Mike Lee and Jim Jordan want to kill the law that bans companies from cheating you (permalink)

House and Senate Republicans are on the verge of killing Section 5 of the Federal Trade Commission Act, one of the most potent anti-corruption laws on the US statute books:

https://www.thebignewsletter.com/p/house-gop-proposes-eliminating-key

More than a century ago, Congress passed the FTCA, and they made a point of including a clause that granted the new independent agency broad authority to investigate and prohibit "unfair and deceptive methods of competition." As Matt Stoller writes, over the ensuing 100 years, the FTC has used Section 5 to go after "illegal commissions, firms spying on rivals, sabotage, messing around with patents or regulations."

But starting with the Reagan era, both Republican and Democratic presidents have appointed FTC chairs who were loathe to invoke FTCA 5, shying away from the power and duty Congress had given them. This all changed with Biden's FTC chair Lina Khan, who revived the law, using it to punish companies for invading your privacy, blocking repair, locking workers in with noncompete clauses, and more:

https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyStatement.pdf

FTCA has been repeatedly upheld by the Supreme Court, and Congress liked the way it worked so much that when they created the Department of Transport, they copy-pasted the language of FTCA into the DOT's enabling legislation. Pete Buttigieg, Biden's Transport secretary, refused to use this power, but when Khan's chief of staff moved over to Transport, it became a powerhouse regulator, fighting ripoffs and scams in aviation, rail and more:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

Neoclassical economists hate laws like Section 5. The entire basis of neoliberal economics is that the economy can be modeled – and thus controlled – using mathematics. This ideology requires that economists ignore all qualitative aspects of society. Notoriously, economic modeling treats power as irrelevant, because it can't be quantified and plugged into a model:

https://pluralistic.net/2023/04/03/all-models-are-wrong/#some-are-useful

This is a hell of a deal for the powerful. Ignoring power lets a rich person who buys a starving person's kidneys claim to be engaged in a "voluntary transaction." Ignoring power lets private equity funds claim that gouging you on emergency room care and ambulance rides is fine, because you "freely chose" to be rushed to their hospital while dying of a heart attack. If we can all agree that power doesn't matter, then we can do away with all workplace protections, from the minimum wage to worker safety. Take power out of the equation, and you can claim that any worker on starvation wages who loses an arm in a badly maintained machine "freely contracted" into that situation.

Oligarchs and their lickspittles have waged a generations-long war on the very concept of power, and this assault on Section 5 of the FTC Act is just the latest skirmish. You see, "unfair and deceptive" is a qualitative idea, one that requires consideration of power relationships.

The abolition of fairness as a concept is central to Trumpism. Notoriously, Trump has claimed that any time he successfully rips someone off, "That makes him smart":

https://pluralistic.net/2024/12/04/its-not-a-lie/#its-a-premature-truth

The Trump movement is full of extremely successful cheats and liars. There's VCs like Mark Andreesen, whose fund paid a $100m bribe Kickstarter execs in exchange for a fake cryptocurrency launch, in a bid to lure more retail investors into the crypto bubble that Andreesen-Horowitz played a central role in:

https://finance.yahoo.com/news/untold-story-kickstarter-crypto-hail-120000205.html

And of course, there's Elon Musk, who lies about his cars, his robots, his rockets, his AI, and everything else. No wonder Elon Musk wants to get rid of a law that bans "unfair and deceptive methods of competition."

The bid to kill Section 5 of the FTC Act is hidden deep in a budget reconciliation amendment introduced by Rep Jim Jordan (R-OH), which pastes in sloppy language drafted by Sen Mike Lee (R-UT). The mechanism by which this amendment will neuter Section 5 is eye-glazingly complex, though Stoller does his best to make it comprehensible.

Far more important than the method by which Section 5 of the FTC Act will be gutted is the consequence of doing so. Stripping the FTC of the power to chase unfair and deceptive conduct will fire a starting pistol for even more ripoffs and scams. Worse than that, the Jordan amendment will kill enforcement of existing consent decrees from companies that have been successfully prosecuted under Section 5, allowing them to restart the scams that attracted regulatory scrutiny.

The Trump administration has been touting antitrust as its "alternative to regulation," drawing an arbitrary line between "regulation" and "antitrust." Antitrust is absolutely regulation:

https://finance.yahoo.com/news/antitrust-enforcement-not-regulation-doj-163251704.html

Indeed, antitrust is the most important regulation of all, because it's the regulation that keeps companies from getting so large and powerful that they can ignore all the other regulations. Without antitrust, companies become too big to fail, then too big to jail, then too big to care. The Trump admin will absolutely continue to do antitrust, but in the Trumpiest way possible – by attacking companies that offend Trump, rather than attacking companies that harm the public:

https://pluralistic.net/2024/11/12/the-enemy-of-your-enemy/#is-your-enemyis

This is gangsterism, the thing that comes after capitalism collapses into feudalism. In gangsterism, "fairness" and "power" have no place. All that's left is a kind of caveat emptor brainworm that insists that if you got scammed, you should have shopped more carefully. And if you got scammed at gunpoint, you just need to understand that the gun was held by the invisible hand, and it was pointed at you in an economically efficient manner.

Over the last few weeks multiple media outlets have reported on data analytics company Palantir’s closer collaboration with Immigration and Customs Enforcement (ICE) as the agency carries out Trump’s mass deportation efforts. 404 Media first reported that Palantir was awarded tens of millions of dollars to work on improving ICE’s immigration targeting and enforcement systems. A day later, 404 Media published an article based on internal Palantir Slacks and a wiki which showed the company was engaged on a six-month project to help find the location of people flagged for deportation. That same day, ICE published a procurement document laying out similar details of the project, called “ImmigrationOS,” Business Insider reported.

WIRED then reported that DOGE is building a master database to track down immigrants, likely to be hosted on Palantir-developed software. Last week CNN corroborated that reporting and said that Palantir is involved in building the database. U.S. Representative Gerry Connolly said in a letter to the oversight body for the Social Security Administration (SSA) that an agency whistleblower told them the “master database” will use data from SSA, IRS, and Health and Human Services (HHS). 404 Media also reported that ICE plans to bring together data from HHS, the Department of Labor (DOL), and Department of Housing and Urban Development (HUD).

Internally Palantir has justified its closer relationship with ICE because it believes its work can promote “efficiency, transparency, and accountability” and “enable fair treatment” of immigrants. ICE continues to deport some people with no due process.

💡Do you work at Palantir or an agency connected to this work? I would love to hear from you. Using a non-work device, you can message me securely on Signal at joseph.404 or send me an email at joseph@404media.co.

It is rare for outsiders to see a tech company’s justification for working on such a divisive project. For that reason 404 Media is publishing the full wiki page in which Palantir discusses the project and the ethics around it.

404 Media has retyped the wiki to protect the source who provided it and spelled out some acronyms where necessary.

A Palantir spokeswoman told 404 Media in an email “Palantir's work with the U.S. Government has spanned many administrations, as we have worked with the Department of Homeland Security since 2010 and are non-partisan. While unfortunate that this internal communication has leaked, we hope it reflects the careful consideration that we apply to all our sensitive work. It is core to who we are to maximize our team's collective perspective and hold as sacred dialogue and debate around our work given the power of our platforms.”

“Palantir's language about ‘fair treatment and legal protections’ inverts the reality unfolding before us: government agents abducting a Columbia student and permanent resident at his citizenship interview, and deporting a Maryland father to a prison overseen by a dictator, despite courts deciding he could stay and compelling the government not to remove him,” Laura Rivera, an attorney at Just Futures Law, previously told 404 Media in an email. “Palantir distorts the truth to obscure its complicity in carrying out an authoritarian agenda, supplying one of the world's most powerful domestic surveillance agencies with tools to enable their mass surveillance not only of immigrants, but of all of us,” she added.

ICE did not respond to a request for comment.

The full wiki follows below.

[The wiki starts by saying Palantir has worked with ICE since the fall of 2010 as part of Operation Fallen Hero]

Palantir has been steadfast in its support of HSI's [Homeland Security Investigations, a part of ICE] pursuit of transnational criminal activity, primarily focused on counter-narcotics, counter-human trafficking, counter-child exploitation and counter-IP infringement investigations. We count this work as some of our most impactful in the United States.

Over the last few years, our work at HSI has remained relatively steady-state. ICM [Investigative Case Management system, a long running ICE people search tool Palantir has worked on] had a minor expansion in 2024 to include the ICE Office of Professional Responsibility (OPR), which conducts internal investigations of ICE employees and handles detainee abuse claims. In late 2022, our prior Gotham analytics platform, FALCON, was sunset and replaced by an internal HSI development effort (RAVEn). From that point through early March 2025, our HSI contractual and program footprint has been focused solely on the ICM deployment.

During this period, Palantir engaged with HSI senior leaders to express our support for their mission and our concerns with the impact of their procurement efforts on operations in the field. As an example, when FALCON was sunset in late 2022 it had almost 3700 active users. RAVEn, by contrast, had a very small fraction of active users by fall 2024 after 5 years of development. Despite our continued engagement, HSI remained committed to their in-house development roadmap through the fall of 2024.

In late 2024, HSI leadership re-engaged Palantir about the state of their development efforts and market research to bring commercial software back into the investigative space. Coupled with the incoming administration's priorities, HSi's vision grew substantially more inclusive of ICE-wide efforts by March 2025. At that time, the HSI leadership team sought our assistance to accelerate mission progress across the agency.

Two main factors drove HSI's new sense of urgency: 1) clear failure by custom-developed projects to deliver real results for the field and 2) a renewed focus across ICE on immigration enforcement, which shined a light on the agency's data systems challenges and shortcomings. Because of this urgency, Palantir participated in a three week prototyping sprint at the HSI Innovation Lab. Based on the results of that sprint, we expanded the scope of our contract for the prototyping period.

Palantir is aligned with enabling immigration-focused agencies to utilize our platform to better track the immigration lifecycle and serve our national security while also promoting efficiency, transparency, and accountability. We provide the tools for our customers to enable fair treatment and legal protections for individuals across the spectrum of immigration status.

See previous ICE PCL [Privacy and Civil Liberties] FAQs for historical background covering our work with this customer, as well as ongoing exploratory discussions with partner agencies in DHS, including Customs and Border Protection (CBP).

Scope

The primary focus of Palantir's initial three week sprint was centered on providing immigration enforcement agents with improved awareness about the criminality and location of individuals who have already received a final order of removal. The goal was to show how the platform could help make field operations more efficient and increase focus on the most serious criminals. This effort also helps to build transparency and accountability into the enforcement prioritization and tracking workflows through process mining metrics and near real-time updates to subject records reflecting both affirmative and derogatory changes to an individual's immigration status and criminality.

Based on the success demonstrated in three weeks, ICE issued an update to our ICM contract to enable us to further configure this workflow (1, below) as well as two additional priority projects:

1. Enforcement Prioritization and Targeting—support the development of an accurate picture of actionable leads based on existing law enforcement datasets to allow law enforcement to prioritize enforcement actions.

2. Self-deportation Tracking—support tracking of voluntary returns to help ICE develop a more accurate understanding of individuals who voluntarily leave the United States; and

3. Immigration Lifecycle Operations—support deportation logistics planning and execution, including overlaying information about individuals being detained or removed with facility and transport resource availability.

This new effort will last approximately six months and is concentrated on delivering prototype capabilities. How those translate into longer-term engagements and outcomes—including questions of scope, primary partnering agency, technology components, etc.—is currently TBD and we will aim to provide additional periodic updates as the situation develops.

Discussion—A Layer Down

What's consistent?

Palantir remains fully committed to supporting HSI's transnational criminal investigative mission. We support data integration to drive investigations and analysis across HSI and partner agencies in areas ranging from countering human trafficking, stopping child exploitation, seizing illegal drugs, or supporting immigration enforcement actions. In addition, we will continue to pursue enhancements and new capabilities to ICM to provide deeper analytics and impact to HSI.Palantir remains committed to our enduring obligation to uphold privacy and civil liberty protections to the greatest extent possible through our product capabilities and impl [implementation] support efforts. Our work in this space is intended to promote government efficiency, transparency, and accountability. We believe these conditions are the necessary predicate to provide the tools to help ICE drive accurate enforcement actions and enable fair treatment and legal protections (including due process) for citizens and non-citizens.

What has changed?

The national conversation around immigration enforcement, both at the border and in the interior of the United States, has shifted. The country is experiencing an increased (and bipartisan) public desire for more focused effort on border security and the enforcement of existing immigration law. This was a prominent element of both parties' recent campaigns, and with this level of attention there is both a lot of opportunity to do good work, as well as risk of potential harm.Palantir has developed into a more mature partner for ICE. We recognize that to really support the agency's immigration enforcement mission, we must expand our aperture beyond HSI's ICM and even HSI. This means supporting workflows that are substantially distinct from our historical scope and into Enforcement and Remove Operations (ERO). Facilitating data integration across the space of border protection, detention, and removal, especially given the risks to individuals who may be involved in enforcement actions, is critical to that mission. We want to support the Government with technology that helps improve the accuracy, efficiency, and transparency of the mission.

Risks and Mitigations

Palantir is cognizant of the risks to privacy and civil liberties involved in these mission sets and how they may be influenced by shifts in priorities. Immigration enforcement may undergo significant changes due to any number of factors over the next few years—agency consolidation, enforcement criteria, public opinion, agency and government priorities, the use of advanced Al, etc.—and we will continue to support our teams partnering with ICE to help navigate the terrain as it comes into focus, while providing the tools that will enable the mission in the most accurate, efficient, and transparent way.

Our approach to PCL will continue to be a key factor in this work, as it is across our commercial and government business. We recognize at the outset that the uncertainties and risks may shift the balance and focus of potential mitigations depending on how the agencies, policies, and prioríties evolve over time.

Many risks will not be within our means to address—some are structural and must be considered as fully baked into the equation by virtue of a willingness to engage at all in these efforts. It's important to note that there will be failures in the removal operations process. While our goal is to provide the government the best solutions to help minimize those effects, we also recognize that technology is not a panacea that will ensure that no adverse outcomes occur.

It's worth re-stating: we are pursuing this effort because we believe it is critical to national security and that our software can make a meaningful difference in the safety of all involved in enforcement actions. There are substantial areas of project scope, and product implementation, where we believe our work is well positioned to support meaningfully better outcomes:

Data Quality—A significant risk in immigration enforcement workflows stems from data quality issues. Agencies face challenges due to fragmented data environments and limited trust in data accuracy, which is crucial for informed decision-making. Core Foundry data quality tooling may serve as a critical component for ensuring that decisions and actions reflect the most precise views of individual status and risk profiles.Agency Coordination—Involving numerous federal, state, and local law enforcement agencies in detainee processing can lead to miscommunications and duplicative or disproportionate actions. By integrating data, agencies can effectively deconflict their efforts, ensuring resources are focused on the most important enforcement initiatives.Additional Transparency—We are working with the ICE team to update and review privacy and oversight documentation, such as applicable Privacy Impact Assessments (PIAs) and System of Record Notices (SORNs), to ensure that formal requirements and public reporting are conducted faithfully and consistent with the law.

PCL, leadership and legal team members will remain in close contact with the on-the-ground impl team to maintain a consistent understanding of facts on the ground, keep cadence with developments, issue spot new concerns, and help implement mitigation measures.

Thirty years ago today, I was driving a moving van across the country, from the west coast to the east. The hold was packed well; the ride was wobbly, and I kept the heavy vehicle between the lines, mile after mile. Driving carefully, I was surprised to be stopped by state troopers. When I rolled down the window to face some polite questioning, I didn’t know that Timothy McVeigh had bombed the Murrah Federal Building in Oklahoma City, killing 168 people and injuring 684 more.

In the days that followed, the horror was treated for what it was: an attack by a racist, right-wing anti-government terrorist. I worry now that, thirty years on, a similar attack is very likely, and would have a different outcome. I don't want us to be more frightened than we should be. But I do want us to be ready, so that a moment of predictable shock does not become a lifetime of avoidable subjugation.

As I will try to show, the present government invites a terror attack. Most of the people directing the relevant agencies are incompetent; the next few layers down have been purged in culture wars; much the remaining personnel have resigned, been fired, or are demoralized; resources have been diverted away from terror prevention; Americans has been distracted by fiction and chaos; and potential attackers have been encouraged.

And so we have to think — now — about what would follow such an attack. Musk, Trump, Vance, and the rest would try to exploit the moment to undo remaining American freedoms. Let me cite Lesson 18 of On Tyranny.

18. Be calm when the unthinkable arrives. Modern tyranny is terror management. When the terrorist attack comes, remember that authoritarians exploit such events in order to consolidate power. The sudden disaster that requires the end of checks and balances, the dissolution of opposition parties, the suspension of freedom of expression, the right to a fair trial, and so on, is the oldest trick in the Hitlerian book. Do not fall for it.

In just three months, the Trump people have made the unthinkable much more likely. They have created the conditions for terrorism, and thus for terror management. This is true at several levels.

Most obviously, they have debilitated the services that detect terrorist threats and prevent attacks: the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), the Department of Homeland Security (DHS), and the National Security Agency (NSA). The CIA is a foreign intelligence service. The FBI is the federal police force. The NSA, which specializes in cryptography and foreign signals intelligence, is part of the Department of Defense. Homeland Security is a cabinet-level department that amalgamates a number of functions from immigration control through disaster relief and anti-terrorism.

Overall guidance over the intelligence agencies is exercised by Tulsi Gabbard, who is known as an apologist for the now-overthrown Assad regime in Syria and the Putin regime in Russia. The director of the FBI is Kash Patel, an author of children's books that promote conspiracy theories, and a recipient of payments from sources linked to Russia. Patel plans to run the agency from Las Vegas, where he resides in the home of a Republican megadonor. The deputy director of the FBI is Dan Bongino, a right-wing entertainer who has called the FBI "irredeemable corrupt" and indulged in conspiracy theories about its special agents. He now draws FBI special agents away from their usual duties to serve as a personal bodyguard. The director of Homeland Security is Kristi Noem, who lacks relevant expertise.

Noem has distinguished herself by posing in front of a cell full of prisoners in El Salvador. Homeland Security is focused on spectacular abductions at the expense of its other missions. Its programs to prevent terrorism have been defunded, and it is no longer keeping up its database on domestic terrorism. As one insider put it: “The vibe is: How to use DHS to go after migrants, immigrants. That is the vibe, that is the only vibe, there is no other vibe. It’s wild — it’s as if the rest of the department doesn’t exist.” The obsession with migrants means that local law enforcement, all across the country, is being in effect federalized in the service of an objective that is essentially irrelevant to core missions. That, too, makes life easier for aspiring terrorists.

The National Security Agency sits within the Department of Defense, which is run by Pete Hegseth, a right-wing entertainer and culture warrior. He has fired people who were qualified, and is unable to keep even his own people at work — he just lost four staffers in one day. The “meltdown” at the top of the Pentagon bodes ill.

The leadership of the NSA itself was recently changed, under bizarre and troubling circumstances. After a meeting with conspiracy theorist Laura Loomer, Trump fired the NSA director, General Timothy Haugh. Wendy Noble, the deputy director, was also fired. This decapitation was part of a larger set of firings initiated by Loomer. It takes place during an ongoing purge of military leaders and national security officials. From the perspective of potential attackers, the culture wars mean vulnerability.

Meanwhile, other Department of Defense agencies that are central to the twenty-first century security of the United States, such as the Defense Digital Service, are destroyed by Elon Musk’s DOGE. It is worth contemplating the reaction of a former Pentagon official: “They’re not really using AI, they’re not really driving efficiency. What they’re doing is smashing everything.” In general, the penetration of the federal government by DOGE has weakened its functions, and likely made critical data available to adversaries who wish to hurt Americans.

The rank and file of the critical institutions are subjected to administrative hostility and chaos. The names of active CIA officers have been sent on open emails to the White House, and in a Signal chat in which a reporter was included. CIA employees have been urged to take early retirement. CIA officers involved in any way in diversity recruitment have been fired (a judge has blocked this, for the time being).

FBI special agents have been exposed to similar indignities. Top FBI officials have been pressured to resign and have done so. Musk-Trump is pursuing FBI special agents who were involved in prosecutions of people who stormed the Capitol on January 6th 2021. Patel proposes that special agents be trained by a company that promotes commercial fights that is based in Las Vegas. Sending FBI special agents to Nevada to simulate Fight Club for Patel’s personal delectation is not going to keep Americans safe.

The Musk-Trump people run national security, intelligence, and law enforcement like a television show. The entire operation of forcible rendition of migrants to a Salvadoran concentration camp was based upon lies. It is not just that Kilmar Abrego Garcia was mistakenly apprehended. The entire thing was made for television. Its point was the creation of the fascist videos. But this is a media strategy, meant to frighten Americans. And a media strategy does not stop actual terrorists. It summons them.

Terrorism is a real risk in the real world. The constant use of the word to denote unreal threats creates unreality. And unreality inside ket institutions degrades capability. Security agencies that have been trained to follow political instructions about imaginary threats do not investigate actual threats. Fiction is dangerous. Treating the administration’s abduction of a legal permanent resident as a heroic defense against terror is not only mendacious and unconstitutional but also dangerous.

Moreover, Musk-Trump make the United States look vulnerable. Americans under the spell of Trump’s or Musk’s charisma might imagine that strength is being projected. Not so. To prospective terrorists we look erratic and weak. Even apparently unrelated policies — such as enabling foreign disinformation, gutting environmental protection, undoing weather forecasting, ending food inspections, and undermining disease control — make life easier for terrorists and open avenues of attack. By taking apart the government, crashing the economy, and dividing the population, Musk and Trump invite attention of the worst sort, from people who wish to hurt Americans.

Who are such people? Three possible groups of perpetrators of a major terrorist attack in the United States are native right-wing nationalists or white supremacists (“domestic violent extremists”), Islamicists, and Russians.

Most terrorism in the United States is domestic, and most of the domestic terror comes from the far right. We have recently seen a series of white supremacist killings. Cody Balmer, who wanted to kill Pennsylvania’s (Democratic, Jewish) governor, wrote that “Biden supporters should not exist.”

It might seem counter-intuitive that the far right would carry out acts of terror under Trump, but this is already the norm, and there are good reasons to expect worse. Musk pushes the story that civil servants deserve pain. The most lethal domestic terror attack in US history, McVeigh’s bombing, was directed against federal workers. Right-wing terrorists might believe that terror is what Trump wants. The suspect in the recent Florida mass shooting “advocated for President Donald Trump's agenda and often promoted white supremacist values,” according to someone who saw him regularly. Trump has long practiced stochastic violence. His pardon of the January 6th criminals encourages terror with the promise of forgiveness. Patel promoted a recording of the January 6 criminals singing the national anthem. This coddling culture of martryrdom makes more killing more likely.

There is also another scenario. Far right movements can divide, with the more impatient angry with those they see as compromised. This is a lesson from the history of fascism. Some supporters of Trump will be disappointed with him. The assassination attempt on Trump was carried out by someone whose social media posts conveyed hatred of Jews and immigrants. Bongino now has to contend with fans of his show who think that the January 6th criminals should be running the FBI.

The Murrah Federal Building, Oklahoma City, 19 April 1995

And our guard has been dropped. Even at the best of times, the FBI has generally had trouble articulating the centrality of domestic right-wing terrorism. Now the risk is denied. High officials of Musk-Trump tend to share the views of right-wing nationalists, which makes it less likely that they will be seen as a threat. Under Patel, the FBI will deprioritize this important area of investigation. In keeping with his and Noem’s priorities, FBI agents have been assigned away from domestic terrorism. Thus far, the main "terrorist" threat seen by Trump-Musk are protestors in front of Tesla dealerships. Diverting attention to parking lots will not keep Americans safe.

Musk-Trump are also generating scenarios for Islamicist terror. A motivation for Islamicist terrorists is contention over territory in the Middle East. The Trump administration advocates the ethnic cleansing of the entire (surviving) population of Gaza. The US armed forces are also firing ordnance into Yemen with the announced goal of "annihilating" the Houthis who hold power. In a Signal group chat, top national security officials rejoiced (with emojis) over a strike in which a building collapsed. It seems unclear that Musk-Trump will have accounted for the related terrorism risk.

Russia is now a risk in a way that it was not before. It has special units that carry out acts of destruction abroad, such as assassinations and sabotage. In the last three years, these operations have accelerated inside Europe, and include blowing up military sites. Russia also pays people inside other countries to carry out acts of terror and sabotage. Russia has been carrying out cyber attacks inside the United States for years.

Before Musk-Trump, the United States had been fastidious about including Russia as a possible source of foreign terror. Now Russia is presented as an ally and Putin as a friend; intelligence and defense work designed to monitor Russian sabotage inside the United States have been scaled back, as has tracking of Russian war crimes in Ukraine and public reporting on Russia. Gabbard, the director of national intelligence, rationalizes Russian aggression. Patel, the FBI director, owes his career to the claim that people who (truthfully) speak of Russian operations inside the United States are carrying out a hoax. Trump’s nominee for US district attorney for Washington, DC, is a media star in Russia.

This is all beyond the wildest dreams of the Kremlin. The Putinism on display in the federal government creates an atmosphere in which a Russian operation inside the United States would be much easier.

It is not hard to see what Russia would gain from a false-flag terror attack on American territory. Moscow would be seeking to weaken the United States, and by generating a response from Musk-Trump that suits Russia. Having Trump blame his enemies for what was in fact a Russian attack is in the interest of the Russian Federation.

Other actors than these three are also possible. I fear, though, that whether I am right or wrong about the specific source, there can be no doubt that we are far more vulnerable than we were three months ago. And any major attack, regardless of origin, would lead to the same kind terror management. The people in the White House have no governing skills, but they do have entertainment skills. They will seek to transform themselves from the villains of the story to the heroes, and in the process bring down the republic. Please indulge me if I ask you to consider Lesson 18 again.

18. Be calm when the unthinkable arrives. Modern tyranny is terror management. When the terrorist attack comes, remember that authoritarians exploit such events in order to consolidate power. The sudden disaster that requires the end of checks and balances, the dissolution of opposition parties, the suspension of freedom of expression, the right to a fair trial, and so on, is the oldest trick in the Hitlerian book. Do not fall for it.

20 lessons, read by John Lithgow

That lesson arises from two notorious twentieth-century examples: the Reichstag Fire in Germany in 1933, which Hitler used to declare a state of emergency, and the Kirov assassination in the Soviet Union in 1934, which Stalin used as an excuse to expand terror. In both cases, it is the reaction that we remember, rather than the event itself.

I wish that terrorist attacks were a moment when government could be trusted. But the temptation, for any government, is to take the shock and to divert it in a convenient direction. And the temptation, for us, is to imagine that our leaders will rise to the occasion. After 9/11, I listened to President Bush address the nation, sitting in my pickup, on the driveway outside a friend’s house. Though my own politics were very different, I remember the pull inside me, the wish to believe that he would do the right thing. I didn’t let myself believe anything of the sort, but I remember the feeling: and it is that tug that we cannot let get the best of us.

Our present government would be the last to resist the temptation to exploit terror. Musk-Trump would, I fear, make little if any attempt to apprehend the responsible people, especially if they are Americans or Russians. They might blame the Democratic Party, or Americans they hate for other reasons, or the opposition generally, or Canadians or Ukrainians or other Europeans. They will likely try to put an end to the American republic.

Right then comes is the critical moment when we must prevent ourselves from going along.

I do not relish describing this chain of events. But the only way to cut the chain it is to see the links. And when we can imagine that we ourselves have the power to cut the links, as we do, we can also imagine ourselves more free.

History teaches us how terrorist attacks are exploited. Our advantage is that we know this history, and so react sensibly. Do not give the present regime the benefit of the doubt after it allows a terrorist attack to take place on American soil. Be skeptical about its account of who is to blame. Insist that Musk-Trump take responsibility. And understand that freedom is the first condition of security. A terrorist attack is no reason to concede anything to this regime. On the contrary: such a failure by Musk-Trump would be one more reason, and a very powerful one, to resist it.

Throughout history, and around the world right now, government indifference and incompetence that leads to civilians deaths has been seen as a reason for protest.

The night before I was stopped by the police, I had been driving that truck through water. It was a time of high rain in the central United States. Highways were flooded.

In the pre-revolutionary France of the eighteenth century, decadent rulers said “après nous, le déluge” — “after us, the flood.” We care not at all about the consequences of our actions; we are here to profit so long as we can. This is the attitude of Musk, Trump, and the rest. They are in it for themselves, provoking disasters for the rest of us along the way.

A few days before that drive began, I finished my doctoral dissertation, about revolutions, based on research in post-communist Poland. One of my supervisors was the the British historian Timothy Garton Ash. Considering the task of Poland’s new democratic government, he reversed the formula of French royalty, writing: “après le deluge, nous.”

After the flood, we remain. The disaster brought by the decadent is part of the story. But it is not the conclusion. It is what we do next that matters.

He's lost his freaking mind. 25A needs to happen now.

It was another good day for those hoping the forces of democracy will prevail over the forces of chaos and autocracy. Four major stories frame the effective resistance that is beginning to turn the tide against Trump.

A three-judge panel of the Fourth Circuit Court of Appeals rebuked Trump’s bad-faith effort to evade responsibility for returning Kilmar Abrego Garcia—and delivered a stirring defense of the rule of law!

Harvard stood firm even as Trump expanded his illegal targeting of Harvard by threatening to exclude tens of thousands of foreign students.

GOP Senator Lisa Murkowski broke the wall of silence behind which most of her Republican colleagues are hiding, chastising them for abandoning the Constitution.

Senator Chris Van Hollen met with Kilmar Abrego Garcia in the infamous El Salvadoran prison—a testament to his persistence, resistance, and creative thinking.

Concerned citizens across America are planning another weekend of protests against the unlawful and unconstitutional actions of the Trump administration.

Finally, the damage caused by Trump’s assault on the economy is driving markets lower, forcing Trump to make a desperate and illegal threat: Removing the Chair of the Federal Reserve Board of Governors, Jerome Powell. The threat is a sign of weakness and fear on Trump’s part.

Let’s take a look at these stories to understand why we should move forward with confidence in our defense of the rule of law.

Fourth Circuit panel rebukes Trump over Abrego Garcia while framing the constitutional showdown in an opinion written for the American people, the Supreme Court, and Trump.

The stakes in the Abrego Garcia case pending before Judge Paula Xinis are high. She has ordered the Trump administration to participate in discovery to learn why the government has refused to comply with the Supreme Court’s order to “facilitate” the return of Abrego Garcia.

The Trump administration appealed Judge Xinis’s discovery order to the Fourth Circuit, repeating the government’s bad-faith arguments to justify its refusal to comply with the orders of Judge Xinis and the Supreme Court.

Trump then asked the 4th Circuit to stop the discovery proceedings designed to learn the “who, why, and how” of the government’s disobedience to the court’s order.

A three-judge panel of the Fourth Circuit denied the Trump administration’s request to stop the discovery proceedings before Judge Xinis.

In denying the Trump administration’s request to stop the discovery ordered by Judge Xinis, the Fourth Circuit issued an extraordinary opinion that perfectly captures the conflict at the center of the Abrego Garcia case and describes the impending constitutional crisis that would be caused by Trump’s continued refusal to comply with the orders of Judge Xinis and the Supreme Court.

The relatively brief opinion by the Fourth Circuit deserves to be read in its entirety—and today, I am going to ask you to do just that. Rather than directing you to a different site to read the opinion, I have copied it below. I have removed legal citations and procedural references to make an easy-to-read opinion even more accessible.

The opinion by the Fourth Circuit perfectly frames the crisis to come while highlighting the underlying constitutional and democratic values that are at stake. I have bolded some portions of the opinion for emphasis. Otherwise, the words below are those of the Fourth Circuit in their entirety.

Abrego Garcia v Noem | No. 25-1404 | April 17, 2025

WILKINSON, Circuit Judge, with whom KING and THACKER, Circuit Judges, join:

The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all.

The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.

Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order.

Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?

The Supreme Court’s decision remains, as always, our guidepost. That decision rightly requires the lower federal courts to give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” [ ]

That would allow sensitive diplomatic negotiations to be removed from public view. It would recognize as well that the “facilitation” of Abrego Garcia’s return leaves the Executive Branch with options in the execution to which the courts in accordance with the Supreme Court’s decision should extend a genuine deference. That decision struck a balance that does not permit lower courts to leave Article II by the wayside.

The Supreme Court’s decision does not, however, allow the government to do essentially nothing. It requires the government “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”

“Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art.

We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive. Thus, the government’s argument that all it must do is “remove any domestic barriers to [Abrego Garcia’s] return,” is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.

“Facilitation” does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. “Facilitation” does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here.

Allowing all this would “facilitate” foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.

The government is obviously frustrated and displeased with the rulings of the court. Let one thing be clear. Court rulings are not above criticism. Criticism keeps us on our toes and helps us do a better job.

Court rulings can overstep, and they can further intrude upon the prerogatives of other branches. Courts thus speak with the knowledge of their imperfections but also with a sense that they instill a fidelity to law that would be sorely missed in their absence. It can rescue the government from its lassitude and recalibrate imbalances too long left unexamined.

The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace. And the differences do not end there.

The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?

And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.

Today, both the United States and the El Salvadoran governments disclaim any authority and/or responsibility to return Abrego Garcia. We are told that neither government has the power to act.

The result will be to leave [Abrego Garcia] in an interminable limbo without recourse to law of any sort.

The basic differences between the branches mandate a serious effort at mutual respect. The respect that courts must accord the Executive must be reciprocated by the Executive’s respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate.

It is in this atmosphere that we are reminded of President Eisenhower’s sage example. Putting his “personal opinions” aside, President Eisenhower honored his “inescapable” duty to enforce the Supreme Court’s decision in Brown v. Board of Education II to desegregate schools “with all deliberate speed.”

This great man expressed his unflagging belief that “[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts.”

Indeed, in our late Executive’s own words, “[u]nless the President did so, anarchy would result.” Id. Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both.

This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dint of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions.

The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.

This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

The Fourth Circuit’s opinion is brilliant. It is measured, deferential, and brutally honest. It describes the stakes of the coming clash without being confrontational; indeed, the closing paragraph hopes for a resolution that honors the rule of law.

However, the Fourth Circuit also exhibits confidence that the rule of law will prevail, predicting that the “law in time will sign [the Executive’s] epitaph.” Sooner or later, Trump will lose, and his lawless deeds will be recorded in opinions and judgments like those issued by Judge Xinis and the Fourth Circuit.

Any rational president would take the hint and cut their losses before it is too late. Trump won’t act rationally, but the Fourth Circuit opinion is a template for the judgment of history that will be the epitaph of this administration.

Harvard resists more threats from Trump as other universities join Harvard in solidarity.

Trump threw a temper tantrum after Harvard University declined Trump’s invitation to surrender its independence and become a vassal state of MAGA world.

Trump’s first reaction was to order the IRS to revoke Harvard’s tax-exempt status—a task that the IRS is busily pursuing.

Trump’s second reaction was to threaten Harvard’s foreign students by demanding information that would allow ICE to harass and deport them. See The Guardian, Trump official threatens Harvard foreign student admissions as more universities rally in support.

Per The Guardian,

The Department of Homeland Security (DHS) said late on Wednesday that Harvard would lose its ability to enrol foreign students if it did not meet the Trump administration demands to share information on some visa holders.

Harvard sent a perfunctory reply that said, in essence, “See our prior response.”

Princeton and Columbia also issued statements of solidarity (joining Stanford University, among others). While it is true that Columbia University did agree to some oversight by the Trump administration, the acting president of Columbia issued the following statement:

To put minds at ease, though we seek to continue constructive dialogue with the government, we would reject any agreement that would require us to relinquish our independence and autonomy as an educational institution.

It looks as though Trump’s continued bullying of Harvard is having the opposite of the intended effect. Rather than intimidating other universities into silence, Trump’s bullying is inspiring them to action.

Courage is contagious! Keep up the good work, Harvard!

GOP Senator Lisa Murkowski breaks wall of silence behind which her colleagues are hiding, chastising them for abandoning the Constitution.

Democrats are only a handful of seats away from controlling the House and the Senate—or at least from being able to mount bipartisan resistance to Trump’s lawless agenda.

On Thursday, Senator Lisa Murkowski said the quiet part out loud as she spoke at an annual leadership summit in Alaska. As reported by the Alaska News Daily,

Murkowski was exceptionally candid, criticizing aspects of the Trump administration’s approach to implementing policy measures and service cuts, some of which she described as “unlawful.”

Murkowski said, in part,

We are all afraid. It’s quite a statement. But we are in a time and a place where I certainly have not been here before. And I’ll tell ya, I’m oftentimes very anxious myself about using my voice, because retaliation is real. And that’s not right.

It’s called the checks and balances. And right now we are not balancing as the Congress.

I share this with you not to say that ‘we don’t know anything,’ but I’m saying that things are happening so fast through this Department of Government Efficiency, DOGE … none of us understand the half of it,

There is a growing number of Republicans, which needs to happen, who are saying ‘Medicaid is off the table.”

See also Talking Points Memo, Murkowski Calls Out Her Colleagues For Abandoning Their Constitutional Duties

Senator Murkowski’s comments should give us hope that the protests and resistance are having their intended effect. As the Senator noted, her colleagues are getting nervous about cuts to Medicaid that are a necessary part of the House’s recent budget proposal.

As noted in the Talking Points Memo article linked above,

A dozen House Republicans sent a letter to House GOP leadership and Energy and Commerce Committee Chair Brett Guthrie (R-KY) earlier this week, warning them that they won’t vote in favor of any reconciliation package that includes sweeping cuts to “Medicaid coverage for vulnerable populations.”

Senator Chris Van Hollen met with Kilmar Abrego Garcia in the infamous El Salvadoran prison—a testament to his persistence, resistance, and creative thinking.

Maryland Senator Chris Van Hollen met with Kilmar Abrego Garcia one day after El Salvadoran authorities refused Senator Van Hollen’s request. See The Guardian, Maryland senator meets Kilmar Ábrego García in El Salvador amid battle over US return | US immigration.

We will learn more on Friday after Senator Van Hollen returns to the US, but he deserves kudos for his persistence, resistance, and creative thinking in the face of seemingly insurmountable obstacles. In the words of the great Wayne Gretzky, “You miss 100% of the shots you don’t take.”

Senator Van Hollen took a long shot—and was successful. We need more bold action and creative thinking from Democratic leadership!

Weekend Protests on 250th Anniversary of Lexington and Concord

Saturday, April 19, 2025, is the 250th Anniversary of the Battles of Lexington and Concord—events that served as the catalysts for the American War of Independence.

Although nationwide protests will be taking place, the impetus for the protests is being driven from the local level of grassroots organizations. It has been difficult to find reliable, organized platforms to help direct readers to nearby protests.

I suggest you check with your local chapters of grassroots organizations as the the best way to make your voice heard.

But also check out:

The Big List of Protests

Tesla Takedown | Take action at Tesla showrooms everywhere.

FiftyFity.one (This site has been crashing and is a bit difficult to navigate, but many readers recommend it.)

Trump says that Fed Chair Jerome Powell “can’t quit soon enough.”

Federal Reserve Chair Jay Powell said at a speech on Wednesday that reducing interest rates in the face of unprecedented tariffs would be difficult. Trump immediately told reporters that he was eager for Powell’s termination as Fed Chair. See ABC News, Trump says he's eager for Fed Chair Jerome Powell's 'termination'.

Terminating the Fed Chair over policy differences would be unlawful. The Supreme Court would decide any legal dispute, but the markets would deliver a swift and negative reaction to any effort by Trump to take over monetary policy from the Federal Reserve. Trump has already demonstrated his economic ignorance when it comes to tariffs. The markets would revolt if he claimed the authority to change interest rates for political purposes.

As I said above, the threat against Jerome Powell reeks of desperation as Trump attempts to escape from the tariff war he created without forethought.

Concluding Thoughts

I will hold my usual Saturday morning live stream on Substack on April 19, 2025, at 9 a.m. PDT / Noon Eastern. I will post the recording of the video shortly after the meeting concludes.

Because of the length of this newsletter, I will be very brief in my concluding thoughts. Pundits and Democratic politicians are saying that Democrats should stop talking about the state-sponsored kidnapping of Kilmar Abrego Garcia, DEI, and transgender people. Instead, they say, we should talk about the economy because that is the smart “political” move.

Human rights transcend politics. If we abandon the defense of human rights, then politics is reduced to petty battles over personal power. The object of politics is to ensure the dignity, liberty, and safety of the people.

We must never surrender our commitment to the values that animate our political efforts. Let’s be brave enough to seek political victory without abandoning the people for whom we engage in the art of politics.

Talk to you tomorrow!

Daily Dose of Perspective

The tradition of decorating eggs can be traced back over 60,000 years in Africa. In pre-dynastic Egypt, decorated eggs were associated with re-birth, which led early Christian communities to adopt the custom of decorating eggs during their Easter celebrations.

Thursday, Jill and I dyed eggs with our granddaughters. (ages 2, 4, and 4) in preparation for Easter morning. (Photo of the finished products below.) In doing so, we were repeating a custom that has endured for 60,000 years. Something to think about as we head into another Spring!