The Broadview 6 transcripts are here, and they are amazing. On May 21, Judge April Perry said “I have never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts.” And she did not oversell it!

We will break down all the vouching/ex parte/voir dire foolishness on the show, but one thing really jumped out at us because it was so deeply offensive.

The government’s position was that this …

… is exactly the same as this …

And even though the government never charged anyone who tried to run the Biden-Harris tour bus off the road in 2020, the event nonetheless justifies indicting a bunch of unarmed protesters for felony conspiracy because they banged on a car and made an ICE agent a couple minutes late for work.

Read more

As we wait to see if the Kennedy Center complies with Judge Cooper’s order to take Trump’s name off the building by June 12, the arts center lost yet another legal battle on Friday. This time it was Judge Tanya Jones Bosier of the DC Superior Court delivering the benchslap in a case involving the iconic jazz drummer Chuck Redd.

Since 2006, Redd had hosted the Center’s Christmas Eve Jazz Jam, a popular, free concert on December 24th. But in 2025, Trump promised to make the Kennedy Center “GREAT AGAIN” by firing the board and announcing “an amazing Chairman, DONALD J. TRUMP!”

For executive director, he appointed walking shitpost Ric Grenell, who proceeded to fire much of the staff and alienate the entire artistic community.

These changes precipitated an immediate wave of performer cancellations, which turned into a tsunami after the board announced that it was renaming the center for Trump.

“When I saw the name change on the Kennedy Center website and then hours later on the building, I chose to cancel our concert,” Redd told the AP.

Grenell responded with his signature tact and grace.

Share

“Your dismal ticket sales and lack of donor support, combined with your last-minute cancellation has cost us considerably,” he sneered in a letter to Redd distributed widely to journalists. “This is your official notice that we will seek $1 million in damages from you for this political stunt.”

On March 5, the Kennedy Center made good on its threat, filing a one-count breach of contract complaint in DC Superior Court. The Center alleged that Redd “agreed to a written contract” to perform on Christmas Eve.

Note that it does not say he signed such a contract, and no copy of this contract was attached!

In this alleged contract, Redd “agreed to a morals clause” barring him from conduct that might “shock, insult, or offend the community or Center workforce or public morals or decency or prejudice Center.”

The complaint argued that Redd “breached the Agreement by abusing the position created for him by the Center as a means to publicize his personal political views instead of providing the promised musical performance.”

Was it wise for the Center to explicitly state that it was suing Redd because of his publicly stated “political views?”

It was not! Particularly since all parties agree that Redd never signed any contract.

According to Judge Jones Bosier’s order, “Redd reached out to the Center in late October to inquire about the 2025 contract, the Center explained that they were ‘finalizing a few things.’” It appears that they were finalizing the morals clause, adding a brand new term that had never appeared in Redd’s prior contracts, all of which were signed before he got on stage. The new version didn’t arrive until December 9, at which point the Center began emailing Redd daily demanding that he sign it. On December 19, he told them he was pulling out, and they canceled the outstanding AdobeSign exchange.

Those are some bad facts for the Center, particularly since DC has a robust anti-SLAPP law that allows for early dismissal, as well as fee-shifting. On March 27, Redd moved to dismiss for failure to state a claim along with special motion to dismiss under the anti-SLAPP statute. And on Friday, Judge Jones Bosier granted both of those motions.

The Center’s threadbare, four-page complaint failed to state a claim, since there was no contract, implied or otherwise, and no damages: “The Center does not proffer any expense or cost in connection with Redd beyond conclusory allegations, the Center did not lose any ticket sales as the concert was free, and the entire performance was canceled as a result of multiple artists canceling, so the Center did not incur costs for staff or other performers.” The court also quoted Grenell’s nastygram, noting that Redd’s cancellation cannot possibly be the cause of a loss of goodwill for a venue that was facing “almost certain destruction.”

All parties agree that a bunch of other performers pulled out without talking to the press, and none of them got sued. And the Center’s lawyer, Earl N. “Trey” Mayfield, III, was kind enough to draw a straight line between Redd’s brief comment to the AP and the lawsuit. (The DOJ wasn’t getting anywhere near this dumpster fire.) Unsurprisingly, the judge had no difficulty determining that this lawsuit was filed to punish protected speech.

“[T]he instant breach of contract claim sufficiently arises from Redd’s speech and expressive conduct protected under the Anti-SLAPP Act,” she wrote. “Contrary to the Center’s contention, the Center’s Amended Complaint does not merely arise from Redd’s ‘fail[ure] to show up for work.’”

And since DC’s anti-SLAPP law presumptively shifts attorney’s fees, all that’s left now is the accounting.

That’s one expensive free concert that never happened!

Subscribe now

The James Comey seashells case is probably on ice for much of the summer. But we got a sneak preview this week when a federal judge in DC confronted another “8647” case which the government wants to treat like an actual threat to kill the president.

Spoiler Alert: FALL DOWN GO BOOM.

Rudeness is not illegal

The case is captioned Accountability NOW USA v. Griess, and it involves a group of protesters who have held vigil in front of the federal courthouse in DC since December 2025. Around the clock, they stand in front of a statue of Gen. George Meade, who defeated Gen. Robert E. Lee at the Battle of Gettysburg, patriotically calling Trump a traitor and a pedophile and demanding his removal.

In February, they added signs saying “Trump Raped Little Girls” and “Kids, If Your Parents Are MAGA, They Love Child Rapists” — a reference to the Epstein files. The group has a valid permit from the National Park Service, which they are understandably leery of losing.

In April, NPS Superintendent Kevin Griess sent them an email announcing that the signs had been “evaluated under all appropriate standards and tests and is deemed unprotected obscenity, which the Court has established is not protected by the First Amendment.” (What? No, they aren’t.)

He explicitly threatened to revoke the group’s permit: “If a permittee chooses not to comply with a lawful direction to cease prohibited conduct, the National Park Service may take further steps as appropriate to ensure compliance.”

On April 23, the group sued seeking declaratory and injunctive relief to protect their First Amendment right to protest. But just five days later, the former FBI Director got indicted for an Instagram post of seashells arranged to say “8647,” and Accountability NOW added new signage.

Almost immediately, the group started getting harassed by the Secret Service.

On May 12, two agents approached a volunteer to ask if she bore any ill will toward the president.

“I want Trump to live forever,” she said, “and rot in jail where he belongs.”

Read more

On Friday, a federal judge in DC ordered Donald Trump to take John F. Kennedy’s name out of his filthy mouth. More or less.

In a meticulous, 94-page order, Judge Christopher Cooper found that the toadies Trump installed on the Kennedy Center Board might have the legal right to rubber stamp a plan to shut down the storied arts center for two years and convert into a Vegas-style emporium, but they didn’t have the smarts to do it properly. And they certainly never had the power to rename the place after Trump himself.

Along the way, the court ruled that the president lied about the proposed renovation, as did his cronies.

Naturally Trump has responded with his normal gravitas, dramatically washing his hands of the entire project and personally attacking Judge Cooper and his wife — all of which will be Exhibit A should the government make good on its threat to appeal.

Come back, Camelot!

In 1958, President Eisenhower signed the National Cultural Center Act to create a center for the arts in the nation’s capital. At first, fundraising was sluggish. But after President Kennedy’s assassination, Congress re-designated the project in 1964 as the John F. Kennedy Center for the Performing Arts. The “living memorial” to the slain president drew private donations and public funds, and in 1971 it opened with a performance of the Mass by Leonard Bernstein, the quintessentially American composer.

Trump, who prefers “Cats” to Callas, has a testy relationship with the performing arts. And vice versa! During his campaigns, popular musicians routinely sued to block him playing their songs at his MAGA rallies. But during his first term, Trump largely left the nation’s important cultural institutions alone. This time around, the culture warriors at Project 2025 and the America First Policy Institute were ready to wreak havoc on these “liberal” bastions on day one.

Share

Echoing Nazi claims about degenerate art, Trump announced that he was firing the board of the Kennedy Center and appointing “an amazing Chairman, DONALD J. TRUMP!”

The new board included Pam Bondi, Florida lobbyist Bryan Ballard, Lee Greenwood, Laura Ingraham, and Dan Scavino, the guy who writes Trump’s tweets. Ric Grenell, a figure from the first Trump administration who was too toxic to be let back into the White House(!), was installed as executive director.

The fallout from this MAGA-fication was immediate.

Everyone from Renée Fleming to Issa Rae canceled scheduled performances.

“You just made it political and caved to the woke mob who wants you to perform for only Lefties,” Grenell sneered at banjo player Béla Fleck.

This charm offensive failed to stanch the bleeding, although Grenell put on a game face. In September of 2025, he bragged about sellout crowds and high demand for Kennedy Center Honors tickets, promising that America250, the nation’s 250th birthday celebration, would be a show like none other. (Wait for it …)

Then in December, the board voted to rename the institution the “Trump Kennedy Center.” Signage went up the very next day, suggesting that the outcome was essentially a foregone conclusion.

After which the bottom fell out. Ticket sales collapsed, immediately dropping 70 percent as compared to the prior three years, according to the Wall Street Journal. The Washington National Opera, the Center’s resident company since 1971, announced it was severing the relationship. In fact, so many artists canceled that there was functionally no 2026 season left.

Rather than face the humiliation of throwing a party and having no one show up, Trump announced on February 1 that the Kennedy Center would close for two years, “totally subject to Board approval,” for “Construction, Revitalization, and Complete Rebuilding.” The facility was already slated to undergo major renovations, but in phases so as not to interrupt programming. But citing “a one year review that has taken place with Contractors, Musical Experts, Art Institutions, and other Advisors and Consultants,” Trump claimed that the project would be more efficient if they could do it all at once.

Six weeks later, after Trump publicly described the board’s approval as a “minor detail” because “we’ve already announced it,” the trustees voted to ratify the changes announced in the February 1 post.

Fiduciary Representative

Representative Joyce Beatty, a Democrat from Ohio and an ex officio trustee of the Kennedy Center, sued to block the name change and the cancellation of the 2026 season. She argued that only Congress could alter the name of the institution, and that the March vote was so procedurally improper as to be illegal. She complained that she was locked out, thanks to a May 2025 bylaw amendment purporting to strip ex officio trustees of their right to vote. She says that the board went so far as to mute her mic at the Zoom meeting so that she couldn’t comment on the changes. And she alleged that the board abdicated its fiduciary duty to consider the ramifications of abandoning the plan to renovate in stages.

In the main, Judge Christopher Cooper agreed.

“Representative Beatty is entitled to summary judgment on the renaming issue,” he wrote. “The Kennedy Center’s organic statute makes crystal clear that the Center is to be named for President Kennedy, and it cannot bear any other formal name or public memorial based on the Board’s unilateral say-so. Congress gave the Kennedy Center its name, and only Congress can change it.”

After a detailed disquisition on the law of trusts — common and DC — as well as the language of the “organic statute,” the court concluded that the board could not simply vote to disenfranchise ex officio trustees.

The issue of closing the Center required a fact-based inquiry. As for Trump’s claim of a year-long, expert study, Judge Cooper determined that “the evidence of any such review is nil.” To the extent that any review took place, it was a mere paperwork perusal by Matthew Floca, the vice president in charge of facilities who took over as executive director in March after Grenell was eased out. After multiple conversations with Trump, Floca consulted competing proposals developed between 2020 and 2024 and decided that they really needed to shut down the Kennedy Center after all.

“There are no reports or other evidence in the record apart from Floca’s own testimony to confirm the details of his ‘extensive analysis,’” Judge Cooper noted dryly, adding that “no evidence in the record substantiates” Floca’s claim that he came to this conclusion months before Trump posted it.

Subscribe now

Floca provided the board with a few pages of cursory analysis, focused solely on the practicalities of construction. He admitted that he never considered the “programmatic” aspects, such as the impact on donors, loss of ticket revenue, diminished goodwill in the community, and damage to relationships with artists like the Washington Opera. And because Floca never took into account any of these intangibles, neither did the board.

Judge Cooper wrote:

As stewards of property held in trust for the American people, Board members must go about fulfilling these duties consistent with common-law standards of prudence. The preliminary factual record before the Court reveals that, in ratifying President Trump’s closure announcement, the Board was derelict in discharging the full range of its responsibilities to the Center. More specifically, the Board based its decision on an insufficient, one-sided presentation of information and neglected to consider the full range of its statutory obligations and potential adverse consequences of closure on programming and memorial functions.

He also made time to mock the piss-poor lawyering by the DOJ. The government actually argued that, if Rep. Beatty had an affirmative duty to sue her fellow trustees, the mere fact of filing a complaint fulfilled it, and that should be the end of the matter. Judge Cooper was clearly offended by this ridiculous suggestion, scoffing that “Playing courthouse ‘ding dong ditch’ can hardly be said to satisfy these legal obligations.”

The court issued a preliminary injunction on canceling the season, since the board — which has a supermajority of Trump appointees, even counting the ex officio members — could theoretically go back and fulfill their fiduciary obligations by conducting a prudent inquiry, and then decide to do the same thing. But he granted summary judgment on the issue of the name and Beatty’s right to vote on the board.

Endless screaming

As his habit, Trump responded by throwing a multi-day tantrum. He raged at “a Barack Hussein Obama Judge named Christopher Cooper” and his wife, Amy Jeffress, a former federal prosecutor who is now a partner at Hecker, Fink, which represents Kilmar Abrego Garcia and Joe Biden and previously represented E. Jean Carroll.

“People shouldn’t be allowed to go into that Building until this is fixed, and yet the Trump Hating Judge wants to keep it open because his wife probably told him to do so!” he screeched, falsely insisting that the Kennedy Center is “in a potential state of collapse, rusted, rotted, and rat and bug infested.”

Somehow this all goes back to the Supreme Court where “our Country lost the TARIFF Case, and is forced to pay back 149 Billion Dollars in money received from people who hate everything we stand for … and that is probably why our Country will lose the Birthright Citizenship Case (No other Country in the World has this — It is totally unaffordable!), because our Court System is RIGGED, no different than our Political System is RIGGED, and the people of our Country know it, and that is why I got overwhelmingly elected President, in Record Numbers, and will FIGHT, FIGHT, FIGHT!”

The president concluded by announcing that he’s taking his ball and going home.

“I cannot be involved with a situation where danger to the Public is allowed to flourish in plain and open sight. Unless I am free to do what I do better than anyone else, bring this Institution back, physically, financially, and artistically, I have no interest in continuing what could only be a hopeless journey into “NEVER NEVER LAND.” There has never been a President of the United States who has been treated so unfairly by the Courts as I but, that’s OK, I will continue to do, what is considered to be, a great job for the wonderful people of our Country. I have instructed the Department of Commerce to make all necessary arrangements with Congress to allow a full and complete transfer of this Institution, giving them the responsibility for its Operation, Maintenance, and Management. Thank you for your attention to this matter! President DONALD J. TRUMP

What does the Department of Commerce have to do with the Kennedy Center?

¯\_(ツ)_/¯

On CNN, Interior Secretary Doug Burgum — who actually does deal with the Kennedy Center, through the National Park Service — suggested that the case might be appealed to the DC Circuit.

And meanwhile, Trump is running the same play on America250. With virtually every artist but Vanilla Ice pulling out, Trump first mused about “bringing the Number One Attraction anywhere in the World, the man who gets much larger audiences than Elvis in his prime, and he does so without a guitar, the man who loves our Country more than anyone else, and the man who some say is the Greatest President in History (THE GOAT!), DONALD J. TRUMP, to take the place of these highly paid, Third Rate ‘Artists.’”

When slapping his name on the wall failed to do the trick, he once again threatened to cancel the whole shebang. Somehow this, too, is all Judge Cooper’s fault.

Happy Anniversary, America. Or something.

Read more

Minnesota: One might figure Minnesota would have a Democratic gerrymander. The state has voted for Democratic Presidential candidates since 1972, Democrats have held the governorship since 2011 and under current governor Tim Walz, Democrats had many notable legislative achievements in the 2023-2025 session.

Unfortunately for Democrats, they’ve only had one trifecta in the state since 1984. This has prevented either party from aggressively gerrymandering the state, thus the Congressional split has been consistently either 5-3 Democratic or tied at 4-4, matching the partisanship of the state. Currently Republicans and Democrats have the same number of seats in Congress and The Minnesota House of Representatives, while Democrats have a one seat majority in the State Senate.

Current MN Map

Ordinarily, Minnesota Democrats would not redraw their maps mid-cycle, but given the chance to, Speaker Jeffries will try.

Procedurally, Democrats may have to climb certain hurdles to get there. First, Democrats legislative majorities are likely to not be very large, so one or two state legislators voting against redistricting may tank the effort. Secondly, there’s an open question as to whether or not the voters would have to approve new maps, as we saw in Virginia or California, or the legislature can redraw them without a vote. Finally, likely incoming governor Amy Klobuchar seems lukewarm on the idea.

I’ll let others handle procedural hurdles, but, in my opinion, some attempt at mid-cycle redistricting is fairly likely.

The question then becomes, what do the maps look like?

If the maps can be passed solely by the legislature, a map that elects seven Democrats and one Republican is plausible, and fairly easy to draw.

Model 7-1 MN Plan

Minneapolis-St Paul Inset

Like the maps in Virginia, California and my map of Illinois, the districts must take a part of the Minneapolis-St Paul region and link them with smaller cities in rural Minnesota. To achieve a 7-1 split, the Minneapolis region is connected with smaller Democratic leaning cities in rural Minnesota, such as Duluth, Mankato and Rochester, which provide enough of a boost to draw 7 safe or Democratic leaning seats and one uber conservative Republican seat.

While many in Washington may like this plan, I think it’s unlikely to pass, especially if voted on by the public. In 2024, Minnesota voted for Vice President Harris by just 4%, the map is non-compact and disenfranchises rural Minnesotans. All similar to Virginia. Given how close the Virginia Amendment was, I believe Democrats will chose a safer route.

Model 6-2 MN Plan

Minnesota Democrats may opt to pass a much safer 6-2 Democratic map, eliminating two Republicans seats, as opposed to three. This map has fewer procedural and political hurdles, making it much more likely to pass.

Redistricting in Minnesota is far from guaranteed, but Democrats will almost certainly attempt it.

Wisconsin: Since 2011, Wisconsin has been extremely gerrymandered towards Republicans. When Republican Governor Scott Walker won and the legislature flipped Republican, Wisconsin Republicans drew egregious gerrymanders at the Congressional and State legislative level. Despite being a swing state, Democrats have not held a majority of Congressional seats or in either chamber since 2010.

2026 will change that. Since Democrats have flipped several Wisconsin Supreme Court races, state legislative lines have been redrawn giving Democrats new life legislatively. In 2024, Democrats picked up ten seats in the Wisconsin House and five in the Wisconsin Senate, though Republicans still have majorities in both chambers, Democrats will probably flip both this cycle.

Current WI Map

Currently Democrats need to pick up two seats in the Wisconsin Senate and five in the Wisconsin House to flip both chambers. Not guaranteed, but Democrats are favored in both.

Finally, Democrats must retain the governorship. Outgoing Democratic Governor Tony Evers is popular and several prominent Democrats are looking to succeed him. Notables include former Lt. Governor, Mandela Barnes, Milwaukee County Executive David Crowley, State Representative Francesca Hong, and current Lt. Governor Sara Rodriguez.

Barnes and Hong are leading the pack currently, with both leading in polling and on prediction markets, with Barnes the favorite. Both Barnes and Hong are not guaranteed to win the general election against Trump endorsed Tom Tiffany, however. Barnes lost a close Senate Race in 2022, while Evers and other Democrats won at the top of the ticket. Hong, a democratic socialist has a past of saying controversial things, may not play well amongst Wisconsin’s more conservative electorate. That being said, Wisconsin Democrats still are very likely to hold the governorship.

So, what does a 6-2 map in Wisconsin look like?

6-2 WI Map

Wisconsin Democrats are primarily concentrated in Milwaukee and Madison, two metro areas that, although very blue, have very Republican suburbs and rural areas surrounding them making the state harder to gerrymander for Democrats.

Much like other hypothetical gerrymanders, a 6-2 Wisconsin map involves splitting the urban areas in three, and combining them with smaller Democratic cities elsewhere in the state to ensure a 6-2 Democratic majority.

This is not guaranteed to pass, the Wisconsin supreme court may somewhat limit the damage Democrats can do and the Democrats legislative majorities will not be very large. However, I expect them to take a crack at mid-cycle redistricting, shifting at minimum two and at maximum four seats Democratic.

Colorado: The Democrats biggest untapped redistricting advantage is the state of Colorado. Once a swing state, the state lurched left in the 2020s voting for Harris by 11%, more than Illinois. However, the Colorado Congressional Delegation has not kept up. An early adopter of an independent redistricting commission, Colorado’s congressional delegation currently has four Democrats and Four Republicans.

Current Colorado Map

Fueled by Democratic packs of Denver and Boulder, the independent commission managed to produce a Republican leaning map, despite the state becoming much more Democratic. A good example of this is Congressional District 1. Currently held by Democrat, Diana Degette, the district contains the entire city of Denver, making her seat Harris +56.

If Democrats unpack both Boulder and Denver, a 7-1 or even 8-0 map is possible.

To accomplish this Democrats will need a ballot initiative to suspend the commission and allow a Democratic drawn map to come into place. Both Democratic and Republican aligned groups are spending money on various ballot initiatives to accomplish or prevent this from happening, however, in all likelihood this initiative will need to come from the legislature itself in 2027.

Current term limited Governor, Jared Polis does not want to complete this process this year, however, Democratic gubernatorial candidates Michael Bennet, and Phil Weiser have both stated they want the legislature to pass this amendment in 2027.

Model 8-0 CO Plan

Model 7-1 CO Map

Above are model 8-0 plans and 7-1 plans. Both plans fairly safely eliminate all or almost all Republican leaning seats, albeit in different ways.

The question for Colorado Democrats is which is more sellable to the public? Colorado is so blue, the referendum likely will pass no matter what. But Democrats may opt to play it safe, only eliminating three Republican leaning seats as opposed to four.

Democrats have the ability to eliminate 11 Republican leaning seats across Colorado, Minnesota and Wisconsin. Given practical concerns, this number will be lower, but some of the most effective redistricting weapons exist in these states.

That’s all for today. Tuesday there will be a California Primary preview followed by Pt. 3 next week.

Subscribe now

“The Most Transparent Administration in History!” the White House screamed in March of 2025. Congratulating themselves for openness has been a constant refrain of the second Trump administration, even as they vow to lock up “leakers” and take a Sharpie to the Presidential Records Act. This week, they’re promoting “transparency” by rolling out a government-wide non-disclosure agreement subjecting current and former federal employees to civil suits and criminal prosecution if they reveal any “nonpublic” information about their service.

Trump tried this gambit in his first term. It wound up with the Department of Justice suing an aide because she told the world that Melania said “who gives a fuck about Christmas stuff.” It was a gross violation of the First Amendment then, and it’s a gross violation of the First Amendment now.

Beta testing

The first Trump White House was hilariously leaky. It was common for salacious details of a meeting to appear on the New York Times home page before the participants had even left the room. And so in early 2017, “David Dennison” turned to a solution he’d relied on in his previous life: non-disclosure agreements subjecting “leakers” to draconian financial penalties if they revealed information they learned in government service.

White House Counsel Don McGahn privately conceded that the contracts were unenforceable. While NDAs are routine in the private sector, the government doesn’t “own” information — it belongs to the American people. But McGahn dutifully foisted them on White House staff anyway to placate his boss. By 2019, incoming interns were signing what was effectively a gag order as part of their “ethics training.”

Signers agreed to permanently protect “any and all information furnished to me by the Government,” “information about the First Family,” and “other information about which I may become aware during the course of performance.” They promised to clear “all materials and statements” with government officials prior to public dissemination.

Perhaps cognizant that these NDAs weren’t worth the paper they were written on, Trump regularly doled out “consulting” contracts to high-level staffers leaving government service — gigs for which they’d have to sign a new NDA promising not to criticize him.

Read more

During his first term, President Trump routinely tore up official documents, forcing archivists to meticulously tape them together to comply with the Presidential Records Act. There were even reports that he clogged up toilets in the White House with shredded papers he hoped to disappear forever.

This time around, he’s taking a different approach. Instead of quietly defying the law, he ordered his advisors to dummy up an opinion saying that, actually, the PRA is unconstitutional. This requires a not inconsiderable amount of chutzpah, since the Supreme Court said almost 50 years ago that it is. And yesterday, Judge John Bates of the US District Court in DC said it again, in a meticulous opinion that opened with quotes from George Orwell and Shakespeare.

The injunction takes effect May 26th and covers White House staff, though not the president or vice president — which is a gap you could drive a very classified Signal chat through. The past is indeed prologue.

Personnel is policy

On April Fools’ Day the Office of Legal Counsel published a memo opining that “The Presidential Records Act is unconstitutional because it exceeds Congress’s enumerated and implied powers and aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.”

The memo’s author, a 36-year-old rightwing lawyer named T. Elliot Gaiser, was tapped to retcon a legal justification for the White House staff to keep on conducting business via disappearing messaging apps and personal emails. This task was somewhat difficult thanks to the Supreme Court, which upheld a materially identical statute in 1977 when Nixon sued the GSA to avoid having to turn over his tapes. But, as a former clerk for Justice Alito, Gaiser was up to the job. He simply declared that the Supreme Court was “wrong,” and “mistaken,” and “failed to appreciate the Article II consequences” of its own ruling.

He also made a tortured argument about Trump v. Mazars, the 2020 Supreme Court decision involving congressional subpoenas for Trump’s personal financial records. The Court held that subpoenas of the president must be related to a legitimate legislative purpose and narrowly tailored to avoid partisan harassment. Of course, presidential records are definitionally not personal records, and the PRA is a law, not a subpoena. But Gaiser had a job to do, so he shouted Mazars! 34 times and hoped for the best. And with all that shouting, he plum forgot to mention the Property Clause — Congress’s plenary power to regulate federal property — which the DOJ relied on in 1977 when it successfully defended the predecessor statute in Nixon v. GSA.

Share

Hey, Susie Wiles! You up?

Gaiser’s memo was good enough for White House Counsel David Warrington, and the next day he fired off an all-staff memo announcing that the PRA was now unconstitutional. He suggested that White House employees “should” preserve their comms, which “may be relevant to ongoing or future litigation.”

As for text messages … ehhhhh:

Under the PRA, no presidential administration required EOP staff to transcribe phone calls, meetings, or informal discussions, even though the broad and unconstitutional text of the PRA certainly suggests that this would be required. Complying with such a requirement would be immensely time consuming and costly. Similarly, as text messaging becomes more akin to speaking every day, preserving all text messages would create an enormous technological burden while chilling the ability of presidential advisors to provide candid advice. Text messages should only be preserved when they are the sole record of official decision-making, government action, or contain unique information not available elsewhere. Furthermore, staff is encouraged to ensure that any decision-making, government action, or unique information is memorialized in a more accessible format, such as an email or memorandum. Text messages reflecting personal conversations, workplace gossip, ministerial tasks or other workplace minutiae (e.g., “call me”, “what room for the meeting”, “there is a typo in the first line of the memo”) do not need to be preserved.

Translation: Set all messages to self-destruct in seven days, Elliot says it’s cool.

Not so fast, fellas

On April 6th the American Historical Association and the watchdog group American Oversight (a frequent FOIA litigant) sued to block implementation of the OLC memo and force the National Archives to collect records in accordance with the PRA. Citing the administration’s flat refusal to stipulate to basic preservation measures while the case was pending, they moved for a preliminary injunction to prevent the permanent destruction of White House documents that belong to the American people.

The case was assigned to Judge John Bates, a George W. Bush appointee, who’s been on the bench long enough that he remembers when the White House Counsel and OLC at least pretended to be doing real law. He did not hide his disdain for a government that seeks to operate in secret.

“While the presidency is a singularly important institution, that gravity does not free it from modest constraint. Quite the opposite,” he wrote. “Each branch of government derives its authority from the trust placed in it by the People, and Congress has validly determined that this Act helps to maintain that trust by shining some light on the activities of the President and his aides.”

Warrington and Gaiser caught substantial judicial side-eye as well, as the court sniffed that “it is not for this Court, OLC, or the White House to second guess Congress’s lawful determination—made pursuant to at least two different enumerated powers—that citizens ought eventually to have access to these records of presidential activities carried out in their name.”

Madness lies

It’s worth pausing to note that the man who spent years braying that Hillary Clinton should go to email jail for using a private server is now arguing that his minions have a constitutional right to conduct government business on self-destructing messaging apps, and that any law requiring them to preserve those messages is an unconstitutional affront to executive power.

Anyway, here’s an official White House video congratulating Trump on “the most transparent administration in history.”

Irony is dead.

Last week, the New York Times reported that the Justice Department was finalizing a deal to settle Donald Trump’s shakedown suits against the executive branch he heads. Trump would magnanimously agree to walk away from his $10 billion lawsuit against the IRS as well as two civil claims seeking $230 million for the “raid” on Mar-a-Lago and the subsequent prosecution in the stolen documents case. All he wants is a public apology from the IRS over the disclosure of his tax returns in 2020 and a $1,776,000,000 slush fund (get it? get it?) to dole out cash to “victims” of the “weaponized” DOJ.

ABC News reports that the fund would be administered by five commissioners appointed by Trump himself to rain cash down on Trump’s allies:

Read more

In February, Donald Trump went on former FBI Deputy Director Dan Bongino’s podcast and demanded that the federal government “nationalize and take over” the midterm elections. He followed up with an executive order instructing the Department of Homeland Security to compile a national list of eligible voters, adding that the Post Office should refuse to deliver ballots to anyone not on that list.

The Department of Justice’s Civil Rights Division then demanded that every state turn over its complete, unredacted voter rolls, including drivers license and social security numbers. The plan is to feed the lists into DHS’s horribly broken SAVE Program and weed out supposedly “ineligible” voters. (What could possibly go wrong??) As a two-fer, DHS would then have a list of names, addresses, and contact information for untold numbers of people that its chatbot thinks are immigrants here illegally.

Fifteen red states complied, but most states refused to hand over sensitive voter data. In response, the DOJ sued at least 30 states and the District of Columbia. But so far, not a single court has sided with the feds. Judges in Arizona, California, Massachusetts, Michigan, Oregon, and Rhode Island all tossed the DOJ’s lawsuits demanding the voter rolls.

And so the government is getting creative. With no court willing to endorse its legal theories, it turned to the Office of Legal Counsel, a division of the Justice Department that acts as a legal advisor to the executive branch and the president.

In the past, the OLC at least pretended to render real legal guidance, even sometimes telling the president things he didn’t want to hear. In 2011, President Obama asked the OLC whether military intervention in Libya would amount to hostilities that must be approved by Congress pursuant to the War Powers Resolution. He wanted the answer “no.” But the OLC concluded the answer was “yes.” (Obama intervened anyway.)

But as with every executive branch agency under Trump, the office has jettisoned any pretense of independence. Trump wanted something he could point to as evidence that he’s entitled to seize state voter rolls, and the OLC dutifully complied.

In a May 12 memorandum opinion, the OLC agreed that the Civil Rights Act of 1960 — a law designed to prevent Jim Crow-era Southern states from obstructing and disenfranchising Black voters — can be used to force states to turn over confidential voter data to the Trump administration so it can prune undesirable voters. (Notably, the memo’s author, Principal Deputy Assistant Attorney General Lanora C. Pettit, joined the Trump administration last year after several years working for Texas Attorney General Ken Paxton.)

Even well-reasoned, good-faith OLC memoranda are just statements of opinion and are non-binding on any state, court, or any other party (except internally at the Department of Justice). This memo is neither well-reasoned nor in good faith, and its arguments have been repeatedly rejected by judges across the country.

Read more