It Feels Like Chaos Out There

Yesterday it was South Korea, where there was continuing news that President Yoon may be forced out of office after his attempted power grab, despite the resignation of his Defense Minister. Today, it was France, where a vote of no confidence means the conservative Prime Minister appointed by increasingly unpopular President Macron just 91 days ago will have to resign. Some commentators suggest it was a play staged by Marine Le Pen and her ultra-right wing conservative party, a last ditch measure to give her some hope of becoming president, a position that has eluded her in three elections. Israel’s Prime Minister Bibi Netanyahu, who is in the middle of a corruption trial that has been repeatedly delayed, has been ordered to take the witness stand and is likely to do so, finally, next week. Safe to say, the United States is not the only country that finds itself in political turmoil at the moment.

Today, Trump finally signed a transition agreement with the Justice Department. That means that going forward, before he makes a nomination he can “submit names for background checks and security clearances.” You might think that Trump has had about enough with the Pete Hegseth debacle, but he spent the afternoon churning out nominations, as well as appointments to positions that do not require Senate confirmation, on Truth Social, including that of convicted felon Peter Navarro to be his Senior Counselor for Trade and Manufacturing. It is not about qualifications; it is about personal loyalty, and it's like watching a slow-moving trainwreck with democracy on the tracks.

An interesting note: rumors have surfaced that among those under consideration to replace Hegseth are Florida Governor Ron DeSantis.

DeSantis kissed the ring after his primary campaign failed, endorsing Trump when he left the race. Although far from traditionally credentialed for the Pentagon job, DeSantis has experience running a large show as the chief executive of the state of Florida, something that’s essential since the military’s budget is $850 billion a year. DeSantis was a commissioned officer in the Navy while attending Harvard Law School, was assigned to JAG, and served in Iraq after his graduation, so he has some familiarity with the military, albeit he’s not an infantryman.

However, there is a long and important tradition of civilian control of the military, embedded in the Founding Fathers’ view that the military should be under the authority of civil masters to prevent the emergence of tyranny or dictatorship from inside of the armed forces. DeSantis would more or less fulfill that notion, but his negative views about LGBTQ people, role as a chief culture warrior, and lack of combat leadership experience or at least academic expertise in the field will not do much to calm concerns in the military following the Hegseth nomination.

Also today, Trump’s lawyers asked the Georgia Court of Appeals to dismiss the Fulton County case as to Trump, and only Trump, arguing that the judge lacks jurisdiction over him because it is unconstitutional to prosecute an incoming president. Subtitle: One man is above the law.

Trump asks the court to accept his premise that “A sitting president is completely immune from indictment or any criminal process, state or federal.” The motion argues that the Supremacy Clause of the Constitution, which says that federal law is controlling when state law conflicts with it, means that presidential immunity applies to state cases just as it does to federal ones. Georgia’s courts are full of Republicans. We’ll find out whether those conservatives still believe in states’ rights or whether that, too, falls by the wayside in the face of the cult of Trump.

Fox News, The Wall St. Journal, and other outlets headlined a story about what’s being bandied about as a new Heritage Foundation roadmap for rebuilding our immigration system. “A conservative think tank is outlining how the incoming Republican Congress can fundamentally overhaul the American immigration system, helping it rise ‘from the ashes’ left by the Biden administration,” the story on Fox’s website began. It’s a bit ironic since Republicans rejected Democrats’ proposal for immigration reform last February, which gave them most of what they’ve been asking for.

Ignoring that, the paper’s author, Lora Ries, who is the director of the Heritage Foundation's Border Security and Immigration Center, argues that the Biden administration “erased the line between legal and illegal immigration.” Great political talking point, but inconsistent with what is actually happening. The Biden Administration has continued to prosecute immigration crimes, particularly defendants who have reentered the country after being deported and are associated with gangs or violence. Although misdemeanor border entry prosecutions were down, largely because the Biden Administration controversially continued Trump’s Title 42 policy of expelling people immediately at the border, more serious immigration crime prosecutions rose significantly after Biden took office. That’s something you won’t find reflected in the Heritage Foundation’s vision or Trump’s plan for mass deportations. We’ll try to take a careful look at this new plan from Heritage later this week.

It was a big day today at SCOTUS, where the Court heard oral argument in U.S. v. Skrmetti, the case involving whether minors could get gender-affirming care with their parents’ consent. Solicitor General Elizabeth Prelogar did an extraordinary job of navigating traps the conservative justices tried to lay for her. She argued that Tennessee’s ban on puberty blockers and hormone therapy—treatment that is available for non-trans minors—is unconstitutional gender-based discrimination. If the Court were to accept that position, Tennessee’s law would have to survive heightened scrutiny for the state to justify its restraint on a protected group’s rights. Prelogar argued the state of Tennessee failed to do so, not offering evidence the treatments resulted in serious harms that counterbalanced risks like suicide where care was not available. Some of the justices tried to take a run at that. Brett Kavanaugh and Amy Coney Barrett focused on what Prelogar explained was the exceptionally small group of people who changed their minds down the road. Prelogar countered that the treatments weren’t permanent and damage to fertility was rare.

Despite the Solicitor General’s reasonable and nuanced argument, it seems unlikely that this court will be willing to protect trans kids. The conservative Justices seemed to reject the notion that this law is a form of sex discrimination, even though cisgender kids will be able to access treatment that transgender people won’t be able to receive if these laws stand. But the votes seemed to be in place to permit Tennessee and other states to keep their restrictive laws in place. This is the kind of major case the Court often holds for the end of the term, so we will likely have to wait a while to know what the outcome is for sure.

I haven’t fully grappled with what it means for Trump to have four more years of appointments to the federal bench and to the Supreme Court. But this is an early harbinger. These sorts of restrictive laws will be tolerated and expanded. Today, it’s trans kids. Tomorrow, it may be gay marriage. In a piece for Vox, Ian Millhiser speculates the Court’s ultimate opinion could end all protection for sex discrimination. Dobbs was just the start.

Will there be more clemency following Hunter Biden? There are strong arguments in favor of more expansive use of the pardon power by President Biden. He has pardoned almost 13,000 people for crimes involving possession of marijuana, but they were reportedly people who had finished serving any custodial portion of their sentence. Roughly 3,000 people remain in custody for these nonviolent offenses, and Biden could pardon them all before his term ends. There is a set process involving the Office of the Pardon Attorney at DOJ in which pardon requests made by people who believe they should qualify are considered, and recommendations are made to the White House Counsel’s Office and on to the president.

But Politico reported tonight that “President Joe Biden’s senior aides are conducting a vigorous internal debate over whether to issue preemptive pardons to a range of current and former public officials who could be targeted with President-elect Donald Trump’s return to the White House, according to senior Democrats familiar with the discussions.” Kash Patel’s nomination to head the FBI has fueled concerns, according to the report. Unlike the usual cases where recipients petition the White House for a pardon, these are high level conversations that do not involve individuals who may ultimately be offered a pardon.

It’s a challenging situation because while some of the people in the former and future president’s sights may welcome a pardon, others are likely to maintain they have done nothing wrong and refuse to accept one on that basis. How best to protect Americans and America is the final challenge the Biden Administration will face before it draws to a close.

Finally, Olivia Troye (the former Republican national security official who served as an advisor to Vice President Pence until she resigned in July 2020, becoming an outspoken critic of President Trump) posted this on Bluesky: “Today, #KashPatel sent a letter to my counsel @markzaidesq.bsky.social threatening to sue & demanding I retract my MSNBC comments on his unfitness to serve as FBI Director. This follows his threats against media & political opponents, showing how he might act if confirmed. I stand by my statements.”

Olivia and others like her are going to need our support. But courage is contagious and far more fulfilling than fear. Maybe we can all catch it from her.

We’re in this together,

Joyce

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