[Donald Trump](https://www.theguardian.com/us-news/donaldtrump)’s aides working on Pete Hegseth’s nomination for defense secretary have told the Trump transition team they haven’t yet counted three Republican senators as being categorically opposed to his confirmation, according to two people familiar with the matter. The president-elect’s pick to lead the Pentagon returned to Capitol Hill to meet with senators in an effort to shore up faltering support over allegations that he committed sexual assault, [drank to excess](https://www.theguardian.com/us-news/2024/dec/03/pete-hegseth-defense-department-alcohol-use), sexually pursued female subordinates and was [ousted from two non-profits](https://www.theguardian.com/us-news/2024/dec/02/pete-hegseth-non-profit-allegations). But Hegseth’s nomination team, which has met with senators themselves, have suggested to Trump’s orbit that he may ultimately prevail given that they have not hit the critical threshold of three “no” votes despite the slew of torrid headlines that have clouded the selection. The trickiest hurdle for Hegseth, the people said, appears for now at least to be [convincing Republican senator Joni Ernst](https://www.theguardian.com/us-news/live/2024/dec/05/trump-hegseth-defense-drinking-us-politics-latest-updates?CMP=share_btn_url&page=with%3Ablock-6751c8548f08d291b219932b#block-6751c8548f08d291b219932b) to back his nomination or ensuring her resistance does not embolden her close colleagues in the Senate to vote against him. Ernst, an Iowa Republican and combat veteran who has spoken about being sexually assaulted herself, had a closed-door meeting with Hegseth on Wednesday but did not offer her endorsement when she emerged, as well as in an interview on [Fox News](https://www.theguardian.com/media/fox-news) the following morning. “For a number of our senators, they want to make sure that any allegations are cleared, and that’s why we have to have a very thorough vetting process,” Ernst told Fox News, agreeing with the host Bill Hemmer that she had not reached a “yes” on Hegseth. The continued resistance from Ernst sparked complaints from Trump’s team at Mar-a-Lago, where the transition operation is headquartered, that Ernst was content to sink Hegseth’s nomination because she was interested in the job herself. [](https://www.theguardian.com/us-news/2024/dec/06/pete-hegseth-confirmation-trump#img-2) Joni Ernst speaks with reporters on Capitol Hill in Washington on 6 March. Photograph: Bonnie Cash/Reuters Ernst had briefly been in the running for the defense secretary position until she was passed over when Trump instead gravitated to Hegseth, partly because of what he regarded as his telegenic qualities and conversations with him on the campaign trail. But Ernst has spoken to Trump repeatedly in recent weeks and questioned his choice for Hegseth, the people said, giving rise to accusations that she was trying to position herself for the job. A spokesperson for Ernst said in a statement that she had no interest in being the defense secretary pick: “She is not seeking the position, full stop.” Still, that has not quelled the backlash against her inside Trumpworld with aides foreshadowing a war his other sherpa teams if she in effect forced Hegseth to withdraw his nomination for her own personal self-interest, the people said. Trump has told people close to him that Michael Waltz, the former Florida congressman he chose as his national security adviser, would face an easier path to Senate confirmation for defense secretary, according to two people with knowledge of the discussions. But Trump has also said he wants to keep Waltz in the West Wing and his top replacement pick [would be Ron DeSantis](https://www.theguardian.com/us-news/2024/dec/04/pete-hegseth-trump-keep-fighting), the Florida governor and his 2024 Republican primary rival. In Washington, Hegseth launched a public media campaign to bolster support for his nomination. He vowed to continue with his bid as he met with more Republican senators in Congress and said in a high-profile interview that Trump told him that he had his back. [skip past newsletter promotion](https://www.theguardian.com/us-news/2024/dec/06/pete-hegseth-confirmation-trump#EmailSignup-skip-link-15) Sign up to The Stakes — Presidential Transition We will guide you through the aftermath of the US election and the transition to a Trump presidency **Privacy Notice:** Newsletters may contain info about charities, online ads, and content funded by outside parties. For more information see our [Privacy Policy](https://www.theguardian.com/help/privacy-policy). We use Google reCaptcha to protect our website and the Google [Privacy Policy](https://policies.google.com/privacy) and [Terms of Service](https://policies.google.com/terms) apply. after newsletter promotion Speaking to Megyn Kelly on Sirius XM, Hegseth dismissed the sexual misconduct and drinking allegations as fiction, comparing them with the similar negative headlines that dogged Brett Kavanaugh during his senate confirmation hearings for the US supreme court. “It is the classic art of the smear,” Hegseth said. “Take whatever tiny kernels of truth – and there are tiny, tiny ones in there – and blow them up into a masquerade of a narrative about somebody that I am definitely not.” He later told Kelly that if he ultimately became defense secretary, he would stop drinking altogether, likening it to when he followed the military directive prohibiting alcohol consumption on deployment. Hegseth was due to speak to Bret Baier on Fox News but swapped it for an appearance on Kelly’s show, with his team betting that speaking with a female journalist who had herself spoken out against sexual harassment in a long-form interview would be more beneficial, a person familiar with the matter said. The Hegseth team also thought doubling down on Fox News was overkill, the person said, after his mother earlier appeared on the Fox and Friends morning show to quell concerns about a 2018 email she sent her son that accused him of a pattern of abuse towards women. Penelope Hegseth said she regretted sending the email, in which she said her son “belittles, lies, cheats, sleeps around”, and urged senators to consider his nomination. “He’s redeemed, forgiven, changed,” she said.

[META+1.77%](https://qz.com/quote/META)[AMZN+0.26%](https://qz.com/quote/AMZN)[GOOGL\-0.07%](https://qz.com/quote/GOOGL) Mark Zuckerberg’s Meta Platforms ([META+1.77%](https://qz.com/quote/META)) has tapped Joel Kaplan to lead its global affairs team, putting the company’s most prominent Republican in a top job. The move comes just weeks ahead of President-elect Donald Trump’s inauguration later this month and as big tech companies prepare for a shift in federal policy. Several major CEOs, from Zuckerberg himself to Amazon’s ([AMZN+0.26%](https://qz.com/quote/AMZN)) Jeff Bezos and Google’s ([GOOGL\-0.07%](https://qz.com/quote/GOOGL)) Sundar Pichai, [recently met](https://qz.com/donald-trump-tech-ceos-apple-google-amazon-cook-bezos-1851722093) with Trump to discuss his vision for his administration. Kaplan, Meta’s current vice president of global policy, worked for Former President George W. Bush as the White House deputy chief of staff. Last month, he [joined](https://www.threads.net/@joelkaplan/post/DDfF3djxuj_?xmt=AQGz2yHLJr_XHpuNCKNnspIGAdMYq4Hh_ONoSZhy3BT4Cg) Vice President-elect J.D. Vance and Trump at the New York Stock Exchange, where Trump was [being honored](https://qz.com/donald-trump-nyse-stock-bell-bell-time-person-year-1851719423) as Time magazine’s Person of the Year. In 2018, he attended the Senate confirmation hearing for his “friend” Supreme Court Justice Brett Kavanaugh, which sparked an [internal backlash.](https://www.cnn.com/2018/10/05/tech/facebook-joel-kaplan-backlash/index.html) Semafor first [reported](https://www.semafor.com/article/01/02/2025/meta-will-appoint-joel-kaplan-to-lead-global-policy-team-replacing-nick-clegg) the shakeup, which was [confirmed on Facebook](https://www.facebook.com/nickclegg/posts/pfbid02pYw3yki4jXbjns4ofN8XHnHL3t4CDrK8RSoxjkSjhWYfPh4yQBg3psUDNrKRtGfNl?amp%3B__tn__=%2CO%2CP-R) by Nick Clegg, Meta’s current president of global affairs. Clegg said he would continue representing the company throughout the first quarter of 2025. “My time at the company coincided with a significant resetting of the relationship between ‘big tech’ and the societal pressures manifested in new laws, institutions and norms affecting the sector,” Clegg wrote. “I hope I have played some role in seeking to bridge the very different worlds of tech and politics – worlds that will continue to interact in unpredictable ways across the globe.” Before joining Meta as vice president of global affairs in October 2018, Clegg was a major politico in the United Kingdom. He served as Prime Minister David Cameron’s deputy prime minister, the leader of the Liberal Democrats, and a member of parliament. During his tenure, Clegg represented Meta in both Washington D.C. and London, often [speaking at events](https://www.chathamhouse.org/events/all/members-event/conversation-nick-clegg-can-democracy-survive-pace-technology) about the intersection of technology and democracy and [Congressional hearings](https://www.chathamhouse.org/events/all/members-event/conversation-nick-clegg-can-democracy-survive-pace-technology). He also helped guide Meta through the [fallout](https://www.politico.eu/article/facebook-nick-clegg-cambridge-analytica-scandal/) from the scandal revolving around Cambridge Analytica, the British data firm that illegally used social media data to target Americans during the 2016 presidential election. Meta, then known as Facebook, [paid a $5 billion fine](https://www.bbc.com/news/business-49109624) to settle with the Federal Trade Commission. Clegg spoke favorably of Kaplan, writing that he was “thrilled” with his appointment and calling him “quite clearly the right person for the right job at the right time.” Former Federal Communications Commission Chair Kevin Martin, who was [nominated](https://www.fcc.gov/biography-kevin-j-martin) by Bush in April 2001, will become Meta’s vice president of global policy, Clegg wrote. Martin has been at Meta [since 2015](https://www.bloomberg.com/news/articles/2021-12-23/meta-scraps-search-for-democrat-to-lead-the-charge-in-washington?sref=P6Q0mxvj). “You’ve made an important impact advancing Meta’s voice and values around the world, as well as our vision for AI and the metaverse,” Zuckerberg wrote in a reply to Clegg. “You’ve also built a strong team to carry this work forward. I’m excited for Joel to step into this role next given his deep experience and insight leading our policy work for many years.”

Jan 10, 2025 3:48 PM While Supreme Court justices pressed both sides in Friday’s oral arguments, experts say it’s hard to see how TikTok gets enough votes to survive.  Photo-illustration: Jacqui VanLiew; Getty Images The Supreme Court [heard oral arguments](https://www.wired.com/live/tiktok-scotus-live-coverage/) in a [landmark First Amendment case](https://www.wired.com/story/tiktok-ban-first-amendment-courts-challenge/) on Friday that will determine the fate of TikTok in the United States. For more than two hours, the nine justices questioned lawyers for TikTok, content creators, and the US government about a [law passed last year](https://www.wired.com/story/congress-tiktok-ban/) that, if left to stand, could result in a [ban of the popular video-sharing app](https://www.wired.com/story/how-the-us-tiktok-ban-would-actually-work/) on January 19. Speaking with WIRED, experts said it was unlikely that the court would side with TikTok and block the ban from going into effect. While the justices were concerned over the First Amendment implications of the law, they appeared convinced that the app poses a substantial [risk to US national security](https://www.wired.com/story/tiktok-nationa-security-threat-why/). TikTok’s lawyer, Noel Francisco, and Jeffrey Fisher, who represents the creators, argued that, as written, the law banning TikTok violates the rights their clients have to free expression; removing access to the TikTok algorithm, they claim, would remove a speech outlet for creators and the company itself. For the government, solicitor general Elizabeth Prelogar argued that the law does not censor the defendants, but quarantines the app from parent company ByteDance and Chinese influence. “I don't think \[the law\] reflects Congress seeking to set out in advance what kind of speech we should have reflecting certain views on certain topics,” Prelogar said. “Instead, it's about trying to close off the vulnerability that our foreign adversary nation could exploit.” “This case boils down to speech. What we're talking about is ideas,” Francisco said in his rebuttal, dismissing national security concerns that the TikTok algorithm could be used to manipulate Americans. “That whole notion is at war with the First Amendment. If the First Amendment means anything, it means that the government cannot restrict speech, in order to protect us from the speech. That's precisely what this law does from beginning to end.” While many of the justices voiced concern over the law’s First Amendment threats, they also appeared amenable to the government’s argument that the law was more targeted toward severing TikTok’s connections with ByteDance than limiting its free-speech rights. For more than five years, US officials have warned that TikTok has the potential to influence American perception of the Chinese government. In public interviews and congressional hearings, officials like FBI director Christopher Wray have also suggested that TikTok gathers US user data that the Chinese government could weaponize [to surveil Americans online](https://www.wired.com/story/tiktok-nationa-security-threat-why/). TikTok has denied that it shares any US data with ByteDance or the Chinese government. Donald Trump was the first to [try banning TikTok](https://www.wired.com/story/tiktok-year-trump-ban-no-change-new-threats/) in 2020, when he issued an executive order that quickly got held up in litigation throughout the remainder of his presidency. Upon taking office, President Joe Biden rescinded the order and began negotiating with TikTok to reach a deal designed to satisfy the government’s national security concerns while allowing TikTok to continue operating, an effort that became known as [Project Texas](https://www.nbcnews.com/tech/security/tiktok-tries-sell-project-texas-fights-survival-us-rcna67697). When no deal could be reached, [Congress responded by approving the ban-or-sell bill](https://www.wired.com/story/congress-tiktok-ban/), titled the Protecting Americans From Foreign Adversary Controlled Applications Act, setting the January 19 deadline for ByteDance to sell TikTok to a suitable buyer or be removed from US app stores. The law allows for Biden to extend that deadline an additional 90 days. Soon after Biden [signed the bill to ban TikTok in April](https://www.wired.com/story/biden-sign-tiktok-ban/), the company and a consortium of its users retaliated by filing lawsuits accusing the federal government of violating their First Amendment rights. In December, [a federal appeals court](https://www.wired.com/story/doj-tiktok-constitutional-lawsuit/) upheld the ban law, leaving TikTok with only one legal pathway left to save itself: an appeal to the Supreme Court. Many of these same arguments were made at Friday’s hearing. Justice Brett Kavanaugh called the government’s data security rationale “strong.” Justices Elena Kagan and Neil Gorsuch called into question the government’s assertion that the app could host “covert” Chinese manipulation operations, arguing that TikTok’s algorithm was just as opaque as those belonging to other social media companies. “We all now know that China is behind it,” Kagan said. Fisher, who represents the creators involved in the case, argued that the justices did not have to answer questions related to security, which would be better resolved by broader data privacy legislation. “If Congress, in this very law, regulated data security in other ways with the data brokers, that's perfectly permissible,” Fisher told the court. “But the question before you today was narrower. The question is, is this law before you sustainable on security grounds? And that answer has to be no,” Fisher told the court. Justices expressed some doubt as to whether the law actually limits TikTok’s freedom of expression, given the option to divest. “TikTok can continue to operate on its own algorithm on its own terms, as long as it's not associated with ByteDance,” Justice Ketanji Brown Jackson said. If the ban goes into effect, Apple and Google would be required to remove TikTok from the US versions of their app stores, [preventing any new downloads from happening in the country](https://www.wired.com/story/how-the-us-tiktok-ban-would-actually-work/). Internet hosting and data storage providers will also be forbidden from offering their services to the company. Users with TikTok already downloaded onto their devices may still continue to have access, at least for a short period of time after the ban goes into effect. Once removed from app stores, users won’t be able to download updates to TikTok, and the app could become [more buggy and difficult to use](https://www.wired.com/story/how-the-us-tiktok-ban-would-actually-work/) over time. TikTok’s lawyer told the justices that the app would go dark after January 19. Blake Reid, a tech law professor at the University of Colorado at Boulder, said that the justices seemed to target TikTok’s corporate structure, leaving the app’s counsel little time to argue the merits of the data security argument. “I'm not sure that Tiktok will lose that argument, but because they spent so much time on it, they didn't get to make the arguments about the national security stuff and the privacy and security stuff, which I think is the weakest part of the government's case.” The justices seemed more sympathetic to the government’s security concerns, says Alan Rozenshtein, a law professor and former national security adviser to the Justice Department. “It's very plausible that Tiktok picks up a couple of votes,” Rozenshtein says. “I think the three most likely are justices Sotomayor, Gorsuch, and maybe Kagan, but I struggle to see TikTok getting five votes, which is what it needs to strike down this law.” In a press conference following the hearing on Friday, Francisco said the argument went “really well” and that the justices “vigorously questioned both sides.” It’s unclear when the court would issue its decision, but Rozenshtein and Reid believe it will come sooner rather than later. TikTok’s lawyer, Francisco, suggested that the justices could issue a stay or an injunction to stop the ban from going into effect as scheduled, but they gave no signals as to whether they would consider it. Trump also pleaded with the nation’s highest court to stop the ban from going into effect in an amicus brief filed last month, promising to find a “political” solution to save TikTok once he retakes power. “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing national security concerns,” Trump lawyer D. John Sauer wrote in [the filing.](https://www.supremecourt.gov/DocketPDF/24/24-656/336151/20241227163400981_2024-12-27%20-%20TikTok%20v.%20Garland%20-%20Amicus%20Brief%20of%20President%20Donald%20J.%20Trump.pdf) The court has not yet responded to the brief. If the justices uphold the ban, a deal with Trump might just be TikTok’s last shot at survival.

In some ways, the secretary of Defense nomination of [Pete Hegseth](https://www.theguardian.com/us-news/pete-hegseth) was always meant as a domination exercise, a way of making Senate [Republicans](https://www.theguardian.com/us-news/republicans) humiliate themselves for [Donald Trump](https://www.theguardian.com/us-news/donaldtrump)’s approval. Hegseth has white supremacist tattoos and what is reportedly a pretty severe drinking problem: one friend told the New Yorker’s Jane Mayer that they once saw him order [three gin and tonics](https://www.newyorker.com/news/the-lede/the-pressure-campaign-to-get-pete-hegseth-confirmed-as-defense-secretary) at a breakfast meeting. In 2017, a woman went to the emergency room – and then the police – after what she said was a rape by Hegseth; he later paid a settlement and had her [sign an nondisclosure agreement](https://www.theguardian.com/us-news/2024/nov/17/trump-defense-pick-pete-hegseth-sexual-assault-allegations). (Hegseth claims the encounter, which took place while he was married to his second wife and had just had a child with the woman who would become his third, was consensual and denies all wrongdoing.) He wrote a book, The War on Warriors, which seems to consist mainly of his gripes about the presence of women in combat roles and his objections to the fact that American service members are required by abide by the Geneva conventions. “From what I can tell,” said Senator Tammy Duckworth, who lost both her legs while serving in combat in Iraq, “the manager of your local Applebee’s has more experience managing a bigger budget and more personnel than [Pete Hegseth](https://www.theguardian.com/us-news/pete-hegseth).” That’s not entirely fair: the manager of your local Applebee’s probably has a good deal more dignity. > Trump, and the money behind him, have already proved themselves stronger than the separation of powers And so it should be no surprise that on Tuesday, when Hegseth appeared before the Senate armed services committee for his confirmation hearings, the assembled Republicans had nothing but kind, even effusive things to say about Hegseth. This is not because they are unaware of his character. It is because they are slaves to Donald Trump’s will, and have abandoned their advice-and-consent role – to say nothing of their self-respect – in order to please him. In case there was ever any doubt about the slavish obedience of the Republican Senate caucus, it appears that allies of Trump and Hegseth have been working overtime to ensure that the confirmation process is not a fair fight. Witnesses who might cast Hegseth in an unflattering light – including the [woman who accused him of rape](https://www.theguardian.com/us-news/2024/nov/17/trump-defense-pick-pete-hegseth-sexual-assault-allegations) and several whistleblowers who exposed his [drunkenness](https://www.nytimes.com/live/2025/01/14/us/hegseth-confirmation-trump#pete-hegseth-drinking-alcohol) and alleged [financial mismanagement](https://www.theguardian.com/us-news/2025/jan/14/pete-hegseth-testimony-congress-secretary-defense) as the leader of two veterans’ non-profits – have been smeared in the rightwing media and threatened with lawsuits and public ruin; they have ultimately made the reasonable, and intended, decision not to testify. Senators like Susan Collins and Jody Ernst – a veteran and rape victim who has been an outspoken advocate for victims of sexual assault in the military – have refused to meet privately with Hegseth’s accuser. An FBI background investigation seems to have been almost comedically superficial and perfunctory, as it was in the Brett Kavanaugh hearings. Meanwhile, the money behind Trump is being used to intimidate Republican senators into toeing the line, regardless of their advice-and-consent duties: Elon Musk has reportedly pledged to fund primary challengers for any Senate Republicans who do not vote to confirm Hegseth. What is happening in the Hegseth confirmation, then, is not merely the nomination of an unqualified and dangerously incompetent man to a position of authority that he can’t handle and does not deserve. It is something more like the buckling of constitutional checks and balances in the face of Trump’s authoritarian ambitions – and Elon Musk’s money. A senator who cannot meaningfully weigh a candidate without facing impossible reprisals is one who cannot fulfill the duties of their office. A raped woman or abused employee who cannot tell the truth of what happened to her without facing ruinous lawsuits and life-altering public harassment is one who does not have a full or actionable right to freedom of speech. We often speak of what Trump _threatens_, what he _might_ do to our system of government. This vocabulary suggests that the danger is in the future. But the constitutional order is substantially impaired and dysfunctional right now: Trump, and the money behind him, have already proved themselves stronger than the separation of powers. Hegseth’s appointment is largely a foregone conclusion, if for no other reason than the fact that the Republicans have neither the spine nor any real opportunity to vote against him. But his remarks gave some clue as to how he will run the American military once confirmed. [skip past newsletter promotion](https://www.theguardian.com/commentisfree/2025/jan/16/pete-hegseth-confirmation-hearing#EmailSignup-skip-link-11) Sign up to Fighting Back Big thinkers on what we can do to protect civil liberties and fundamental freedoms in a Trump presidency. From our opinion desk. **Privacy Notice:** Newsletters may contain info about charities, online ads, and content funded by outside parties. For more information see our [Privacy Policy](https://www.theguardian.com/help/privacy-policy). We use Google reCaptcha to protect our website and the Google [Privacy Policy](https://policies.google.com/privacy) and [Terms of Service](https://policies.google.com/terms) apply. after newsletter promotion Hegseth leaned hard into the Musk project of ending diversity, equity and inclusion programs and reducing the number of women and minorities in positions of leadership. “This is not the time for equity,” he said, repeatedly casting women’s presence in the military as a threat to readiness. He seems determined, too, to loosen American soldiers’ obligations to international law in ways that would enable them to kill more civilians and torture more prisoners. He said he would use the military to facilitate mass deportations; he said he would not give soldiers stationed in Republican-controlled states funding to travel for abortion care. But what was perhaps most notable about Hegseth’s testimony was what he did not say: he did not say, though he was asked several times, that he would refuse to carry out an unconstitutional order by Donald Trump. That, too, might be why the president chose him. Our system of government is already broken. But the president-elect seems determined to break it more. * Moira Donegan is a Guardian US columnist

_Alexandra Sifferlin, a health and science editor for Times Opinion, hosted an online conversation on Wednesday with the Opinion columnist Zeynep Tufekci and the Opinion writers David Wallace-Wells and Jessica Grose about Robert F. Kennedy Jr.’s first of two confirmation hearings for secretary of health and human services._ **Alexandra Sifferlin:** A challenge for Robert F. Kennedy Jr. in this hearing was convincing senators that he is not a conspiracy theorist who is going to take away everyone’s vaccines. In his opening statement, he stated that he was not “anti-vaccine,” though numerous examples were provided of his longtime vaccine criticism — including [a fiery exchange](https://www.nytimes.com/video/us/politics/100000009957725/rfk-jr-confirmation-hearing-sanders.html) with Senator Bernie Sanders over Kennedy’s [former nonprofit](https://www.washingtonpost.com/politics/2025/01/22/rfk-money-vaccines-salary-trump/ac398118-d91f-11ef-85a9-331436ec61e9_story.html) selling anti-vaccine baby onesies. Did Kennedy succeed in offering that assurance? **Jessica Grose:** I’m going to have to agree with Senator Ron Wyden, [who said](https://www.youtube.com/watch?v=zyEaKsYYjXs), “The receipts show that Mr. Kennedy has embraced conspiracy theories, quacks, charlatans — especially when it comes to the safety and efficacy of vaccines.” Kennedy’s responses did not do much to quell the profound doubts that anyone paying close attention would have. It was especially bad when [he had to admit](https://www.cnn.com/2025/01/29/politics/video/sen-bennet-grills-rfk-jr-hhs-secretary-hearing-digvid) that he “probably did” once say that Lyme disease was a “military-engineered bioweapon.” **David Wallace-Wells:** I don’t think he persuaded anyone of much, though I don’t think he really set out to, either. He was working from the playbook of Pete Hegseth and Brett Kavanaugh — defensive, standoffish, evasive and ready to be [memed](https://x.com/bennyjohnson/status/1884678471000957038). He didn’t really repudiate past statements, just deflected and counterpunched. More striking to me: He said almost nothing about how to actually make America healthy again. **Grose:** David, I also found it telling that he was already referring to President Trump as his “boss” and saying there’s nothing wrong with loving Big Macs. We know that Trump likes fighters. Kennedy has an audience of one that he really cares about. **Zeynep Tufekci:** He is obviously good at punting the questions and came prepared to do so. When he was asked if he was a conspiracy theorist, for example, he just said no and claimed that he was called a conspiracy theorist for saying Covid vaccines don’t prevent transmission. But that’s not the real reason. For example, he has [falsely claimed](https://x.com/RobertKennedyJr/status/1618279143468306435) that the H.P.V. vaccine increases rates of cancer — and he even stands to [potentially benefit](https://www.nytimes.com/2025/01/29/health/rfk-merck-hpv-vaccine-crapo-warren.html) from a lawsuit against that vaccine. Meanwhile, the evidence shows that the H.P.V. vaccine is eliminating deaths from cervical cancer. But he didn’t get pushed on that. Thank you for your patience while we verify access. If you are in Reader mode please exit and [log into](https://myaccount.nytimes.com/auth/login?response_type=cookie&client_id=vi&redirect_uri=https%3A%2F%2Fwww.nytimes.com%2F2025%2F01%2F30%2Fopinion%2Frfk-jr-robert-kennedy-confirmation-hearing.html&asset=opttrunc) your Times account, or [subscribe](https://www.nytimes.com/subscription?campaignId=89WYR&redirect_uri=https%3A%2F%2Fwww.nytimes.com%2F2025%2F01%2F30%2Fopinion%2Frfk-jr-robert-kennedy-confirmation-hearing.html) for all of The Times. Thank you for your patience while we verify access. Already a subscriber? [Log in](https://myaccount.nytimes.com/auth/login?response_type=cookie&client_id=vi&redirect_uri=https%3A%2F%2Fwww.nytimes.com%2F2025%2F01%2F30%2Fopinion%2Frfk-jr-robert-kennedy-confirmation-hearing.html&asset=opttrunc). Want all of The Times? [Subscribe](https://www.nytimes.com/subscription?campaignId=89WYR&redirect_uri=https%3A%2F%2Fwww.nytimes.com%2F2025%2F01%2F30%2Fopinion%2Frfk-jr-robert-kennedy-confirmation-hearing.html).

A new book describes how in confirmation hearings in 1991, the future supreme court justice Clarence Thomas said he had “no agenda” to change free speech protections established by [New York Times v Sullivan](https://www.uscourts.gov/about-federal-courts/educational-resources/supreme-court-landmarks/new-york-times-v-sullivan) – the landmark 1964 ruling Thomas now says should be reconsidered. “We should protect our first amendment freedoms as much as possible,” Thomas said 34 years ago, in [exchanges](https://www.govinfo.gov/app/details/GPO-CHRG-THOMAS/context) long obscured by history. Now, however, as influential rightwing figures push for Times v Sullivan to be overturned by a court tipped decisively right under Donald Trump, Thomas has changed his mind. In opinions released in 2019, 2021 and 2023, he has questioned Times v Sullivan, bemoaning how the ruling supposedly allows media organizations to “cast false aspersions on public figures with near impunity”. Thomas’s evolving views are described in [Murder the Truth](https://www.harpercollins.com/products/murder-the-truth-david-enrich?variant=42734343421986): Fear, the First Amendment and a Secret Campaign to Protect the Powerful, by David Enrich, a New York Times reporter, which is to be published on 11 March. The Guardian obtained a copy. Enrich focuses on recent rightwing attacks on the press, prominently including the wrestler Hulk Hogan’s [victory](https://www.theguardian.com/media/2016/jun/10/gawker-media-bankruptcy-auction-hulk-hogan-lawsuit) over the website Gawker in 2016, in a case concerning a sex tape and [bankrolled](https://www.theguardian.com/technology/2016/aug/15/peter-thiel-gawker-bankruptcy-lawsuit-hulk-hogan-sextape) by the rightwing tech billionaire Peter Thiel, and a [settlement](https://www.theguardian.com/us-news/2017/apr/12/melania-trump-accepts-damages-and-apology-from-daily-mail) won by Melania Trump against the Daily Mail in 2017, over claims she once worked as an escort. Those were victories for the plaintiff but in general, Times v Sullivan stands as a bulwark in support of press freedom. The case concerned an ad, paid for by civil rights groups, which proved to contain factual inaccuracies. The police commissioner of Montgomery, Alabama, sued the Times and won. The paper took the case to the [US supreme court](https://www.theguardian.com/us-news/us-supreme-court), which ruled unanimously in its favor. The ruling established the “actual malice” standard for defamation suits, under which plaintiffs must show a statement was published “with knowledge that it was false or with reckless disregard for the truth”. As defined by [Protect Democracy](https://protectdemocracy.org/work/the-actual-malice-standard-explained/), which campaigns to defend press freedom, plaintiffs must prove four things: that a defamatory statement conveyed facts, not opinion; that those facts were false; that the statement was delivered to others; and that the plaintiff was harmed. The resulting protection of press freedom has long been the subject of rightwing ire. As Enrich shows, however, Thomas did not initially join in. During his confirmation hearings, he was asked by Patrick Leahy, a Democratic senator from Vermont, if Times v Sullivan “set too high a bar for public figures to win libel cases”. Thomas said: “I guess I haven’t looked at it from that standpoint.” Asked if he saw “any need to change that standard”, Thomas said: “I at this moment certainly have not thought about changing that standard and have no agenda to change that standard. My view, as I’ve attempted to express here, is that we should protect our first amendment freedoms as much as possible.” That Thomas no longer espouses such support is a shift widely held to have been formed by his own experiences at the hands of the press. As Enrich writes, as Leahy questioned Thomas, Thomas had already been subject to “journalists … prying into \[his\] career and life story”, with “less comfortable territory” including his leadership of the US Equal Employment Opportunities Commission, “the church he and \[his wife\] Ginni attended, and his sister’s disclosure to reporters that she’d once had an abortion”. Despite that, in the hearing room, Thomas indicated that “even though he felt like he was getting raked over the coals, a free press – as articulated by the court in Sullivan – was paramount”. “And I believe that even as I was going through it and even as I am going through it,” Thomas said. “I think what the court was attempting to do there \[in Sullivan\] was of course to balance the first amendment rights, the freedom of the press as we know it, and to not have that in a way impeded by one’s abilities to sue the media or intimidate the media. “That is something of course that one could debate, but I think it is a clear demonstration on the court’s part that the freedom of the press is important in our society, it’s critical in our society, even though individuals may at times be hurt by the use of that right.” Supreme court nominees often adopt evasive or careful language in confirmation hearings, as evidenced when the three justices Trump nominated in his first term were [asked](https://www.factcheck.org/2022/05/what-gorsuch-kavanaugh-and-barrett-said-about-roe-at-confirmation-hearings/) if they supported the removal of the federal right to abortion. All three dissembled; all three eventually voted to remove the right. [skip past newsletter promotion](https://www.theguardian.com/us-news/2025/feb/12/clarence-thomas-times-sullivan-precedent-book#EmailSignup-skip-link-18) Sign up to First Thing Our US morning briefing breaks down the key stories of the day, telling you what’s happening and why it matters **Privacy Notice:** Newsletters may contain info about charities, online ads, and content funded by outside parties. For more information see our [Privacy Policy](https://www.theguardian.com/help/privacy-policy). We use Google reCaptcha to protect our website and the Google [Privacy Policy](https://policies.google.com/privacy) and [Terms of Service](https://policies.google.com/terms) apply. after newsletter promotion But Thomas has emerged as a particular lightning rod for liberal anger, including calls for his [impeachment](https://www.theguardian.com/us-news/article/2024/jul/10/aoc-articles-of-impeachment) and removal. In 1991, as Enrich writes, Thomas was about to find himself at the center of a historic political fight. Less than three weeks after his exchange with Leahy, “word leaked to reporters at Newsday and National Public Radio that one of Thomas’s former EEOC subordinates, Anita Hill, had accused him of sexual harassment”. Thomas vehemently denied Hill’s claims but endured further, tempestuous hearings, complaining of a “[high-tech lynching](https://www.youtube.com/watch?v=ZURHD5BU1o8)” but being confirmed by a historically narrow margin. Enrich notes that Michael Luttig, a conservative lawyer detailed to shepherd Thomas on to the court (now a prominent anti-Trump conservative), described the nominee “‘crying and hyperventilating’ about how ‘these people have destroyed my life’”. More recently, Thomas has been the subject of extensive reporting, [led by ProPublica](https://www.theguardian.com/us-news/2025/jan/02/clarence-thomas-justice-department-request), about his failure to declare lavish gifts from rightwingers with business before the court. Perhaps concurrently, Thomas’s publicly expressed views on Times v Sullivan have changed. In 2019, as the court rejected an appeal by a woman who accused the comedian Bill Cosby of sexual assault, Thomas said Times v Sullivan should be reconsidered, [writing](https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2022/01/Justice-Clarence-Thomas-Calls-for-Reconsideration-of-Landmark-Libel-Ruling-The-New-York-Times.pdf): “New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” He restated that position in 2021. In a 2023 [case](https://www.supremecourt.gov/opinions/23pdf/22-1125_c07d.pdf) brought by a West Virginia mining executive turned Republican political candidate, Thomas said press protection under Times v Sullivan “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity’”. Such comments have been widely noted, particularly in light of Trump’s oft-stated wish to “[open up](https://www.theguardian.com/us-news/commentisfree/ng-interactive/2024/oct/27/trump-press-freedom-stakes)” US libel laws and as Thomas forms part of a 6-3 rightwing majority that has handed Trump major wins, not least in ruling that presidents have some legal immunity. Enrich’s book appears at the start of Trump’s second term, as the administration takes a sledgehammer to governmental norms and structures. Attacks on Times v Sullivan have proliferated. Only last week, the casino mogul Steve Wynn, a close Trump ally, [asked](https://www.reuters.com/legal/casino-mogul-wynn-asks-us-supreme-court-revisit-times-v-sullivan-defamation-rule-2025-02-07/) the supreme court to revisit Times v Sullivan regarding his defamation suit against the Associated Press. Neil Gorsuch, one of three rightwingers confirmed to the court in Trump’s first term, has [joined](https://www.nytimes.com/2021/07/02/us/supreme-court-libel.html) Thomas in calling for Times v Sullivan to be reconsidered. [Reporting](https://www.nytimes.com/2025/02/10/us/politics/supreme-court-libel-precedent.html) suggests other rightwingers, Trump appointee Brett Kavanaugh among them, are not ready to attack Times v Sullivan. Nonetheless, rightwing threats to press freedom of the kind Enrich examines may soon focus attention on the court once again.

First, before Elon Musk came for everyone, [Donald Trump](https://www.theguardian.com/us-news/donaldtrump) came for the US Senate. When he returned to office, the House of Representatives was already under his heel. Many of the House Republican leaders had been his sidekicks during January 6, and one, Mark Johnson, had since become the speaker. The Senate, however, still retained, for the most part, its club-like atmosphere where the members considered themselves powers unto themselves. Senators with a toga complex have always looked down on House members as rabble. Trump viewed the independent character of the upper body as a thorn in his side. The subservience of the House of Representatives was the model that Trump envisioned for the Senate. It could no longer pretend to be the greatest deliberative body of legislators in the world, but a vassal fiefdom subject to his whims. Trump’s opportunity to crush the Senate appeared at once. As soon as he made his nominations for his cabinet, the Senate would hold confirmation hearings. His misfit nominees gave him his chance. In any previous time, just a tincture of the alcoholism, serial sexual abuse, playing footsie with a Russian-backed despot, hawking of snake oil, doodling enemies lists and bilking non-profit organizations, quite apart from plain incompetence, would have been enough to knock them out before they ever approached a seat in a hearing room. The senator John Tower, of Texas, very much a member of the club of his day, but a drunken sexual harasser of the old school, groping in elevators, was exposed when George HW Bush nominated him as secretary of defense, and dropped out. But shame in the Trump orbit is as antiquated a notion as virtue. The patent unfitness of Trump’s nominees put the senators on the spot. It was the senators, not the obviously disqualified nominees, who had to pass the test. They were not the ones sitting in judgment; they were in Trump’s dock. If Trump could break the lords of the Senate over his cabinet of curiosities, he could reduce them to being his serfs. By transforming their duty to advise and consent into shut up and obey, Trump would trample more than unstated norms. He would be obliterating a constitutional responsibility of the Senate and removing a further check and balance on his power. Subverting the institution was not an abstract exercise. If individual senators looked like they might stand in the way, it was not enough that they be defeated on a roll-call vote. They had to be personally violated. The part of themselves that they held to be at their core both as public officials and private persons had to be soiled. They had to be made examples before the others. Their humiliation had to be performed as a public demonstration. By voting in favor of nominees they knew in their bones should never be approved, whose disqualifications crossed the senators’ deepest principles, their intimidation made them Trump’s subjects. Once the method of defilement was established, it would be applied again and again. It would loom as an ever-present threat over any others’ wavering. Trump’s degradation would be sufficient to cow the rest. But he would not stop. After the first victim, then there was the next, and the next, one after another, until Trump was the master of the Senate. Trump began with one senator whose vulnerability he could twist to make her writhe. That senator was Joni Ernst, of Iowa. [](https://www.theguardian.com/commentisfree/2025/feb/16/donald-trump-us-senate#img-2) Joni Ernst during a confirmation hearing in Washington DC on 23 January 2025. Photograph: Laura Brett/Zuma Press Wire/Rex/Shutterstock After attending Iowa State University, where she joined ROTC, Ernst enlisted in the army, served during the Iraq war in Kuwait in charge of a transport unit, and attained the rank of lieutenant colonel. Running for the [US Senate](https://www.theguardian.com/us-news/us-senate) in 2014, she said she had been sexually harassed in the military and pledged that, if elected, she would make independent investigation and prosecution of sexual crimes her signature issue. Once she entered the Senate, Ernst was for the most part a down-the-line conservative Republican, yet was also among the few [Republicans](https://www.theguardian.com/us-news/republicans) who consistently sponsored and voted for bills to protect victims of domestic violence and sexual assault, especially focusing on women in the military. When Ernst divorced in 2019, her painful story of emotional and physical abuse became public – her husband’s dalliance with a babysitter, his long-term affair with a mistress and, after she confronted him, how he suddenly “grabbed me by the throat with his hands and threw me on the landing floor. And then he pounded my head.” Her husband responded by accusing her of having an affair herself, which she said was a “lie”. She also revealed at that time that she had been raped as a college student, reported it to the counseling service, but chose not to go to the police, and had kept it a secret. “I couldn’t stomach the idea that my rape would become public knowledge,” she [wrote](https://www.washingtonpost.com/style/power/2024/12/10/ernst-hegseth-nomination-allegations/) in a memoir published in 2020. “I was sure my boyfriend would find a way to blame me.” Ernst’s divorce complaint disclosed for the first time that she had turned down candidate Donald Trump’s offer to be his vice-presidential running mate in the 2016 campaign. She attributed her refusal as vaguely not being “the right thing for me or my family”. It is uncertain whether Trump ever made the actual offer. He took Mike Pence, who was pressed on him by his campaign manager Paul Manafort to represent the evangelical right. When Trump nominated Pete Hegseth to be secretary of defense, stories instantly surfaced that the Fox News weekend host had been accused of rape, paid hush money, had a history of sexual abuse in two of his marriages, impregnated a girlfriend and was a raging alcoholic who drank on the job. He also opposed women serving in combat roles in the military, as Ernst had. “I am a survivor of sexual assault,” Ernst said in her initial response to Hegseth’s nomination. She insisted that she wanted “to make sure that any allegations have been cleared, and that’s why we have to have a very thorough vetting process”. But the “vetting process” was warped. Witnesses were hesitant to come forward, afraid they would be subject to the reign of terror that Christine Blasey Ford endured when she publicly testified in Brett Kavanaugh’s hearing to be on the supreme court he had sexually assaulted her. But the woman who claimed that Hegseth had raped her was willing to speak privately with Ernst. So were two other witnesses, both female soldiers who would also talk to her in private about his drunkenness and sexual harassment. Ernst was then subjected to waves of “Maga” attacks. Facing re-election in 2026, she was threatened with a primary challenge from a local rightwing talkshow host, Steve Dease, who posted: “Joni Ernst sucked as a Senator long before this … I am willing to primary her for the good of the cause.” Elon Musk forked over a half-million dollars to blast ads that wallpapered Iowa TV, hailing Hegseth as a “patriot” and “warrior”, and warning that the “deep state” (ie Ernst) opposed him. Donald Trump Jr unleashed a storm on social media against Ernst, saying that if any senator criticized Hegseth, “maybe you’re in the wrong political party!” An online squadron of winged monkeys swarmed her. The phrase “She’s a Democrat” trended. Ernst succumbed to the smear campaign. She refused to meet with the alleged rape victim, according to a [report](https://www.newyorker.com/news/the-lede/the-pressure-campaign-to-get-pete-hegseth-confirmed-as-defense-secretary) by Jane Mayer in the New Yorker. She also would not see the other women with first-hand accounts. Ernst hid. The witnesses, however, told their stories to Senator Tammy Duckworth, a Democrat of Illinois and a combat veteran who lost both of her legs. From her isolation, Ernst finally released an announcement that she would support Hegseth. Duckworth said that Ernst and other Republican senators had refused to put “the national security of America over their own political survival”. Then came the turn of Thom Tillis, the senator of North Carolina. He, too, was wary of Hegseth. He heard first-hand from a witness about his drunken behavior. Tillis [told](https://www.wsj.com/politics/pete-hegseth-thom-tillis-senate-confirmation-1974dd47) Hegseth’s former sister-in-law that if she provided an affidavit about Hegseth’s abuse, he would vote against him. So, she came forward despite the slings and arrows of the Trump mob. The evening before the vote, Tillis quietly told the Republican leader John Thune he would oppose Hegseth. Tillis [spoke](https://www.nytimes.com/2025/02/13/us/politics/hegseth-trump-tillis-senate.html?searchResultPosition=1) with both JD Vance and Trump. Unlike Ernst, none of his drama was conducted in public. When the time came to vote, Tillis, who faces a tough re-election in 2026, voted “yes”. Tillis turned on a dime. [skip past newsletter promotion](https://www.theguardian.com/commentisfree/2025/feb/16/donald-trump-us-senate#EmailSignup-skip-link-17) Sign up to Fighting Back Big thinkers on what we can do to protect civil liberties and fundamental freedoms in a Trump presidency. From our opinion desk. **Privacy Notice:** Newsletters may contain info about charities, online ads, and content funded by outside parties. For more information see our [Privacy Policy](https://www.theguardian.com/help/privacy-policy). We use Google reCaptcha to protect our website and the Google [Privacy Policy](https://policies.google.com/privacy) and [Terms of Service](https://policies.google.com/terms) apply. after newsletter promotion [](https://www.theguardian.com/commentisfree/2025/feb/16/donald-trump-us-senate#img-3) Pete Hegseth in Warsaw, Poland, on 13 February 2025. Photograph: Aleksandra Szmigiel/Reuters Then they came for Bill Cassidy, the senator of Louisiana. Cassidy is a physician who has devoted much of his career to public health and educating people about the importance of vaccinations. He was the decisive vote on the Senate finance committee on the nomination of Robert F Kennedy Jr to become secretary of health and human services, the leading vaccine skeptic who has made millions off his crank conspiracy theories and whose cousin, Caroline Kennedy, called him “a predator”. Cassidy attempted to coax Kennedy into committing to the scientific truth that vaccines work. “I’m a doc, trying to understand,” Cassidy said. “Convince me that you will become the public health advocate, but not just churn the old information so that there’s never a conclusion.” No matter how many times he tried, Kennedy would not give him a straight answer. Cassidy was already vulnerable. He had voted to impeach Trump after the January 6 insurrection. A far-right primary opponent, the representative Clay Higgins, was preparing to run against him. After Cassidy’s questioning of Kennedy, the winged monkeys descended on him. And Higgins posted on X: “So, vote your conscience Senator, or don’t. Either way, We’re watching.” Cassidy replied with a biblical quotation: “Joshua said to them: ‘Do not be afraid; do not be discouraged. Be strong and courageous. This is what the LORD will do to all the enemies you are going to fight.” But when the vote came, Cassidy crumpled. They came for Todd Young, the senator of Indiana. He is something of Hoosier Republican royalty, married to the niece of former vice-president Dan Quayle. Young was poised as the decisive vote on the Senate intelligence committee on the nomination of Tulsi Gabbard to be the director of national intelligence. In addition to “parroting false Russian propaganda”, as the former senator Mitt Romney put it, and visiting Syrian dictator Bashar al Assad, whom she declared was not a “torturer” and “murderer”, she had urged a pardon for “brave” Edward Snowden, who stole massive amounts of data from the National Security Agency and absconded to Russia. When Young asked her whether Snowden had “betrayed the American people”, she acknowledged he had broken the law, but would not go beyond that formulation. Young appeared edgy about her nomination. “Todd Young is a deep state puppet,” posted Elon Musk. His ears had pricked up when he had learned that Young was on the board of directors of the National Endowment for Democracy, created by Ronald Reagan and funded through USAid to promote the rule of law and democracy around the world. Musk tweeted that the NED was “an evil organization \[that\] needs to be dissolved”. The Trump X mob swarmed. Besieged, Young spoke with JD Vance. The US vice-president arranged a call with Musk. Young announced he would back Gabbard. The noise disappeared. The novel Advise and Consent, by a Washington reporter, Allen Drury, published in 1959 and produced as a movie in 1962, described a cold war melodrama in the Senate over the confirmation of a nominee to become secretary of state who had a left-wing background in his youth. One senator, with a secret gay past, caught up in the fight, fearing exposure, commits suicide. (The scene depicting a gay bar was a movie first.) But the suicide was not over any great principle. The victim was collateral damage. And the president in Advise and Consent was not attempting to use the process to coerce the Senate into vassalage. Hegseth, Kennedy and Gabbard are now all confirmed. The advise and consent responsibility of the Senate was twisted. The senators came to kneel before Trump – and Musk. Musk praised Young, the former “puppet”, as “a great ally”. Cassidy posted: “After collaborative conversations with RFK and the White House, I voted yes to confirm him.” Tillis gave a floor speech extolling Musk and Doge: “Innovation requires pushing the envelope and taking calculated risks.” Ernst wrote an op-ed in the Wall Street Journal entitled USAid Is a Rogue Agency. Meanwhile, the $2bn in USAid purchases of agricultural products for humanitarian aid were suspended. The Iowa Soybean Association, dependent on a $95m grant supporting more than 1,000 farms that was now not being paid, protested. Ernst, a member of the Senate agriculture committee, was silent. “I was embarrassed,” Ernst told the Des Moines Register about speaking about being raped. “I didn’t know how to explain it. I was so humiliated. And I’m a private person, when it comes to those things.” After that incident, she found herself in an abusive relationship and the victim of domestic violence. As a senator, she used her position to break with her past of victimhood and established herself as a champion of those who had been victimized as she had been. But then she found herself in another abusive relationship, with Donald Trump. She was threatened with being completely stripped of everything she had striven for and her status as a senator destroyed. She had a choice to stand up against her transgressor or to subject herself to him. She decided to submit to the humiliation. And afterward she became the enabler of the abuser.

TONYA MOSLEY, HOST: This is FRESH AIR. I'm Tonya Mosley. Since the inauguration, we've experienced a dizzying onslaught of actions from the Oval Office. So we're devoting this President's Day to understanding the scope of President Donald Trump's power as he continues to break laws, use billionaire Elon Musk to dismantle the government and circumvent Congress. Since taking office, President Trump has issued dozens of executive orders, memos and proclamations to change policies in immigration law. He's expanded on the record of his first term and is acting on the promises he made during his campaign, actions that will redefine the United States, like taking away birthright citizenship, urging millions of federal workers to resign and dismantling efforts to prevent foreign influence in our elections. Legal scholars and experts agree that we are in a constitutional crisis. We explore what that is and what power Congress and the American people have against President Trump's executive authority. Our guest today, Charlie Savage, has studied and written about presidential power for two decades. His 2007 book, "Takeover: The Return Of The Imperial Presidency And The Subversion Of American Democracy," is about the Bush-Cheney administration's efforts to expand the president's power. Savage is also a constitutional scholar and wrote in 2015 "Power Wars," an investigative account of national security and legal policymaking under President Obama. Savage is a staff writer for The New York Times, where he writes about national security and legal policy. We recorded this conversation with Savage last week. Charlie Savage, welcome back to FRESH AIR. CHARLIE SAVAGE: Thank you for having me. MOSLEY: OK, Charlie, so today will be kind of like a civics lesson and hopefully a grounding to understand the scope of presidential power and what actions are legal or illegal. Many legal experts, as I mentioned, agree that we are in a constitutional crisis. Some have even used stronger language. From you, what makes this a constitutional crisis and what's happening now that points to one? SAVAGE: A constitutional crisis, obviously, it's a strong phrase. And it's one that doesn't have a clear definition. My colleague Adam Liptak wrote recently that it's more of a sliding scale than a on or off, and I think that's right. So I think the reason people are saying that now is that Trump is brazenly, openly breaking laws left and right in his assault on basic structures of the federal government. He's firing people without obeying laws that set certain limits on when that can be done or how it can be done, from members of independent agencies to inspectors general, to civil servants. He's basically shut down an agency - United States Agency for International Development - and folded its remnants into the State Department in the face of a law passed by Congress that says USAID will exist as an independent entity that's not part of a department. And in many other ways, he is kind of rolling through legal constraints. And this has in turn engendered a blizzard of lawsuits that are piling up now. I think we're approaching 70 as you and I record this, and there's already been more than a dozen court orders telling him to stop doing this and stop doing that. And he's saying he will obey those and appeal them, but there's already mounting evidence that agencies are not obeying, especially court orders telling them to unfreeze funds that Trump had ordered blocked. And so the prospect of a president openly violating laws and then not obeying court orders I think would clearly be a constitutional crisis. Trump is saying he's going to obey these and just appeal them and try to get higher courts to let him do what he wants. And it's not 100% clear that the agencies that are nevertheless jamming up certain funds are doing so because of White House orders, as opposed to just sort of confusion and chaos that have been unleashed by this onslaught. So I'm not 100% sure myself that I would say this is yet a constitutional crisis. I think the moment Trump says, I see the judge has ordered me to do this, but I don't care - I'm going to act contrary to that order, not just try to get a higher court to overturn it - I think that would be unambiguously in the zone we're talking about. MOSLEY: But can you remind us - this is kind of the civics lesson - how the three branches of government are supposed to interact with each other as stated in the Constitution and how President Trump, of course, in violating these laws, but also just in the way that our three - the legislative branch, the judicial branch and the executive branch are actually supposed to work in concert with each other? SAVAGE: Sure. And I want to preface this by saying, yes, he is openly violating these statutes enacted by Congress about how agencies should be structured or when you can and can't fire a federal worker. It appears that his legal team wants to set up test cases that would allow the Supreme Court to declare those laws unconstitutional. And the only way to get something like that into court is to violate it, have a lawsuit and then fight about whether the law is constitutional or not. And so there's this gloss over this of the prospect that down the road, the Republican appointees, at least on the Supreme Court, who have a supermajority, will say that he had constitutional authority to do these things despite those laws. As far as the basic structure of government. The founders of the United States mistrusted concentrated government authority, sort of all the power in the hands of the king. They did not want to have a country that was subject to that much unaccountable, concentrated power. They divided the powers of government up among three separate but equal branches, the presidency, the Congress and the courts. MOSLEY: Right. SAVAGE: And there's these overlapping checks and balances that are supposed to prevent any one branch or one person from having too much concentrated, accumulated and therefore unaccountable power. That's how the United States is supposed to work. MOSLEY: Can you remind us, as it relates to the Supreme Court, how over the last few years, executive power has been redefined by the Supreme Court? SAVAGE: Yes, this Supreme Court now has six Republican appointees out of the nine justices, and five of those six are former executive branch attorneys from the Reagan administration or the George W. Bush administration. And the executive branch legal teams in those two administrations both were pushing at the limits of presidential power. And even before the second Trump administration began, that new majority bloc, especially with his appointees, which added three, but even before then, had started chipping away over the last 10 or 15 years on some of the ability of Congress, through statutes, to place limits on presidential authority. In particular, they clearly wanted to advance the idea that presidents must have exclusive control of the executive branch, and therefore, they must be able to fire anyone in the executive branch at will in order to exert control over how those subordinates are exercising executive authority. And so the Supreme Court has been saying, no, the president can fire this kind of person or that kind of person regardless of job protections that Congress has created for them. And, of course, most importantly, last summer, the Republican appointees on the court granted, more or less invented out of thin air, not out SAVAGE: out of thin air, not out of clear text or history, that the Constitution makes presidents presumptively immune from prosecution for crimes they commit using their official powers. And as part of that, they also went further when it came to the president's authority over law enforcement in the Justice Department and said he is absolutely immune for anything he does with the Justice Department, based on the idea that he is supposed to be the chief law enforcement officer under the Constitution. And so these rulings before Trump comes back into office have already clearly created momentum for a unfolding reinterpretation of the Constitution that would - and is already resulting in much greater concentration of power in the White House and a reduced role for Congress and the courts, and opening of the throttle on something that has been moving gradually up until now. MOSLEY: One very contentious act that the president has made in the last few weeks is birthright citizenship. If birthright Citizenship makes its way to the Supreme Court, what do we know about how the justices might rule? I was actually reading one scholar who said Justice Brett Kavanaugh and Neil Gorsuch - both who are Trump appointees - may disagree with Trump on this one. SAVAGE: They may. I really don't like the prediction game, especially when there's something novel like this. I'm pretty confident that some of these job protection statutes this court would eagerly strike down just based on their momentum and already doing so for sort of parallel provisions elsewhere. The birthright citizenship thing is a different animal, and it may be that this, you know, the sort of far-right legal scholars, think tankers have kind of developed this idea that they've convinced themselves of that the 14th Amendment can be reinterpreted from the way it's always been interpreted. And it's all based on this very sort of contorted theory that there's an exception in that amendment for people who are not subject to the jurisdiction of the United States, and that's always been understood just to be diplomats, people who are here with diplomatic immunity. You can't charge them with crimes, you just have to sort of send them home, etc, and their children do not become citizens. And the idea is, well, let's interpret that phrase as encompassing anyone who's not here permanently or lawfully. But the problem is that tourists who are here on tourist visas or illegal immigrants who are here without documentation are subject to the jurisdiction of the United States. If they commit a crime, they can be prosecuted. And it seems like a real reach to take this sort of odd reinterpretation of that and totally change the meaning of something this important. MOSLEY: Let's take a short break. If you're just joining us, I'm talking with New York Times staff writer Charlie Savage about the scope and limits of executive power under President Donald Trump. Savage writes about presidential power, security and legal policy for the Times. We will continue our conversation after a short break. This is FRESH AIR. (SOUNDBITE OF PARRIS BOWENS' "STAY") MOSLEY: This is FRESH AIR, and today we're talking to New York Times staff writer Charlie Savage. I spoke with him in December of 2023 about how Trump would push the bounds of executive power should he become president. In his first days of office, Trump has already executed some of what he promised during the campaign, like granting clemency for anyone charged with the January 6 attack on the Capitol and overhauling the government, as we know it, by moving to get rid of federal employees. Savage writes about presidential power, security and legal policy for The New York Times, and our conversation was recorded last week. Executive orders historically have been kind of controversial and sort of, like, seen as a last resort after a president is unable to get legislative support. SAVAGE: So the essence of an executive order per se is not controversial. What becomes controversial is when a president has tried to get something through Congress and failed, and then tries to do it unilaterally anyway. On his own, especially using contested theories of his power. So it's not really the issuing of executive orders, but it's what particular orders say and what the legal theory is behind it. There's never been quite as intense a flurry of executive orders as we're seeing at the start, have seen at the start of the second Trump administration. We know they had a huge number of them pre-written and ready to go, and this is part of the novelty of someone who had been in and the people around him, lost power, thought about what they should have done with that power if they ever got a second chance. MOSLEY: You told me the last time we spoke in December of 2023, that Trump had made clear during the campaign that he would get rid of federal employees and replace them with Trump loyalists. And you told us that these plans were in the making even during the last Trump presidency because back then he issued an executive order that would have altered civil service protection rules for any employee of the government who was deemed to have some sort of influence over policy-making, which would open them up to be fired, I guess, like a political appointee. Now, those rules never went into effect because President Biden was then elected and rescinded that executive order. Is what we're witnessing now potentially a part of Trump's plan to streamline and replace those federal workers with loyalists? SAVAGE: So the order you're talking about that Trump put in at the end of his first term and Biden revoked before it took effect was called Schedule F, and one of the dozens of orders that Trump signed on his inauguration night this time was to restore a version of that, which is - they changed the name. It's no longer Schedule F. It's Schedule Policy/Career or something like that. Basically, yes, it takes senior civil servants who exercise some control over policy, and it says they can be summarily dismissed at will. It's been almost overlooked that that got put back because the second administration's assault on the federal bureaucracy has been so much bigger than that. Trump is firing swaths of people, purging government employees in ways that go wildly beyond the category of senior policymaking civil servant that that directive addresses. He's firing all Justice Department prosecutors that had anything to do with the cases against him or the cases against January 6 rioters. Simply, he - I said he is firing. He has fired. No notice, no hearings before a Merit System Protection Board. Pack up your office. You're gone. Your paycheck is cut off. He fired 17, now 18, I think, inspectors general who are not supposed to be fired unless Congress has gotten 30 days' advanced notice and a detailed written rationale of some case-specific reason to remove them. He didn't provide that notice or have any specific rationale. He just fired them, took away their email, phones, computers, locked them out of their buildings. They have filed a lawsuit now challenging that, some of them. He's fired members of independent agencies, like the National Labor Relations Board, who are not supposed to be removed unless there's a particular cause, like misconduct or neglect of office, just fired them anyway, shutting down that and other agencies 'cause they now lack a quorum of members to take any official action. There's a lawsuit over that, too. He's fired senior executives at the Justice Department and the FBI and other places also summarily without going through these protections. And the list goes on, and every day there's more, in fact. And so the sort of thing that we used to call Schedule F is certainly foreshadowing of the notion of a mass purge of people who work for the government trying to do various things. But it's turned out to be minor compared to what's actually happening right now. MOSLEY: What is Congress' power in objecting to these removals? SAVAGE: The current Republican Party is controlled by Trump. All of the people who are more traditional Republican conservatives, let's say Reagan-Bush-style conservatives, who sometimes in Trump's first term stood up to him, objected to him - think of John McCain types, Liz Cheney types, Adam Kinzinger types - wouldn't go along with everything he wanted, have been either purged from the party through primary challenges or have been cowed into submission by the threat of primary challenges, or in some cases - people are talking more and more about this - fear for their own physical safety from Trump supporters. And therefore, there has been barely a peep out of this Congress in defense of the laws that they passed. MOSLEY: Funding for the government expires on March 14, right? What power does that wield, I guess, for Democrats in particular? SAVAGE: Well, this is a little different than executive power. The issue is that there's very thin majorities for the Republican Party in both chambers, and there is a sizable faction of Republicans, especially in the House, who want draconian spending cuts, but also appear not to be willing to raise taxes to close the deficit that they're worried about, in fact, want to make permanent and expand large tax cuts from the Trump era that are about to expire. It means that the Republican Party, on its own, will have great difficulty passing a budget and lifting the debt ceiling. And that means if they can't reach some internal agreement, then they would need the votes of Democrats to get a majority to keep the government from shutting down and keep a debt ceiling crisis from happening. So that could give Democrats leverage to do something. The problem is that normally, if there's a political deal to be made across party lines like that, Democrats would be asking for spending on something they cared about. But how can they make a deal like that when you have a president who is freezing funds, refusing to spend it even when Congress has appropriated it and said he wants a fight over whether the Supreme Court will let him not spend money that Congress has appropriated on things he doesn't like? And so even if Democrats wanted to help, it's not clear that there's - Republicans are capable of offering something to Democrats that Democrats can count on. MOSLEY: Our guest today is New York Times staff writer Charlie Savage. We'll be right back after a short break. I'm Tonya Mosley, and this is FRESH AIR. (SOUNDBITE OF MUSIC) MOSLEY: This is FRESH AIR. I'm Tonya Mosley. MOSLEY: This is FRESH AIR. I'm Tonya Mosley. And if you're just joining us, I'm talking to New York Times staff writer and Pulitzer Prize-winning journalist Charlie Savage about how President Trump is actively working to expand executive power. Savage writes about presidential power, security and legal policy for The New York Times. In 2007, Savage wrote a book titled "Takeover: The Return Of The Imperial Presidency And The Subversion Of American Democracy," about the Bush-Cheney administration's efforts to expand presidential power. In 2017, he wrote a book called "Power Wars: The Relentless Rise Of Presidential Authority And Secrecy-Inside Obama's Post-9/11 Presidency." We recorded our conversation last week. Charlie, we have already seen significant changes to the Justice Department. Some of the things we expected, like President Trump overhauling the leadership and appointing his own person, Pam Bondi, as attorney general. But there are several other things that are questionable. Recently, the FBI was told to hand over a list of employees who worked January 6 cases, not the agent's names, but a list to the Justice Department. And the department says this is part of a review process to end what it calls the weaponization of the justice system. What are some of the bigger concerns around disclosing that information, even if these names are being blacked out in documents? SAVAGE: So to get into that, I have to talk about what was happening at the Department of Justice before attention turned to the FBI. Right away when the administration came in, of course, the Biden political appointees resigned on January 20. And Trump put in his own acting people while his nominees were going through the Senate, including a guy named Emil Bove, who was one of his criminal defense attorneys. And he became the acting deputy attorney general and essentially was running the show, although there was a career person briefly as acting attorney general. So here's an extraordinary situation where a criminal defense attorney who was facing off with prosecutors in court suddenly is put in charge of those prosecutors. And in the first couple weeks under Bove, there was a scourging of the Justice Department. Many of the most senior leaders, career officials with decades of experience who were in charge of various sections and divisions across the department, were either fired or moved to a sort of humiliating assignment, to work on a task force that didn't even exist that was going to look at sanctuary cities. You know, these were not people who are immigration law experts. They were national security law, environmental law, criminal law. And they were sort subbed over here. The obvious effort was to make them resign, as many of them did. Then all the prosecutors who worked on the Trump cases were summarily fired, as I mentioned earlier. And then a huge swath of the prosecutors who worked on the ordinary January 6 rioter cases were also summarily fired. And as this is happening, then Bove's attention turns to the FBI. And he does the same thing. He fires or tells the most senior leaders in charge of several of the major field offices, but also all of the major divisions at FBI headquarters - cyber, national security, intelligence, criminal, et cetera - they must resign within a couple days or they will be fired. People like this are always from one time or another moving on, but there's never been just a decapitation across the board of all of the most senior, important, experienced leaders, who are in the middle of working on cases and overseeing things and so forth. And then Bove demands this list. The acting head of the FBI director turns over the list and hides the names, just gives the employment numbers, which Bove considers insubordination. And now they do have the names as well. And so the question has been, what are they going to do with those names? Is the intent to fire all those FBI agents as well, just as all the prosecutors who worked on the J6 cases were fired? In the case of the FBI, that would be thousands of people because the rioters went home after January 6, and they went home to their homes all around the country. And as the FBI was figuring out who they were through face recognition and social media posts and other things, agents all around the country were being assigned to go find this guy and arrest him. And so it would just be a decimation of the FBI workforce. And, of course, no one at the FBI chooses what they're assigned to do, just as the prosecutors didn't. They were just doing their jobs. But this sort of revenge scourging is nevertheless sending the message, even if you touch this through no will of your own, your career is over. MOSLEY: It's astounding. And I think we could play out in our mind what the potential ramifications are for this. But what are some more immediate things that you're concerned about as you watch this unfold? SAVAGE: Well, I don't like to put it in terms of what I personally am concerned about. But I can tell you that there's been a lawsuit now that has resulted in a court order that for now is preventing the Trump administration from making public the names of all those agents. And the plaintiffs have raised concerns that the agents' personal safety and that of their families might be put at risk. Of course, one of the first things Trump did was pardon 1,600 or so people who were convicted of crimes as part of the January 6 riot, including people who physically assaulted police officers, very far-right militia types. And those people are all now free. And they might want to come after an FBI agent that was responsible for arresting them if they knew that person's name and can find their address and so forth. And advocates for the FBI, you know, lawyers who've brought those cases and Democrats are also raising the prospect that public safety in general right now has been put in increasing jeopardy - you know, the FBI is taking its eye off the ball of terrorism cases and drug cartel cases and everything else they might be working on because they're so consumed by, am I going to have a job tomorrow? The foreign aid spending freeze that Trump put in has meant that all kinds of counternarcotics and counterterrorism programs with partner forces in Latin America or the Middle East, where we're training them and equipping them - and they are doing work there that is helpful to public safety here in terms of trying to stop terrorist groups from operating or drug cartels from moving fentanyl and other drugs towards our borders - has ceased. And in many ways, just the work of the federal government across the board right now has been severely disrupted by the effort by the new administration to dismantle the administrative state. MOSLEY: Let's take a short break. If you're just joining us, I'm talking with New York Times staff writer Charlie Savage about the scope and limits of executive power under President Donald Trump. Savage writes about presidential power, security and legal policy for the Times. We will continue our conversation after a short break. This is FRESH AIR. (SOUNDBITE OF REGINA CARTER SONG, "TRAMPIN'") MOSLEY: This is FRESH AIR, and today we're talking to New York Times staff writer Charlie Savage. Savage writes about presidential power, security and legal policy for The New York Times, and our conversation was recorded last week. There is a new office within the DOJ focusing on immigration enforcement, right? So based on what we've seen in your reporting, what are their priorities? SAVAGE: Well, there's certainly a major reprioritization of the new administration. And one of the things they want to do more of, clearly - there's no secret about this - is more aggressive immigration enforcement. And a lot of the early executive orders were about pulling on various levers and pushing on various buttons to try to speed up the expelling of people from the United States, to try to shut down aspects of the deportation process that can take a long time, curtailing people's right to seek asylum and have hearings, expand a form of due-process-free removal for people who can't prove they've been in the United States for more than two years. They clearly have other innovations underway. We see now that Trump is sending migrants to Guantanamo, which is going to raise new and novel legal issues. I'm just touching the surface of it. There's myriad things that are going to raise legal issues that they're going to need lawyers to work on in the coming months and years. MOSLEY: That expedited removal allows the U.S. to deport someone undocumented without a court hearing. That's something we've never seen before, but is it legal? SAVAGE: Well, we'll find out. This is not a case where the administration is violating a statute Congress has passed, because Congress, long ago, passed a statute that said expedited removal is available for anyone who hasn't been in the country for more than two years - anywhere in the country. But it's a very aggressive thing to do because people in the United States, even if they're here without documentation and they entered unlawfully, are protected by the Constitution. And so they have due process rights against arbitrary government action. And the denial of the full hearings process is obviously a curtailing of due process. And so previous administrations of both parties, even the Trump administration, use this technique sparingly. They used it just near the border for people who were just captured, after they, you know, had crossed the river, and they sort of plunk them back on the other side of the border. They did not try to use it for people who had been here for a long time. And Trump wanted at the end of his first administration to do this, and it got jammed up in court and never went into effect. MOSLEY: President Trump has also threatened to revoke all federal funding to states and localities that are deemed to be sanctuary jurisdictions. What is the president's scope of power to do that? SAVAGE: President Trump has in myriad ways been trying to establish that he, or any president going forward, can withhold money that Congress has authorized at will if he doesn't like it. And that is a technique called impoundment that previous presidents sometimes did in the 19th and 20th century, not very often, and then started to be used much more aggressively in the Cold War when there were disputes between Congress and various presidents over big-ticket, military, you know, weapons systems. Congress wants this thing to be built 'cause the factory's in that guy's district. And then Nixon really took it to a new level and was using it all over the place to cancel programs on the environment and roads and stuff that he just didn't like. And Congress reacted to this by passing the Impoundment Control Act of 1974, which makes it a crime to not spend money that Congress has authorized after a certain while, unless you follow a certain process, which basically lets Congress make the decision. The president can send a list to Congress, and they can vote it up or down. So Trump has been ignoring that process and simply holding money. And he himself openly said during the campaign, with people around him, he thinks that law is unconstitutional, and he wants the Supreme Court to knock it down. So it's clear where this is going. They want a legal fight over his power to withhold funds. So first of all, can he freeze money that these states were supposed to get because he doesn't like something that's happening in those states is a subset of this bigger question of whether this challenge to the power of the purse that has been long understood to be maybe the core power of Congress. And the separation of power systems we have is going to erode under this onslaught. The more specific question within, you know, can I withhold funds from California because I don't like that San Francisco is not cooperating with immigration authorities, is something that would seem to be unconstitutional under relatively recent Supreme Court jurisprudence. There's a Supreme Court case from the '90s which says the federal government can't force states to enact certain laws they may not want to enact or to do its bidding. It's called commandeering. It's part of the federalism part of our Constitution, where states have their own sovereignty. And so the notion that the federal government would say, here's this pot of money that you're otherwise entitled to, but because you have a local ordinance that says your police will not work with ICE agents, you will not get this money - that would seem to be a example of the federal government example of the federal government commandeering the state governments in contravention of how the Constitution has been understood to work. And that used to be something at least that conservatives who were interested in states' rights were very strongly in favor of, this limit on the power of the federal government. MOSLEY: Last question for you. Trump is in office because he was elected. These congressional members are in office because they were elected. But as we start to see things unfold, where does this leave people as things evolve, as people maybe change their minds or they want to embolden support for it? SAVAGE: You know, one thing about our system of government, unlike most democracies, is that we have this rigid election schedule. In a parliamentary system, when the government starts to really annoy people and Parliament, you know, can have a vote of no confidence in the prime minister, and within a month or something, there's a new national election to sort of settle the matter, and so the country can move on. We have congressional elections every two years, presidential elections every four years, and in between, there's not a lot of things the public can do directly if they decide that even though a majority of them voted someone in that they don't like what that person is doing now other than wait. Obviously, people can do protests, and they can let their elected members of Congress know that they want some pushback. And if they have some specific grievance - their particular grant was frozen or whatever - they can file a lawsuit and try to get into court. MOSLEY: All of which is happening. Right. SAVAGE: All of which is happening. But - well, I'm not sure the pressure on lawmakers, if there is any, has resulted in any visible sign of life yet on the Republican side, but partially, we're all just kind of watching. MOSLEY: Charlie Savage, thank you, as always. SAVAGE: Thank you. MOSLEY: Charlie Savage is a staff writer for The New York Times and a Pulitzer Prize-winning journalist. Coming up, our TV critic David Bianculli looks at two different offerings from beloved long-running franchises, "Planet Earth" and "Star Trek." This is FRESH AIR. (SOUNDBITE OF MUSIC) Copyright © 2025 NPR. All rights reserved. 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David Enrich is a keen observer of the intersection of money, power and politics. In his first book, [Dark Towers](https://www.theguardian.com/business/2020/feb/16/dark-towers-review-deutsche-bank-donald-trump), the New York Times business investigations [editor](https://www.nytimes.com/by/david-enrich) plumbed the relationship between Donald Trump and Deutsche Bank, Trump’s lender of last resort. In the process, Enrich drew further attention to the triangle between Trump, the supreme court justice Anthony Kennedy and his son, a former Deutsche Bank officer, and Brett Kavanaugh, the former clerk who replaced Kennedy on the court. Next, in [Servants of the Damned](https://www.theguardian.com/business/2020/feb/16/dark-towers-review-deutsche-bank-donald-trump), Enrich homed in on Jones Day, the Cleveland-based law firm that represented Trump in his first run for president, and later played an outsized role in staffing the White House and justice department. Now Enrich is back with [Murder the Truth](https://www.theguardian.com/us-news/2025/feb/12/clarence-thomas-times-sullivan-precedent-book): Fear, the First Amendment and a Secret Campaign to Protect the Powerful. It is a granular and disturbing read. Enrich focuses on Trump, pliant members of the federal bench, and the ultra-rich. Together, they seek to overturn New York Times v Sullivan, the unanimous 1964 supreme court decision that made it difficult for public figures to successfully sue for defamation. Since Sullivan, those alleging defamation must demonstrate that a defendant acted with “actual malice”, meaning deliberately lied or acted with reckless disregard for the truth. [](https://www.theguardian.com/books/2025/mar/16/murder-the-truth-review-david-enrich#img-2) Trump’s war on the media is no secret. As a first-time candidate, he used the press as a punching bag. Photograph: HarperCollins Publishers Trump’s war on the media is no secret. As a first-time candidate, he used the press as a punching bag. At a meeting with the editorial board of the Washington Post, he marveled at how Peter Thiel and Hulk Hogan had joined forces with lawyer Charles Harder to [close down](https://www.theguardian.com/media/2016/aug/18/gawker-to-close-univision-sale) Gawker. Enrich reports that during that same meeting, Trump refused to be pinned down on his view of Times v Sullivan. In August 2016, after the Daily Mail had published a story that said Melania Trump had “once been a high-end escort”, to quote Enrich, Melania reached out to Harder. He took the case, and extracted a [settlement](https://www.theguardian.com/us-news/2017/apr/12/melania-trump-accepts-damages-and-apology-from-daily-mail). In an email to Enrich, Harder assumed the referral came from Thiel. Thiel refused to respond. Once in office, Trump threatened the author Michael Wolff with a pre-publication injunction against his blockbuster Fire and Fury. [It didn’t work](https://www.theguardian.com/us-news/2018/jan/04/trump-lawyers-book-steve-bannon-white-house). Trump also unsuccessfully sought to strip Jim Acosta of CNN of his White House pass, and looked to the courts to block a book by John Bolton, Trump’s third national security adviser. Trump threatened to jail Bolton too. Bolton stayed free, of course. But now Trump is back, and the song remains the same. The White House [excluded](https://www.nytimes.com/2025/03/03/briefing/donald-trump-press.html)the Associated Press, because it refused to reclassify the Gulf of Mexico as the Gulf of America, according to Trump’s whim. The Federal Communications Commission is investigating whether CBS operated in the public interest, because Trump didn’t like an interview with Kamala Harris. Bolton, reportedly targeted by Iran, has seen his security detail withdrawn. Enrich devotes pages to [Clarence Thomas](https://www.theguardian.com/us-news/clarence-thomas), the supreme court justice at the hard core of Trump’s 6-3 rightwing majority. Enrich reminds the reader that during his confirmation hearings in 1991, Thomas said he had “no agenda” to change free speech protections established by Times v Sullivan. “We should protect our first amendment freedoms as much as possible,” Thomas declared. But a media frenzy over Anita Hill’s allegations of sexual harassment left Thomas scarred. Enrich notes that Michael Luttig, then a justice department official detailed to shepherd Thomas on to the court (now a prominent ex-judge and anti-Trump conservative), described the nominee “‘crying and hyperventilating’ about how ‘these people have destroyed my life’”. Now Times v Sullivan is under attack, Thomas is leading the charge. In a 2019 ruling, McKee v Cosby, the supreme court [declined to review](https://www.supremecourt.gov/opinions/18pdf/17-1542_ihdk.pdf) the dismissal of a defamation lawsuit against Bill Cosby, whose state conviction for sexual assault was overturned on appeal. In a concurring opinion, Thomas branded Sullivan and its aftermath “policy-driven decisions masquerading as constitutional law”. As recounted by Enrich, the late Laurence Silberman, an appeals court judge and close friend to Thomas, played an outsized role in Thomas’s life and thinking. In a dissent in Tah v Global Witness Publishing, [a case decided in 2021](https://law.justia.com/cases/federal/appellate-courts/cadc/19-7132/19-7132-2021-03-19.html), Silberman declared war on Times v Sullivan. Because the media was overrun with liberals, Silberman said, the actual malice standard needed to be undone. As he saw it, “the increased power of the press is so dangerous today because we are very close to one-party control of these institutions”. Fox News and the Wall Street Journal seemed to escape his notice. Whose rights were purportedly being trampled directly correlated to the degree of Silberman’s indignation. Decades earlier, a divided panel of the DC circuit held that Congress could not enact legislation designed to target a single news publisher as revenge for having heaped ridicule upon the conduct of a particular senator. Silberman voted with the panel’s majority. Rupert Murdoch was the publisher, Ted Kennedy the senator. More recently, Murdoch’s Fox News invoked Times v Sullivan as it sought to avoid liability in a defamation action brought by Dominion Voting Systems, a case eventually settled for $787m. In 1984, Robert Bork, a judicial conservative who would later be denied a supreme court place, wrote approvingly of Times v Sullivan, warning that without it, “a freshening stream of libel actions, which often seem as much designed to punish writers and publications as to recover damages for real injuries, may threaten the public and constitutional interest in free, and frequently rough, discussion”. Time passes – and attacks on Times v Sullivan proliferate. In February, the casino mogul Steve Wynn, a close Trump ally and former deputy finance chairman of the Republican National Committee, asked the supreme court to revisit Times v Sullivan, regarding a defamation suit against the Associated Press. Among the US media, all eyes are on the justices once more. * Murder the Truth [is published](https://bookshop.org/p/books/murder-the-truth-threats-intimidation-and-a-secret-campaign-to-protect-the-powerful-david-enrich/21543213?ean=9780063372900&next=t) in the US by HarperCollins

All nine of the Supreme Court justices are lawyers. All of them have friends and law school classmates in private practice. All of them sit at the apex of a legal system that depends on lawyers to brief judges on the matters those judges must decide. Many of them were themselves litigators at large law firms, where their livelihood depended on their ability to advocate for their clients without fear of personal reprisals. So it’s hard to imagine a presidential action that is more likely to antagonize the justices President Donald Trump needs to uphold his agenda, not to mention every other federal judge who isn’t already in the tank for MAGA, than a [series of](https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-perkins-coie-llp/) [executive](https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-jenner-block/) [orders](https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-paul-weiss/) Trump has recently issued. These actions aim to punish law firms that previously represented Democrats or clients opposed to Trump. The lawyers targeted by these orders are the justices’ friends, classmates, and colleagues. It would likely be easy for, say, Chief Justice John Roberts or Justice Brett Kavanaugh to empathize with law partners who do the exact same work they once did. The striking thing about all the law firm executive orders is that they barely even attempt to justify Trump’s decision with a legitimate explanation for why these orders are lawful. The order targeting law firm Perkins Coie attacks the firm for “[representing failed Presidential candidate Hillary Clinton](https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-perkins-coie-llp/)” in its second sentence. The order targeting WilmerHale accuses it of engaging “[in obvious partisan representations to achieve political ends](https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-wilmerhale/),” as if Democrats do not have the same right to hire lawyers who advocate on their behalf that everyone else does. The order targeting Jenner & Block justifies that attack because [the firm once hired Andrew Weissmann](https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-jenner-block/), a prominent television legal commentator who, in the executive order’s words, engaged “in partisan prosecution as part of Robert Mueller’s entirely unjustified investigation” into Trump. Weissmann [left Jenner in 2021](https://www.nytimes.com/2025/03/25/us/politics/trump-executive-order-law-firm-jenner-block.html). The sanctions laid out in these orders, moreover, are extraordinary. They attempt to bar the firms’ attorneys and staff from federal buildings, preventing lawyers representing criminal defendants from engaging in plea bargaining with federal prosecutors – and potentially preventing lawyers who practice before federal agencies from appearing before those agencies at all. They also seek to strip security clearances from the firm’s lawyers, and to strip federal contracts from companies that employ the targeted law firms. It’s hard to think of a precedent for this kind of sweeping attack on a business that did some work for a president’s political opponents. During the second Bush administration, a political appointee in the Defense Department criticized lawyers who represent Guantanamo Bay detainees and [suggested that their firms’ clients should look elsewhere](https://www.jurist.org/commentary/2007/01/bush-administration-bashes-attorneys/) for legal representation. But that official apologized shortly thereafter. And he [resigned his position](https://www.washingtonpost.com/wp-dyn/content/article/2007/02/02/AR2007020201575.html) three weeks after his widely criticized comments. Bush himself did not attempt anything even resembling the sanctions Trump now seeks to impose on law firms. As Perkins Coie argues in a lawsuit challenging the order against that firm, these sanctions are an [existential threat to the firms Trump is targeting](https://cdn.prod.website-files.com/67cf71f1f27ef68a8f5c5c70/67d09a8fe24637c4ddf00c30_memoinsupportofplaintiff.pdf). Perkins says that it “has nearly 1,000 active matters that require its lawyers to interact with more than 90 federal agencies,” and it fears it can’t continue many of those representations if it isn’t even allowed into the building to meet with government officials. Similarly, the firm says many of its biggest clients, including its 15 biggest clients, “have or compete for government contracts” that could be cancelled unless those clients fire the firm. Trump, in other words, is claiming the power to exterminate multi-billion dollar businesses, with over a thousand lawyers and as many support staff, to punish them for things as innocuous as representing a Democrat in 2016. It’s hard to count all the ways these orders violate the Constitution. Perkins, in [its lawsuit](https://cdn.prod.website-files.com/67cf71f1f27ef68a8f5c5c70/67d098cae5905f455b133083_PerkinsCoieFiling1.pdf), alleges violations of the First Amendment right to free speech and free association, due process violations because it was given no hearing or notice of the sanctions against it, separation of powers violations because no statute authorizes Trump to sanction law firms in this way, and violations of their clients’ right to choose their own counsel – among other things. The Trump administration has not yet filed a brief laying out its response to these arguments, but in a hearing, [one of its lawyers claimed](https://x.com/kyledcheney/status/1899894798951342543) that the Constitution gives the president inherent authority to “find that there are certain individuals or certain companies that are not trustworthy with the nation’s secrets.” Normally, when a litigant wants the courts to permit something that obviously violates existing law, they try to raise the issue in a case that paints them in a sympathetic light. But Trump has chosen to fight this fight on the most unfavorable ground imaginable: There may be a perverse logic to Trump’s decision to fight on such unfavorable terrain. If he wins the right to punish law firms for representing a prominent Democrat a decade ago, it is unlikely that the Supreme Court will stop him from doing anything at all in the future. Most lawyers will be too scared of retaliation to even bring lawsuits challenging Trump’s actions. Already, one of the firms targeted by Trump, Paul Weiss, [appears to have caved to him](https://www.nytimes.com/2025/03/26/business/paul-weiss-trump-deal.html) by agreeing to do $40 million worth of free legal work on causes supported by Trump’s White House. (Like Perkins, [Wilmer and Jenner sued](https://www.nytimes.com/live/2025/03/28/us/trump-greenland-vance-news) to block the orders targeting them.) And, of course, if Trump’s endgame is to [openly defy the courts](https://www.vox.com/donald-trump/404665/trump-defy-supreme-court-alawieh-deportation), an obviously unconstitutional executive order targeting law firms that are in the business of suing the government is a good way to bring about that endgame quickly. These stunning executive orders dare the courts to either make themselves irrelevant, or to trigger what could be the final showdown over the rule of law. If you want to understand how litigants normally proceed when they want to convince the courts to make audacious changes to the law, consider [_Sweatt v. Painter_](https://supreme.justia.com/cases/federal/us/339/629/) (1950), a case brought by future Justice Thurgood Marshall a few years before he successfully convinced the justices to declare public school segregation unconstitutional in [_Brown v. Board of Education_](https://supreme.justia.com/cases/federal/us/347/483/) (1954). Marshall’s goal was to convince the justices that, as they eventually concluded in _Brown_, “[separate education facilities are inherently unequal](https://supreme.justia.com/cases/federal/us/347/483/),” even if a state attempted to equalize the resources provided to segregated Black and white schools. Before he brought the much more difficult challenge to K-12 segregation, however, Marshall chose a more favorable ground to fight for integrated educational facilities: law schools. In _Sweatt_, a Black man was denied admission to the University of Texas Law School solely because of his race. Rather than integrate UT, Texas opened a new law school for aspiring Black lawyers, and argued that this facility solved the constitutional problem because now Black law students could receive a similar education to the one they would receive at the state’s flagship university. But the justices, all of whom were lawyers, understood the subtle hierarchies of the legal profession — in which where you go to law school can determine the entire trajectory of your career — all too well to be fooled by this arrangement. As the Court’s unanimous decision explained, “the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school” – qualities like a reputation for excellence, and an alumni network full of successful lawyers eager to lend a hand to UT’s graduates. Marshall, in other words, understood that, by appealing to the professional sensibilities of the justices, he could make them see that the concept of “separate but equal” is at odds with itself. And once those justices took the easy step of empathizing with law students denied access to an elite school, it was much easier to get them to see themselves in grade school students shunted into an inferior elementary school. Trump has done the exact opposite of what Marshall did in _Sweatt_. And that means that the same empathy that Marshall’s clients benefitted from in _Sweatt_ and _Brown_ is likely to cut against Trump. Not only that, but the justices who will ultimately hear this case are likely to have unique sympathy for lawyers attacked by a politician seeking to discredit them, because many of them experienced just that in their confirmation hearings. When Chief Justice John Roberts was nominated to the Supreme Court, for example, one of the few controversies surrounding his nomination was whether the positions he took as a lawyer representing a client could be attributed to him personally. Roberts had been a judge for only about two years when he was nominated for the Supreme Court, so his judicial record was quite thin, and some Democrats and their allies [hoped to point to his work as a lawyer to discredit him](http://media.pfaw.org/stc/PH-report.pdf). Among other things, they pointed to a brief Roberts signed as a Justice Department lawyer, which [argued that _Roe v. Wade_ should be overruled](https://transcripts.cnn.com/show/lkl/date/2005-07-19/segment/01). The White House and Senate Republicans’ defense of Roberts at the time was that a lawyer’s job is to represent their clients’ interests, even if they do not agree with the client. So it is unfair to attribute a former client’s views to their lawyer. And this was an excellent defense! The Constitution gives everyone a right to hire legal counsel to represent them before the courts. This entire system breaks down if lawyers who represent unpopular clients or positions face professional sanction for doing so. The point is that the most powerful judge in the country, like numerous other judges who’ve had their careers probed by the Senate Judiciary Committee, has a very personal stake in the question of whether lawyers can be punished because the wrong elected officials don’t like their clients. That does not mean that the author of the Court’s [unconscionable Trump immunity decision](https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf) will suddenly have an epiphany and turn against Donald Trump. But if Trump’s goal is to turn Roberts (and numerous other judges) against him, attacking lawyers who stand in very similar shoes to the ones Roberts wore 20 years ago is a pretty good way to do it. See More: * [Donald Trump](https://www.vox.com/donald-trump) * [Politics](https://www.vox.com/politics) * [Supreme Court](https://www.vox.com/scotus)

 The U.S. Supreme Court on Monday backed the Trump administration's efforts to continue deporting what it says are [Venezuelan gang members](https://www.npr.org/2025/03/28/nx-s1-5343611/trump-appeals-alien-enemies-act-scotus). In an unsigned order, the court's conservatives threw out a lower court order that prevented the administration from continuing its deportations under the controversial Alien Enemies Act of 1798. The order finds that the men challenging removals under the Alien Enemies Act should have contested their arrests in the districts they were detained through individual habeas petitions. A habeas corpus petition is filed to individually challenge the legality of a person's detention. The initial lawsuit challenging the order instead sought to block removals of all Venezuelans who may have been affected by the Alien Enemies Act. The order marks a win for the Trump administration, even if temporary, and it could well be a harbinger of things to come as the administration continues to clash with federal courts and assert the executive's dominance over the other two branches of government. However, the majority's order also found that any person subject to removal under the Alien Enemies Act is subject to judicial review. People must also get adequate notice to challenge deportations in court. "More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs," according to the majority opinion. The Supreme Court said such petitions must be resolved in the districts where people are detained. It's unclear what the order means for people who were already deported to El Salvador under the Alien Enemies Act, after their lawyers said they did not get enough notice of removal. Justice Kavanaugh penned his own concurring opinion. Justice Sonia Sotomayor penned a dissenting order on behalf of the court's liberal justices, joined by Justices Elena Kagan and Ketanji Brown Jackson. Justice Amy Coney Barrett joined for parts of the order. Sotomayor's dissent found that the court's legal conclusion is "suspect," and it rules in the government's favor "without mention of the grave harm Plaintiffs will face if they are erroneously removed to El Salvador or regard for the Government's attempts to subvert the judicial process throughout this litigation. Because the Court should not reward the Government's efforts to erode the rule of law with discretionary equitable relief, I respectfully dissent." Justice Jackson penned her own dissent as well. ### Alien Enemies Act proclamation The dispute began March 15 when President Trump signed a [proclamation](https://www.whitehouse.gov/presidential-actions/2025/03/invocation-of-the-alien-enemies-act-regarding-the-invasion-of-the-united-states-by-tren-de-aragua/) ordering the removal of individuals who the administration said were members of the Venezuelan gang Tren de Aragua. The State Department designated TdA as a Foreign Terrorist Organization on Feb. 6. Within hours, the administration began filling planes with alleged gang members headed for a prison in El Salvador, where they were detained. Meanwhile, five other alleged gang members, who had not been deported yet, sued in federal court to stop the administration in its tracks. Almost immediately, U.S. District Judge James Boasberg in Washington, D.C., temporarily halted the deportations and told the administration to bring back the planes that were already en route to El Salvador. But the administration refused to turn the planes around, claiming that it was not legally required to do so, and refusing to answer many of Boasberg's questions, citing national security grounds as the justification. This despite the fact that Boasberg served for seven years on the super-secret Foreign Intelligence Surveillance Act court, becoming presiding judge in 2020 and 2021. And from 2020 to 2025, he served as chief judge of the United States Alien Terrorist Removal court. By granting the stay on Monday, the court also appeared to support Trump's invocation of the controversial Alien Enemies Act of 1798, which had only been used three times in U.S. history before now, and always during a war declared by Congress. The Trump administration claims that while the U.S. is not officially at war with Venezuela, the gang is intertwined with the Venezuelan government, and therefore the gang's presence in the U.S. is an "invasion" for purposes of the Act. One issue that Boasberg found particularly problematic is that the government held no hearings in which the alleged TdA members could dispute their removal from the country. The judge noted that even when the Alien Enemies Act was used during World War II against Japanese, German, and Italian citizens in the U.S., they were at least given their day in court. ### Concerns about due process In the days since then, the consequences of not providing due process have continued to play out. An ICE official conceded on March 31 that the agency [incorrectly deported a Salvadoran man living in Maryland](https://www.npr.org/2025/04/01/nx-s1-5347440/trump-administration-admits-maryland-man-sent-to-el-salvador-prison-by-mistake) due to an "administrative error." Nonetheless, Trump and other government officials have called for Boasberg's impeachment, impugning his integrity and contending that he lacked the authority to stop the Trump administration from carrying out its agenda. Those statements prompted Chief Justice John Roberts to issue [a rare statement rebuking Trump](https://www.npr.org/2025/03/18/nx-s1-5332086/trump-lawsuits), which read: "For more than two centuries it has been established that impeachment is not an appropriate response to disagreements concerning a judicial decision. The normal appellate review process exists for that purpose." Following the chief justice's advice, the administration first asked the federal court of appeals in Washington, D.C., to block Boasberg's order and allow the deportations to continue. By a 2-1 vote, the appellate court refused to do that. Judge Patricia Millett, an Obama appointee, condemned the administration's failure to provide "even a gossamer thread of due process" to the deportees before removal to a Salvadoran jail "notorious" for its "human rights abuses." Judge Karen Lecraft Henderson, a George H.W. Bush appointee, concurred, and addressed the limits of the executive branch's power over national security issues, saying: "Sensitive subject matter alone does not shroud a law from the judicial eye." In dissent, Judge Justin Walker, a Trump appointee, cautioned against interfering with "delicacies of diplomatic negotiation," such as those between the American and Salvadoran governments in this case. After losing in the appeals court, the Trump administration immediately appealed to the Supreme Court, contending that the president has broad discretionary authority on national security matters, which federal judges should not second-guess. The administration urged the Supreme Court to allow the deportations to resume immediately to ensure the safety of the American people. On Monday the court agreed to do that. Technically, the Supreme Court's action allowing deportations to resume under the Alien Enemies Act is not a final decision. But it is at minimum unlikely to reverse course until a future date. The decision is only the latest in a tsunami of cases challenging Trump's executive orders to date. As of March 28**,** federal district courts had issued 40 orders blocking the Trump administration's agenda, and Trump has not even reached his first 100 days in office. That is nearly three times as many court orders as were issued during the first three years of the Biden administration.

This week, the Supreme Court cleared the way for Trump to deport planeloads of Venezuelan migrants. Trump called the ruling a victory, but it came with a catch: The administration’s rationale can still be challenged, and it must ensure that would-be deportees have their day in court. “All nine members of the court agree that judicial review is available,” Justice Brett Kavanaugh wrote in his concurrence. Of all Trump’s actions so far, few have alarmed democracy scholars more than his mass deportations of migrants without a hearing. Why? Experts see a precedent that could undermine the liberties of _all_ Americans. Your right to due process — your day in court — underpins all of your other rights. If a prosecutor wants to deny you freedom and lock you up, she has to make her case. If a police officer illegally violates your privacy and searches your house to try to prove a crime, a trial can verify if he gathered the evidence legitimately. If Congress passes a law that lets officials arrest you for your political speech or religious beliefs, a court challenge can get the statute overturned. It turns out that some of the Venezuelan migrants who were packed into planes and shipped to a prison in El Salvador may not be the gang members who officials say they are. That fact could have come out in hearings. In today’s newsletter, I’ll explain why our constitutional system depends on due process — and what might happen without it. A state-provided image of Venezuelan migrants in El Salvador. Credit...Agence France-Presse, via El Salvador's Presidency Press Trump and his allies argue that his deportations last month targeted criminal migrants — specifically, Venezuelans who were not citizens and were part of a gang, Tren de Aragua. But his administration never had to prove those claims in court. A judge never checked the government’s work. Thank you for your patience while we verify access. If you are in Reader mode please exit and [log into](https://myaccount.nytimes.com/auth/login?response_type=cookie&client_id=vi&redirect_uri=https%3A%2F%2Fwww.nytimes.com%2F2025%2F04%2F09%2Fbriefing%2Fimmigration-due-process-donald-trump.html&asset=opttrunc) your Times account, or [subscribe](https://www.nytimes.com/subscription?campaignId=89WYR&redirect_uri=https%3A%2F%2Fwww.nytimes.com%2F2025%2F04%2F09%2Fbriefing%2Fimmigration-due-process-donald-trump.html) for all of The Times. Thank you for your patience while we verify access. Already a subscriber? [Log in](https://myaccount.nytimes.com/auth/login?response_type=cookie&client_id=vi&redirect_uri=https%3A%2F%2Fwww.nytimes.com%2F2025%2F04%2F09%2Fbriefing%2Fimmigration-due-process-donald-trump.html&asset=opttrunc). Want all of The Times? [Subscribe](https://www.nytimes.com/subscription?campaignId=89WYR&redirect_uri=https%3A%2F%2Fwww.nytimes.com%2F2025%2F04%2F09%2Fbriefing%2Fimmigration-due-process-donald-trump.html).

[](https://www.theguardian.com/us-news/ng-interactive/2025/aug/21/justice-john-roberts-supreme-court#img-1) Illustration: Guardian Design/Tom Williams/Getty Images On 4 March, [Donald Trump](https://www.theguardian.com/us-news/donaldtrump) delivered his epic [100-minute speech to Congress,](https://www.theguardian.com/us-news/2025/mar/05/trump-turns-congress-speech-into-a-sordid-campaign-rally-igniting-a-democrat-fightback) the longest such presidential address in US history. Having finished speaking, in time-honored fashion, he walked down the line of supreme court justices, gladhanding each in turn before coming to a stop before the chief justice, [John Roberts](https://www.theguardian.com/us-news/john-roberts). “Thank you again, thank you again,” [Trump said](https://bsky.app/profile/did:plc:t4x2ruk2qmob2b2cx55h4v7r/post/3ljma42ek5227?ref_src=embed&ref_url=https%253A%252F%252Fiframe.nbcnews.com%252FvwDuw2h), taking Roberts’s hand into both his own and shaking it vigorously. Then, as he began to step away, the president tapped Roberts on the arm in a gesture of buddy-buddy intimacy, and said: “Won’t forget.” Supreme court watchers have wondered why Trump thanked the chief justice so effusively. Was it because the Roberts court had, [exactly a year earlier](https://www.theguardian.com/us-news/2024/mar/04/trump-scotus-colorado-ruling), allowed Trump to stay on the electoral ballot even though he had inspired a violent mob attack on the US Capitol on 6 January 2021? Could it have been that Roberts had written [the ruling](https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf) that [immunised Trump from criminal prosecution](https://www.theguardian.com/us-news/article/2024/jul/02/presidential-immunity-trump-lawsuits) for that January 6 insurrection and for any other criminal misdeed he might commit while in the White House? Or was it, as Trump later claimed, more innocent than that: a simple thank you to Roberts for having administered the oath of office at Trump’s second inauguration? Whatever the truth, time has moved on since that friendly encounter five months ago. Were the president to bump into the chief justice today, one might expect an even more extravagant display of gratitude. In the past 10 weeks America has witnessed an extraordinary outpouring of decisions from its highest court that should make Trump very happy indeed. The six rightwing justices who control the court – three of them given their lifetime seats by Trump himself – have effectively greenlighted the president’s explosive and law-busting agenda. The supermajority has granted Trump 18 straight victories in the administration’s requests for emergency relief. Steve Vladeck, a leading supreme court scholar at Georgetown University Law Center, has tracked the decisions in his Substack, [One First](https://www.stevevladeck.com/), noting that the rulings have been handed down largely in the legal darkness. [](https://www.theguardian.com/us-news/ng-interactive/2025/aug/21/justice-john-roberts-supreme-court#img-2) Donald Trump gestures John Roberts after he was sworn in during inauguration ceremonies in the rotunda of the US Capitol on 20 January in Washington DC. Photograph: Guardian Design/Chip Somodevilla/Getty Images They have been piped through the court’s so-called “shadow docket”, where important affairs of state are decided at speed and with little or no debate or deliberation. By Vladeck’s count, [seven](https://www.nytimes.com/2025/07/16/us/politics/supreme-courts-shadow-docket.html) of the orders have been issued without any explanation, leaving the American people clueless as to the justices’ thinking. Yet the emergency rulings, though temporary in nature, could have seismic consequences. For as long as they hold they have the potential to cause untold suffering to millions of people targeted by Trump. That includes countless federal employees who can now be fired at whim after decades of loyal public service; transgender people purged from the military; more than 1 million individuals from Venezuela, Haiti, Cuba and other countries who are being stripped of their status to remain in the US; immigrants singled out for deportation to war-torn third countries where their lives are in danger. Legally, the consequences are also profound. Several of Trump’s actions given temporary go-ahead are of dubious legality, violating congressional or international laws and running roughshod over fundamental tenets of the US constitution. By conceding to Trump’s wishes, the justices have for now approved what Vladeck has called “a truly unprecedented amount of lawlessness by the executive branch”. > Never before has \[the supreme court\] entertained such challenges from the president, and never before has it decided them so flippantly J Michael Luttig The liberal-leaning justice Sonia Sotomayor has sounded a similar alarm in a series of increasingly despairing dissenting opinions. Her conservative peers on the court, [she has written](https://www.supremecourt.gov/opinions/24pdf/24a1153_l5gm.pdf), are “rewarding lawlessness”, and undermining the bedrock principle that America is a “government of laws, not of men”. All of this has put Roberts, 70, in a strange and uncomfortable position. Just as he should be celebrating the completion of his 20th year at the pinnacle of the US judiciary, he is being accused of betraying the very legal edifice he is supposed to protect. Prominent jurists have held Roberts responsible for emboldening Trump’s drive towards an authoritarian presidency. J Michael Luttig, who served on a federal appeals court for 15 years, put the criticism starkly. “The chief justice is presiding over the end of the rule of law in America,” Luttig told the Guardian. In Luttig’s view, the court under Roberts is “acquiescing in and accommodating the president’s lawlessness. And it is doing so without briefing, without argument, without deliberation – and without even a single word of explanation of its decisions.” For Luttig, this is more than just the 6-3 supermajority of the court expressing its conservatism. This is a fundamental distortion of the American legal system. “The supreme court was never intended to function like this. Never before has it entertained such challenges from the president, and never before has it decided them so flippantly.” When it comes to assessing the chief justice’s record, Luttig has special standing. He was himself a one-time contender for a supreme court seat, and has known Roberts as a friend since they worked together in their 20s in the Reagan administration. Roberts asked Luttig to be a groomsman at his wedding in 1996. “I have had four decades of knowing and respecting him,” Luttig said. Having had a ringside seat for so many years, Luttig has no doubts about how the chief justice is conducting himself in the current fraught moment. “John Roberts knows exactly what he is doing,” the judge said, “and he knows exactly the message he is sending to America.” Luttig’s characterisation of Roberts as a disciplined individual with absolute self-awareness chimes with the chief justice’s reputation as someone who cares deeply about public image. His attention to detail is legendary: he is known to rehearse his questions and fine-tune his jokes before oral arguments. He speaks so smoothly – and disguises his inner convictions so thoroughly – that he has been able to straddle political and personal divides. As one lawyer who has presented before Roberts at the supreme court put it: “There is no person I would rather deliver my eulogy, even if I knew that he hated me.” The roots of Roberts’s controlled conservatism lie in Buffalo, New York, where he was born on 27 January 1955, and in north-west Indiana where his family moved when he was 10. He was brought up in a devout Catholic well-to-do family enjoying the benefits of the post-war boom. His parents came from Johnstown, now a struggling hollowed-out town in western Pennsylvania but then one of the world’s great steel-producing centers. His father, John Glover “Jack” Roberts Sr rose to be a manager of a steel plant and moved the family to Long Beach, Indiana, a heavily segregated white enclave on Lake Michigan. > He has consistently shown hostility towards civil rights, trade unions and environmental protections, approaching the law with the rigidity of a rightwing ideologue Lisa Graves As a teenager, Roberts imbibed a fusion of Catholic morality and a powerful work ethic. He went on to attend an elite Catholic boarding school, La Lumiere, that had been recently founded by local businessmen. “I have always wanted to stay ahead of the crowd,” he wrote in an application letter to the school at age 13. “I’m sure that by attending and doing my best at La Lumiere I will assure myself of a fine future.” Harvard and its law school followed. He remarked in 2006 that the culture shock of being an Indiana boy surrounded by liberal students protesting against the Vietnam war helped cement his conservatism. “I didn’t view myself as conservative until I went there and kind of reacted against the orthodoxy,” he said. Joan Biskupic, who wrote a 2019 biography of Roberts, describes him as having emerged from Harvard with a “flawless veneer” and an eye for appearances. In The Chief, she writes: “He has always shown a keen interest in how he is portrayed in the media. Even as a young lawyer in the Reagan administration, he demonstrated an awareness of the importance of messaging.” The message for which Roberts is most famous was deployed during his Senate confirmation hearings for the role of chief justice in 2005. In a speech dripping with faux humility, he presented himself as the impartial arbiter of the law. “Judges are like umpires,” he said. “Umpires don’t make the rules, they apply them … Nobody ever went to a ball game to see the umpire.” Over the past 20 years he has honed that umpire character, modelling himself as a modern institutionalist. He has kept his personal convictions largely hidden, shrouding himself and his leanings in mystery; as Biskupic puts it, he is “his own enigma”. Meanwhile, the court he leads has marched – through Trump’s three nominations of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – in an ever more rightward direction. Over time, the gulf has steadily widened between Roberts’s media representation as a moderate conservative and the increasingly extreme actions of his court. “Supreme court reporting has been generous to Roberts, and has reinforced the idea that what is happening in his court is a sort of normalcy, when it is not normal at all,” said Lisa Graves, the former chief counsel for nominations for the Senate judiciary committee and founder of [True North Research](https://truenorthresearch.org/), a watchdog investigating rightwing groups that undermine democracy. Graves has reappraised the chief justice’s 20-year record and come up with a very different narrative than that of Umpire Roberts. Her conclusions are laid out in her forthcoming book, [Without Precedent](https://www.hachettebookgroup.com/titles/lisa-graves/without-precedent/9781645030676/?lens=bold-type-books), which will be published next month. In it, she argues that Roberts is anything but the modest judge he claims to be. Rather, he has used his power as chief justice to promote a rightwing agenda from the moment George W Bush placed him in the court’s central seat in 2005. [](https://www.theguardian.com/us-news/ng-interactive/2025/aug/21/justice-john-roberts-supreme-court#img-3) President George W Bush walks with federal appeals court judge John Roberts on 19 July 2005, on his way to announce Roberts as his first nominee for the supreme court. Photograph: Guardian Design/Charles Dharapak/AP “He has consistently shown hostility towards civil rights, trade unions and environmental protections, approaching the law with the rigidity of a rightwing ideologue. That was true from the time when as a young man he chose to clerk for the most regressive supreme court justice, William Rehnquist, and it remains true today,” Graves said. Roberts cut his legal teeth not in the wood-panelled setting of a federal court, but in the executive branch as an eager young pup in the Reagan administration. He began in 1981 working for Ken Starr, then chief of staff to the US attorney general (and later Bill Clinton’s bete noire), before joining the White House counsel’s office where he became friends with Luttig. Those early days of Ronald Reagan’s first term bear comparison with Trump’s second. Both presidents wielded a strong media presence, both were vitriolically dismissive of liberals whom they blamed for destroying America, both were committed to radical tax and spending cuts and slashing what they regarded as the bloated federal government. Roberts adopted Reagan’s mission with zeal. “I felt he was speaking directly to me,” he once recalled about listening to the newly ensconced president’s 1981 inaugural speech. Within the Reagan administration, Roberts began to formulate rightwing passions that have endured through his years on the top court. They included [hostility towards civil rights](https://www.politico.com/magazine/story/2015/08/john-roberts-voting-rights-act-121222/) and voting protections for racial minorities, and skepticism of racially based [affirmative action](https://www.cnn.com/2023/06/29/politics/john-roberts-affirmative-action-race). [](https://www.theguardian.com/us-news/ng-interactive/2025/aug/21/justice-john-roberts-supreme-court#img-4) President Ronald Reagan greets a young Roberts in the Oval Office while Roberts was serving as an associate White House counsel on 6 January 1983. Photograph: Guardian Design/National Archives and Records Administration At the justice department he wrote a series of spiky legal memos in which he let down his mild-mannered guard. Out came a stream of aggressive and combative missives designed to boost Reagan’s power and stature. The memos make for a chilling read in the context of today. Roberts lambasts fellow government officials whom he accused of standing in the way of the Reagan agenda – an echo of Trump and Doge’s war on the “deep state” civil service. He railed against affirmative action programs seeking to redress the balance for women and Black people – a view that was made manifest in 2023 when his court put an end to [affirmative action](https://www.theguardian.com/law/2023/jun/29/us-supreme-court-affirmative-action-harvard-unc-ruling) in universities. The future head of the US judiciary went so far in his memos as to berate federal judges for what he called [“unwarranted interference”](https://www.nytimes.com/2005/07/28/politics/an-advocate-for-the-right.html) in executive branch affairs. Fast forward four decades, and we now see the Roberts court repeatedly overturning the rulings of lower court judges who have resisted Trump’s lawless actions. Just how far federal courts should go in reining in presidents is a perennial question that has divided jurists and politicians for years. What disturbs some supreme court watchers about the present moment is the context in which this wrangling is happening: with Trump so brazenly challenging the rule of law, is now the time for the top court to be clipping the wings of federal judges struggling to hold him back? As Graves points out, Roberts’s approach to lower court judges would be more understandable if it were consistently applied – or to put it another way, if he actually did behave like a neutral umpire free of political motives. “When a Democrat was in the White House, the chief justice went out of his way to block student loan debt relief, which was a modest effort by the Biden administration that in no way compares to the extreme actions that Roberts is now greenlighting for Trump.” Roberts’s early musings on the importance of a strong executive in the White House, so evident in those Reagan memos, run as a theme through his jurisprudence. It culminated with him authoring [Trump v US](https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf). That was last year’s shattering ruling that gave Trump [absolute immunity](https://www.theguardian.com/us-news/ng-interactive/2024/jul/01/supreme-court-decision-trump-immunity-ruling) from criminal prosecution for his official presidential acts. The chief justice justified this extraordinary decision to shield the president from basic accountability by invoking the desire of the framers – the men who drafted the US constitution – for a “vigorous” and “energetic” executive. He conveniently overlooked the framers’ other core executive requirements: “responsibility”, and an obligation to “take care that the laws be faithfully executed”. Trump has repeatedly ignored that duty over the past six months. He has disregarded congressional laws, such as the 1974 Impoundment Control Act which limits the president’s power to withhold funds approved by Congress from federal agencies. He has also violated constitutional laws such as birthright citizenship – a right that is written in plain, unambiguous English into the [14th amendment](https://constitution.congress.gov/constitution/amendment-14/). Graves believes that Roberts’s immunity ruling has had devastating consequences. “It paved the way for Trump’s return. It sent a signal to some sections of the American people that not only did Trump do no wrong, he could do no wrong – that if he returned to power, he would be above the law.” When Trump did return to the White House on 20 January, Roberts was widely seen as the last great hope for constitutional government. The chief justice would draw a line in the sand that Trump, thirsting for supremacy, would not be allowed to cross. Initially there were signs that such hopes might be founded. At 1am on 19 April – in the early hours of a Saturday morning – the supreme court [issued an order](https://www.supremecourt.gov/orders/courtorders/041925zr_c18e.pdf) that could be deemed to draw precisely such a line in the sand. It barred the [Trump administration](https://www.theguardian.com/us-news/trump-administration) from deporting undocumented Venezuelans summarily to a notorious prison in El Salvador. The Roberts court had struck a blow for due process and, yes, the rule of law. The rosy glow of that pre-dawn intervention did not last for long. Since then the supreme court has used the shadow docket to grant Trump virtually his every wish, trampling over the separation of powers in the process. The most recent [emergency order](https://www.theguardian.com/us-news/2025/jul/23/supreme-court-consumer-saftety-firings-trump) from 23 July allowed Trump to fire without cause three Democratic members of the federal Consumer Product Safety Commission. The decision was a direct affront to Congress, which had created the agency and only permitted the president to fire its commissioners on grounds of neglect of duty, or malfeasance. Just days earlier, the justices cleared the way for Trump to eviscerate the federal education department even though, as Sotomayor pointed out in one of her withering dissents, only Congress has the power to do so. And a week before that they gave the green light to the mass firing of [thousands of federal workers](https://www.axios.com/2025/07/08/supreme-court-trump-fire-federal-workers), delivering a potential death knell to the US government as we know it. > When district court orders are ignored, and the supreme court turns a blind eye, then the rule of law has already been sacrificed Amrit Singh The court’s most egregious shadow docket rulings relate to cases in which Trump has not only violated the law, he has done so in open defiance of federal judges. On [23 June](https://www.supremecourt.gov/opinions/24pdf/24a1153_l5gm.pdf) and [3 July](https://www.supremecourt.gov/opinions/24pdf/24a1153_2co3.pdf) the justices released two emergency orders which had the [combined effect](https://www.theguardian.com/us-news/2025/jul/03/us-supreme-court-south-sudan) of allowing the Trump administration to deport people to third countries such as South Sudan, a nation devastated by civil war and with a shaky human rights record. Federal judges in lower courts had expressly forbidden the deportations, ordering that the individuals had to be given a chance to prove they faced torture in those destinations. Under the international Convention against Torture, to which the US is a signatory, it is prohibited to expel people to places where they might be subjected to such illegal treatment. The Trump administration ignored the court rulings, deporting the individuals regardless. Roberts’s willingness to preside over a court that sides with Trump over the judiciary itself, even in cases involving brazen defiance of federal judges, has profoundly shocked the legal world. “The supreme court is the ultimate guardian of the rule of law, and it appears to have abdicated that role,” said Amrit Singh, director of the [Rule of Law Lab](https://www.law.nyu.edu/academics/clinics/labs/Rule_of_Law_Practice_Lab) at New York University. “The court has clearly indicated that it is willing to tolerate the Trump administration’s violation of federal court orders.” Singh’s charitable interpretation is that Roberts was trying to “appease the Trump administration to avoid direct confrontation”. Were that the case, she said, the chief justice was pursuing an “extremely dangerous strategy”. “He is letting the Trump administration get away with it. When district court orders are ignored, and the supreme court turns a blind eye, then the rule of law has already been sacrificed.” Some supreme court watchers have cautioned against assuming that the justices’ emergency rulings are their final word. Bob Bauer, Barack Obama’s White House counsel who co-chaired Joe Biden’s presidential commission on the supreme court, has pointed out that the court has yet to rule on several of Trump’s biggest provocations. They include birthright citizenship, and the use of the Alien Enemies Act under which third-country deportations are being carried out. “There is yet no final resolution of these issues,” Bauer has written in his Substack, [Executive Functions](https://executivefunctions.substack.com/p/progressives-and-the-supreme-court). It is true that, if and when those issues are fully addressed by the supreme court, Roberts could surprise us once again. He could dust off his old umpire’s uniform, revisit his carefully crafted posture as a moderate institutionalist, and confound us all – Trump included – with nuanced rulings. But for his longtime friend Luttig, that is besides the point. The price of what Roberts is doing here and now, in the legal darkness of the shadow docket, is just too high. “The supreme court has pulled the rug out from under the lower federal courts, and it has done so deliberately and knowingly,” Luttig said. “The chief justice has no higher obligation than to protect the federal judiciary from attacks by this president, and in my view he has utterly failed.” * This article was amended on 21 August 2025 to correct that John Roberts administered an oath of office to Donald Trump; he did not take the oath as previously stated.