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      US Senate narrowly confirms Kash Patel as next FBI director

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      The US Senate has confirmed Kash Patel as the next FBI director, handing oversight of the nation’s premier law enforcement agency to an official who has declined to explicitly say whether he would use his position to pursue Donald Trump’s political opponents.Patel was narrowly confirmed on Thursday in a 51-49 vote, a reflection of the polarizing nature of his nomination and what Democrats see as his unwillingness to keep the bureau independent from partisan politics or resist politically charged requests from the president.Notably, at his confirmation hearing, Patel refused to commit that he would not use his position to investigate officials he portrayed as Trump’s adversaries in his book, and affirmed that he believed the FBI was answerable to the justice department and, ultimately, the White House.Patel’s responses suggest that his arrival at FBI headquarters will usher in a new chapter for the bureau as a result of his adherence to Trump’s vision of a unitary executive, where the president directs every agency, and willingness to prioritize the administration’s policy agenda.That objective to implement the Trump administration’s mandate has already taken hold at the justice department, which oversees the bureau and last week forced through the dismissal of corruption charges against Eric Adams, the New York mayor, in order to get his help to deport undocumented immigrants.The greatest challenge for recent FBI directors has been the delicate balance of retaining Trump’s confidence while resisting pressure to make public pronouncements or open criminal investigations that are politically motivated or that personally benefit the president.Patel is unlikely to have difficulties, such is his ideological alignment with Trump on a range of issues including the need to pursue retribution against any perceived enemies like former special counsel Jack Smith and others who investigated him during his first term.The new leadership at the FBI also comes as questions about the far-reaching nature of his loyalty to Trump remain unresolved. At his confirmation hearing, Democrats on the Senate judiciary committee tried in vain to elicit answers about his role as a witness in the criminal investigation into Trump’s mishandling of classified documents.During the investigation, Patel was subpoenaed to testify about whether the documents the FBI seized at Mar-a-Lago had been declassified under a “standing declassification order”, as he had represented in various public comments at the time.The Guardian reported at the time that Patel initially declined to appear, citing his fifth amendment right against self-incrimination. He later testified after the chief US district judge in Washington authorized Patel to have limited immunity from prosecution, which forced his testimony.That loyalty, to resist federal prosecutors, endeared him to Trump and is understood to have played a factor in him ultimately getting tapped for the FBI director position after Trump struggled for weeks to decide who he wanted at the bureau, a person familiar with the matter said.Patel ultimately clarified, in something of a partial admission under close questioning from senator Cory Booker, that although he witnessed Trump issue a declassification order for some documents, he did not actually know whether they applied to the documents found at Mar-a-Lago.Democrats have unanimously considered Patel’s track record in the first Trump administration, his incendiary remarks criticizing the bureau he was nominated to lead and more generally his role in the classified documents case to be disqualifying.When Trump tapped Patel last year, Democrats largely believed it would lead to a backlash that would sink his nomination. No resistance ever materialized, in part because Patel was less controversial than some of Trump’s other nominees, such as Pete Hegseth for defense secretary.Patel was formerly a public defender in Florida before joining the justice department in 2014 as a line prosecutor in the national security division.In 2017, Patel became a top Republican aide on the House intelligence committee, where he authored a politically charged memo accusing the FBI and the justice department of abusing surveillance powers to spy on a Trump adviser. The memo was criticized as misleading, though an inspector general later found errors with aspects of the surveillance.His efforts impressed Trump, who brought him into the administration and quickly elevated him to national security and defense roles. By the end of Trump’s first term, he was the chief of staff to defense secretary Chris Miller and briefly considered for CIA director.While John Durham, the special counsel appointed by Trump, found a catalog of mistakes by prosecutors in the Russia investigation, he found no evidence that officials had been motivated by political animus and brought no charges – contrary to claims by Trump and Patel. More

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      The little-known Gullah Geechee politician who pushed for the 14th amendment

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      After Donald Trump issued an executive order to limit birthright citizenship last month, Marilyn Hemingway, the CEO and president of the Gullah Geechee Chamber of Commerce, knew she had to do something. Based in Georgetown, South Carolina, the GGCC helps preserve the history of Gullah Geechee people, the Africans who were enslaved on the Sea Islands along the Atlantic coast, and their descendants. One such person was Joseph Hayne Rainey, a man born in Georgetown and enslaved until his father purchased his freedom when he was 10. Rainey is who Hemingway immediately thought of following Trump’s order.Rainey was the first Black person elected to the United States congress, where he was known for his support of the 14th amendment, which was ratified in 1868 and stated: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The amendment was necessary to give the roughly 4.5 million Black people in the country citizenship after emancipation, as a previous supreme court case, Dred Scott v Sandford, had denied citizenship to all people of African descent.Rainey’s support for the laws passed during Reconstruction was deeply informed by his life in enslavement. He spent much of his time in Congress fighting to protect Black Americans and to ensure the 14th and 15th amendments – the latter of which prohibited the federal government from denying a citizen the right to vote based on race, color or previous condition of servitude – were enforced.“The 14th amendment was passed and ratified because once those who were enslaved were emancipated, it was like they didn’t have standing,” Hemingway said. “Where were they in this world now? They were no longer enslaved, so they needed to be made citizens … [Rainey] went from an enslaved person to an emancipated person to a citizen. His personal story reflects the American story.”Now, the amendment that has long granted birthright citizenship is being used by the US president to deny citizenship to the children of recent immigrants. “The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” his EO reads. It “has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof’”.Trump’s executive order almost immediately faced several lawsuits from civil rights groups and Democratic attorneys generals, as well as a temporary restraining order from a federal judge. A federal appeals court has denied the administration’s request to reinstate a ban, but the threat still looms, especially as the president has said he expects the supreme court to side with him on the decision.“The first line of the 14th amendment is designed to say that anyone who was born or naturalized in the United States and subject to the jurisdiction of the United States is a citizen,” said Jamal Greene, a professor at Columbia Law School. “That doesn’t depend on their race or their ethnicity or anything else about them. The only question is whether they’re subject to the jurisdiction of the United States.”Trump’s administration has harped on the phrase “subject to the jurisdiction of the United States”, which was understood to refer to people who were not subject to US law, Greene said. That would have meant diplomats from other countries, Indigenous people, who are sovereign, and, potentially, an invading army. But now Trump is trying to use that language to apply to a wide group of people, including children whose parents were not lawfully in the US at the time of their birth.Greene said that those who support such an understanding of the law are suggesting that those people would not have an allegiance to the US. “But that interpretation is not consistent with how it would have been originally understood,” he said. “And it’s also not consistent with the language itself, since jurisdiction is not a reference to allegiance. It’s a reference to whether US laws apply to those people.”Some are also concerned about the order’s potential reach to citizens, such as Black Americans. The GGCC, for its part, argues that Trump’s order is an attempt to undo some of Rainey’s work. For Rainey, the 14th amendment was not just for Black Americans – it was for everyone. “To all people born unnaturalized into the United States, [the 14th amendment] is the first time in the history of the United States that it actually covered citizenship, including of formerly enslaved people,” Hemingway said. “They were the impetus for this, but it covered everyone. So we have to be very careful when we come and we start attacking it, because it’s not just going to remove citizenship of immigrants, it’s going to remove citizenship of everyone.”Though the restraining order blocks Trump’s plan, the future of birthright citizenship will be undecided until the supreme court hears the case. In the meantime, Hemingway is continuing to promote Rainey’s life and continue his fight.“This is why we speak out to make sure correct history is told … We still have to have the same fight for civil rights. [Rainey’s] actions inform our actions to this day. His story needs to be told more so that we could hold all of our elected officials accountable to the United States constitution. We are in a constitutional crisis. His life explains why we continue the fight.” More

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      Eric Adams, Trump and a New York story that’s stress-testing the rule of law

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      In both real life and on film, New York City has often been a city linked with public scandals, corruption and high drama.But even Hollywood scriptwriters, so often keen on using the Big Apple as a backdrop, would have been hard-pushed to describe the astonishing events that have played out around the mayor, Eric Adams, in recent days.Last week, the US Department of Justice moved to drop criminal charges against Adams, in what many see as a blatant quid pro quo for getting Adams onboard as a political ally to a Donald Trump administration seemingly intent on launching a radical remaking of American government.It was a move that raised alarm among many residents of the city and legal experts about what many see as Trump – and Adams – undermining the integrity of the US judicial system and American democracy.Earlier this week, a top official at the justice department ordered the acting US attorney in the southern district of New York to stop prosecuting Adams for allegedly accepting bribes and illegal campaign contributions from foreign sources.The move was the latest stop in a dramatic term for America’s highest-profile mayor, which has seen the former cop elected as a Democrat but then drift rightwards, especially after Trump was elected and Adams faced prosecution. In heavily Democratic New York, Adams is now seen as an ally to Trump and has even reportedly flirted with the idea of becoming a Republican.Since being indicted in September, Adams has made regular overtures to Trump, including visiting him at his resort in Florida and skipping scheduled Martin Luther King Jr Day events in the city to attend Trump’s inauguration.Some observers said Adams was trying to obtain a pardon from Trump and ignoring his responsibilities as mayor. Adams claimed he has not discussed his legal case with Trump and that he had been talking with the president to help the city.Whatever Adams’s intentions were, Trump now appears to have helped him and, in doing so, added to the perception he will ignore the rule of law when it benefits him politically.“We have an administration that is willing to use its power to benefit favorite people, to the extent it’s able to do so without controversy – or even with controversy,” said Stephen Gillers, a legal ethics professor at New York University School of Law. “It’s a truly aggressive decision on the part of DoJ and an indefensible decision.”Adams was elected mayor in November 2021. Before the indictment, he already faced criticism because of the criminal histories of people in his inner circle, his frequent participation in the city’s nightlife and allegations that he did not actually live in the city, among other complaints from residents.“You would see him partying at clubs that my peers were at, and he seemed to fit there very well, more so than the office he was holding,” said Maedot Yidenk, a 27-year-old neuroscientist from Seattle who now lives in the Bushwick neighborhood of Brooklyn.After his indictment, Adams said the Biden administration had targeted him for prosecution because he had criticized its immigration policies. Prosecutors countered that the investigation had begun before Adams started attacking the federal government over its response to the number of immigrants entering the country.However, Trump agreed with Adams’s assessment and said he would consider pardoning the Democrat.But the justice department instead now wants to dismiss the charges. According to the acting deputy attorney general, Emil Bove, federal prosecutors behind the case “threatened the integrity of the proceedings, including by increasing prejudicial pretrial publicity” and “unduly restricted” the mayor’s ability to “devote full attention and resources to the illegal immigration and violent crime that has escalated under the policies of the prior Administration”.View image in fullscreenBove’s justification – that the prosecutor had been keeping Adams from doing his job – is “ridiculous”, according to Gillers.“It would immunize office holders, certainly mayors and governors, from criminal investigation and criminal charges, so long as they were named in that position,” Gillers said. “The real explanation, I think, is that Trump wanted to dismiss the indictment as a favor to Adams, for whatever reason, but to do it in the most neutral way.”Still, Bove has encountered resistance from prosecutors, which has plunged the city’s legal community into turmoil.On Thursday, the interim US attorney for the southern district, Danielle Sassoon, a Republican, resigned and accused the justice department of letting the defendant off in exchange for his help with Trump’s immigration policy. Five other officials in the justice department also resigned.“I remain baffled by the rushed and superficial process by which this decision was reached, in seeming collaboration with Adams’s counsel and without my direct input on the ultimate stated rationales for dismissal,” Sassoon wrote to the attorney general, Pam Bondi.Bove responded in a letter to Sassoon, stating that she had been “pursuing a politically motivated prosecution despite an express instruction to dismiss the case. You lost sight of the oath that you took when you started at the Department of Justice.”Trump said he had not asked prosecutors to drop the case. But in his letter, Bove wrote that Sassoon was “disobeying direct orders implementing the policy of a duly elected President”.But the scandal did not stop there. Adrienne Adams, the speaker of the New York city council, on Monday called on the mayor to resign. Her demand came just hours after four of Adams’s eight deputy mayors announced they would leave his administration – another crippling blow to his ever more disastrous reputation.Trump could have avoided the legal wrangling by just pardoning Adams, as some predicted he would.“If he does go that route, I think it raises the question why he wouldn’t have done it in the first place,” said Thomas Frampton, an associate law professor at the University of Virginia. “I think the answer is because he wanted to test to see how compliant the [southern district] would be.”Even in a liberal city like New York, there are people who both don’t like Trump – or his efforts to exert control over the justice department – and aren’t sure prosecutors should have filed charges against Adams.Stanley Brezenoff, who once chaired the city’s housing authority and board of correction, argued that the allegations that Adams pressured the fire department to open the Turkish consulate despite safety concerns were “not pretty, but I’m not sure that in and of itself warranted the extent of the criminal justice response”.“I can understand him trying to figure out ways to avoid the retribution,” said Brezenoff, who did not vote for Adams in the last election and has not decided who he will support in the Democratic primary in June: “I may not like that, but you wouldn’t say: ‘Impeach Adams’ because he’s currying favor with Washington, with Trump.”View image in fullscreenKelly Johnson, a mechanical engineer and marine veteran, used to encounter Adams, then a police officer, walking around Brooklyn and through mutual friends. Johnson said he felt that Adams “worked a lot with the community … I didn’t necessarily have anything really bad to say about him”.Johnson, who is Black, appreciates that Adams filled his administration with people of color and thinks that serving as only the city’s second Black mayor is especially difficult.“Everyone is going to make sure that if you’re not all the way clean, the slightest of things that you may do wrong – hell, you could buy a pack of cigarettes off of some government funding – you’ll get impeached,” said Johnson, 52, who lives in Brooklyn’s Bedford-Stuyvesant neighborhood and would consider voting for Adams.There is a long list of candidates in the Democratic primary, and the former New York governor Andrew Cuomo is reportedly considering entering the race. Meanwhile, Adams has recently explored running in the Republican primary, the New York Times reported.In the 2021 election, Laurie Levinson, a retiree who lives in the East Village of Manhattan, voted for Maya Wiley, a former lawyer for Mayor Bill de Blasio who has not entered the new race.“There were people who were really, really qualified, like Maya Wiley,” said Levinson, who has not decided whom she will support this time. Like Trump, she said, “Adams is another moron … I can’t wait till the next mayoral races.”Patrick Canfield, a 31-year-old who works in publishing, sees Adams as corrupt and also dislikes his policies, such as increasing the police presence on the city’s subways.“I think we’re witnessing the crumbling of American institutions,” said Canfield, who also lives in Bedford-Stuyvesant. “Adams is just a microcosm of that.” More

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      ‘The path forward is clear’: how Trump taking office has ‘turbocharged’ climate accountability efforts

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      Donald Trump’s re-election has “turbocharged” climate accountability efforts including laws which aim to force greenhouse gas emitters to pay damages for fueling dangerous global warming, say activists.These “make polluters pay” laws, led by blue states’ attorneys general, and climate accountability lawsuits will be a major front for climate litigation in the coming months and years. They are being challenged by red states and the fossil fuel industry, which are also fighting against accountability-focused climate lawsuits waged by governments and youth environmentalists.On day one of his second term, the US president affirmed his loyalty to the oil industry with a spate of executive actions to roll back environmental protections and a pledge to “drill, baby, drill”. The ferocity of his anti-environment agenda has inspired unprecedented interest in climate accountability, said Jamie Henn, director of the anti-oil and gas non-profit Fossil Free Media.“I think Trump’s election has turbocharged the ‘make polluters pay’ movement,” said Henn, who has been a leader in the campaign for a decade.More state lawmakers are writing legislative proposals to force oil companies to pay for climate disasters, while law firms are helping governments sue the industry. And youth activists are working on a new legal challenge to the Trump administration’s pro-fossil fuel policies.Industry interests, however, are also attempting to kill those accountability efforts – and Trump may embolden them.The state of Vermont in May passed a first-of-its-kind law holding fossil fuel firms financially responsible for climate damages and New York passed a similar measure in December.The policies force oil companies to pay for climate impacts to which their emissions have contributed. Known as “climate superfund” bills, they are loosely modeled on the Environmental Protection Agency (EPA)’s Superfund program.Similar bills are being considered in Maryland, New Jersey, Massachusetts and now Rhode Island, where a measure was introduced last week. A policy will also soon be introduced in California, where recent deadly wildfires have revived the call for the proposal after one was weighed last year.Minnesota and Oregon lawmakers are also considering introducing climate superfund acts. And since inauguration day, activists and officials in a dozen other states have expressed interest in doing the same, said Henn.“I think people are really latching on to this message and this approach right now,” Henn said. “It finally gives people a way to respond to climate disasters, and it’s something that we can do without the federal government.”View image in fullscreenProgressives introduced a federal climate superfund act last year. But with Republicans in control of the White House and both branches of Congress, it has a “less than zero chance of passing”, said Michael Gerrard, the faculty director of the Sabin center for climate change law at Columbia University.The state laws are already facing pushback in the courts. This month, 22 red states and two oil trade groups sued to block New York’s climate superfund law.“This bill is an attempt by New York to step into the shoes of the federal government to regulate something that they have absolutely no business regulating,” West Virginia’s attorney general, John B McCuskey, who led the suit and whose state is a top coal producer, told Fox News.In late December, trade groups also filed a lawsuit against Vermont’s climate superfund act which, if successful, could potentially topple New York’s law.Fossil fuel interests were expected to challenge the climate superfund laws even if Kamala Harris was elected president and have been boosted by Trump’s win. “I think [they] feel like they have more of a shot with the executive backing them,” said Cassidy DiPaola, spokesperson for the Make Polluters Pay campaign.It “would not be shocking” if Trump’s justice department were to file briefs in support of plaintiffs fighting the laws, said Gerrard, which could tip the scales in their favor.More legal challenges may also be on the way, and if additional states pass similar policies, they are expected to face similar lawsuits. But Henn says he is confident the laws will prevail.“I think Republicans think that they’re going to be able to just scare off local legislators or local attorneys general from pursuing a polluter pays agenda, but I think they’re wrong,” he said. “We have widespread public support for this approach. People don’t like the fossil fuel industry.”Over the last decade, states and municipalities have also brought more than 30 lawsuits against fossil fuel interests, accusing them of intentionally covering up the climate risks of their products while seeking damages for climate impacts.As Trump’s pro-fossil fuel policies move the US in “precisely the wrong direction” on the climate crisis, they will “surely inspire yet more litigation”, said Gerrard. Michigan has announced plans to file a suit in the coming months, and more are likely to be rolled out this year.The cases face a formidable opponent in the fossil fuel industry, which has long attempted to fend off the lawsuits. Since January, courts have dismissed litigation filed by New Jersey, New York and a Maryland city and county, saying the states lacked jurisdiction to hear the cases.Other decisions have been positive for the plaintiffs. In three decisions since spring 2023, the supreme court turned down petitions from the fossil fuel industry to move the venue of the lawsuits from the state courts where they were originally filed, to federal courts which are seen as more friendly to the industry.Last week, a court in Colorado heard arguments over the same issue in a lawsuit filed by the city of Boulder. The outcome will have major implications for the future of the challenge.Trump has pledged to put an end to the wave of lawsuits, which he has called “frivolous”. During his first term, his administration filed influential briefs in the cases supporting the oil companies – something his justice department could do again. “It’s clear where their allegiances are,” said Gerrard. “And if they file briefs that would be good for the defendants.”Alyssa Johl, vice-president and general counsel of the Center for Climate Integrity, which tracks and supports the lawsuits, said: “There is still a long road ahead for these efforts, but the path forward is clear.”“As communities grapple with the increasingly devastating consequences of big oil’s decades-long deception, the need for accountability is greater than ever,” she said.Youth-led litigationAnother climate-focused legal movement that is gaining steam: youth-led challenges against state and federal government agencies, for allegedly violating constitutional rights with pro-fossil fuel policies.Trump’s second term presents an important moment for these lawsuits, said Julia Olson, founder of the law firm Our Children’s Trust, which brought the litigation. While some lawyers will fight each rollback individually, her strategy could “secure systemic change”, she said.View image in fullscreenOn Wednesday, a US judge rejected an Our Children’s Trust suit filed by California youth against the EPA, saying the challengers failed to show that they had been injured by the federal body. Olson said the judge “misapplied the law”.That same day, the most well-known Our Children’s Trust case, Juliana v United States – in which 21 young people sued the federal government – suffered a blow. In December, the plaintiffs filed a petition with the supreme court to send the case back to trial after it was tossed out. The US solicitor general has now filed a brief opposing their petition; Olson said it “mischaracterized” the case.Our Children’s Trust’s lawsuits have in other instances seen major victories. In December, Montana’s supreme court upheld a landmark climate ruling in favor of young plaintiffs, which said the state was violating youths’ constitutional right to a clean environment by permitting fossil fuel projects with no regard for global warming.That victory in a pro-fossil fuel red state, said Olson, inspires hope that children could win a lawsuit against a conservative, oil and gas-friendly federal government.She is working on another lawsuit against the Trump administration, whose “brazen” anti-environment agenda could bolster the challengers’ arguments, she said.“These policies will kill children … and by making his agenda obvious, I think that he helps us make that clear.” More

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      ‘X-rays into the president’s soul’: Jeffrey Toobin on Trump, Biden and the pardon power

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      To Jeffrey Toobin, author of The Pardon: The Politics of Presidential Mercy, pardons are “X-rays into the soul” of the American president who gives them, revealing true character. Pardons can show compassion and mercy in the occupant of the Oval Office. More often, they expose venality and self-preservation.Toobin said: “One thing you can say about Donald Trump is that his moral compass always points in the same direction, and his motives are always the same, which are transactional and narcissistic. This is a good example, I think, of my thesis that pardons are X-rays into the president’s soul.”In his first term, Trump “wanted to settle a score with Robert Mueller, so he pardoned everyone Mueller prosecuted” in the special counsel’s investigation of Russian election interference in 2016 and links between Trump and Moscow, Toobin said.“Trump wanted to take care of his family, so he pardoned his daughter’s father-in-law, Charles Kushner,” who is now nominated as US ambassador to France, the author added. “He wanted to reward his House Republican allies, so he pardoned several who were engaged in egregious corruption, and he pardoned people who were [his son-in-law and adviser] Jared Kushner’s friends.”Asked why he wrote his 10th book to come out now, so soon after such a momentous election, Toobin, a former CNN legal analyst and New Yorker writer, said: “I saw that from a very early stage in the campaign Trump was talking about January 6 pardons. But I also recognized that if Kamala Harris won, there would be pressure on her to pardon Trump” on 44 federal criminal charges now dismissed.“I think the proper way to understand the January 6 pardons [issued on day one of Trump’s second term] is to remember that Trump himself was a January 6 defendant, Toobin said. “He wasn’t charged with the riot the way the others were, but he was charged with trying to overthrow the election with the fake electors scheme. And if you look at the way in the beginning part of his second term he is settling scores and rewarding his friends, the January 6 pardons told you exactly how he was going to go about conducting his administration.”Reportedly saying: “Fuck it, release ’em all”, Trump gave pardons, commutations or other acts of clemency to the absurd, such as the J6 Praying Grandma and the QAnon Shaman, and to the outright sinister: hundreds who attacked police, militia leaders convicted of seditious conspiracy, Toobin wrote.He said: “If Trump had tried to carve out the non-violent January 6 rioters [for clemency], that that would have been somewhat more defensible than what he wound up doing, which was, in my view, completely indefensible.”His point about pardons being an X-ray for the soul applies to Joe Biden too.On the page, Toobin decries the 46th president’s decision to pardon his son, Hunter Biden, on gun and tax charges and any other grounds, having said he would not do so.Toobin said: “When you think about Hunter, this is a guy who was convicted of a crime, who pleaded guilty to other crimes. So it’s not like these were made-up accusations against him. Yes, the criminal justice system came down hard on him, but the criminal justice system comes down hard on a lot of people, and their father wasn’t president of the United States, so they don’t get this kind of break. And I just think that’s not how the system is supposed to work.”Publishing schedules being what they are, The Pardon does not cover the last-minute pre-emptive pardons Biden gave his brothers, his sister and their spouses, as well as public figures held to be in danger of persecution by Trump, Liz Cheney and Gen Mark Milley among them.But Toobin told the Guardian: “The family pardons were just bizarre, because these people, as far as I’m aware, are not even under investigation. But [Biden] was so worried and fixated on his family that he took this extraordinary step, which is just egregious to me.”The pardon is older than America. British kings could pardon people. When the states broke away, they kept the pardon for presidents. George Washington used it after the Whiskey Rebellion of 1794, for men convicted of treason. Abraham Lincoln used it during the civil war to reprieve Union soldiers sentenced to die and to forgive Confederates in the name of peace.Such acts of mercy continue, memorably including Jimmy Carter’s clemency for those who dodged the draft for Vietnam and Barack Obama’s record-setting issue of commutations for people mostly jailed for minor crimes. Even Trump handed down mercy in his first term, amid the push which produced the First Step Act, criminal justice reform he swiftly seemed to forget.Asked which modern president has best used the pardon power for the public good, Toobin picks Obama. Inevitably, though, most public attention falls on use of the power for controversial ends, including George HW Bush’s mop-up of the Iran-Contra scandal and Bill Clinton’s last-minute pardon for Marc Rich, a financier turned fugitive.The most famous pardon of all, the one Gerald Ford gave Richard Nixon after the Watergate scandal, hangs over every president. As Toobin sees it, had Harris taken office in January, pressure to pardon Trump of his alleged federal crimes would have been great, and it would have sprung from “an interesting shift in the conventional wisdom” about Ford and Nixon.skip past newsletter promotionafter newsletter promotion“It was widely considered a disaster in 1974” – Carl Bernstein told Bob Woodward, his Washington Post partner in reporting Watergate, “The son of a bitch pardoned the son of a bitch” – “but now you’ve had Ted Kennedy giving Gerald Ford an award, saying he was right about the pardon. You have Bob Woodward changing his mind [to say the pardon was ‘an act of courage’]’, and at the oral argument of the Trump v United States supreme court case [about presidential immunity, last April], Justice Brett Kavanaugh said, ‘Well, everyone now agrees Ford did the right thing.’”Toobin thinks Ford did the wrong thing, given Nixon’s clearly criminal behavior. He was also “struck by the absence of a book heavily focused on that issue of the Ford pardon. So all those combinations led me to try to not only write a book, but have it come out in early 2025.”He duly devotes most of that book to the Nixon pardon: how Ford agonized about it, decided to do it, then employed an obscure young lawyer to make sure Nixon took it.“I had certainly never heard of Benton Becker when I went into this,” Toobin said. “And I think his central role illustrates how ill-prepared Ford was for the whole issue of dealing with Nixon, because if you want to address an issue that will be the central event of your presidency, maybe you want to entrust it to someone who is not a young volunteer lawyer, who is himself under criminal investigation.“Now, if you say that, you should say that Becker [who died in 2015] was completely cleared. But it struck me as ludicrous that a president with the entire resources of the White House counsel’s office, the justice department and the entire American government, chose to invest so much authority in this young man. I think that just illustrates how Ford’s anxiousness to get the whole Nixon subject behind him led him to fail to consider the consequences of what he was doing.”The rights and wrongs of the Nixon pardon echo to this day. Looking again to last year’s supreme court arguments over presidential immunity, which the justices decided did apply in relation to official acts, Toobin said: “I thought the best question at that oral argument was Justice [Ketanji Brown] Jackson saying, ‘If presidents are immune, why did Ford need to pardon Nixon?’ Which is a great question, and doesn’t really have an answer. The only real answer is that [Chief Justice] John Roberts just completely changed the rules” in Trump’s favor.The Pardon is Toobin’s guide to how presidential pardons work, for good or often ill. He is not optimistic that the power can be reined in or usefully reformed:“The both good and bad news is that our constitution is almost impossible to amend, and no one cares enough about pardons one way or the other to undertake the massive task of of trying to amend the constitution. It’s not even clear how you would amend it. My solution to pardon problems is not changing the constitution, it’s getting better presidents.”That will have to wait – at least for four more years.

      The Pardon is out now More

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      The courts separate democracy from autocracy. Will Trump defy them?

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      Will the Trump administration defy the courts?JD Vance’s tweet last weekend that “judges aren’t allowed to control the executive’s legitimate power” has sparked widespread concern that the Trump administration might become the first in US history to do so. At least at this stage, it is not clear that it will come to that, notwithstanding the president’s proclivity for asserting limitless executive power. But as other countries’ experiences show, if he were to adopt the position of the US vice-president, Trump would be crossing perhaps the most fundamental line demarcating constitutional democracy from autocracy.Consider just a few examples. In Venezuela, Hugo Chávez spent years undermining the country’s supreme court, declaring that it lacked “legitimate and moral authority”. The former president later refused to comply with a 2003 order to demilitarize the Caracas police force, instead tightening military control over law enforcement to entrench his power. In Hungary, after failing to enforce rulings of the constitutional court, Viktor Orbán’s government openly defied the European Union’s highest court’s ruling finding Hungary’s restrictive asylum scheme in violation of EU law. Likewise, in Turkey, Recep Tayyip Erdoğan systematically ignored domestic and European court of human rights rulings that ordered the government to release journalists and other political activists critical of his government.Nothing is more challenging to an authoritarian than an independent judiciary ready to hold the leader accountable. When would-be authoritarians perceive judicial oversight as a threat, they respond by dismissing and defying court rulings or otherwise undermining judicial independence. By the time the authoritarian takeover is complete, the judiciary is rendered toothless. Courts are especially vulnerable to such moves because they do not have their own enforcement arms.To be sure, we are not there yet. But Vance seems to see these examples not as object lessons in what not to do, but as models for the US president to follow. In 2021, Vance said his “one piece of advice” to Trump for a second term would be to “fire every single mid-level bureaucrat, every civil servant in the administrative state, replace them with our people … And when the courts – because you will get taken to court – and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’” (It is disputed whether Jackson even said this, but in any event he never defied the court.)In Trump’s last term, he had a worse won-lost record in the supreme court than any president since Franklin Delano Roosevelt – yet he abided by all court orders. And in the wake of concern about Vance’ s comments, Trump said he always obeys courts, but will pursue appeals. Thus far, that seems to be the case. But no responsible government official – much less the No 2 official in the executive branch – should even suggest that defying the courts is appropriate.View image in fullscreenTrump’s right-hand man, Elon Musk, is also fanning the flames. On 8 February, hours after a federal judge in New York temporarily blocked Musk’s team from accessing sensitive personal information held by the Department of the Treasury on millions of Americans, Musk shared a tweet from another user saying: “I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us.” The next day, Musk posted: “A corrupt judge protecting corruption. He needs to be impeached NOW!”On 12 February, Musk tweeted: “Bravo!” in response to a claim by El Salvador’s autocratic president, Nayib Bukele, that he had impeached judges in 2021 “and then proceeded to fix the country”. Musk added: “We must impeach judges who are grossly undermining the will of the people and destroying America. It is the only way.” Bukele’s removal of five constitutional court judges in 2021 is widely regarded as a “technical coup” that paved the way for him to seek re-election in violation of constitutional term limits. Musk is no lawyer, but he should know that in the US, impeachment is reserved for “high crimes and misdemeanors”, not decisions Musk does not like.Government officials are of course free to criticize court decisions. But Vance’s and Musk’s comments echo those of authoritarian regimes around the world, which often seek to undermine the legitimacy of any institution that might constrain their actions – the courts, the press, the non-profit sector. The criticism is often the first step in a campaign to sweep away all constraints.The federal courts in the US system are given independence and final say on legal disputes so that they can act as a check on the political branches. In 1975, the supreme court explained that “all orders and judgments of courts must be complied with promptly.” Indeed, the chief justice, John Roberts, in his annual end-of-year report on the federal judiciary in 2024, identified “threats to defy lawfully entered judgments” as one of the core issues that “threaten the independence of judges on which the rule of law depends”.The moment of truth may come soon. More than 60 lawsuits have been filed challenging Trump’s initial measures – from seeking to revoke birthright citizenship to freezing federal funding. Nearly every court to rule thus far has ruled against the administration.Were the Trump administration to follow Vance’s and Musk’s advice and defy the supreme court, the fallout would be swift, widespread – and justified. The supreme court has limited formal resources to compel the president to follow its dictates, because the president, not the courts, oversees federal law enforcement. Despite that formal reality, defiance would be an impeachable offense – and if the Republican party stood behind the president at that point, it would pay greatly at the polls. That’s because few principles are as fundamental to the American system as the notion that the supreme court has final say on constitutional and statutory issues and its orders must be obeyed. Trump would cross that line at his own, his party’s, and the country’s peril.

      Amrit Singh is a law professor and executive director of the Rule of Law Impact Lab at Stanford Law School. David Cole is a professor at Georgetown Law and former legal director of the ACLU More

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      US civil rights agency seeks to dismiss gender-identity discrimination cases

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      The US commission that enforces civil rights laws against workplace discrimination has moved to dismiss six cases it brought on behalf of workers alleging gender-identity discrimination, it was revealed on Saturday.The Equal Employment Opportunity Commission (EEOC), established via the Civil Rights Act of 1964, said in court papers it was looking to dismiss the cases in Illinois, Alabama, New York and California, because they now conflict with a Trump administration executive order to recognize only two “immutable” sexes, male and female.Each of the six complaints alleges discrimination against transgender or gender-non-conforming workers.The case in Alabama charged a hospitality group with discriminating against an employee who identifies as gay, non-binary and male by firing him hours after co-owners learned of his gender identity.The New York lawsuit alleged that a hotel group fired a transgender housekeeper who complained that a supervisor repeatedly misgendered them and made anti-transgender statements, referring to the housekeeper as a “transformer” and “it”.The complaint in Illinois alleged that a Wendy’s franchisee subjected three transgender employees to pervasive sexual harassment and claimed a supervisor demanded to know whether one employee had a penis.In two other cases in the state, a transgender Reggio’s Pizza cashier at Chicago O’Hare international airport was “outed” by her manager, called a racist, homophobic slur by co-workers, and fired when she complained.In southern Illinois, at a hog farm called Sisbro Inc, a man allegedly exposed his genitals to a transgender co-worker and touched her breasts.In California, lawyers with the EEOC charged that a Lush handmade cosmetics store manager sexually harassed three gender non-conforming employees with “offensive physical and verbal sexual conduct”.The request to dismiss the cases marks a significant shift in the commission’s interpretation of civil rights law and contrasts with a 2015 ruling that determined that discrimination against transgender employees fell under federal sex-discrimination law.That decision found that the department of the US army had discriminated against Tamara Lusardi, a transgender employee who transitioned from male to female on the job, by barring her from using the same bathroom as all other female employees, and by her supervisors’ continued intentional use of male names and pronouns in referring to Lusardi after her transition.Last year, the EEOC updated its guidance to specify that deliberately using the wrong pronouns for an employee, or refusing them access to bathrooms corresponding with their gender identity, constituted a form of harassment.The request to dismiss the six cases comes as federal agencies have begun removing references to transgender identity from their websites but not sought to weaken protections against discrimination based on sexual preference.Last week, the National Park Service eliminated all references to transgender people from its website for the Stonewall national monument in New York that commemorates a 1969 riot, led by trans women of color, that ignited the contemporary gay rights movement.David Lopez, a former EEOC general counsel and professor at Rutgers law school, told the Associated Press that the commission has never previously dismissed cases based on substance rather than merit.For the country’s anti-discrimination agency “to discriminate against a group, and say: ‘We’re not going to enforce the law on their behalf’ itself is discrimination, in my view,” Lopez said. “It’s like a complete abdication of responsibility.”The commission’s website states that it received more than 3,000 charges alleging discrimination based on sexual orientation or gender identity in 2023, up more than 36% from the previous year. But a link for more information on discrimination based on sexual orientation or gender identity appears to have been removed.Two weeks ago, Trump dismissed two Democratic commissioners of the five-member EEOC before their terms expired. Soon after, the acting EEOC chair, Andrea Lucas, a Republican, signaled her intent to put the agency’s resources behind enforcing Trump’s executive order on gender.Lucas announced that one of her priorities would be “defending the biological and binary reality of sex and related rights”.“Biology is not bigotry. Biological sex is real, and it matters,” Lucas said in her statement. “Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths – or to use language like pronouns that flow from these realities, even repeatedly.”Lucas later ordered that the EEOC would continue accepting any and all discrimination charges filed by workers, but that complaints that “implicate” Trump’s order would be elevated to headquarters for “review”.Jocelyn Samuels, one of the EEOC commissioners who was fired last month, said that Trump’s executive order and the EEOC’s response to it “is truly regrettable” and that the administration’s “efforts to erase trans people are deeply harmful to a vulnerable community and inconsistent with governing law”. More

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      in US Politics

      The courts are a crucial bastion against Trump. What if he ignores their orders?

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      Years before he became the US vice-president and openly advocated defiance of the courts over the Trump administration’s blitz through the federal bureaucracy and constitution, JD Vance revealed his contempt for legal constraints.In 2021, Vance predicted that Donald Trump would again be elected president and advised him to “fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people”.“Then when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it,’” he told the Jack Murphy Live podcast.Whether the seventh American president actually said that remains disputed, but the sentiment is alive and well as the Trump administration defies federal court orders to at least pause its subversion of the constitution and destructive rampage through the federal bureaucracy led by Elon Musk.In the absence of action by Congress to defend its powers, it has been government workers, state attorneys general and unions who have counterattacked, with a flurry of lawsuits – challenging presidential orders to limit the constitutional right of anyone born in the US to be a citizen, a federal funding freeze, and the dismissal of corruption watchdogs, among other measures. Nearly 50 legal challenges have been filed in the last three weeks, an unprecedented pushback in the courts against a new administration.The lawsuits have resulted in a string of court rulings. They have put a hold on some of Trump’s executive orders freezing some spending. They have also restricted Musk, head of the so-called “department of government efficiency”, from sending his staff to rifle through the financial records of federal agencies such as the US Agency for International Development (USAid) and the education department as a means to restrict their work or even close them down.But it quickly became apparent that the administration was defying some of the court orders, while its supporters attacked what they called “rogue judges” for ruling against Trump – and Vance portrayed the courts as just another bureaucratic obstacle to the president implementing the people’s will.That has prompted warnings from legal scholars, including Erwin Chemerinsky, dean of the University of California Berkeley law school, of a constitutional crisis in the making.“It’s very frightening to think that they will disobey court orders. If they don’t, it will be a constitutional crisis unlike anything this country has seen, because if the president can violate constitutional laws and disobey court orders then the name for that is a dictatorship,” he said.“This isn’t the realm of normal. What we’ve seen in the first three weeks is unprecedented in American history.”The judge John McConnell has accused the Trump administration of deliberately disobeying an order obliging the government to reinstate billions of dollars in grants. Another judge, Loren AliKhan, accused the administration of defying its legal obligations after she ordered the office for budget and management (OMB) to halt a spending freeze.Vance pushed back against the rulings on X.“If a judge tried to tell a general how to conduct a military operation, that would be illegal,” he wrote.“Judges aren’t allowed to control the executive’s legitimate power.”Musk called for one of the judges involved to be impeached.Trump won a victory on Thursday when a judge ruled in favour of Musk’s offer to almost all of the 2 million-strong federal workforce of eight months of pay for not working if they resign now. The email’s subject line, “Fork in the Road”, was the same as one he used in a message to employees when he bought Twitter in 2022 and got rid of about 80% of its staff. Shortly after the deadline set by the email for voluntary redundancy, which was accepted by about 65,000 federal workers, unions said involuntary dismissals had begun.Karoline Leavitt, the White House press secretary, praised the rare court victory.“This goes to show that lawfare will not ultimately prevail over the will of 77 million Americans who supported President Trump and his priorities,” she said.But mostly the courts have so far ruled against the Trump administration as it pursues a power grab.The American Bar Association, which represents hundreds of thousands of lawyers in the US, has condemned what it called the Trump administration’s “wide-scale affronts to the rule of law itself”.“We have seen attempts at wholesale dismantling of departments and entities created by Congress without seeking the required congressional approval to change the law,” it said.The ABA also condemned “efforts to dismiss employees with little regard for the law and protections they merit” and social media posts intended “to inflame”.“This is chaotic. It may appeal to a few. But it is wrong. And most Americans recognize it is wrong. It is also contrary to the rule of law,” it said.It’s likely that at least some of the flood of lawsuits will end up before the supreme court. The administration may in fact want to see some cases reach the highest court, which has a solid conservative majority after Trump appointed three of its nine justices during his first term, as it seeks to consolidate even more power in the presidency over issues such as who has final control over spending allocated by Congress.But the process of moving through district and appeals courts before making it to the supreme court is unlikely to be swift, by which time Musk may already have achieved much of what he aims to do in wrecking the work of USAid, the education department and other federal agencies.Then there is the unpredictability of a supreme court that has already overturned precedent in striking down the right to abortion.Chemerinsky believes the Trump administration is all but certain to lose cases on birthright citizenship, the freeze on spending and the dismissals of commissioners that oversee labour rights, consumer protection and equal employment opportunities, because they are in breach of federal law. He said the court was also likely to order the administration to back down from attempts to eliminate individual agencies created by Congress.But what if the administration follows Vance’s call to openly defy the courts? Chemerinsky said that would set up “a constitutional confrontation unlike any we’ve seen”.“The courts have limited ability to enforce their orders. They could hold individuals other than the president in contempt of court. They could figure out who’s responsible for carrying out the court order and hold that person in contempt with fines or jail for civil contempt. But the idea of the courts holding a cabinet secretary, an attorney general, a secretary of defence in contempt is just unheard of in the United States,” he said.“It’s so hard to imagine where we’ll be in four years. When you think about what’s going on in just three weeks, it’s certain Donald Trump is claiming expansive executive power beyond what any president has ever asserted. How much will the courts allow that? There’s no way to know.” More