a journalist in their illegal discussions.

If the White House (and Congress) won’t investigate, then the media must. The administration clearly doesn’t care if we know they’re wielding national security laws as political weapons while ignoring actual security breaches. But the public should care deeply about this cynical abuse of power. When national security becomes just another partisan cudgel, we’re not just undermining the rule of law — we’re creating a system where real threats to national security go uninvestigated while manufactured scandals consume years of attention and resources.

Anything that doesn’t jibe with Donald Trump’s white male-centric worldview must go. Whatever is deemed “woke” — no matter its basis in factual history — must be excised. If tossing aside DEI means pretending blacks, women, and other non-white, non-male people never contributed anything to this country, so be it. If stroking off the far right and its quasi-theocracy aspirations means turning the US into King George’s Great Britain, I guess that’s just the price we have to pay to live in a “free” society.

The latest assault on history by this administration is a bit more horrific than its previous efforts. Wiping out DEI initiatives caused considerable (and deliberate) collateral damage to documentation of the contributions of immigrants, non-whites, women, and LGBTQ+ to the rich tapestry that is American history. This one is more targeted, but that only means there will be no collateral damage. Everything harmed here will be deliberate.

In this recent executive order targeting the Smithsonian Institution, Trump plainly states he’s here to rewrite US history in his own image.

The Order directs the Vice President, who is a member of the Smithsonian Board of Regents, to work to eliminate improper, divisive, or anti-American ideology from the Smithsonian and its museums, education and research centers, and the National Zoo.

The Order directs the Administration to work with Congress to ensure that future Smithsonian appropriations: (1) prohibit funding for exhibits or programs that degrade shared American values, divide Americans by race, or promote ideologies inconsistent with Federal law; and (2) celebrate women’s achievements in the American Women’s History Museum and do not recognize men as women.

The Vice President will work with congressional leaders to appoint members to the Smithsonian Board of Regents who are committed to advancing the celebration of America’s extraordinary heritage and progress.

That’s from the fact sheet accompanying the executive order. And, unfortunately, there’s a stooge right there waiting to be activated: JD Vance, who — as Musk’s understudy/nominal Vice President — is granted a position on the Smithsonian’s board of regents. It’s a government entity, but one that has rarely seen direct federal government interference in its day-to-day work.

The second paragraph of the fact sheet is extremely disturbing. It targets things that “degrade shared American values” — a list that would certainly include America’s century of slavery and the several decades of segregation that follows it. It would also include anything detailing the United States’ treatment of Native Americans, which includes genocide, rampant racism, and ongoing attempts to strip away what few rights Native Americans still possess. It might also highlight the routine abuse of immigrants, wartime internment camps, war atrocities, CIA coup attempts, police violence, child labor, and the refusal to treat all citizens as equal for most of Americas history. All of these things are part of American history. And every single one of these could be described as “degrading American values” and “promoting ideologies inconsistent with federal law.”

And yet, those are things most likely to be removed first or, at the very least, denied funding by Trump and Vance. While there’s a bone being thrown to women (although I doubt Trump is here to champion abortions rights or the success of the women’s suffrage movement), it’s only there to ensure that “men” do not get recognized as “women.”

Why is this such a problem? And why does Trump think the Smithsonian should be stripped of funding for exhibits straddling this men/women thing that seems to unduly trouble the world’s last consumer of whatever is the Aqua Net of spray tanning agents? It’s all explained (I guess?) in the actual executive order. And that order opens with a sentence that proves the adage “every accusation is an admission.”

Over the past decade, Americans have witnessed a concerted and widespread effort to rewrite our Nation’s history, replacing objective facts with a distorted narrative driven by ideology rather than truth.  This revisionist movement seeks to undermine the remarkable achievements of the United States by casting its founding principles and historical milestones in a negative light.  Under this historical revision, our Nation’s unparalleled legacy of advancing liberty, individual rights, and human happiness is reconstructed as inherently racist, sexist, oppressive, or otherwise irredeemably flawed.

“Over the past decade?” From what I’ve seen, it’s only been over the past three months that I’ve witnessed a “concerted” effort to “rewrite our Nation’s history.”

The stuff making Trump so angry someone else wrote up an entire diatribe, called it an “executive order,” and asked him to drag his Sharpie across the signature box, includes all the things people say about Trump, his loyalists, his cabinet, and his voters. And, to a person, they’ll agree with these assertions when hanging out with their own. But, once again, everything listed as problematic is just something Trump doesn’t actually think is wrong.

For example, the Smithsonian American Art Museum today features “The Shape of Power:  Stories of Race and American Sculpture,” an exhibit representing that “[s]ocieties including the United States have used race to establish and maintain systems of power, privilege, and disenfranchisement.”  The exhibit further claims that “sculpture has been a powerful tool in promoting scientific racism” and promotes the view that race is not a biological reality but a social construct, stating “Race is a human invention.”

The National Museum of African American History and Culture has proclaimed that “hard work,” “individualism,” and “the nuclear family” are aspects of “White culture.”  The forthcoming Smithsonian American Women’s History Museum plans on celebrating the exploits of male athletes participating in women’s sports.

The only way to read this is to take Trump at his word. The only reason he would want this removed or censored is because he truly believes white people should be able to do what they want to whoever they want, especially if those on the receiving end aren’t white and male. He doesn’t have a problem with the US government using race to “establish and maintain systems of power, privilege, and disenfranchisement.” He actually wants “white culture” to be the dominant force in America. And he seems to have a particular hard-on for something that happens so infrequently it doesn’t even amount to a statistical rounding error: male athletes participating in women’s sports.

Contrary to what some commenters believe about me, I actually think the United States is a great nation, or at least has the potential to become one. It isn’t one at the present and I don’t have a whole lot of hope for its future, given how things have gone over the last 15 years. But it’s a deeply flawed nation that has, historically, at least tried to eliminate its worst traits. But Trump wants to bring all the bad stuff back, and he wants to erase our history of improvement on the civil liberties front. It’s far more than disappointing. It’s sickening. It’s a retcon in which all the things that make this country better than it was will be buried and all the things that held us back will be treated as peaks of achievement, rather than the valleys of failure they always were and always will be.

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The U.S. government just demonstrated exactly why due process matters. In what should be a shocking admission, the Trump administration revealed in court that it had made a bit of an oopsie (they call it an “administrative error”) — one that resulted in trafficking a Maryland father with protected legal status to a Salvadoran prison. Their response to this horrific mistake? Not contrition or attempts to fix it, but rather an argument that U.S. courts have no jurisdiction to help bring him back.

This is what happens when you replace due process with authoritarian expediency. And it’s exactly what the MAGA movement is deliberately pushing for, as evidenced by Trump’s “border czar” Tom Homan, who sneered at the very concept of due process during an ABC interview last week:

“Due process? What was Laken Riley’s due process? Where were all these young women that were killed and raped by members of TdA, where was their due process?”

In making this argument, Homan inadvertently reveals himself to be embracing the same twisted logic as those he claims to be fighting: criminals who feel that the ends justify any means, that due process is an inconvenient obstacle rather than a fundamental safeguard of justice. It’s the kind of thinking that leads directly to “administrative errors” that destroy innocent lives.

The entire point of the rule of law in a civilized society is that we’re better than that. We provide due process precisely because it’s the only way to ensure we don’t punish innocent people. If Homan and his department were actually doing their jobs properly, due process wouldn’t be an obstacle — it would be an opportunity to demonstrate the legitimacy of their actions through proper legal channels.

Instead, we have this fucking mess:

The Trump administration acknowledged in a court filing Monday that it had grabbed a Maryland father with protected legal status and mistakenly deported him to El Salvador, but said that U.S. courts lack jurisdiction to order his return from the megaprison where he’s now locked up.

That’s one hell of an “administrative error.”

Let’s be crystal clear: this wasn’t a “deportation” — deportation requires due process. This was human trafficking, plain and simple. A U.S. resident with legal protection was grabbed by government agents and forcibly transferred to a foreign labor camp.

What stands out in the court filing is the government’s cavalier attitude in the filing. They admit, with bureaucratic sterility, that they trafficked a man they knew had legal protection:

On March 15, although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error

The normal response to discovering you’ve made a catastrophic error that has imprisoned an innocent person in another country would be to fix it immediately. Instead, the government’s response is essentially “ah well, nothing we can do!” They actually argue that because they’ve already illegally trafficked him to a slave labor camp in El Salvador, U.S. courts have no power to help:

Here, Plaintiffs seek review of the legality of the Executive’s restraint of and removal of Abrego Garcia to El Salvador, leading to his present detention there…. (alleging Defendants “decided to deport Plaintiff Abrego Garcia without following the law”). Plaintiffs make it clear that the ultimate relief they seek is his return to the United States to live at liberty with his family… (alleging irreparable harm from separation from his family and asking “the Court to immediately order Defendants to take all steps reasonably available to them, proportionate to the gravity of the ongoing harm, to return Plaintiff Abrego Garcia to the United States.”) Because Plaintiffs seek Abrego Garcia’s release from allegedly unlawful detention on the grounds that it was effected illegally, they make a core habeas claim, and they must therefore bring it exclusively in habeas.

But there is no jurisdiction in habeas. Plaintiffs admit—as they must—that the United States does not have custody over Abrego Garcia. They acknowledge that there may be “difficult questions of redressability” in this case, reflecting their recognition that Defendants do not have “the power to produce” Abrego Garcia from CECOT in El Salvador. … But even more, they concede that Abrego Garcia is not in Defendants’ custody. Id. (asking the Court to order Defendants to “request that the government of El Salvador return Plaintiff to Defendants’ custody”). Despite their allegations of continued payment for Abrego Garcia’s detention, Plaintiffs do not argue that the United States can exercise its will over a foreign sovereign. The most they ask for is a court order that the United States entreat—or even cajole—a close ally in its fight against transnational cartels. This is not “custody” to which the great writ may run. This Court therefore lacks jurisdiction.

The government’s argument is essentially: “Yes, we illegally trafficked someone we knew we shouldn’t have touched, but since we’ve already done it and he’s in a foreign prison, U.S. courts are powerless to help.” While the DOJ’s jurisdictional argument may be technically correct under current law, the implications are horrifying.

This is precisely why due process exists in the first place.

It’s not just some bureaucratic inconvenience — it’s a vital safeguard against exactly this kind of nightmare scenario. Without due process protections, government agents can make “administrative errors” that result in trafficking innocent people to foreign prisons, then shrug and say “oops, nothing we can do!” when the mistake is discovered. And, before long, those “administrative errors” become convenient ways to get rid of anyone the powers that be dislike.

A few weeks ago, law professor Steve Vladeck wrote an important piece about why we have due process, noting that it is the main thing that “separates democratic legal systems from … less democratic legal systems.” In that piece, he responded to people telling him (a la Homan) that it was fine to remove gang members from the US without due process since they were so bad.

Against that backdrop, there’s just no good argument for refusing to provide comparable process to accused members of TdA before removing them from the country. I say this not because, contra some of my Twitter fans and e-mail correspondents, I support TdA and want to keep “rapists and murderers” at large in the United States. Rather, I say this because that kind of process is how any of us can have confidence that the folks being packed onto airplanes and whisked off to El Salvador are Venezuelan citizens and members of TdA—as opposed to U.S. citizens; political dissidents; or others whom the Trump administration would just as soon be rid of. Indeed, one need not believe that the government is acting maliciously to believe that errors will be made.

Vladeck wrote that warning just a week and a half ago — well before the DOJ’s admission of this “administrative error.” But this case isn’t an isolated incident. It’s part of an emerging pattern that demonstrates exactly why his concerns about due process are so vital.

Consider the growing list of victims: There’s Andry José Hernández Romero, a makeup artist. There’s Neri Alvarado, a bakery worker. Neither had any gang connections. Their “crimes”? Having tattoos. In Alvarado’s case, it was a tattoo promoting autism awareness. This is what passes for “evidence” of gang activity when you dispense with due process.

These aren’t isolated incidents. The flood of similar cases reveals a systematic dismantling of due process. Take Jerce Reyes Barrios, detailed in the New Yorker piece linked above:

Jerce Reyes Barrios, a thirty-six-year-old soccer player and youth coach, fled Venezuela last year after marching in anti-government protests. His immigration file cites two grounds for suspicion: a gesture he made while posing for a photo that was posted to social media and a tattoo of a crown on top of a soccer ball with a rosary and the word “Dios.” His lawyer, Linette Tobin, worked with his family to secure documents from the police in Venezuela to show that he hadn’t committed any crimes. They also tracked down Barrios’s tattoo artist. “He wanted a tattoo related to soccer,” the artist said in a legal declaration. “We searched on the internet and the ball with a crown caught our attention to represent the king of soccer, and he liked the idea.”

The same article quotes a Tren de Aragua expert confirming that the gang “does not use any tattoos as a form of gang identification” — yet tattoos remain the government’s primary “evidence” for trafficking people to foreign prisons. This is what happens when due process is replaced with prejudice and paranoia: innocent gestures become evidence of crimes, and basic fact-checking is discarded as an inconvenient obstacle.

When confronted with these facts, the response from MAGA leadership has been to double down on authoritarianism while attacking anyone who dares to question their methods. Take White House Press Secretary Karoline Leavitt’s revealing freakout of a response to reporter Andrew Feinberg when he simply asked about due process safeguards against mistaken identification:

“You can get classified by simply having certain symbols in your tattoos and wearing certain streetwear brands—that alone is enough to get someone classified as TdA and sent to El Salvador,” Feinberg said. 

“That’s not true, actually, Andrew,” Leavitt snapped. Feinberg insisted he was simply reading from court documents filed by the government. 

“No, according to Department of Homeland Security and the agents—have you talked to the agents who have been putting their lives on the line to detain these foreign terrorists who have been terrorizing our communities?” Leavitt asked. 

“I–I’m not denying that—” Feinberg said, but Leavitt continued.

“TdA is a vicious gang that has taken the lives of American women, and our agents on the front lines take up deporting these people with the utmost seriousness, and there is a litany of criteria that they use to ensure that these individuals qualify as foreign terrorists, and to ensure, to ensure that they qualify for deportation,” she said. 

“And shame on you, and shame on the mainstream media for trying to cover for these individuals who have—this is a vicious gang, Andrew! This is a vicious gang that has taken the lives of American women!”

“I’m not trying to cover for anyone,” Feinberg insisted, but Leavitt continued to attack Feinberg for even asking about the documents, once again unable to account for the government she purports to represent.

“And you said yourself there are eight criteria on that document! And you are questioning the credibility of these agents who are putting their life on the line to protect your life, and the life of everybody in this group and the life of everybody across the country? And their credibility should be questioned? They finally have a president who is allowing them to do their jobs, and God bless them for doing it,” Leavitt fumed.

The performative outrage is telling. If there truly is a “litany of criteria” that “ensure” proper identification of gang members, as Leavitt claims, then providing due process should be trivially easy. The government could simply present its evidence in court, where it would stand up to basic scrutiny. Their aggressive resistance to any kind of oversight suggests they know their “evidence” won’t withstand examination.

The historical parallels are impossible to ignore. In his piece, Vladeck highlights Supreme Court Justice Robert Jackson’s prescient 1952 warning about due process:

[T]he Nazi regime in Germany installed a system of ‘protective custody’ by which the arrested could claim no judicial or other hearing process, and as a result the concentration camps were populated with victims of summary executive detention for secret reasons. . . . There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law. Quite unconsciously, I am sure, the Government’s theory of custody for ‘safekeeping’ without disclosure to the victim of charges, evidence, informers or reasons, even in an administrative proceeding, has unmistakable overtones of the ‘protective custody’ of the Nazis more than of any detaining procedure known to the common law. Such a practice, once established with the best of intentions, will drift into oppression of the disadvantaged in this country as surely as it has elsewhere.

Seven decades later, Jackson’s warning reads like a prophecy fulfilled. We now have a MAGA movement explicitly embracing the exact authoritarian tactics he feared: disappearing people through “administrative” mechanisms, trafficking them to offshore camps without due process, then declaring any “errors” in the process irreversible. The parallels to the “protective custody” system he described are not subtle.

The dangerous implications of this mindset are perfectly captured by MAGA Rep. Victoria Spartz, who recently declared at a town hall that:

“There is no due process if you come here illegally because you violated the law. Period! You violated the law, you are not entitled to due process.”

This statement reveals a fundamental misunderstanding of both law and logic that would be merely laughable if it weren’t so dangerous. Follow her “logic” to its inevitable conclusion: if merely being accused of breaking a law strips you of due process rights, then there is no rule of law at all. Under this framework, government agents need only accuse someone of a crime to justify trafficking them to a foreign prison camp. No evidence required. No hearing needed. Just an accusation.

This isn’t just wrong — it’s an explicit endorsement of exactly the kind of authoritarian system that Justice Jackson warned would “drift into oppression.” It creates a perfect circular logic: you lose your right to due process because you’re accused of a crime, and you have no way to challenge that accusation because you’ve lost your right to due process.

This is inhumane. It is unconscionably evil.

I tend to hate calling anyone’s actions “evil” as that’s a strong charge that feels loaded. But at some point you have to call it out for what it is. It is pure evil.

And just to confirm what kind of inhumane evil this all leads to, when confronted about the case of Abrego Garcia — who, again, the administration admits it wasn’t supposed to remove — Vice President JD Vance just flat out lied and claimed (falsely) that the court documents say he was a “convicted MS-13 gang member.”

It’s quite something for JD Vance to accuse others of not reading the court document when it becomes clear that it is he who did not read the court document. Nowhere does it say he was a convicted MS-13 gang member, and the DOJ’s own filing admits that he had a legal right to be here. Even the replies to Vance’s tweet include a number of MAGA supporters asking why Vance is just making shit up.

The mask is slipping so badly that even reliable MAGA cheerleaders are recoiling in horror. Joe Rogan has admitted that the human trafficking program is “horrific.” Even Rod Dreher — who loved authoritarianism so much he literally moved to Hungary to live under an authoritarian leader — is saying “whoa, dude, too far.”

This is the line that due process draws: between a government bound by law and one ruled by whim, between justice and terror, between civilization and barbarism. When Trump, Homan, Leavitt, and Spartz argue against due process, they aren’t just attacking a legal principle — they’re attacking the very foundation of the rule of law itself.

Their vision of America is one where government agents can disappear anyone they want based on nothing more than an accusation, where “administrative errors” are features rather than bugs, and where the mere act of questioning their actions is treated as treason. They’ve made it crystal clear that they don’t believe in due process, the rule of law, or any coherent moral philosophy beyond raw power used to inflict suffering on those they deem unworthy of basic human dignity.

This isn’t just un-American. It’s a deliberate embrace of the exact authoritarian evil that America was supposed to resist.

We’ve long noted how the 2021 infrastructure bill included $42.5 billion for broadband dubbed the Broadband, Equity, Access And Deployment (BEAD) program.

Managed by the NTIA and individual states, we’ve also noted how this money has taken a long time to get to the states for some good reasons. Namely they wanted to avoid the massive fraud and abuse that plagued earlier FCC programs (the Rural Digital Opportunity Fund) mismanaged by the Trump administration and exploited by numerous companies (including Elon Musk’s Starlink).

Under RDOF, the FCC didn’t really take the time to fix shitty U.S. broadband maps, resulting in a lot of wasted, duplicative taxpayer money. Or ensure that ISPs that bid for funding could actually deliver the broadband they claimed. That resulted in a bunch of companies defaulting on millions of dollars in bids. It was a giant mess resulting in a ton of waste, fraud, abuse, and legal problems.

So there’s a reason why the bigger, $42.5 billion BEAD program has more annoying red tape and is managed by a completely different agency. Much of that was to avoid earlier waste, mistargeted funds, and ineffective spending. It takes a long time to accurately map broadband, make sure money isn’t going to be wasted, and confirm ISPs can actually deliver the broadband they promise. Especially if you’re going to actually value the varying input of every single individual state and make sure the subsidies are tailored to their unique needs.

So yes, there were a lot of annoying restrictions with BEAD, but it’s not like they were introduced for bureaucracy’s sake. And the money, while late, was on the cusp of rolling out this year.

Unfortunately, the GOP seized on those delays to paint the whole program as a waste (ignoring their role in why the program has more restrictions). They’re also busy using these complaints to justify redirecting billions in BEAD money away from useful local fiber ISPs, and toward Elon Musk’s congested, expensive, ozone-layer depleting satellite broadband service.

Apparently thinking he was helping matters, NY Times columnist Ezra Klein recently went on Jon Stewart’s podcast to jump into this complicated policy issue and complain about the infrastructure bill. Unfortunately, when he gets to BEAD, his complaints lacked context and only help paint the entire program as an irredeemable waste:

“This is, I want to say something because it’s very important I say this, this is the Biden administration’s process for its own bill. They wanted this to happen. This is how liberal government works now.”

At the end of the interview Stewart is shocked to “learn” that a whole BEAD subsidy program was a complete and abject failure simply because Democrats really like bureaucracy and shot themselves in the foot for their own amusement (which isn’t true):

“I’m speechless, honestly. It’s far worse than I could have imagined. But the fact that they amputated their own legs on this is what’s so stunning.”

Klein and Stewart’s inference that BEAD is entirely a useless boondoggle were then picked up by numerous right wing pseudo-news outlets who further advertised the BEAD program to millions of Americans as a supposed pointless waste.

Which is a shame, because BEAD funding was really poised to help people. At least before the GOP and Trump administration began altering the program to the benefit of a conspiratorial billionaire bigot.

That’s not to suggest BEAD was perfect. There were a lot of annoying and overly cumbersome restrictions (though I argue a lot of them on issues of climate and labor were decorative and wouldn’t have been enforced), causing some ISPs in states like Minnesota to have reservations about applying.

It’s also not to say Democrats aren’t a hot mess on strategy and messaging. And especially on broadband policy, where most of their regulatory solutions are often decorative because of the party’s refusal to take on the real cause of shitty U.S. broadband: consolidated telecom monopoly power.

But quite generally, the BEAD program is a good thing. Driving affordable broadband to unserved locations is a good thing. Making sure we map broadband access accurately before throwing billions of dollars at a program is a good thing. It took a while, but the money was starting to flow this year to a lot of states in desperate need of better, more reliable, more affordable connectivity.

The problem is there’s just a long line of things Klein can’t be bothered to mention, presumably because he didn’t research the situation deeply enough to know.

Like the fact that many BEAD restrictions are a result of Trump-era fraud and mismanagement of previous programs. Or that many of the restrictions on labor and climate were somewhat decorative and never likely to be meaningfully enforced in a country whose regulators are being absolutely destroyed.

Or the fact that other Democratic broadband policy initiatives from that same year were very successful. Like the $25 billion in broadband expansion included in the American Rescue Plan Act (ARPA). ARPA money is, right now, going toward tons of new fiber deployment all over the country. You probably didn’t hear about it because Democrats suck at messaging and the press doesn’t care about infrastructure.

But in many towns and cities, ARPA broadband grants are funding open access community-owned fiber networks resulting in gigabit fiber for as little as $60 a month. These are long-marginalized minority, rural, and low-income neighborhoods that have never been connected before suddenly seeing cheaper broadband than seen in many affluent cities. Had you heard about that? Had Klein?

I think Klein was maybe well intentioned but his simplistic understanding of the debate he jumped into didn’t actually help anybody. Which is often the case when hot take pundits wander outside their core areas of expertise (see: Nate Silver on global pandemics).

From what I can glean from Klein’s current “Abundance” promotional book tour and the surrounding puerile debate, one of his fairly unoriginal theses is the fairly center-right (and sometimes every accurate) complaint that there’s just too much pesky, burdensome regulation.

But in the interviews I’ve seen (whether it’s Stewart or Lex Fridman) he mostly floats over the fact that authoritarians and a broken Supreme Court are completely destroying the regulatory state with what will likely be broad and potentially fatal repercussions.

Myopically fixating on the Democrats’ love of bureaucracy while Trumpism burns functional federal governance to the ground is… odd? You’re bickering about whether California high speed rail sees too much red tape while Trump completely dismantles all labor rights, consumer protections, public safety standards, corporate oversight, and the social safety net?

It’s like bickering over the drapes while an arsonist sets the house on fire.

Genuinely: the red tape affixed to BEAD really is the very least of our problems right now. Authoritarians are absolutely demolishing what’s left of U.S. consumer protection and oversight of shitty predatory monopolies like AT&T and Comcast. Is there some specific reason Klein doesn’t want to give this the same level of hyperventilation while on his book tour trying to maximize book sales?

Again, I think Democrats suck at messaging and strategy and think the party needs to be completely rebuilt with smarter, younger, hungrier, more creative members. I agree that U.S. telecom subsidization is historically a hot mess. I agree U.S. regulation often falls short, adds harmful counterproductive and unnecessary layers, can often be performative, or aids incumbents. I’ve probably spilled more ink about the shittiness of sloppy telecom subsidization and telecom regulatory capture than literally anybody alive.

I guess all I’m asking is for pundits to actually understand the subject they’re talking about before opening their mouths. Klein doesn’t really help U.S. broadband with his comments; his selective, simplistic podcast hot take only really propped up the GOP narrative that this program was irredeemable when, while imperfect and annoyingly bureaucratic, it actually is a good-faith effort at improvement.

A whole new level of constitutional wtf-ness has emerged from the Indiana state Appeals Court. Here’s how John Wesley Hall sums it up on FourthAmendment.com:

If you’re riding a bus and drugs are found on one, are all subject to search. The answer can’t be yes, but it is here.

Exactly. The answer cannot be “yes.” That’s insanity. Especially considering the facts of this case, which begin with Deputy Wade Wallace of the LaPorte County Sheriff’s Office pulling over a bus because of an alleged traffic violation.

Wallace “observed” a Greyhound bus “cross left of center” and “veer over the fog line” while he patrolled Interstate 80. Of course, this was a pretense. Wallace didn’t really care about the moving violation. He just wanted to search the bus. But the law of the land says any pretext is a good pretext as long as you don’t abandon the pretext too quickly.

In this case, it would seem the pretext was abandoned almost immediately. From the decision [PDF]:

Deputy Wallace explained the reason for the stop, learned the bus had seventeen passengers, and collected the driver’s license and proof of insurance. He also asked for consent to search the bus.

How would searching the bus further the point of the stop, which was the fog line violation Wallace cited mere seconds before turning his attention to the 17 people who weren’t driving the bus he had just pulled over? Well, the short and correct answer is that the requested search had nothing to do with the alleged violation, therefore without any reasonable suspicion being immediately present, his request should have been rejected. And, even if it was granted (as it was here), no passenger should have been subjected to a search because… THEY WEREN’T DRIVING THE BUS.

So, Deputy Wallace started dicking around, running the license and warrant check and “readying his warning book.” Then he called another deputy to the scene for supposed “officer safety reasons.” Completely not coincidentally, the backup he called for was a K-9 unit featuring Deputy John Samuelson and his drug dog, Bosco.

Deputy Samuelson — someone who apparently has never had the dubious pleasure of traveling via Greyhound bus — decided that people exiting the bus to smoke cigarettes was somehow suspicious. (As someone who has ridden these buses more than a handful of times — and as a lifelong smoker — I can tell you literally any time a bus comes to a momentary stop, every smoker heads out immediately to inhale as much nicotine as they can. This is not suspicious. This is addiction and there is no shortage of smokers on any given Greyhound bus.)

So, 10 to 12 minutes after the traffic stop began, Deputy Wallace called in Deputy Samuelson. Was this traffic stop illegally extended under the Rodriguez ruling? I mean, I would think so. The court, however, says there’s nothing wrong with this.

Within minutes of his arrival, Deputy Samuelson conducted an open-air dog sniff by walking Bosco around the exterior of the bus. Bosco soon “alerted” toward the front of the luggage compartment, signaling, through a distinctive set of behaviors, he smelled drugs there. Bosco was right: while searching a pink suitcase, police found “approximately 15 pounds of vacuum-sealed marijuana.”

That’s more “minutes” on top of the 10-12 minutes expended by Wallace slow-walking the warning he eventually handed to the bus driver at the end of this string of constitutional violations. There was no “suspicion,” reasonable or not, to justify running the drug dog around the bus, much less the more invasive searches that followed. There was only the fog line violation and smokers exiting the bus to smoke.

From there, the two deputies searched everyone on the bus and received consent to search a couple of stowed bags. They came across a handful of guns and — using this as leverage to search even more bags — they found some drugs in Norvell Dunem’s on-board luggage.

Dunem challenged the search. The lower court said the deputies did nothing wrong. And that’s the same thing the higher court says, even though it definitely appears a whole bunch of unsupported searches took place before the officers came across stuff they felt justified searching everybody and everything. The original traffic stop was always an afterthought. A warning was issued more than a hour after the stop was initiated.

Somehow, a drug dog’s alert on a bus’s exterior storage justifies a search of several passengers and their bags. Never mind the fact that the pretense for the stop had been abandoned within the 10-12 minutes it took the other deputy (and his drug dog) to arrive. Never mind the other inconvenient facts — like the fact that you’re a passenger in a vehicle doesn’t make you automatically subject to a search just because cops find something on the driver or another passenger.

The court says the stop wasn’t unlawfully extended. It makes this assertion by saying the drug dog alerted almost immediately after the other deputy arrived and took his drug dog for a walk around the bus. It also points out that while this was happening, Deputy Wallace was still “filling out the written warning.” It says nothing about the 10-12 minutes it took for the deputy to start writing this warning — something he apparently didn’t feel like doing until after the drug dog had arrived on the scene.

Then the court claims the “automobile exception” provides for warrantless searches of passengers and their belongings. But that’s simply not true. While it can be used in some situations to justify warrantless searches of vehicles, it has not been extended to cover passengers and their personal property unless there’s reasonable suspicion to do so. And it certainly can’t be used to create a constitutional blank check that covers seventeen passengers and their personal belongings.

But that’s what the court says here: a dog alerting at an exterior luggage compartment gives officers probable cause to search everyone and everything contained in the vehicle, even if it’s 17 people and their belongings. It’s an insane take on the Fourth Amendment, made even more insane by the refusal to probe more deeply into the first deputy’s seeming inability to start writing a traffic warning until a drug dog had arrived at the scene and started sniffing.

This is a bad decision. Hopefully, it will go up one more rung to the state’s top court and get reversed. Allowing it to stand means allowing officers to search every passenger and their belongings just because the driver (allegedly) swerved a little too far out of their lane.

It appears that Mariah Carey got a very late Christmas present this year. Several years ago, Carey was sued by Andy Stone over Carey’s hit holiday song, All I Want For Christmas Is You. The whole lawsuit was a complete mess. The fact it was filed in a Louisana court made no sense. The suit referenced evidence that was apparently not included in the filing. It was filed decades after the release of Carey’s song. Oh, and the claim of copyright infringement itself appeared to be due to the titles of both songs being the same combined with a bunch of unprotectable thematic elements. Neither, of course, are protectable elements when it comes to copyright law.

The $20 million copyright suit appeared destined for failure several months ago, when the judge signaled publicly that she was leaning Carey’s way. The only real question appeared to be whether Stone was going to be forced to pay Carey’s legal fees for wasting her time with this. In her summary judgment ruling, the judge presiding over the case both finds in Carey’s favor and, indeed, orders Stone to pay her legal fees.

U.S. District Judge Monica Almadani in Los Angeles in a ruling on Wednesday said the writers of Vince Vance and the Valiants’ “All I Want for Christmas Is You” failed to show their song was objectively similar enough to Carey’s to support their copyright infringement case.

Almadani determined on Wednesday that the songs were not similar enough for a jury to find that Carey had committed copyright infringement, citing differences in their melodies, lyrics and other musical elements. Almadani also ordered the songwriters to pay part of Carey’s attorneys’ fees, finding some of their filings contained a “litany of irrelevant and unsupported factual assertions.”

While that punishment is certainly just, it remains infuriating that the legal team that represented Stone will essentially escape any consequences beyond the reputational. I can’t expect every musician out there to be well enough versed in intellectual property law to navigate what are protectable elements and what aren’t. It would be nice if such artists would marry up the importance they place on copyright law with a passion for actually understanding it, but that is wishful thinking.

Lawyers, on the other hand, have no excuse. The participation of attorneys in this stinker of a lawuit is silly. They ought to have known from the jump that this lawsuit was destined for failure. So why did they take the case on?

And why can’t there be real tangible consequences for having done so?

The footage is hard to watch—not because it’s shocking, but because it isn’t.

Because we’ve seen this coming.

Because we’ve written it down.

Because it’s what happens when performance fully replaces governance, and people are asked to believe that “DOGE” and “efficiency” and “Musk” now constitute a new political grammar.

Rep. Victoria Spartz stands in front of her constituents at a town hall in Indiana.

She talks about Elon Musk running government systems.

She invokes the Department of Government Efficiency — a shell entity, a fever-dream turned administrative body.

And she is booed.

Not politely disagreed with. Not civilly challenged.

Booed.

She tells them they should have “a conversation.”

But they’ve seen enough.

They’re no longer there for conversation.

They’ve come—as someone once said—for a reckoning.

Because this isn’t about decorum anymore.

It’s not about whether the line of questioning is appropriate or whether the tone is right.

It’s about the slow, quiet realization that the thing they thought they were part of—

government, democracy, accountability—

is being replaced.

Replaced with tweets and deferrals.

With “tech visionary” as a synonym for “unaccountable executive power.”

With a Department of Government Efficiency that answers to no one.

With decisions made inside encrypted group chats where war plans get shared by accident.

With a Treasury system reportedly “more innovative” now that it’s not public.

And when a member of Congress defends this —

defends it by invoking dogecoin as the marker of progress —

something in the room breaks.

Not trust. That’s already gone.

What breaks is the spell.

The illusion that there’s still a shared script.

That the adults are still in the room.

That this is all just part of the process, that it’s still governed by rules.

No.

This is not a conversation anymore.

This is the circus, unmasked.

And so they boo.

Not because they’re disrespectful.

But because they’re mourning something that used to be sacred.

They boo because the wire snapped, and the performer pretended nothing happened.

Because the tent is tilting, and the ringleaders are pointing to the lighting rig and saying,

“But look how efficient it is.”

What Spartz fails to understand is that this town hall wasn’t disorderly.

It was the return of moral rhythm.

The refusal to remain audience members to their own disenfranchisement.

They didn’t come to be spoken to.

They came to speak.

And their voices—those strained, unpolished, interrupted voices—were the only true things in the room.

So let this be the Note, passed quietly after the shouting.

Let it carry this message:

The people are not fooled.

They see the circus for what it is.

And they know that meaning, once abandoned, cannot be governed by efficiency.

Two plus two equals four.

There are twenty-four hours in a day.

And even here—amid the clamor, amid the spectacle—

the truth still wants to be heard.

Even in a room that couldn’t speak it.

Especially there.

Mike Brock is a former tech exec who was on the leadership team at Block. Originally published at his Notes From the Circus.

Imagine you had pretty much unlimited power over the government and wanted to save taxpayers’ money. You could:

1. Carefully study government operations to understand what works and what doesn’t
2. Make targeted improvements based on data and evidence
3. Track results to ensure changes actually deliver savings

Or you could do what Elon Musk did with DOGE: declare everything wasteful, start firing people at random, and claim you’re saving billions through pure destruction.

It’s long been clear that Elon has never considered Chesterton’s Fence — the (generally somewhat conservative) principle that before dismantling long-standing systems, you should first understand why they exist.

The results are exactly what you’d expect when someone treats government operations like an ExTwitter poll: lots of dramatic announcements, very little actual improvement, and some spectacularly costly fuckups.

Rather than trying to understand the complex mechanisms of government operations, Musk’s DOGE crew has taken a slash-and-burn approach that’s clearly designed more for headlines and memes, than anything around actually improving the government.

Let’s start with DOGE’s claimed “savings” — a masterclass in creative accounting that would make Enron blush (not to mention Hollywood accountants). We’ve already covered how they’re effectively making up their numbers, but the creative fiction writing continues.

The DOGErs recently announced updated figures, claiming they’ve saved the government $115 billion. But pretty much anyone who understands any of this stuff says that’s a load of absolute bullshit.

The largest saving listed on the wall of receipts is $1.9 billion, achieved from cancelling a contract in the Department of Treasury with software company Centennial Technologies. However, last month, the company told the New York Times that the contract was canceled under the Biden administration, not by DOGE. The team then deleted the charge, per ABC, but since then it has been re-added. (Centennial Technologies did not immediately respond to Fortune’s request for comment by press time.)

The Times reported, citing federal data and interviews with the nonprofits whose grants were on the list, that at least five of the 20 largest “savings” in the updated claims appeared to be exaggerated.

Earlier this month, the team also quietly removed over 1,000 contract cancellation claims from its “wall of receipts,” reducing reported taxpayer savings by $4 billion.

Even if we pretend those $115 billion in “savings” are real (and they’re not), they’re actually costing us way more than they’re saving. It turns out that when you mindlessly slash government operations without understanding how they work, you end up breaking things that actually make money.

Take the IRS. The Washington Post recently pointed out that DOGE’s cuts there alone would likely cost over $500 billion in revenue. That’s not a typo — the “savings” just at the IRS alone are costing us more than four times what DOGE claims to have saved across the entire government.

Treasury Department and IRS officials are predicting a decrease of more than 10 percent in tax receipts by the April 15 deadline compared with 2024, said the people, who spoke on the condition of anonymity to share nonpublic data. That would amount to more than $500 billion in lost federal revenue; the IRS collected $5.1 trillion last year….

Slashing and cutting with wild abandon, only to find out that rather than “saving” money, it’s actually costing huge amounts of revenue? Where have I heard that one before? Oh, right. Twitter. Elon Musk did the same fucking thing with Twitter. It was a disaster there and it’s looking like a disaster here. But on a much bigger scale, with much more dire consequences.

And that’s not all. Inc. magazine has been detailing how many of the other cuts across the government are likely to cost taxpayers way more than they save:

“These firings they’re conducting without following the law will result in hundreds of thousands of former federal employees being owed back pay, plus interest, plus benefits, plus attorneys fees,” said labor attorney Suzanne Summerlin in an interview last month with The Guardian. “When the bill comes, it will be monumental.”)

This isn’t just speculation. We’re already seeing the consequences of DOGE’s reckless approach:

The full cost of the number of workers currently on forced administrative leave is something no one has been able to calculate yet, in part because of the rapidly escalating number of people being impacted by reductions in force and the ensuing court fights.

Those legal battles, which will likely stretch for several months (or even years), will also use a currently countless number of worker hours, as staff responds to legal challenges via briefs and arguments in front of judges (along with the prep time required for that), further escalating the price tag of DOGE’s actions.

But what about Musk’s claims that all this destruction is justified because he’s conducting a much-needed “audit” of government waste? Like everything else about DOGE, it’s complete nonsense. Wired spoke with some actual auditors who claim that what’s happening with DOGE looks nothing like an actual audit.

The two auditors told WIRED that going through the technological and financial minutiae of even just a single project or part of an agency can take anywhere from six to 18 months.

“You can’t coherently audit something like the whole Social Security system in a week or two,” says the second auditor. It’s exactly this rush to crack systems open without full understanding, the auditors say, that has led to Elon Musk’s false claims that 150-year-olds were receiving Social Security benefits. “It could be that DOGE didn’t de-dupe the data.”

“In no uncertain terms is this an audit,” claims the second auditor. “It’s a heist, stealing a vast amount of government data.”

The actual auditors, like the other reports above, are pointing out that DOGE’s actions will almost certainly end up costing taxpayers way more money:

Since sweeping through the government, DOGE has canceled thousands of government contracts, including 10,000 specifically for humanitarian aid. According to reporting from the Associated Press, 40 percent of those canceled contracts through late February will likely not save the government any money.

“They’ll end up costing more in some way, whether it’s time, inconvenience, or money,” says the second auditor.

This is the cruel irony of DOGE: while Musk claims to be saving taxpayer money through “disruption,” he’s actually creating a massive financial burden that will take years, if not decades, to fully understand. The punchline, if you can call it that, is that we’ll need real auditors to eventually figure out just how much this fake audit actually cost us.

The program that promised efficiency through targeted destruction is instead delivering chaotic and costly destruction through incompetence.

When you tear down Chesterton’s Fence without understanding its purpose, don’t be surprised when everything behind it comes crashing down too. The bill for DOGE’s reckless demolition will be paid by all of us — and it’s already clear the price tag will be astronomical.

There is a disquieting update to my last post about a district court victory in Does 1-26 v. Musk that had enjoined DOGE, given its likely unconstitutional exercise of power, particularly in the context of its dismemberment of USAID. The Fourth Circuit has now stayed enforcement of that injunction, which raises a few issues worth commenting on.

First, on substance, the most alarming issue with its decision is that two judges on the Fourth Circuit found the arguments that Musk and DOGE were acting with an unconstitutional power unpersuasive. For example:

And as to Musk, the evidence before us creates a strong likelihood that he functioned as an advisor to the President, carrying out the President’s policies of shrinking government and reducing spending, not as an Officer who required constitutional appointment. The current evidence in the record indicates that Musk’s actions did not involve the exercise of authority of an office granted by law but rather the implementation of Executive policies. In order to be an Officer, he must (1) be “exercising significant authority pursuant to the laws of the United States” and (2) be “occupying a continuing position established by law.” Lucia v. SEC, 585 U.S. 237, 245 (2018) (cleaned up). Based on the current record, it appears that Musk’s role satisfies neither criterion. [p. 8]

As discussed in the last post, the district court judge carefully walked through each of those elements pertinent to determining whether Musk, as well as DOGE, were behaving within constitutional parameters before concluding that the answer was likely not. For the appeals court to simply cast all that analysis to the side was itself troubling, and the dissenting concurrence called it out:

The Majority questions this characterization of the results of Defendants’ actions. Maj. Order at 7. But, in doing so, it improperly meddles in factual determination properly left to the discretion of the district court. Second guessing factual findings of a district court in an emergency stay posture where the applicant has not even asserted that such findings were erroneous, let alone clearly so, is entirely inappropriate. As we have long held, a party seeking reversal of a district court’s injunction order must “overcome a deferential standard of appellate review.” Pierce v. N.C. State Bd. of Elections, 97 F.4th 194, 210 (4th Cir. 2024). We evaluate a district court’s decision to grant a preliminary injunction under an abuse of discretion standard and only review the district court’s factual findings for clear error. Id.; see also Roe v. Dep’t of Def., 947 F.3d 207, 219 (4th Cir. 2020). Indeed, “[w]here there are two permissible views of the evidence, the [district court’s] choice between them cannot be clearly erroneous.” Id. (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). [p. 17]

For its part the majority defends its dubious read of the record:

Our concurring colleague claims the Majority “improperly meddles in factual determination properly left to the discretion of the district court,” in violation of our standard of review. Conc. Op. at 17–18 n.1. He is right to emphasis the importance of those standards. We are duty bound to apply them. But we apply our standard of review here in the context of our precedent that instructs that preliminary injunctions should be granted “sparingly and in limited circumstances” because of their implication of “very far-reaching [judicial] power,” Direx Israel, Ltd., 952 F.2d at 816, and that “ambiguity is simply insufficient to support a finding that success on the merits is ‘likely’ rather than merely ‘possible’ . . . .” Di Base v. SPX Corp., 872 F.3d 224, 235 (4th Cir. 2017). In that context, our conclusion is consistent with our standard of review. [p. 8]

It’s a flimsy defense of the majority’s analysis of the government’s “likelihood of success” on the merits, but for the moment the larger issue with this stay is what has been an issue in this and other cases: the difficulty in being able to obtain usable and immediate injunctive relief.

Because even the “dissenting” judge on this appeals court panel, who spent 24 pages on the “likelihood of success” factor explaining why Musk and DOGE were likely behaving with unconstitutional power [p. 17-40], found himself having to concur with the result in setting aside the injunction “because the proper defendants were not before” the courts in this case. [p. 40].

After the district court found that Musk and DOGE were responsible for dismantling USAID, the question then became: what’s next? The Majority correctly identifies, the constitutional violation and the remedy cannot go both ways: if Musk and DOGE lack the authority to order USAID officials to do anything, enjoining Musk to direct USAID officials to restore employment, building access, and security services, among other relief, also cannot stand. Plaintiffs did not name defendants with the proper authority to effectuate the relief that Plaintiffs seek. Suing Musk and DOGE constrained the court’s ability to redress their constitutional claims, which I have noted above, and as the district court found as a matter of fact, were quite strong. [p. 41-42]

So one issue emerging from this case is that DOGE challenges, at least those seeking injunctions, do need to be hybrid, with the agency and its officials running it named as co-defendants, because even if the argument is successfully made that what DOGE is doing is unconstitutional, an injunction telling them to “stay out” also needs to include an order on the agency to “keep them out.”

And one reason it is important that the injunction be so broad is because, now that Trump has had a chance to install his own cronies in agency leadership, the DOGE and “official” leadership are blurring together. In this case they explicitly blurred together, because Trump tried playing musical chairs, moving out the “official” person and replacing him with someone who had himself been DOGE. The district court called shenanigans, because it would mean that the new person, now “official,” could just ratify everything that DOGE had “recommended.” The injunction appeared to assume that by removing DOGE only independent agency judgment would be left, and that judgment would be exercised consistent with whatever lawful authority it had. But such a view appears naïve, because the blurring is inevitable, as a Trump toady in a DOGE hat may be no different than a toady in an official agency hat—they are both committed to the same constitutionally destructive mission, and both need to be stopped from completing it, under whichever auspices they claim to be using as they do it.

Also, the question of agency ratification is proving to be a bigger issue that needs to be dealt with directly. In part to address it itself and ensure that agency officials cannot somehow launder illegitimate DOGE “recommendations” into legitimate agency action, and in part because what irretrievably taints these “recommendations” is also what shows how what DOGE was doing is so unconstitutional—and also why there is no possibility of irreparable harm to the government if its own actions, including implementation of DOGE’s “recommendations,” is stopped.

In a universe where there were no DOGE, no agency official in their right mind would try to do what DOGE is “recommending” and cancel these contracts, fire these people, freeze this funding, or close down the agency altogether. Perhaps via some lawful path the agency could do some of these things but it could not do such things via this path because taking these drastic actions would, at minimum, seem to violate the APA’s prohibition against arbitrary and capricious decisions by the agency. It’s a big reason why these cases seeking injunctions need to be hybrid, so that even if agency officials claimed to be doing these things via their own independent judgment they still could be enjoined because of how that judgment violates the law. But also, if these decisions would have been wrong in a universe without DOGE telling them to make them, they are no less wrong when made in the wake of DOGE “advising” them to be made. It would be absurd if agency officials could “ratify” and somehow legitimize a DOGE “recommendation” that the agency could not make itself, and especially not when DOGE arrived at the “recommendation” via its own unlawful behavior. Two wrongs cannot make a right.

Because even if agency officials could make such decisions in a vacuum, no such vacuum exists here. It goes back to the idea raised earlier that DOGE’s hack is the harm, as well as the evidence of the harm. In other words, it was DOGE’s initial invasion of the computer systems that is both evidence of the abuse of power—that it was able to occur—and the vehicle used to cause the damage, as any “recommendation” they made stemmed from that illicit access. As a result that illicit access irredeemably taints any “recommendation” they made and thus makes it impossible for any official to ratify any of what they “proposed.” That usurpation of power, to force access to those systems, also undermines any claim that its “recommendations” were just “suggestions” that agency officials were free to refuse, and not the unconstitutional demands, like the demand to be given their illicit access to the computer systems in the first place, that they were. It would also independently offend the APA to ratify any action DOGE demanded—sorry, suggested—DOGE had made because it had made them, especially given how unlawfully it arrived at the instruction.

In fact, the more the government claims that it would suffer “irreparable harm” if these DOGE recommendations are not adopted, or that any further DOGE action within the agency be stopped, the more it shows how unconstitutional the entire enterprise is. The government’s only possible defense in these challenges is that the agency could somehow lawfully do what it is doing—cancel these contracts, fire these people, freeze this funding, shut down the agency—independent of DOGE. As discussed above it’s a dubious argument given how drastic these effects are, which laws like the APA would probably prohibit, but if the government can show that the agency could lawfully do any of the things that DOGE is charged with causing to happen according to their own independent judgment and authority then the challenges would fail.

But that argument, that the agency could do these things on its own, would mean that it could do them on its own, without DOGE. And the more the government claims that it would be harmed if DOGE were benched, the more it undermines any claim to the agencies’ independence. Removing DOGE from the equation should just leave the agency back where it was supposed to be, and if that’s now a problem for the government, then it’s a problem for the Constitution that these unappointed people now have such power over agency action. DOGE cannot cause something to be done that lawfully could not have been done without it, but the more the government argues that it is being harmed by excluding DOGE from agency activities, the more it shows how unlawful its activities are.

And it is why the irreparable harm factor needs to carry a lot more weight for challengers to anything DOGE has done (or Trump generally, even in instances without DOGE involvement). If it turns out that everything DOGE is doing is lawful, it can still be done via lawful means.  Perhaps it can’t be done as quickly, but the government has yet to make a non-frivolous argument for why there is any true exigency requiring fast action—if there is any emergency it is the one it itself created, a fact that cuts the other way for why there should be relief afforded to challenging plaintiffs immediately in order to truly preserve the status quo.

Because if it turns out, as many district courts are finding, as well as the dissenting judge here, that DOGE is acting unlawfully and indeed unconstitutionally, then then the harm to the challengers, and the public beyond them, if relief isn’t afforded is immense. The majority in this case here dismisses the harm potential as potentially being easily remediated by money later, [p. 12], but their math seriously underestimates the amount of harm being done even in financial terms, the incalculable harm that comes from such a severe Constitutional violation being tolerated, which no amount of money can ever compensate, and the fact that it will be taxpayers—or, in other words, the plaintiff victims themselves—who will have to pay whatever compensation might eventually be ordered. Everything DOGE has been doing amounts to irreparable harm, and far beyond any sort of harm the Executive could experience if his and Musk’s power were carefully tested before letting it loose on the country.