Slate’s Jurisprudence team has kicked off Opinionpalooza! Check out our yearly package that tops off the end of the Supreme Court’s term with stories explaining all of the court’s major decisions from legal experts Dahlia Lithwick, Mark Joseph Stern, and more.

President Donald Trump has pushed, twisted, and abused plenty of federal laws over the past 18 months in order to accomplish his agenda through brute force, from invoking the century-old Alien Enemies Act to advance his mass-deportation plan to eliminating the Department of Education without congressional approval to, most recently, trying to establish a $1.8 billion “anti-weaponization” fund. Despite judges from across the political spectrum consistently finding these actions unlawful, the Trump administration has not slowed down in the slightest. This week, though, we learned that the president was seriously considering what would have been perhaps the most aggressive and terrifying attack on the rule of law yet: the suspension of habeas corpus, a core constitutional right that allows a person to challenge their detention in federal court. Habeas corpus has been suspended only four times in the history of the United States.

Suspension would have focused on immigrants lacking legal status but not necessarily been limited to them. Dating back to the Magna Carta and later enshrined in Article 1 of the Constitution, the writ of habeas corpus is a judicial order that requires law-enforcement authorities to come before a judge to justify a prisoner’s continued confinement. It was established as a safeguard against arbitrary and unlawful imprisonment, so if a judge finds the government’s reasoning insufficient, they hold the power to immediately order the prisoner’s release with sufficient legal grounds. Habeas petitions are not meant to determine a prisoner’s guilt or innocence; they serve only as a test of the legality of the detention.

According to the New York Times, as the Trump administration was attempting to quickly scale mass deportations last year, senior officials threw around the idea of suspending habeas—something only Congress, not the executive, has the power to do. The administration felt stymied by the courts, because noncitizens swept up in immigration raids across the country were exercising their legal rights by filing habeas petitions, and judges were consistently finding against the Trump administration that many had been unlawfully detained. Without extreme intervention, the White House realized, the president’s plan to deport 1 million people by the end of his first year was becoming further and further out of reach. (The administration ultimately fell well short of this goal.)

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By May 2025, just a few months after U.S. District Court Judge James Boasberg held that the Justice Department had violated his restraining order that aimed to bar deportation flights from the U.S. to El Salvador, White House senior adviser Stephen Miller suggested that a new approach was under consideration. “The writ of habeas corpus can be suspended in a time of invasion. So I would say that’s an option we’re actively looking at,” Miller, who is not a lawyer, told journalists. Reporting by the Times reveals that although Miller and other senior administration officials discussed suspending habeas, the idea was eventually dropped as it became apparent the move would certainly be challenged in court and become a “huge, self-inflicted distraction.”

Suspending habeas corpus is not a simple on/off switch. The Constitution explicitly states that the right can be suspended only through an act of Congress and only “when in Cases of Rebellion or Invasion the public Safety may require it.” This has happened just a few times in U.S. history: during the Civil War; during Reconstruction, an era when violence by the Ku Klux Klan peaked; after the attack on Pearl Harbor; and finally, in the 2000s by former Republican President George W. Bush, who claimed that terrorism suspects at Guantánamo Bay could be indefinitely imprisoned because no court had jurisdiction to hear their cases. The Supreme Court disagreed with Bush, declaring in a landmark decision that despite detainees’ designation as enemy combatants or incarceration at Guantánamo, they are not barred from seeking habeas.

The importance of habeas corpus at this moment cannot be overstated. The Trump administration has chosen to take an intensely punitive interpretation of immigration law, refusing to parole detainees so they remain behind bars, and eliminating bond proceedings for the overwhelming majority of noncitizens. “A federal habeas petition is one of the only mechanisms that people have left to seek their release from illegal and unconstitutional detention,” Elora Mukherjee, the director of Columbia Law School’s Immigrants’ Rights Clinic, told me. “And it may be the only mechanism that people have before they are illegally and unconstitutionally deported from the United States, in violation of their due process rights.”

Removing a person’s right to challenge a detention via habeas petition would essentially be a death knell to any semblance of protection from deportation for pretty much anyone, regardless of legal status. We’ve watched as the Trump administration has admitted that it mistakenly deported people like Kilmar Abrego Garcia, as numerous judges have continued to find that the federal government has been wrongly arresting lawful U.S. residents, and as deaths of detainees held in Immigration and Customs Enforcement custody have hit an all-time high this year. Not to mention the DOJ has fired over 100 immigration judges and replaced them with conservative lackeys with a clear history of ruling against immigrants. “Without habeas corpus, even more noncitizens would remain detained for prolonged periods of time until they are deported from the United States, which is exactly what Stephen Miller wants,” Mukherjee said. “I think the inability to seek federal habeas relief would also lead to more people simply giving up on viable claims for immigration relief because they can’t stand to be in detention any longer.”

Through filing habeas petitions, pro-Palestine activist Mahmoud Khalil and Tufts University student Rumeysa Ozturk proved that the Trump administration had unlawfully arrested them; after judges agreed, the federal government was forced to release them from immigration detention. They are just two of some 54,000 habeas cases filed since Trump began his second term 18 months ago, a figure higher than in the past three administrations combined, including Trump’s first term.

Mukherjee has been filing habeas petitions for families held at Texas’ Dilley detention center, a facility the Biden administration stopped using but that Trump has since reopened. ProPublica published an investigation of Dilley earlier this year in which children described in terrifying terms the conditions at the complex.

“Over the past year, I filed federal habeas petitions for an 18-month-old who nearly died in federal immigration custody, for a 6-year-old boy with a leukemia diagnosis, for a young girl who was born with a congenital birth defect who was at risk of dying in federal immigration custody,” Mukherjee said. “The reason these kids and their families were released from immigration detention is because I filed federal habeas petitions for them. Without having that option available, I am worried that babies, toddlers, children, and adults alike are at much higher risk of dying in federal immigration custody.”

For now it seems as if Trump, Miller, and the rest of the White House have abandoned the idea of suspending habeas. Still, as long as Trump is in office, there is plenty of time for the administration to change course.

We hope you learned a thing or two from this edition of Executive Dysfunction. If you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• On this week’s Amicus, Dahlia Lithwick sits down with Pamela S. Karlan, a Stanford Law School professor and leading civil rights lawyer, to break down how Chief Justice John Roberts’ court has systematically dismantled a series of hard-won civil rights laws to favor Republicans and silence the votes of Black and brown Americans. Louisiana v. Callais may be the most recent gutting of the Voting Rights Act, but this Supreme Court has been not so subtly chipping away at U.S. democracy and minority participation in civic life for years.

• For the Amicus bonus episode, Dahlia and Mark Joseph Stern discuss one of the most embarrassing failures of the Trump administration in Chicago, where federal prosecutors dropped charges against anti-ICE protesters. New evidence, including grand jury transcripts, reveals a shocking level of prosecutorial misconduct that suggests a DOJ gone rogue.

• This week, the justices announced they’ll be taking up a consequential case next term: How long can ICE detain lawful green-card holders without providing the opportunity to post bond? Slate’s Alexis Romero details how lower courts have ruled for the necessity of bond hearings, noting that immigration proceedings are civil, not criminal, matters. Plus, the high court has long suggested that there are serious constitutional problems with allowing indefinite civil detention. “Given that SCOTUS’s conservative majority has already ruled against detainees on statutory grounds, it seems unlikely to rule for detainees as a constitutional right,” Romero writes.

• The 5^th U.S. Circuit Court of Appeals has struck out again. Alexis and Mark explain how the country’s most far-right appeals court received its sixth reversal by SCOTUS this term, with more expected. This time, it concerned a decision that found federal horse-racing regulations unconstitutional; the circuit court ignored two signals from SCOTUS indicating that the law was perfectly legal. Two separate appeals courts had also ruled on the case and determined that the regulations were constitutional, yet the 5^th Circuit felt it knew better.

• A consequential trial is underway to test whether federal law does actually preserve some right to abortion, despite the fall of Roe v. Wade four years ago. Friends of Slate Reva Siegel and Mary Ziegler discuss how a doctor from Idaho is suing his state over its abortion ban by questioning whether the Constitution provides protection to physicians and their patients when state criminal law jeopardizes a pregnant woman’s life or health. This is separate from the Supreme Court’s 2022 decision because that pertained only to elective abortions; the plaintiffs in Idaho argue that the court didn’t address all procedures for terminating a pregnancy.

• After getting your fill of legal news, be sure to check out The Slatest, our newly relaunched daily newsletter. Each weekday, Slate’s Ian Prasad Philbrick will explain one news story you absolutely need to know about, plus share a menu of some of the best things on the internet.

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When it started to become clear that President Donald Trump’s chosen candidate in Los Angeles’ mayoral race—reality star turned MAGA hero Spencer Pratt—was headed for defeat, he wasted no time pivoting to his old playbook. “There’s BIG cheating by the Dumocrats in California,” Trump posted two days after the state’s primary election, citing not a single piece of evidence. Within 24 hours, the First Assistant U.S. Attorney for the Central District of California Bill Essayli announced his office was conducting numerous election fraud investigations. It’s more than likely a smoke-and-mirrors show that accomplishes two things, neither of which have anything to do with fraud: Seed doubt in California’s elections and every state across the country while working a practice round for phony prosecutions that are likely to come up again during the upcoming midterm election cycle and beyond.

California held its nonpartisan primary last week, and one of the most closely watched contests was the Los Angeles mayoral race. Incumbent Democrat Karen Bass was up against progressive City Council member Nithya Raman and Pratt, who is a registered Republican. California uses “blanket” primaries, which means the top-two vote-getters advance to the general election regardless of party. The race was shaking out to be mighty close, and as the first initial votes were tallied, Pratt was leading Raman for the second spot behind Bass, but by Sunday Raman began to pull ahead. Come Monday she was leading Pratt by nearly 22,000 votes and was being declared the second finalist for November’s general election. This delayed overtaking of Pratt by Raman was largely expected, because California’s vote-by-mail system accepts ballots postmarked on or before Election Day and received within seven days of the election. Yet, on Monday, Trump weighed in to say, “Not possible for Spencer Pratt to have lost the L.A. runoffs after the big lead he had.”

Indeed, it was possible for Pratt to have lost, as Republicans tend to vote in person and those ballots are counted first. Democrats tend to vote early and by mail, ballots that are counted later in the vote tallying process, which is why Raman’s lead over Pratt took a few days to register. Now, Trump is deeply familiar with this process but simply does not like it, and he’s been actively trying to limit mail voting and federalize U.S. elections, despite the Constitution explicitly giving states the power to facilitate their own elections. (A lawsuit is currently challenging Trump’s executive order on mail voting). Anyone who attempts to take action based on Trump’s words, namely Essayli in this context, is doing so purely to appease the White House and without any real end goal in mind.

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“When the government has a case, it brings an indictment, and serious law enforcement investigators almost always keep their investigation under wraps until the indictment is issued,” Chad Dunn, legal director of the UCLA Voting Rights Project, told me. “Whenever I see the government, whether it’s in the voting context or otherwise, broadcasting it has an investigation, I’m immediately suspicious that this is performative.” California Gov. Gavin Newsom echoed a similar sentiment, his office telling Politico that “Credible prosecutors don’t comment on ongoing investigations, including whether an investigation exists at all. We’re not surprised the First Assistant doesn’t operate similarly.”

When Essayli announced his office “has multiple election fraud investigations underway,” he also made sure to criticize California’s vote-by-mail procedures, accusing the state of having serious structural vulnerabilities and no voter ID requirements. This is deceiving, as California does require identification when eligible residents register to vote for the first time. It’s also allowed vote by mail for decades, expanding it during the COVID-19 pandemic so that every registered voter in California receives a mail ballot. It’s also worth noting that Los Angeles County is the single largest in the country, home to 10 million people, which means the ballot-counting process will inherently take time. “There have been no credible investigations in California and Los Angeles that suggest there’s any widespread voter fraud. There’s none,” Matt Barreto, professor of political science at UCLA and faculty director of the UCLA Voting Rights Project, told me.

What’s really happening here is that Trump has a bone to pick with California, the most Democratic-leaning state in the country helmed by the outgoing Newsom, who is not only one of Trump’s biggest antagonists but is rumored to be a 2028 contender for president. Oh, and it’s also home to former Vice President Kamala Harris. The Los Angeles mayoral race was considered a lock for Democrats, but with the incumbent mayor facing unpopularity after her perceived botched handling of the Palisades Fire in January last year, the race was suddenly competitive. Pratt, who has never held elected office before, jumped into the race as an outsider demanding to shake up the system, embodying the same spirit that buoyed Trump to political success. Two weeks before California’s June 2 primary, Trump endorsed Pratt. “I’d like to see him do well. He’s a character. I heard he’s a big MAGA person. He’s doing well.”

After California’s primary day came and went, and poll workers continued to count mail ballots, as per state law, Pratt’s loss became more apparent. This is exactly what happened during the 2020 presidential election, as Joe Biden edged out Trump in the days following Election Day. And that was far from the first time an election was not immediately called, as the 2000 election between Democrat Al Gore and Republican George W. Bush took nearly two months to be decided.

Despite this being a completely normal process for U.S. elections, Trump seems perennially ready with bogus, unsubstantiated claims of fraud. “He claims, like a sore loser, that when he loses there must be fraud,” Barreto said. “But when he wins, everything’s fine.”

Barreto believes the current slate of primary elections happening across the country is a testing ground to see how far Trump can push to disenfranchise voters and trample on democracy. Today it’s California, but tomorrow it can very well be another state that produces an election result that the president doesn’t like. As Republicans and Trump face historically low approval ratings, they are growing increasingly desperate to salvage their power, hence the ongoing redistricting war and, possibly, more federal investigations like Essayli’s.

“The single most dangerous threat to democracy is not California taking a week to count its ballots, the single greatest threat to democracy is the president and his followers trying to undermine confidence in our accurate and legal electoral system,” Barreto said.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• On this week’s Amicus, Dahlia Lithwick unpacks a new Supreme Court decision that vastly expands Louisiana v. Callais by making it nearly impossible to challenge racist voting maps designed to suppress Black voters. Dahlia also speaks with Andrew Weissmann, law professor at New York University and a veteran federal prosecutor, about President Trump’s latest nomination for attorney general and the state of the $1.8 billion anti-weaponization fund.

• Dahlia chats with Mark Joseph Stern about the Supreme Court’s apparent urgency in dismantling voting rights for nonwhite people in this week’s Amicus bonus episode. They examine the details of another shadow docket decision that greenlights racial gerrymandering in Alabama and how it signals the high court’s willingness to rewrite long-established legal rules without transparency or accountability.

• Friend of Slate Felipe De La Hoz, an immigration journalist and journalism teacher, wrote about the recent frenzy over Trump’s green card policy that seemingly forces applicants to apply for U.S. residency from their home country. It has sparked massive confusion, which is by design, as the Trump administration continues to take a hard line on allowing immigrants into the country.

• A federal judge in Georgia was reprimanded for having sex with a law enforcement officer in her chambers over a two-year period and lying about it. Beyond this egregious act of misconduct, though, is a larger issue of transparency and accountability within the U.S. judiciary. Friend of Slate Aliza Shatzman, president and founder of the Legal Accountability Project, writes how this case shows weaknesses that Congress should have fixed long ago with legislation and oversight.

• Fifty years ago, the Supreme Court reinstated the death penalty as constitutionally permissible in the landmark case Gregg v. Georgia. Friend of Slate Austin Sarat, professor of law, jurisprudence, and social thought at Amherst College, explains how since then, capital punishment has been applied in a chaotic and discriminatory way where the race of the victim plays a powerful role in determining who gets a death sentence.

  Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

Slate’s Jurisprudence team has kicked off Opinionpalooza! Check out our yearly package that tops off the end of the Supreme Court’s term with stories explaining all of the court’s major decisions from legal experts Dahlia Lithwick, Mark Joseph Stern, and more.

President Donald Trump’s $10 billion lawsuit against the Internal Revenue Service over a leaked tax-return scandal from six years ago was on the verge of an epic settlement. In exchange for Trump dropping his suit, the federal government agreed to never pursue tax enforcement against the president, his family, and their businesses over past tax returns and agreed to establish a $1.7 billion “anti-weaponization fund” for anyone prosecuted by prior administrations, with Jan. 6 insurrectionists set to be the major beneficiaries. The agreement was short-lived, however, as even an obedient GOP could not swallow such an audacious sweetheart deal. Now a suspicious judiciary is coming after Trump for even conceiving of an arrangement that reeks of such bad faith.

“We are not moving forward with the fund. Period,” acting Attorney General Todd Blanche told lawmakers during a committee hearing on Tuesday. That statement put an end (sort of) to the fund that would have used taxpayer dollars to pay out Trump allies and perhaps, indirectly, Trump himself, for any perceived grievances, mostly against the Biden administration. Disgraced former Republican Rep. George Santos and a plethora of inner-circle associates and pardoned convicted criminals were already strategizing a way to apply for the fund. But two weeks ago, Senate Republicans held a meeting with Blanche where things turned contentious, with senators yelling at the attorney general about how the fund “feels like Trump cut a deal with himself.” Sen. Mitch McConnell didn’t attend the meeting but told CBS News, “So, the nation’s top law enforcement official is asking for a slush fund to pay people who assault cops? Utterly stupid, morally wrong—take your pick.”

Technically, when Blanche promised lawmakers that the anti-weaponization fund would not be moving forward, he was not under oath. When Democratic Rep. Grace Meng pressed Blanche on this, he would not commit to putting anything into writing. And during that same hearing, Blanche confirmed that the part of the settlement agreement that “FOREVER BARRED” the federal government from pursuing tax enforcement against Trump, his family, and their businesses over any past tax returns remains in place. This is an enormous windfall for Trump, as his businesses have landed multimillion-dollar deals from crypto ventures and his sons have signed equally lucrative licensing and management deals since he retook the White House last year. All in all, Forbes estimated that the Trumps could save over $600 million with a tax immunity deal.

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The slush fund appears dead, at least for now, as Blanche chose to prioritize Trump’s own personal interests over those of the hundreds of people whom the president inspired to commit violent crimes at the Capitol. Things began to fall apart last week when U.S. District Judge Leonie Brinkema issued a temporary restraining order banning the fund. The Justice Department said it disagreed with the ruling but would honor it at least until June 12, when a hearing is scheduled for Brinkema to make a final decision. The judge’s action was prompted after a former DOJ prosecutor and other plaintiffs who said they were targeted by the Trump-Vance administration sued over the legality of the fund. At this point, it’s unclear what the DOJ will argue before Judge Brinkema, but the indication is that it will drop its arguments in favor of the slush fund.

That is not the only legal challenge, though, as one day after Brinkema’s order, U.S. District Judge Kathleen Williams reopened Trump’s IRS lawsuit, an exceedingly uncommon practice, under a federal procedure rule that allows a judge to rule on the legitimacy of a legal challenge to assess “whether an attorney has abused the judicial process.” Williams’ decision came after 35 former federal judges from across the political spectrum submitted a motion to the judge that argued Trump and the DOJ voluntarily settled the president’s lawsuit “solely to avoid judicial scrutiny of a lawsuit that ‘was collusive from the start’ and was only filed to provide the imprimatur of legality for an unlawful settlement.”

When Williams was first assigned Trump’s IRS lawsuit, she expressed concerns about how the president was essentially on both sides of the case, as the U.S. president also controls who leads the Justice Department, and how this dynamic could be collusive. In order to assess whether Trump’s lawsuit was valid, she ordered his personal attorneys and the DOJ to provide written explanations to the court detailing whether they were in conflict with each other. Days before having to submit to Williams, news that the IRS was considering settling with Trump came to light, and soon enough the DOJ formally announced the settlement, which included establishing the anti-weaponization fund. This solved two critical problems for Blanche: His boss gets to claim victory while the acting attorney general can legally evade judicial accountability. With a settlement in place, Williams seemed to lose control over the legal dispute—until this week, when she used the clever procedural maneuver to reopen the case.

Williams is attempting to call Blanche’s bluff by reopening Trump’s IRS lawsuit, which will require the DOJ to certify that everything it filed in that case served a legitimate purpose, and was not solely to produce a rigged settlement to benefit Trump. As former U.S. Attorney Harry Litman smartly pointed out, Williams also flagged that the tax amnesty granted to Trump as part of the settlement was signed with the seal of the DOJ by Blanche alone, and not anybody actually responsible for tax enforcement at the IRS. By June 12, the same day the DOJ is due in Brinkema’s court, Blanche and Trump’s attorneys need to provide answers to Williams on three major questions: Did Trump and Blanche collude, and are they genuinely adverse parties? Was Trump’s lawsuit dismissed on a deceptive premise? And was the U.S. judiciary “the victim of a fraud”?

Whatever happens next in the case will have major ramifications not just for Trump and his family, but for the rule of law in this country.

The judiciary is not the only player trying to pin down the Trump administration, though. Democrats are planning to force votes in Congress to nullify the president’s IRS immunity, which is likely illegal, as federal law bans presidents from interfering in the tax audit process. Democratic Rep. Jamie Raskin told the New Republic that his party will strengthen the existing law and expand it to include other governmental investigations—if they win the House in the upcoming midterm elections.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• With the Supreme Court entering the final few weeks of its 2025–2026 term, Dahlia and Mark reflect on the court’s “three-ring circus” for this week’s Amicus. This latest term came to be defined by the merits docket, the shadow docket, and the justices’ public grievances. Major decisions were delivered on the Voting Rights Act, conversion therapy for LGBTQ+ minors, and President Trump’s tariffs, but even more blockbuster opinions have yet to be released. In the coming weeks, we can expect the Supreme Court to issue final decisions on birthright citizenship, immigration cases, and executive power.

• Mark and Dahlia reunite for this week’s Amicus bonus episode to discuss an interesting turn of events: Supreme Court Justice Brett Kavanaugh joined his liberal colleagues in striking down Mississippi courts for violating the Constitution when local prosecutors struck Black jurors from a courtroom. President Trump’s anti-weaponization fund also gets an honorable mention, alongside the DOJ’s rumored investigation into E. Jean Carroll.

• After successfully proving president Donald Trump sexually abused her, then also defamed her, E. Jean Carroll secured historic legal settlements to the tune of roughly $90 million. Now, with the power of the White House behind Trump, his Justice Department is rumored to be investigating Carroll, along with Democratic megadonor Reid Hoffman, who paid for a portion of Carroll’s legal fees. Given the president’s public track record of condemning Carroll, I explain how this could very well be another case of vindictive prosecution.

• This week, the Supreme Court issued an unsigned order reversing a lower court decision that had determined a man’s guilt based on new facts that had never gone before a jury. Slate’s Alexis Romero explains the strange dissent Justice Clarence Thomas, joined by Justice Samuel Alito, penned in which he essentially argued he would have allowed the man in this case to be found guilty and subject to execution. Things start to go off the rails when Thomas argues SCOTUS goes out of its way to protect murderers while allowing rights to be taken from “law-abiding citizens.”

• Friend of Slate David H. Gans, director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center, writes about how the Constitution’s guarantee clause has “a long but often forgotten history linked to the pursuit of inclusive democracy.” He implores Congress to invoke this clause to make a case for new voting rights legislation that can address the post-Callais landscape.

• Mark and Dahlia explain a new Supreme Court decision that reinstates Alabama electoral maps that lower courts consistently found to be discriminatory toward the state’s Black voters. In a shadow-docket order, the Republican-appointed supermajority claimed to simply be applying its Louisiana v. Callais decision, which gutted the Voting Rights Act, but in actuality the court has now dramatically expanded Callais. “Tuesday’s order makes it painfully clear that Callais’ new test for rooting out intentionally discriminatory maps can never be satisfied by future challengers,” Mark and Dahlia write.

• In a pop-up Slate Plus bonus episode of Amicus, Mark and Dahlia delve deeper into that decision. Mark explains how this decision sends a message that Louisiana v. Callais did not just weaken the Voting Rights Act, “it stands for the proposition that there are no more Black voting rights.”

  Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

The Trump administration has spent the past year doggedly targeting a Maryland father named Kilmar Abrego Garcia, who gained fame after the Justice Department admitted to mistakenly sending him to El Salvador’s CECOT megaprison last spring. The Supreme Court demanded the administration return Abrego Garcia to the United States, and Donald Trump complied after initial reluctance that verged on a constitutional crisis. Ever since, Trump’s government has sought to make an example of Abrego Garcia to demonstrate, both by seeking to deport him again and by cooking up a highly dubious indictment, that defying this president will result only in further recriminations. Abrego Garcia’s story, which has become emblematic of the unleashed retribution of the president’s second term, finally took a happy turn last week, after the judge in that prosecution acknowledged what was obvious for all to see: Abrego Garcia had been targeted not based on any crime, but for having stood up to the president and having sought to push back against Trump’s horrifying deportation program.

After analyzing the DOJ’s bad-faith efforts over the course of the past 12 months, U.S. District Judge Waverly Crenshaw called out the government’s motive in no uncertain terms. In a rare move, Crenshaw dismissed the criminal indictment after declaring the prosecution against Abrego Garcia a blatantly tainted investigation “with a vindictive motive.”

Successfully proving selective prosecution is notoriously difficult—judges rarely grant it. So when it came to Abrego Garcia’s case, Crenshaw, an Obama appointee, spared no detail, meticulously going through the timeline of events that had led to the indictment, starting with a 2022 traffic stop at the heart of the case, when Abrego Garcia was questioned by Tennessee police for suspected human smuggling. The incident was referred to the FBI and Homeland Security Investigations, but ultimately the agencies had declined to prosecute. However, in 2025, the DOJ was suddenly interested in this traffic stop at the very same time it was embroiled in a nasty legal battle over returning Abrego Garcia to the U.S.; this followed his filing of a civil lawsuit challenging his deportation to CECOT, which had happened despite a court order demanding he be allowed to stay in the country.

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Abrego Garcia’s story became a political flash point, with U.S. Sen. Chris Van Hollen traveling to El Salvador to visit the Maryland resident and press for his release. Just this month, FBI Director Kash Patel, in an attempt to defend himself against charges of alcohol abuse, attacked Van Hollen for that visit, telling the senator, “The only person that was slinging margaritas in El Salvador on the taxpayer dollar with a convicted gangbanging rapist was you.”

Crenshaw thoroughly debunked the administration’s ongoing narrative about Abrego Garcia. “The objective evidence here shows that, absent Abrego’s successful lawsuit challenging his removal to El Salvador, the Government would not have brought this prosecution,” the judge wrote. Crenshaw explained that nothing had prevented the government from looking into Abrego Garcia’s 2022 traffic stop if it had legitimate concerns about criminal activity; instead, he noted, the incident was used as a legal weapon to fight against Abrego Garcia’s lawsuit and keep him out of the U.S. This targeting went all the way to the top of the DOJ. Crenshaw revealed that a deputy for acting Attorney General Todd Blanche had been in close contact with the Homeland Security Investigations agent leading the indictment against Abrego Garcia; the two communicated at numerous points in the lead-up to the indictment with investigation updates. Ultimately, Crenshaw lay the blame with Blanche, who, instead of earnestly investigating the 2022 traffic stop, “started the investigation to implicate Abrego. He did so to justify the Executive Branch’s decision to remove him to El Salvador.”

Crenshaw went on to mention Blanche’s name nearly 30 times in his 32-page opinion, citing public statements in which Blanche outright admits that the executive branch began “investigating” Abrego Garcia after the judge overseeing his civil lawsuit “questioned” the executive branch’s decision to deport him. This all led to Crenshaw deciding to dismiss the indictment against Abrego Garcia, finding that the reopening of his 2022 traffic stop, tied with Blanche’s public statements, “taints the investigation with a vindictive motive.”

Now, Crenshaw found enough evidence only to declare that the DOJ had acted with “presumptive vindictiveness,” not “actual vindictiveness,” the latter of which is a rarely met standard that typically requires a prosecutor to admit that charges were brought specifically in retaliation against a person.

“I was not surprised,” Kristy Parker, a former federal prosecutor at the DOJ and now special counsel at Protect Democracy, told me of Crenshaw’s opinion. Based on the evidence and arguments the federal government put forward in this case, Parker believes that he made the right call. “I think the judge identified what lots of people could see from Day 1, and put the government on notice that Hey, what I’m seeing here looks sketchy and vindictive, so you’re going to have to come in here and show me how that’s not so,” Parker said. “Obviously, he concluded that they had not met that burden.”

Abrego Garcia’s case is perhaps one of the most emblematic of the administration’s vindictive nature. For Trump, refusing to accept defeat and hell-bent on punishing anyone who stands up to the president’s mass-deportation machine, this case was seen as critical in upholding his agenda, even though it started off as a mistake, nearly costing Abrego Garcia his life as he was thrust into a foreign prison, where he experienced “severe beatings,” sleep deprivation, malnutrition, and other forms of torture. The administration’s stubbornness in this instance eventually pushed the question of Abrego Garcia’s deportation to the Supreme Court, when the justices upheld an order that required the government to facilitate his return to the U.S.

Since the charges against Abrego Garcia, there have been indictments brought against James Comey and Letitia James, while Democrat-aligned lawyers and law firms, universities perceived to be insufficiently obedient, and even sitting members of Congress who have tried to challenge the administration’s policies have faced various legal and financial attacks. Talk-show hosts like Jimmy Kimmel and Stephen Colbert have also been targeted. The judiciary has been one of the few levers still capable of stopping this White House, and last week Crenshaw stepped up to the plate. His decision to end the sham indictment against Abrego Garcia is a massive win for not just one man, but so many across the country and ideological spectrum who have faced the wrath of a president who has decided he does not like you.

“I think it is vindicating for everyone who still believes that the system of due process that was established in this country at the founding of our Constitution still means something,” Parker said, “and that when people invoke it and demand that it be observed, they still have power to push back against this authoritarian bullying.”

The dismissal of the criminal indictment is undoubtedly a huge win for Abrego Garcia, but he faces an uphill legal battle as the federal government continues to pursue an active removal order against him. DHS has been pushing to deport him to various African countries, despite his willingness to self-deport to Costa Rica, where he was promised a form of legal status. A different federal judge has issued a block on Abrego Garcia’s removal, and it remains in place pending the outcome of that litigation.

We hope you learned a thing or two from this edition of Executive Dysfunction. If you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere In Jurisprudence

• In this week’s episode of Amicus, Dahlia Lithwick is joined by J.P. Cooney, a former top attorney for special counsel Jack Smith, and Andrea Bernstein, an award-winning investigative journalist, author, and professor, to discuss Trump’s $1.8 billion “anti-weaponization” slush fund. The establishment of the fund itself is stunning for many reasons, but particularly because it is a blatant effort to protect the president’s family while simultaneously rewarding MAGA loyalists who have committed crimes. Both Cooney and Bernstein agree that the fund will incentivize future violence, chill legitimate dissent, and systematically erase the historical record of Jan. 6.

• In the Amicus bonus episode, Dahlia sits down with Mark Joseph Stern to review the shocking turn of events in Chicago, when a judge dismissed all of the charges against the Broadview Six, a group of protesters accused of obstructing a local Immigration and Customs Enforcement facility. Federal prosecutors in the case tried to conceal damning grand jury transcripts that ultimately led a judge to declare: “I have never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts.” Though the Broadview Six get to walk away free, Mark explains that the Trump administration has still accomplished much of what it wanted in terms of intimidating protesters “through the lies and deceit and misconduct.”

• Friend of Slate Chika Okafor, an assistant professor of law and an economist at Northwestern University, wrote about the problem with the Supreme Court’s dystopian argument in Louisiana v. Callais. “Race and politics are deeply intertwined in America—often inseparable,” Okafor argues, “yet the court demands that future plaintiffs in voting rights cases meet an often impossible standard—namely, disentangling race from politics.” Ultimately, a test that demands what is often impossible is not a test designed to find what is true.

• Mark and Alexis Romero team up to discuss an Alabama federal court decision that ruled that the state had illegally discriminated against Black voters when drawing its new congressional maps. In Alabama, home to one of the largest Black populations of any state, the Legislature has been persistently trying to suppress Black voters since the 2020 census, and courts have repeatedly found that lawmakers have violated the Voting Rights Act. Yet even after Callais, and after SCOTUS threw out the Alabama lower judges’ previous opinion finding unconstitutional intentional discrimination with the state’s new congressional maps, the district court handed down another loss to state lawmakers. “This warning seems aimed squarely at the Supreme Court: If the justices let Alabama get away with this, they won’t merely dilute Black representation; they’ll diminish the court’s own power too,” Mark and Alexis write.

• Friend of Slate Aziz Huq, professor of law at the University of Chicago, analyzes the agreement between Trump and the IRS over the settlement of his lawsuit. Blanche promised to “forever” prevent any part of the federal government from investigating the Trump family or their corporate entities. Huq argues that such a promise is not only legally untenable but a “terrible mistake” as a matter of ordinary civil law. “Just imagine how it might be used—by either a Republican or a Democratic administration.”

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Tina Peters, one of the few election deniers to actually face consequences for criminal conduct related to the 2020 election, will be a free woman in less than two weeks’ time. Rather than receiving leniency from a fellow election-denying MAGA leader, Peters’ freedom will be thanks to a Democratic politician who should know better, Colorado Gov. Jared Polis. Last week, Polis tried to quietly announce that he had commuted her nine-year prison sentence, but the news immediately caught fire. Polis is being eviscerated for his decision, which was made after years of pressure from President Donald Trump. Worse yet, Polis has singlehandedly set a dangerous precedent for other states attempting to stave off a president unafraid to bully his perceived opponents into oblivion. Plus, it sends the signal that there will be few consequences for election officials who abuse their power to support Trump’s election denialism when the United States is just six months away from a consequential midterm election cycle.

Peters is the former county clerk and recorder of Mesa County, a bright-red pocket of Colorado, and in 2024 she was convicted of four felonies after a Colorado jury found her guilty of allowing an unauthorized computer expert—who turned out to be an associate of MyPillow CEO Mike Lindell—to gain access to her county’s election software. She was sentenced to nine years in prison, but after Polis’ commutation, Peters is expected to be released on June 1, having served less than two years behind bars for her crimes.

Polis had been weighing whether to commute Peters’ sentence for some time now, and was waiting to see how an appeals court would handle the case. When a panel of three judges* ruled in April that Peters’ sentence was overly severe and that the 2024 trial court judge had improperly violated her free speech rights, Polis had his opening. Even after local Colorado officials tried to persuade Polis to keep Peters behind bars, including the Republican county district attorney who prosecuted her, the governor decided to go his own way. When asked to explain why he chose to commute Peters’ prison sentence, he told CNN that though he believed she held strange beliefs, “We don’t punish people in this country for having strange beliefs,” then argued that “the place to resolve those differences is by debate, by discourse, by arguing with her, with by disputing her, not for keeping her behind bars simply because of what she believes or says.”

Contrary to what Polis implied, a jury did not choose to convict Peters because of her words. They did so because of her actions, which included attempting to influence a public servant, conspiracy to commit criminal impersonation, official misconduct, and failure to comply with the secretary of state. “It is pretty clear that [Peters] did this not really out of any personal conviction that the election system was incorrect, hacked, or crooked, but the judge essentially concluded she had done so because she’s a suspicious, self-promoting charlatan,” Frank Bowman, a former federal prosecutor and pardon expert, told me. “I think it was a very bad judgment on the part of Gov. Polis to commute her sentence.”

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Despite an avalanche of criticism for Peters’ commutation, Polis is doubling down on his decision. “I think this will be remembered fondly,” he claimed at a legislative recap event at the University of Denver on Tuesday. “I’m a bold person, I’m going to do things that I think are right, and that’s why people put me here. They want me to do things that I think are right.”

In this instance, Bowman does not believe Polis was right, nor was the appeals court that ruled to vacate Peters’ nine year sentence. The judge who initially presided over her case made no mention of Peters’ speech, or that he felt she honestly believed the election lies she was spewing. Quite the opposite, the judge concluded Peters made every effort to undermine the integrity of U.S. elections and the public’s trust in our institutions. “That’s an absolutely appropriate reason to impose a lengthened sentence on this woman, and the fact that the court of appeals somehow concludes this is a violation of Peters’ First Amendment rights is really quite hard to accept. It just isn’t that,” Bowman said.

Why did Polis do it, then? He claimed that it had nothing to do with Trump and that Peters will remain a convicted felon, but Trump’s pressure campaign against Polis took the form of direct harm against the citizens of Colorado. Four months ago, Polis’ office acknowledged as much, noting how two major disaster relief requests were denied and a bill that would have allowed the state to complete a clean water pipeline project was vetoed. “In the last month alone, the Trump administration has threatened over $1 billion in funding for Colorado,” the January press release stated. Yet, Polis has insisted that his decision to commute Peters’ sentence did not come with any expectations, let alone demands, to regain federal funding for his state. It must be an uncanny coincidence, then, that the president has been fixated on releasing Peters for some time now, publicly pushing for her pardon and even issuing a purely ceremonious presidential pardon for her, since Trump doesn’t hold the power to pardon those convicted at the state level.

Polis “is a Democrat to be sure; on many issues, a demonstrably liberal one,” Bowman said. “But on the other hand, if you look at his political positions, he’s libertarian, and has taken a lot of positions that are very much out of step with the normal liberal orthodoxy. He’s infuriated mainstream Democrats for years on all sorts of issues.” Ironically, Bowman explained that Peters’ commutation is even at odds with Polis’ own criminal justice policies, which have been in line with conservatives’ favored law-and-order approach and caused a major backlog in Colorado’s prison system.

Making Peters’ commutation even worse is the fact that Vice President J.D. Vance suggested on Tuesday that she would be eligible for the highly dubious $1.8 billion “anti-weaponization” slush fund Trump’s Department of Justice just established. “The general message is that the people who tried to undercut the validity of the 2020 election are not guilty of anything. They are, in some weird, twisted way, sort of international heroes,” Bowman said.

“I think Polis contributes to that narrative by issuing a commutation in this case.”

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*Friday, May 22: This piece stated that the three Colorado appeals court judges were appointed by President Donald Trump in his first term. They were appointed by former Colorado Gov. John Hickenlooper.

Elsewhere in Jurisprudence

• On this week’s Amicus, Dahlia Lithwick and Mark Joseph Stern dive into the legal battle over mifepristone, the medication that can be used for abortion care. The episode explains how Supreme Court Justices Clarence Thomas and Samuel Alito wrote furious dissents when the majority of the court agreed to issue an emergency order blocking the 5^th Circuit’s nationwide ban on telehealth medication abortion. The conversation later brings in Ilyse Hogue, writer, activist, and former NARAL president, to understand how the medication-abortion fight is inextricably linked to voting rights.

• On the Amicus bonus episode, Mark discusses how a federal judge in Rhode Island called out the Trump administration for its blatant judge-shopping in order to get its desired outcome in a slew of cases. In discussion with Madiba Dennie, deputy editor of Balls and Strikes and author of The Originalism Trap, the conversation unpacks how Justice Department lawyers tried to subpoena a Rhode Island hospital for the medical records of children undergoing gender-affirming care by choosing a Texas-based judge to enforce the subpoena.

• Slate’s Alexis Romero wrote about the continued fallout from the Supreme Court’s Louisiana v. Callais decision, which most recently involved the high court throwing out two lower-court decisions from Mississippi and North Dakota where voters had sued over allegations of illegal racial discrimination in congressional map-drawing. Romero explains how the Supreme Court is essentially treating Callais “as a stand-in for principles that the justices either did not discuss in that case or flat-out claimed to reject.”

• Texas-based U.S. District Judge Reed O’Connor struck again this week, this time issuing a stunning order that demanded a Rhode Island Hospital send him the sensitive medical records of minors who received gender-affirming care. Mark explains how O’Connor’s behavior in this case was an “extreme abuse of power that verges on impeachable misconduct.” Equally at fault is the Trump administration, which specifically brought this issue to Texas knowing that O’Connor has invited Republicans to shop their cases to his court.

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The fallout from the Supreme Court gutting Section 2 of the Voting Rights Act in Louisiana v. Callais is in full swing, as red states are locked in a mad dash to implement new congressional maps that will secure more seats, sacrificing minority voters in nearly every circumstance. Lower courts are equally busy, with legal challenges being brought left and right by both Republicans and Democrats to stymie each other’s power grabs and limit the damage in midterm elections that are now just six months away. Strap in, as we use this week’s newsletter to unpack the state of play in the U.S. gerrymandering wars.

Typically, states create new congressional maps every 10 years, in line with the national decennial census. However, last summer, President Donald Trump upended this practice when he urged Texas to redistrict mid-decade in order to net Republicans more congressional seats, an attempt to mitigate Democrats’ expected sweep in the 2026 midterm elections. Texas enacted a new map that gave Republicans five new House seats, but California responded with its own tit-for-tat gerrymander which also netted the country’s largest Democratic state an additional five Democratic seats. Other Republican-leaning states, including Ohio, Utah, and North Carolina, jumped in to follow suit.

Then last month, there was another shock to the system. The U.S. Supreme Court released its decision in Callais, and overnight the national redistricting effort leveled up, as states were no longer bound to create districts that prioritized minority voters. Literally within hours Florida’s Republican-controlled Legislature passed a new congressional map that would net Republicans four additional seats. We’re now about two weeks out from Callais becoming public, and more states are jumping into the fire, though as we noted in this newsletter last week, this is a fight to the bottom that hurts voters and American democracy.

Nevertheless, redistricting is happening whether we like it or not. It may well determine the balance of power in Washington this year and onward, making it one of the most politically salient issues today. To help everyone understand and track what is happening with redistricting and where, here are the latest legal battles over congressional maps we are keeping an eye on:

1. Virginia

After Virginia’s Supreme Court late last week rejected Democrats’ new electoral map, one that would have flipped four Republican-held U.S. House seats to Democrats, Attorney General Jay Jones asked the U.S. Supreme Court to intervene. The emergency application argues that the Virginia’s Supreme Court’s 4–3 decision amounted to “judicial defiance” of the will of the state’s voters, who voted in favor of a mid-decade congressional redistricting effort last year. The question at the heart of this legal challenge has to do with the timing of the referendum posed to voters, with the Virginia Constitution preventing amendments unless there is an intervening election between the first and second votes on a proposed amendment that is introduced and passed in the Legislature. As Slate’s Alexis Romero explained, the Virginia Legislature voted on Democrats’ new congressional map and then introduced it to voters right before last year’s November election, then after voters approved it, the Legislature again voted on the measure in February. But the state’s Supreme Court ruled that the 2025 election had already begun when the Legislature passed the amendment the first time, because the first early voters had already cast their ballots. By that standard, Virginia’s Legislature did not put a full election between its first proposed amendment vote in October and its second in February, since some mail-in ballots were received before Democrats unveiled their new map.

Jones’ last-ditch effort to get the U.S. Supreme Court to intervene is risky. The court only has the final word on federal law and does not traditionally weigh in on state Supreme Courts’ decisions. Virginia is asking a conservative majority court to upend this practice, which could come back to bite Democrats all over the country in any number of potential voting cases. Given the court’s 2023 ruling, though, in Moore v. Harper—and given the partisan stakes—SCOTUS is unlikely to act, meaning Virginia’s Democratic gerrymander is all but dead.

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2. Louisiana

Within 24 hours of the Supreme Court releasing its decision in Louisiana v. Callais, Gov. Jeff Landry canceled his state’s May 16 House primary election until state lawmakers can pass a new congressional map. Meanwhile, numerous lawsuits have been filed against Landry that seek to block the suspension of the May 16 election.

Still, the state that successfully killed Section 2 of the Voting Rights Act is inching closer to finalizing a new congressional map that would give the GOP one more House seat in Louisiana. The state Senate voted on Wednesday to advance a map that preserves a Black-majority district in New Orleans while splintering the only other Black-majority district in Baton Rouge. This map still has a ways to go in Louisiana’s Legislature, but if it is ultimately adopted, it would be the third set of congressional maps the state has had since the 2020 census. Wednesday’s vote came after Louisiana’s Senate held a contentious committee hearing where lawmakers considered four different maps, three of which eliminated at least one or both of the state’s Black-majority districts. Four of the state’s sole Black legislators pleaded with their colleagues to preserve Louisiana’s two Black-majority districts in a state where a third of voters are Black. Hundreds of residents were also in attendance.

3. Alabama

On Monday, the U.S. Supreme Court overturned a lower court order that had forced Alabama to use a court-imposed House map until the 2030 census, but a group of Black voters quickly filed suit to prevent a new map from taking effect. The Supreme Court’s decision meant that Alabama could use a map that state lawmakers created in 2023 that eliminates one of only two Black-majority districts.

The plaintiffs in this case are seeking a restraining order from a district court, while on Tuesday, Gov. Kay Ivey announced that a special primary election for the four affected congressional districts would be held on Aug. 11 after the state voided its May 19 primary, for which early voting was already underway. Pending what the district court rules, the August primary is expected to reflect the 2023 map drawn by Alabama Republicans that eliminates one of two Black-majority districts. This will net Republicans in Washington one more congressional House seat.

Alabama had been locked in litigation over its congressional maps since 2020, when a group of Black voters and civil rights groups sued the state for creating a congressional map that they argued was in violation of Section 2 of the Voting Rights Act. District courts continuously found the state’s map did indeed violate the VRA, and the Supreme Court even sided with those lower courts as recently as 2023. Ultimately, though, the justices granted Alabama’s appeal to restore its 2023 map with an unsigned order on Monday, in the wake of Callais.

4. Tennessee

Within days of the Supreme Court issuing its Callais decision, Tennessee lawmakers pulled together a new U.S. House map that carves up the state’s sole Black-majority district, effectively awarding Republicans all nine of Tennessee’s congressional districts for this year’s midterms. Within hours of Gov. Bill Lee signing the new map into law, the NAACP’s Tennessee chapter jumped in to challenge its legality. The group is also suing Lee and the Tennessee General Assembly, arguing proper procedures were not followed when Lee called a special session to redraw congressional maps and asking a court to stop the new map from going into effect.

On Tuesday, the Davidson County Chancery Court set a hearing for the NAACP’s case for May 21. Tennessee’s primary election is on Aug. 6.

5. Illinois

Back in 2011, Illinois adopted its own Voting Rights Act, and the same week that the Supreme Court issued its Callais decision, Illinois House members passed an amendment that would have taken a provision within the federal VRA and brought it into Illinois’ version. However, after Callais, Democratic lawmakers decided against moving forward with the amendment. Nevertheless, the conservative group Public Interest Legal Foundation filed a lawsuit hoping to weaken Illinois’ VRA, arguing it violates the 15^th Amendment.

However, as Slate’s Mark Joseph Stern noted, even if Illinois is forced to “unpack” its majority-minority congressional districts, it could end up simply spreading out the state’s Democratic voters more efficiently, and Republicans wouldn’t end up with any more seats. The lawsuit also stands to threaten other state-level VRAs where Republicans may try to seek more power.

6. Missouri

On Tuesday, the Missouri Supreme Court enacted a new congressional map created by the state’s Republican lawmakers that breaks up a Democratic seat in Kansas City. The decision ruled on two separate legal challenges that were initiated last year, when Missouri first began a mid-decade redistricting effort at the urging of President Donald Trump. The first lawsuit argued the new Republican congressional map violated the Missouri Constitution’s decennial rule for redistricting mid-decade and its compactness requirement.

The second legal challenge has to do with a statewide petition that gathered over 300,000 signatures in opposition to the Missouri law that enacted the mid-decade congressional map, which Republican Secretary of State Denny Hoskins has yet to validate. The Missouri Constitution allows laws to be suspended when a referendum petition is submitted and meets the minimum threshold of signatures with at least two-thirds of the state’s congressional districts, but the Missouri Supreme Court rejected the argument that the new map must be temporarily blocked. Hoskins has until late July to validate the petition, while Missouri’s primary is on Aug. 4. A last-minute decision, even if in favor of the petition, could still make it nearly impossible to stop the primary.

7. South Carolina

Up until Wednesday, it seemed as though South Carolina was taking a back seat in the redistricting wars. Five Republicans joined all Democrats in opposing a measure that would have enabled the Senate to consider a redistricting vote, even after the current legislative session ends later this week. And Republican Gov. Henry McMaster was dismissing calls to order a special legislative session, until Wednesday. Unnamed sources told Politico that McMaster is expected to announce a special session on redistricting, which will tee up South Carolina’s sole Black-majority district, held by longtime Democratic stalwart Jim Clyburn, for the chopping block.

A special session with allow Republican members of South Carolina’s Legislature to pass a new congressional map with a simple majority. The state’s June 9 primary is less than a month away, and early voting is supposed to begin at end of May. It’s a striking turnaround, since 24 hours earlier, South Carolina Republican Senate Majority Leader Shane Massey had delivered an impassioned speech defending his decision to oppose any redistricting efforts to eliminate the state’s single Black-majority district. Massey noted that carving Democrats out of South Carolina’s congressional maps completely would risk the state losing an influential figure the next time there is a Democrat in the White House.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• Slate has launched a new season of its award-winning podcast Slow Burn! This new season is called Becoming Justice Gorsuch, and is hosted by Slate executive editor Susan Matthews. The series takes a deep dive into how the justice manages to maintain his anonymous “nice guy” conservative persona while gutting the Voting Rights Act, ending affirmative action, and dismantling the constitutional right to reproductive care. It explores Justice Gorsuch’s personal life and his judicial temperament, including a pivotal case from nearly 20 years ago that seemed to have shaped his judicial philosophy. You can listen on your phone or on your computer here.

• In this week’s episode of Amicus, Dahlia Lithwick sits down with two federal judges who are intimately familiar with the new war on the judiciary, which has created an undeniable uptick in threats against American judges and their families. U.S. District Judge for the Western District of Washington Robert S. Lasnik and former U.S. District Judge for the Northern District of California and current executive director of the Berkeley Judicial Institute Jeremy Fogel discuss how the judiciary has a long history of being threatened, but this time things are markedly different. As they note, the president of the United States and his Department of Justice have never directly targeted judges the way Donald Trump has.

  

• This week’s Slate Plus bonus episode is a post–Louisiana v. Callais assessment, in which Dahlia chats with Balls and Strikes’ Madiba Dennie about the new onslaught of states choosing to gerrymander their Black voters’ congressional districts out of existence. They also touch on how the U.S. Supreme Court greenlit this arms race in an effort to beat back multiracial democracy, yet insists their decisions have nothing to do with politics.

• Last week, the Supreme Court of Virginia struck down state Democrats’ new congressional map that voters approved mere weeks prior. Slate’s Alexis Romero explains the court’s “head-spinning” opinion and how it manages to butcher the legal question at the heart of this case while also cherry-picking history. The outcome is devastating for Democrats, who have filed a last-ditch effort to revert the state Supreme Court’s decision with the U.S. Supreme Court.

• Down in Alabama, state Republicans are pushing to use a 2023 congressional map that was previously found to be in violation of Section 2 of the Voting Rights Act, a move endorsed by the U.S. Supreme Court. As Slate’s Mark Joseph Stern explained, last week the high court issued a shadow docket decision essentially striking down its 2023 ruling in Allen v. Milligan, which had found Alabama’s redistricting plan unlawful. The latest Alabama decision further contradicts Justice Samuel Alito’s majority opinion from two weeks ago in Louisiana v. Callais, where he explicitly promised the court was not diminishing the constitutional guarantee against “present-day intentional racial discrimination regarding voting.” Mark concludes that “the best answer we can postulate is the most cynical one: Alito was lying in Callais.”

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Last week, the Supreme Court issued one of its most damaging decisions in decades, essentially ending the protections of the Voting Rights Act, in Louisiana v. Callais. The decision means that Republican state legislators in the South will now be able to eliminate districts drawn to grant Black citizens some form of representation in Congress, and replace them with districts dominated by white voters, dismantling one of the great achievements of the Civil Rights era. The court has blessed this move, so long as these state legislators call their racial gerrymanders “partisan” instead. Louisiana, Alabama, and Tennessee have already begun plans to redraw maps to eliminate majority-Black voting districts. Nationally, Republicans stand to gain large numbers of new seats by 2028 and beyond, when states are expected to kick the redistricting wars into high gear while wiping out minority representation in Congress.

But what about the Democrats? Memes have gone around social media showing blue states like California gerrymandering every one of their districts to oust every single Republican in response to Callais. This may be the fantasy of some Democrats, but the truth is, it’s far easier to draw one of these maps than to actually implement it, given the collateral damage Democrats would have to inflict on their own minority voters.

Ultimately, the Callais decision is only going to amp up the redistricting wars that were already begun by President Donald Trump, who kicked things off last year by demanding that Republican-controlled states find ways to blunt the blue wave expected in the 2026 midterms, starting with Texas.

Another core issue that the mass redistricting movement ignores is the deep loss that American voters will suffer, particularly voters of color. Minority groups tend to vote Democrat, particularly Black voters, who have proved time and time again how integral they are for Democratic electoral success. But as the Democratic Party tries to keep up with Republicans’ partisan redistricting efforts, it may very well have to dilute majority-minority districts in order to expand and secure more congressional seats. When asked about this dilemma, House Democratic Leader Hakeem Jeffries demurred, insisting that Democrats will “ensure that communities of color will continue to have the chance to elect the candidate of their choice in districts that have traditionally been covered by the Voting Rights Act,” but added in the same breath, “while at the same time doing what is necessary, as occurred in California, to decisively respond to efforts by Republicans to gerrymander congressional maps.”

No matter what path Democrats take, something’s gotta give. In order to make sense of the stakes involved in Republicans’ and Democrats’ redistricting push, I spoke with Pamela Karlan, law professor at Stanford University and co-director of Stanford’s Supreme Court Litigation Clinic. Karlan previously served under the Obama administration’s Justice Department, and back in 1991 argued Chisom v. Roemer before the Supreme Court, a case that successfully argued that Section 2 of the Voting Rights Act also applies to judicial elections.

Here’s our conversation, lightly edited and condensed for clarity.

Shirin Ali: What do you see as the immediate consequences of the Supreme Court’s Louisiana v. Callais decision?

Pamela Karlan: We moved from a world in which the voters pick their representatives to one in which the representatives are now picking the voters. It’s a kind of an endless-war, race-to-the- bottom type of world in which each move produces some kind of countermove. We’re obviously getting very far away from the idea that elections should be designed to be fair. The Supreme Court, in Callais, in the space of 40 years, has moved from the view that political gerrymandering is unconstitutional to the view that it’s unconstitutional but we can’t do anything about it, to the idea that naked political gerrymandering is somehow a legitimate government interest that overrides interests in ensuring that all voters have an equal opportunity to elect candidates.

We’re talking about many layers of elections. There are city council elections, county commission elections, state legislative elections, congressional elections, senatorial elections, gubernatorial elections, and presidential elections. Right now, what we’re talking about is gerrymandering at the congressional level, but what the Supreme Court has opened up is that you might see the same kind of gerrymandering with regard to state legislative races, city council races, school board elections, and the like. If what you do is create a system in which minority voters are unable to elect candidates who represent their interests, that is likely to depress minority turnout, which will have, obviously, spillover effect on other elections.

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Can you elaborate on that point: What are the risks to Republicans’ and Democrats’ mad dash to redistrict?

Voters who feel that they have no chance of electing candidates of their choice are less likely to turn out to vote, and that will have effects not just in the district where they don’t have a chance to elect, but for statewide offices for presidential elections and the like. Obviously, voters don’t turn out because they feel that they’ve been gerrymandered out of having any chance of winning. It tends to depress political participation. The idea that you can elect the candidates of your choice is what motivates most people to go to the polls.

It’s easy to talk about the immediate effects of the Callais decision, which is that it unleashes yet another round of partisan mid-decade redistricting. This effort, for congressional races specifically, asymmetrically benefits Republicans. The states controlled by Republicans where there are majority-minority districts have no internal constraint on how much they can screw over Black voters, because Black voters are not voting for that party. There are some places in which there might be some constraint on exactly how much they can eliminate majority-Latino districts, both because of demographics and because some of the Latino districts elect Republicans, but there’s virtually no constraint on how much they can screw over Democrats,

right?

Meanwhile, there are not a lot of majority-minority districts in states controlled by Democrats where the politics of that state make it feasible for the Democratic Party, if it’s in control of the redistricting process, to eliminate those districts. Those voters are part of the Democratic coalition, and you don’t screw over members of your own coalition, right?

What do you think this means for the future of opportunity districts in places like New York and California that are both heavily Democratic? California has already passed a partisan redistricting measure and New York is considering one, while others like Illinois and Colorado could also jump in.

Well, at the margins, they might be able to get a district here or there by reducing the concentration somewhat of minority voters in existing districts. But that may be very hard to achieve politically, because the politics of the state are not going to look favorably, and the Democrats in those states depend on Black and Latino voters in statewide races. They can’t just eliminate those districts or spread minority voters across a bunch of other districts to elect Democrats.

For instance, you already have a total Democratic gerrymander in Maryland, so there’s really not much more you can do there. And then the next most heavily Black district in a blue state is only 52 or 53 percent Black. You could theoretically reduce the number of Black voters, but I’m not sure that the Democrats have as much running room as the Republicans do. The Republicans can go after every majority-Black district in states they control, but the Democrats cannot do that because they face a different political reality than the Republicans do. Republicans in places like Alabama, Louisiana, South Carolina, and Texas can go after majority-Black districts, but the Democrats cannot really do that, because in a lot of Democratic states there are also state voting rights acts that would prevent them from doing that, or state constitutional provisions that would prevent them from doing that.

Ten years ago, Democrats were pushing a very different redistricting strategy, one that advocated for independent commissions to establish unbiased congressional maps. Today, they are scrambling to undo that work in favor of partisan maps. What do you think that says about the party?

Here’s the thing, before the Supreme Court’s decision in Rucho v. Common Cause, and really now its decision in Callais, there was this implied limit on just how far you could gerrymander, because everybody understood that if you went too far, the Supreme Court might, might actually put some teeth into the equal protection clause or into the First Amendment that would restrict gerrymandering. There was at least a little bit of deterrence. And in that world, moving to independent redistricting commissions was not so much of a form of unilateral disarmament as it now looks in retrospect. Because in a world in which there’s some constraint on political gerrymandering, it’s not unreasonable for folks to think, Well, let’s really put some teeth into that constraint in our state.

But in a world where the Supreme Court is saying: You want to screw over the other party? That’s totally legitimate, not just, You can do it because we can’t stop you, but it’s perfectly fine, it’s important for people to understand that really, Callais does two things: guts the Voting Rights Act and blesses political gerrymandering.

Louisiana v. Callais is an inflection point in American politics, something that will undoubtedly change how elections are done in the United States for the foreseeable future. Is there any damage control that can be done?

Well, this Congress isn’t going to do anything in response to this decision. You first have to get a new Congress and a different president, and you have to have a sufficient political movement behind the idea that elections should not be about one political party screwing over its opponents, but should be about allowing the voters to decide who’s going to represent them. In the short term, there’s nothing that Congress can do. It could theoretically pass a law that forbids political gerrymandering in congressional elections, using its time, place, and manner power, but the question of whether this Supreme Court would say that that’s legitimate or not, who knows?

In 2003, the then–Supreme Court, all nine justices agreed that there was a problem with political gerrymandering, they just disagreed about whether courts should fix it. The assumption then was Congress would fix this, or the state legislatures would fix this, or initiatives in the states that have direct democracy would fix this. Now, the court is saying this is an affirmatively permissible thing. That’s a huge change. I mean, no court, no Supreme Court, had ever before held that naked partisan gerrymandering was permissible. And that it overrides the idea that Black and Latino voters should have the same opportunity as white voters to elect candidates of their choice.

Until you build a political movement around that, voters can’t indicate they dislike this at the polls in most of the states that are going to engage in this naked partisan redistricting. It’s not as if voters can go to the voting booth and show that they disapprove of this. Voters have to first build a political movement around this that makes elected officials afraid to do this. We’re in a kind of race to the bottom and a land grab, and it’s deeply offensive to almost every notion of modern American democracy.

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Elsewhere in Jurisprudence

• In this week’s Amicus, Dahlia Lithwick chats with former prosecutor Barbara McQuade about acting Attorney General Todd Blanche’s transparent desire for a promotion. Over the last four weeks, he managed to re-indict former FBI Director James Comey on new charges, bring a fresh case against the Southern Poverty Law Center, and continue fighting for the president’s White House ballroom. These actions indicate Blanche could be a much more dangerous attorney general, if promoted, than his predecessor. As Barbara argues, “I also think he has demonstrated a level of ruthlessness and a willingness to file charges, even if he’s got to know they’re going to fall flat eventually.”

• In the Slate Plus bonus episode of Amicus, Dahlia unpacks Mullin v. Doe, a Supreme Court case challenging the Trump administration’s efforts to remove lawful temporary protected status from Syrian and Haitian immigrants. Speaking with Madiba Dennie, deputy editor and senior contributor at Balls and Strikes, Dahlia discusses how the court’s conservative justices chose to fall in line with the Justice Department’s argument that Trump’s past comments calling Haiti a filthy, dirty, and disgusting “shithole country” do not amount to racism.

• On Monday, the Supreme Court allowed its Louisiana v. Callais decision to take effect immediately, a rare move overriding the standard rule that its decisions do not take full effect until 32 days after an opinion is finalized. But this Supreme Court knows no bounds, as Dahlia and Slate’s Alexis Romero analyze how the Republican appointees have, over recent years, shown a willingness “to brutalize, even modernize, their own vaunted methodology of an originalism rooted in text and history to achieve results they favor politically.”

• Friends of Slate Naomi Cahn and Sonia M. Suter, law professors, explain the U.S. Court of Appeals for the 5^th Circuit’s damning decision to issue a nationwide injunction that banned the purchase of medication for abortion and miscarriage management by mail. Last year, the Food and Drug Administration announced it was going to review “the safety and efficacy” of medication abortion, and now it’s clear this was a not-so-subtle attempt to eliminate access to the drug altogether. Though the Supreme Court issued a temporary hold on the injunction, it does not change the Trump administration’s goal: “to limit access to abortion.”

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

Before we get started, I wanted to draw your attention to Slate’s coverage of what might just be the Supreme Court’s worst ruling in a century, and how the gerrymandering wars are just beginning.

President Donald Trump has made it abundantly clear he really wants a ballroom at the White House, so much so that, after experiencing his third assassination attempt since 2024 over the weekend, he took the opportunity to plug his pet project: “This event would never have happened with the Militarily Top Secret Ballroom,” he said on Truth Social. Two days later, the political theater continued with Justice Department lawyers filing a motion basically written in the voice of Trump himself. It accused the National Trust for Historic Preservation, the group suing to stop Trump’s ballroom, of suffering from “Trump Derangement Syndrome” while also touting Trump as “a highly successful real estate developer” who obviously knows what he’s doing, and demanded the injunction be lifted so construction could resume. All of this fresh momentum even convinced Congressional Republicans to introduce legislation to fund the ballroom.

What should one make of all this? A new White House ballroom is a hill Trump is willing to die on, despite a tanking approval rating and the looming possibility of losing his House and Senate majority. A YouGov survey from October showed 61 percent of U.S. adults did not approve of the ballroom construction, while the National Capital Planning Commission, a government group that oversees planning of federal buildings and land in Washington, received over 32,000 comments from the public that overwhelmingly opposed it. Some commenters likened the ballroom’s aesthetic to a “brothel” or “Vegas casino.”

Since the start of 2026, the White House ballroom has become a topic Trump is so fixated with that he can’t seem to stop talking about it. Trump has mentioned the ballroom on about the same number of days as other topics like health insurance and affordability, according to a Washington Post analysis. And during a meeting in early January with oil and gas executives that was supposed to be about rebuilding Venezuela’s oil industry, Trump apparently digressed yet again into talking about the ballroom. “This is the door to the ballroom,” he said, pointing to the future entrance to the $400 million addition to the White House, elaborating on all the bells and whistles the building will have.

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He first announced the project last summer, claiming it would solve the pesky problem of hosting large groups of guests at the White House, to the supposed benefit of “future Administrations and the American people.” The ballroom will be roughly 90,000 square feet “of ornately designed and carefully crafted space” that can seat about 650 people. It began construction in September, and by October, the entire East Wing had been demolished.

However, in December, the National Trust for Historic Preservation sued the federal government, arguing in a complaint that Trump can’t simply tear down parts of the White House “without any review whatsoever” and, because this is all technically happening on public property, can’t continue “without giving the public an opportunity to weigh in.”

U.S. District Judge Richard Leon agreed with National Trust, issuing a preliminary injunction in April to stop any further construction of Trump’s ballroom and concluding that Congress must first authorize any new construction of the White House and establish how it will be funded. The Justice Department has insisted that preexisting laws give the president direct authorization to build the ballroom using private donor funds, and after Saturday’s assassination attempt, it expanded its argument to include the safety of the president.

Trump has shown he has no interest in seeking real approval from Congress for anything on his agenda, adopting the unitary executive theory that holds that presidents singularly control everything within the executive branch. It’s why Trump never bothered to get congressional approval before starting a war with Iran, capturing Venezuelan dictator Nicolás Maduro, or gutting federal agencies like the Education Department, U.S. Agency for International Development, and others. And he admitted as much, wrongly proclaiming on Truth Social that congressional approval had never been given over construction projects at the White House.

Yet Congress is the one who authorized the very creation of the White House through legislation, in the Residence Act of 1790. As Judge Leon noted in his opinion, “Congress has continued to authorize and fund construction and maintenance at the White House up until the present day.”

Things are not going well for Trump all around at this moment in his presidency, and the ballroom project should be the least of his concerns. The ongoing Iran war has split Trump’s most ardent supporters, caused gas prices to rise to over $4 a gallon, and pushed inflation to its highest level in nearly two years. About 61 percent of Americans disapprove of Trump’s handling of the conflict in Iran—coincidentally, the exact same percentage of people who disapprove of the ballroom. This is in addition to the tariff whiplash Trump caused, which is now forcing small and large businesses to fight for refunds.

But sure, focus on a ballroom that the average American will never get access to, and that Republicans might force them to pay $400 million for! As Rep. Sarah McBride of Delaware put it: “My constituents can’t afford fucking groceries or utility bills, and he now wants to spend taxpayer money on a ballroom?”

The president’s ballroom fixation may not make much political sense, but it sure gives voters one more reason to strip Republicans of their House and Senate majority in the midterms.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• Slate Jurisprudence is on YouTube! Last week, Dahlia Lithwick, Mark Joseph Stern, and Madiba Dennie unpacked Democrats’ recent gerrymandering victory in Virginia, how conservatives brought it upon themselves, and what might happen next with Republicans’ legal challenge against the result: Watch the episode here!

  

• As I briefly mentioned at the top of this newsletter, the Supreme Court issued a 6–3 party-line decision in Louisiana v. Callais on Wednesday that guts the remaining tenets of the Voting Rights Act that protected minority voters. The conservative majority eviscerated Section 2, which provided a pathway for voters of color to ensure they had fair representation in state and federal offices. The court’s latest decision is the “culmination of the life’s work of Chief Justice John Roberts and Samuel Alito,” wrote friend of Slate Rick Hasen, a professor of law at the University of California, Los Angeles. The two justices “have shown persistent resistance to the idea of the United States as a multiracial democracy, and a brazen willingness to reject Congress’ judgement that fair representation for minority voters sometimes requires race-conscious legislation.”

• When the Supreme Court published its devastating decision in Louisiana v. Callais, it also gave Texas the green light to gerrymander its electoral maps for the upcoming midterm elections. Texas was one of the first states to attempt midcycle redistricting as Republicans in Washington concocted a plan to increase the number of red seats in the House in order to protect their current slim majority. Though a district court concluded Texas had unlawfully rigged the state’s election for Republicans by diluting Black and Hispanic votes with its new maps, the Supreme Court overturned that decision on its shadow docket. As Slate’s Alex Romero explained, this “issuing [of] a vague decision not only has significant stakes for these midterms but reminds us just how much of a mess the high court has made in this area of the law.”

• A small town in Maryland has found an unconventional way to thwart Homeland Security’s national push to stand up detention centers: Snails. Friend of Slate Madeleine O’Neill tells the story of how Attorney General Anthony Brown leveraged federal environmental laws against DHS, taking a cue from grassroots organizations that have spent decades advocating for vulnerable communities facing the unequal effects of pollution and development. Brown filed a lawsuit that argued Immigration and Customs Enforcement failed to make environmental assessments before purchasing a warehouse in the state, which happens to be near waters that are home to endangered mussels, snails, and fish.

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

A core strategy of President Donald Trump’s second term has been manipulation by brute force, particularly over the judiciary. In what feels like a never-ending list of legal challenges, Justice Department lawyers have brazenly asserted that executive branch authority is unreviewable by courts all over the country in order to push through the president’s agenda. Though they’ve lost many of these battles, the DOJ has often responded by simply ignoring judicial orders. But there is one court system that Trump has been wildly successful in dismantling, bit by bit, from the day he was inaugurated in January 2025, and it is perfectly legal: Welcome to U.S. immigration court.

The executive branch has a uniquely unilateral level of control over the entire immigration court system because it was not constitutionally established like the Article 3 judiciary. Immigration court is an administrative court that falls squarely within the executive branch, overseen by the Department of Justice. Its exclusive role is to consider deportation cases. The attorney general, who oversees it, is tasked with selecting immigration judges and members of the Board of Immigration Appeals. This system is not perfect, but past presidents have largely respected the preexisting makeup of immigration courts when they enter office, appointing more immigration judges of their own choosing throughout their term. Trump 2.0 has not followed this precedent.

When Trump returned to office, there were about 750 immigration judges stationed across the country. The Trump administration fired more than 100 of them over the course of one year, largely those appointed by Democratic presidents, but especially ones who issued decisions that favored immigrants. When Trump first kicked off his second term, the BIA consisted of 28 members; now it only has 15. To be clear, these staffing changes aren’t a result of shrinking caseloads, in fact it’s quite the contrary. There are approximately 3.3 million active cases pending before immigration court as of February 2026.

Nina Froes was an immigration judge appointed in 2024 by the Biden administration, and she recently ruled against the federal government in its deportation case against Mohsen Mahdawi, a Columbia University student who participated in pro-Palestinian protests. Roopa Patel was also an immigration judge, based in Boston, and she ruled in favor of Rumeysa Ozturk, the Tufts University student detained over an op-ed she wrote against the war in Gaza, in that deportation case. Both judges were fired just last week. Meanwhile, when Judge Jamee Comans was assigned to the deportation case for Mahmoud Khalil, the poster child for the Trump administration’s crackdown on college students’ pro-Palestinian protests, and issued a decision ordering Khalil’s deportation last year, she was promoted. Khalil appealed, and a three-judge panel of the BIA reaffirmed her decision just this month.

“No matter what an immigrant suffered, no matter what Congress intended, no matter what the hearing-level judge found, the answer is removal,” Jason Cade, a law professor at the University of Georgia, concluded in a forthcoming research paper titled “Welcome to the Trump Administration’s Board of Immigration Appeals. The Immigrant Always Loses.”

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Homero López is an immigration attorney based in Louisiana who provides pro bono removal defense representation through his nonprofit, Immigration Services and Legal Advocacy. He was appointed to the BIA in 2024 by the Biden administration, but was fired early last year, within days of Trump taking over the White House. During his tenure, he told me, immigration court was relatively calm and firings were rare. He did not see any board members appointed by the first Trump administration get let go. Seeing how much things have changed over the course of one year, “It’s disheartening,” López said. “People are worried, and a lot of people end up giving up on their cases.”

The Trump administration is instilling fear among immigration judges and the BIA, and that intimidation is seeping into the lives of America’s already terrorized immigrant communities and even immigration attorneys themselves. López believes this has pushed some attorneys not to pursue certain cases while also driving up the cost to retain an immigration attorney. “Some people are just getting out of the field completely, saying this isn’t worth it anymore. You’re seeing this kind of result because that’s the intent,” he said.

Meanwhile, Trump’s DOJ has also eliminated certain work requirements that one needed to become eligible to serve as an immigration judge and approved over 600 military lawyers to serve as temporary immigration judges. Most, if not all, of these temporary judges do not have experience in immigration law.

The Trump administration is clearly pushing the system to a breaking point in order to force its anti-immigrant agenda through, and many of the remaining immigration court judges have made it clear they are falling in line. More and more, López has noticed that the language being used in court decisions sounds a lot like the Trump administration’s. “It’s this hostile language towards immigrants. It’s not necessarily legal language, it’s more policy-based,” he said. Consider the BIA’s recent decision in Khalil’s deportation case, where the three-judge panel cites the State Department and its invocation of a rarely used federal statute that allows the secretary of state to declare a noncitizen’s presence in the U.S. a threat to the country’s foreign policy goals. “It seems like the board is basically saying, yes, we’re going to give deference to the administration whenever they want to kick somebody out,” López said.

Adding insult to injury is the fact that if Khalil appeals the BIA’s latest decision, it would take the case outside of immigration court and into the hands of the 5^th U.S. Circuit Court of Appeals, a bench infamous for its far-right slant and one that has a reputation for holding negative views toward immigrants. This is largely why the Trump administration chose to transport Khalil from New York, where he was initially arrested, to Louisiana, forcing his case to be heard by a conservative judiciary. And this strategy has been used over and over again, as federal agents arrest and detain noncitizens all over the country, establish deportation cases against them, and then work as quickly as humanly possible to get them to Louisiana, Texas, or other Southern states with heavily conservative circuit courts. (An injunction issued by a federal judge in New Jersey is currently blocking Khalil’s deportation. But a panel for the 3^rd U.S. Circuit Court of Appeals has ruled it improper, and the full court is now considering the question.)

“The BIA is not supposed to be a rubber stamp. It’s become far worse than it’s ever been before, under Trump,” Elora Mukherjee, a professor at Columbia Law School and director of the school’s Immigrants’ Rights Clinic, told me. Mukherjee submitted an amicus brief in defense of Khalil, along with other students, scholars, and professors who have been charged under the same foreign-policy deportability ground that Khalil currently faces.

López said there isn’t much that can immediately be done to stop Trump’s brutal takeover of immigration court, but Congress could still step in to prevent future damage. Lawmakers could pass an amendment adding immigration court to Article 3, which would force its independence from the executive branch. “Instead of being an impartial tribunal, the Board of Immigration Appeals has become a judicial facade behind which there is little meaningful review of individual cases or guidance for immigrants and their advocates,” Brennan Center scholars have argued. They called on Congress to move immigration courts and the BIA out of the executive branch and establish them as Article 1 or Article 3 courts.

The unfortunate reality is that while hundreds of thousands of immigrants are caught in the dragnet of Trump’s deportation machine and face unlawful deportation orders, Congress isn’t interested in getting involved. In 2025, the Republican-led House and Senate set a modern record for lowest legislative output in the first year of a new presidency, while an exceedingly large number of lawmakers have simply decided to call it quits.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• In this week’s Amicus, Dahlia Lithwick tries to find the light at the end of Donald Trump’s seemingly never-ending corruption tunnel with former Obama administration ethics czar Norm Eisen. They discuss how Democrats need to be using simple but blunt language to call out Trump’s corruption in order to save our democracy, with Hungary’s recent election ousting authoritarian President Viktor Orbán being a prime example. “People don’t want to hear about Locke and Burke and John Rawls,” Eisen argues. “The way democracy hits them is they want to have a better life, and there’s nothing wrong with talking to people about the cost-of-living crisis. That’s not smaller than talking about ethereal democracy ideas.”

• In the Slate Plus bonus episode, Dahlia and Mark Joseph Stern discuss the inner drama of the U.S. Supreme Court now spilling out into public view. Justice Sonia Sotomayor issued a surprisingly personal takedown of Justice Brett Kavanaugh and his now-infamous “Kavanaugh Stops” opinion, while Justice Ketanji Brown Jackson lobbed criticism of the court’s increasing use of the shadow docket, and Justice Clarence Thomas declared progressivism the enemy of America.

• Mark and Dahlia dive into a series of 2016 memos, published by the New York Times, that were penned by Chief Justice John Roberts and other justices, and explain how the modern-day shadow docket was created. Though the documents may initially look like a legitimate judicial product, Mark and Dahlia argue that in actuality they are “cheap ornamentation gilding a petty vendetta against the Obama administration.” These 2016 memos have come to define the Supreme Court’s way of doing business a decade later, and prove the court’s conservative wing is using the shadow docket as a mechanism to hide its reckless reasoning from the public.

• Speaking of the shadow docket, Alex Romero, Slate’s new jurisprudence intern, writes about Smith v. Scott, a case about a Black man killed by the police while he was having a mental health episode. In a 6–3 shadow docket decision, the Supreme Court ruled the police officer involved was protected by qualified immunity, without holding a full briefing or oral arguments. The only hint the justices provided about their reasoning was a single citation: Zorn v. Linton, a decision that came out just last month that also dealt with qualified immunity. The two cases deal with significantly different circumstances, yet “the Supreme Court took an unsigned, summary decision about a rear wrist lock and parlayed that into an order in favor of cops who allegedly suffocated a man to death,” Romero writes.

  Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

President Donald Trump has been taking what feels like an Oprah Winfrey–style approach with his pardon power: All you Jan. 6 rioters, you get a pardon! And all you folks who helped subvert the 2020 election for me, you get a pardon! And what the hell, that crypto billionaire charged with a felony, you also get a pardon! All in all, Trump has issued about 1,600 pardons since the start of his second term. Last week, the Wall Street Journal reported that Trump has even told his staff he will issue preemptive pardons for them in 2028 before he’s slated to exit the White House.

No former U.S. president has exercised his pardon power quite like Trump has. In fact, he’s even outdone his full first-term numbers, when Trump issued fewer than 250 pardons and commutations. The Wall Street Journal estimated that to date Trump has issued six times that number over the first 15 months of his second term. And he apparently has no intention of slowing down, with administration officials telling WSJ the president has repeatedly “raised the specter of pardons with White House aides and other administration officials, particularly when staff have suggested they could face prosecution or congressional investigations over decisions.” It’s become a running joke within the White House, as Trump has promised he will pardon anyone who came within 200 feet of the Oval Office.

Trump is wielding the pardon power with full impunity, aided by Supreme Court rulings that have affirmed the presidential pardon authority as “unlimited,” and left little to no room for congressional oversight. The only exceptions are in cases of impeachment and for state criminal offenses. This has essentially inspired Trump to wield pardons as a tool of political influence, as he pardons people facing serious federal criminal charges and who may have otherwise faced prison time. Now, these folks have a new lease on life, all thanks to the president, who expects unflinching loyalty in return.

To understand what risks Trump’s mass pardons create and what Congress can do to slow, if not outright stop, Trump, I spoke with Frank Bowman. He’s a law professor at the University of Missouri, a former federal prosecutor, and a pardon expert. He’s the author of a forthcoming book Pardons: Discretionary Clemency and the Rule of Law in Britain and America 1066–2026, all about the history of U.S. presidential pardons and the power they hold.

Here’s our conversation, edited and condensed for clarity.

Shirin Ali: What’s been your impression of Trump’s approach to the presidential pardon?

Frank Bowman: One has to see Trump’s use of the pardon power in the context of his

general attempt to undermine the rule of law and establish a sort of autocratic form of presidential governance. His uses of pardon power fit in with, for example, his progressive destruction of the Department of Justice as a meaningful law enforcement agency, and his transformation of it into an agency whose dual purposes are essentially to protect his friends or people who share his business interests, and to punish his enemies. We’ve seen that in a whole variety of contexts, essentially as Trump disabled large swaths of the DOJ’s enforcement capacity, particularly in the areas of white collar crime and political corruption, to the benefit of people who are political adherents of Mr. Trump, or are, in the case of cryptocurrency offenders, people who are actually in the same business as the Trump family. Or in the case of finance, people who are directly contributing to the Trump family wealth.

You have one side of Trump’s second-term behavior, where he’s essentially hamstrung the Department of Justice at the front end of the criminal prosecution and investigation process, and then the pardon power, as he’s used it so far, is twinned with that. Trump has used the pardon power to excuse people who perhaps have already been prosecuted, or are in the course of being prosecuted for offenses. These are people that, again, are his political supporters, who share his economic interests, or for some reason, catch his attention.

You have to see Trump’s misuses of the pardon power in context of this overall transformation of the federal criminal justice process into essentially a personalized area of presidential control. The other instances of this, of course, began on his first day in office, when he issued pardons to all the Jan. 6 rioters and insurrectionists. Some months later, he preemptively pardoned 77 people who haven’t yet been charged, but certainly could be, for their roles in the effort to overturn the results of the 2020 election. These are people who were in some cases literally his co-conspirators in former special counsel Jack Smith’s election interference criminal case.

It’s in this vein that you have to see his most recent comments in the White House that he’s going to pardon everybody within 200 feet of the Oval Office. In other words, what he’s saying is, If you folks commit crimes on my behalf, don’t worry about any criminal consequences. I’ll simply pardon you all at the end. He’s creating a whole permission structure for illegality, as long as it’s illegality that helps him and of which he approves.

Trump has suggested to his staff that if they carry out his orders, even if unlawful, he will pardon them. This sounds like a blatant manipulation tactic—what do you make of it?

All of that is made possible by the Supreme Court. If one looks back on fairly recent American history, Richard Nixon dangled pardons in front of the various Watergate conspirators, directly and indirectly. It was obviously considered both wrong in the general sense and criminally prosecutable. That practice by Nixon of dangling pardons was in fact one of the grounds on which the House Judiciary Committee voted to impeach him. The fact that at that time everyone conceived of this kind of behavior as fairly overt obstruction of justice and possibly criminally prosecutable for the president himself is surely at least one of the reasons why Gerald Ford felt it appropriate to issue Nixon a pardon after he left office. He widely understood that he was potentially liable for a whole array of conduct that was both impeachable and prosecutable. At that point, to stop the mouths of potential witnesses, Nixon offering pardons was a criminal offense of obstruction of justice.

However, what happened a couple of years ago is that the United States Supreme Court in Trump v. United States extended completely unprecedented immunity from criminal prosecution to the president and made that immunity absolute. What it characterizes, again, completely without precedent, as core powers of the presidency among which it lists pardons. Essentially, as of 2024 the Supreme Court has said any use by the president of the pardon power, even overtly corrupt and indeed criminal uses of the pardon power, cannot result in criminal liability to him.

Trump also knows, or thinks he knows, based on the failures of two impeachments to result in his conviction in the Senate, that he is essentially immune for an impeachment even for overtly criminal conduct. He knows that he can do something that Richard Nixon could not. When Nixon dangled these pardons back in the 1970s, he did so in extreme secrecy, knowing that if it ever came out it would certainly be impeachable, and it might very well be a criminal offense. There was considerable deterrence against this kind of behavior, but Trump is in a different world, one where the Supreme Court has given him permission to commit crimes if they involve pardons and his own political party has essentially given him permission to commit impeachable offenses because they won’t vote to convict him. He is at liberty to throw around promises of pardons for any kind of prospective criminal behavior by his aides and associates in the knowledge that nothing’s going to happen to him.

Despite the Supreme Court’s sweeping presidential immunity decision, can Congress do anything about how Trump’s using his pardon power?

Well, understand that regardless of the sad political reality, which is to say, the congressional Republican Party is so enthralled by Trump that it will not vote to impeach, even if he overtly commits crimes. I mean, that’s a sad political reality, but it doesn’t change the constitutional law of impeachment. Is it an abuse of the pardon power to pardon the past conduct of your criminal co-conspirators or to promise pardons for the commission of future crimes? Is that impeachable? Of course it is.

That being so, Congress certainly has the power to investigate, if that’s what the president’s doing. Congress today, if it wanted to, could investigate the uses and promises to use the pardon power of the president. Now they won’t do it of course, because both chambers of Congress are controlled by Republicans. However, Democrats, if they gain a majority in either or both houses, I think it’s incumbent on them to investigate this pretty unapologetically. They should investigate these potential criminal misuses of pardon power as part of their oversight authority and through their power to inquire into impeachable conduct.

Former President Joe Biden issued a slew of pardons on his way out of the White House, including for his son, other family members, and even members of the House committee that investigated the Jan. 6 attack on the Capitol. Did he essentially open the door for Trump to abuse the presidential pardon power?

I understood Biden’s impetus to issue preemptive pardons for members of his family and for a number of other people, like the Jan. 6 committee, Dr. Anthony Fauci, and Gen. Mark Milley. Trump and his surrogates were openly promising efforts to bring criminal charges against members of the Biden administration and others for things which were plainly not criminal, just simple retribution for political opposition. One understood Biden’s disposition to try to protect his own family and other folks who were simply doing what public servants should do, and while you had active promises from the incoming presidential administration of Mr. Trump that they were going to misuse the criminal justice system, I think it was a bad idea.

For one, I think it indicated a really insufficient amount of confidence in the criminal justice system to screen out totally baseless prosecutions, recognizing that even getting investigated, even if you’ve done nothing wrong, is a tremendously burdensome process in terms of reputation, time, and money. It’s a form of harassment, even if it’s ultimately not successful in securing the prosecution and I understand that. I also understand Biden’s impetus to try to spare people even that degree of embarrassment, expansive inconvenience, and so forth. But I thought at the time, and I think at least so far events have proven me correct, that efforts to try to charge people with noncrimes are very unlikely to succeed. We see this in the James Comey and Letitia James cases, where the justice system just spit out retaliatory, baseless prosecutions against Trump’s enemies. Grand juries and judges are simply throwing them out and I suspected that this would be the case. I think Biden should have had more faith in the system’s ability to deal with this kind of stuff.

My second reason for not approving of these preemptive pardons is precisely that they create at least an excuse for Trump to do worse. They create a precedent, where Trump being Trump, he would not need, but he would absolutely use, along with his supporters to justify his own use of preemptive pardons to protect people around him who really had committed crimes. I was concerned that Biden was creating a precedent that would be abused and I think in that respect, I was correct. I think Biden made a grievous error in issuing preemptive pardons—understandable, but a mistake.

Presidential pardons don’t apply to state crimes, so is one avenue out of Trump’s abuse of power to rely on states to pursue justice against the people he has already pardoned and those he may in the future?

You’re certainly right that the presidential pardon power does not extend to state criminal offenses. Trump purported to pardon Tina Peters, a county clerk in Colorado who tried to

mess with the state’s accounting system. Colorado courts recently just waived that away, correctly saying, “Sorry, you can’t do that.” And it’s as plain as anything in the law that Trump can’t do that. So yes, it is possible for states to bring state criminal actions against people who have received federal pardons. The tricky bit there, however, is the collection of evidence. If you take a look at the events in Minneapolis, you have ICE agents who shot and killed people, conduct which might well be a crime under state law, and which Minnesota authorities are investigating. However, a lot of the evidence of those offenses is in the hands of federal authorities who are refusing to turn it over. At least so long as Trump remains in office, there are going to be difficulties in collecting evidence, and even after he leaves office, there certainly would be concerns that relevant evidence of certain kinds of crimes would be lost or even consciously destroyed.

That concern becomes exacerbated by a recent opinion by the Justice Department proclaiming the Presidential Records Act, which requires that presidential records be retained and remain the property of the United States—those need not be turned over by the president when he leaves office. If you’re a state and you want to prosecute a federal official for some things that they’ve done that amounts to a state crime, but Trump has pardoned them, they’re going to be evidentiary obstacles.

Another obstacle is that many of the kinds of crimes that you might want to prosecute somebody for and committed by a federal official during the Trump administration may not be state crimes.

They don’t perfectly match; there just may not be a state statutory authority to reach some of the constant behavior that Trump is going to pardon people for. For example, the extrajudicial killings that happened on the high seas. Trump and his appointees are frankly committing murder on the high seas, violating the laws of war and U.S. military code. There’s very little argument that they’re actually committing crimes out there. But, they’re committed on the high seas, so to the extent there’s jurisdiction at all, this falls under the authority of federal district court or federal military tribunals. States have no jurisdiction there.

Contemplating committing a crime and hoping that I’d get pardoned for it, I’d be wanting to look over my shoulder and see if there’s state jurisdiction that will extend beyond the current president’s term. It’s by no means sufficient to really fill the gap, but states could jump in here.

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Elsewhere in Jurisprudence

• In this week’s Amicus, Dahlia Lithwick sits down with Rep. Jamie Raskin of Maryland’s 8^th Congressional District. They discuss how Congress could tap into a lesser-talked-about section of the 25^th Amendment to try to remove Donald Trump over his recent threats to end an entire civilization. Instead of going through the typical impeachment process, which requires both houses of Congress and a two-thirds majority, the vice president and a majority of the president’s Cabinet “can determine that the president is unable to successfully discharge the duties of office and then transfer the powers of the president to the vice president,” Raskin explains. Congress also has a role in creating a body that can stand in for the Cabinet in backing a vice president who invokes the 25^th Amendment.

• In the Amicus bonus episode, Dahlia and Mark Joseph Stern ponder Justice Sonia Sotomayor’s surprisingly direct comments about her fellow Justice Brett Kavanaugh. Referencing his infamous opinion that allowed the federal government to detain immigrants based in part on their “apparent ethnicity,” leading immigration detentions to be dubbed “Kavanaugh stops,” Sotomayor said the opinion came “from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.” The comments were surprising largely because Sotomayor has historically gone out of her way to praise her colleagues, but now the public is witnessing a breaking point where the Supreme Court’s interpersonal deliberations are spilling out for all to see.

• A new lawsuit is testing the Trump administration’s brute force immigration strategy by suing federal officers under state law for violating a Maine man’s constitutional rights. As Mark explains, Immigration and Customs Enforcement agents don’t technically have absolute immunity from legal liability, but they do enjoy broad protections from prosecution thanks to federal law. The Supreme Court has issued conflicting decisions over if and how federal agents can be sued under certain federal laws, but just a few years ago a lower court judge—appointed by Trump—declared states can allow plaintiffs to sue federal officials if they allege federal constitutional violations. If the courts allow this lawsuit to proceed, “They will finally compel immigration agents to operate within the Constitution—or face consequences for defying it,” Mark writes.

• Friend of Slate Steve Kennedy, organizing and network director at the People’s Parity Project, explains how the Trump administration quietly proposed a new rule under the National Defense Authorization Act that declares all men between 18 and 26 would automatically be registered for the draft. The change demands the Supreme Court’s intervention, Kennedy argues, because it raises a simple question that has been neglected for far too long: Is the draft itself constitutional?

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

This week, Donald Trump’s Department of Justice found a new and disturbing way to try to consolidate power exclusive in the hands of Trump, this time releasing a dubious opinion through the Office of Legal Counsel that argues the president’s records don’t ever need to be publicly shared. The OLC now claims that the Presidential Records Act, which was created in the wake of the Watergate scandal some 50 years ago and makes all presidential records federal property, invades the president’s “independence,” and is thereby unlawful. In practice, it means a man who once claimed he was “the most transparent president in history,” but was also indicted for mishandling classified documents, can legally walk away from the White House with any document he so pleases and never have to publicly report a single one.

The 52-page document is written as if it were a binding judicial opinion, which it is not. The Office of Legal Counsel serves as the president’s quasi in-house lawyer, offering legal analysis on the permissibility of the executive branch’s actions while also playing referee between federal agencies when they disagree. Its decisions can be challenged in court, which is exactly what happened with the OLC’s latest opinion attempting to unilaterally dismantle an act of Congress that sought to protect the people from an out-of-control and secretive president. On Tuesday, the American Historical Association, in partnership with American Oversight, announced they were suing to stop the OLC opinion from going into effect. The OLC’s opinion, they argued, effectively encourages the president to violate federal law, relying on virtually no judicial authority while also defying Supreme Court precedent.

The PRA was established not only to preserve presidential materials as a matter of historical record, but for transparency. After dealing with former president Richard Nixon’s administration and the messy legal battle over the Pentagon Papers, the PRA ensured any future presidential materials would always remain federal property, ensuring transparency with Congress and the public. Trump was charged with crimes in connection with his violation of the PRA and his hoarding of classified documents in a bathroom in his home in Mar-a-Lago at the end of his last term, but was bailed out by one of his friendliest judicial appointments. Unsurprisingly, Trump’s OLC is now saying he did nothing wrong—and that he’s free to violate the law all over again.

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David Janovsky has worked on federal transparency issues for decades and is acting director of the Constitution Project at the Project on Government Oversight. I spoke with him to understand exactly what legal argument OLC is using to try to dismantle the PRA and what it means for the future of government transparency.

Here’s our conversation lightly edited and condensed for clarity.

Shirin Ali: Can you break down the legal argument OLC is making in its opinion over the Presidential Records Act?

David Janovsky: It’s a pretty breathtaking argument. The OLC is taking a nearly 50-year-old statute that presidents have complied with since the Reagan administration, without any real incident, and has suddenly concluded that the whole thing is unconstitutional because it’s beyond Congress’ power to regulate presidential documents. It goes through a whole lot of really convoluted reasoning to get there, but that’s the main conclusion here: This law that just says presidents have to hand over their official documents to the National Archives, which is part of the executive branch itself, is not, in fact, legal.

The opinion claims there are a few different reasons that the PRA is beyond Congress’ power, but it spends by far the majority of its time making a quite strange argument, frankly, which is conflating Congress’ power to investigate the executive branch with its power to pass laws that set out this technical process for where documents go within the executive branch. There’s a decadeslong dispute between Congress and the executive branch, in particular OLC, about the scope of Congress’ oversight power, especially over presidents. And these disputes occasionally make it to court and have occasionally made it to the Supreme Court, including several disputes from the first Trump administration. But to suddenly say that that set of issues governs a statute is a very strange thing, especially because the PRA, at its core, mandates that presidents hand over the records to the National Archives, which is not Congress—it is an executive agency. That’s the first analytical step they take, and again, they spend most of the opinion on that. Then they go into a few other grounds that Congress can’t justify it as part of its spending power or as part of its power to regulate agencies, because the presidency is explicitly mentioned in the constitution.

There are big swaths of this opinion where the only things they’re citing are other OLC opinions, or even what seems to be a panel discussion that involved DOJ lawyers. This is a theme that has often played out in some of the most dangerous OLC opinions, where it views itself as a court and will take its own past writing as sort of a foundation to then push the envelope further. This only goes in one direction, right? And that’s to expand presidential power. I’m not aware of examples where OLC became more and more restrictive of presidential power over time. That is always a red flag for me when I’m reading an OLC opinion. If they’re just citing themselves, I’m skeptical.

Another thing that stood out to me is the Nixon-era roots of the PRA, which was a slightly different statute, and then it was expanded in 1978 during the Carter administration, but there was a Supreme Court case about the Nixon-era predecessor that came down pretty resoundingly on Congress’ side. The OLC does a strange thing here where they try to wave this away by saying, Oh, well, here context matters. This was about Nixon and Watergate. Obviously in that context, a court may say that Congress can do this, but that has no bearing on today.

But the rest of the opinion is making these sweeping conclusions about how this law is completely beyond the bounds of Congress’ power to act, and it can’t both be true that context matters and that Congress has no power to pass this law, full stop. I think there is reason to be deeply suspicious of what OLC is doing here.

One particularly striking line of OLC’s opinion says, “The PRA exceeds oversight power because it serves no identifiable and valid legislative purpose. Congress cannot preserve presidential records merely for the sake of posterity.” Does it really have the authority to make such a sweeping claim?

The short answer is, no, they don’t. The OLC has the power to opine on whatever OLC wants to opine on, but it’s just that; it’s an opinion. The executive branch likes to treat OLC’s written opinions as if they were coming from a court, but in reality, they are just what some lawyers who work at the Justice Department happen to think. If someone were to sue the administration over this issue, the Justice Department would probably take these arguments into court, sure, but it’s ultimately for a court to decide, and that’s what would give it actual legal weight.

Another alarming aspect of this opinion is that it really seems like it’s written with the Supreme Court in mind as its audience. It’s actually in the same paragraph as that line about legislative purpose. It says: “Just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the Chief Justice or Associate Justices, Congress cannot invade the independence of the President and expropriate the papers of the Chief Executive.”

That is presented as an obvious thing. I’m not at all convinced that that’s correct. Its persuasive power seems more aimed at appealing to the sensibilities of the justices who, one could assume, wouldn’t want to hand over their papers, more than a real legal argument. That raises further questions in my mind about the rigor of the legal analysis here.

Does this OLC opinion change if and how prior presidents’ records are released to the National Archives?

I think it’s an open question, and an important one. Will the archives apply this new OLC logic to records it already has and stop producing them? I don’t think we know the answer to that, but one of the reasons why OLC is so influential is its opinions are sort of treated as binding within the executive branch. I would be very curious to know right now what sort of conversations are happening, if any, between the National Archives and the Justice Department, and whether everyone is on board with this novel conclusion.

It’s impossible to ignore the fact that President Trump was indicted for mishandling classified documents just three years ago. Now that he’s been reelected, he’s basically changing the essence of the very law that was used against him, right?

It is, like you say, hard to avoid drawing these connections. The specific issue in special counsel Jack Smith’s investigation was less the PRA itself than other laws about handling of specifically classified information, but obviously improper retention of documents has been a major theme. This request apparently came from the White House counsel, and one has to wonder why it was thinking about the constitutionality of this sort of utterly benign, seemingly noncontroversial statute.

Now that OLC’s opinion is out there, what happens to the PRA? What risks does it pose?

At its core, the PRA is one of the most important ways that we get to look inside the presidency. It’s a big part of what enables scholars, the public, to access these documents about decisions that were made in the name of the American people. I think it also underscores what seems to me like it should be a pretty uncontroversial proposition, which is that the products of governing are ultimately the public’s. These are not for presidents to own or sell to profit off of. They are tangible artifacts of how our country is run in our name. To pull back from that, I think, would upend decades of settled practice and be a real step back for our collective understanding of the presidency.

The public has an expectation that someday we will have the ability to walk into a museum and see this stuff. If this memo and its conclusion stands, I wonder what this would look like in the future. This OLC opinion is part of a much bigger story of a concerted effort to break down any of the guardrails around the presidency—both those that were built in the post-Watergate era, but also more broadly to push back against really any restriction on what it can do. It is an extremely concerning trend, because I think it’s fundamentally at odds with the Constitution’s structure and purpose and it’s about harming America as well as our checks and balances.

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Elsewhere in Jurisprudence

• In this week’s Amicus, Dahlia Lithwick and Mark Joseph Stern bid farewell to Pam Bondi. President Trump’s handpicked attorney general finally hit the point of no return after royally botching the handling of the Epstein files and failing to secure lasting indictments against her boss’s enemies. Though she’s no longer a federal employee, Bondi still may be dragged to Congress to answer lawmakers’ questions about the Epstein files in just a few days. Dahlia and Mark also discuss the confusing 8–1 Supreme Court decision in Chiles v. Salazar that rules on the legality of conversion-therapy bans and what it means for LGBTQ+ youth and the First Amendment.

• In the Slate Plus bonus episode, Mark unpacks what went down during the birthright citizenship oral arguments at the Supreme Court with Evan Bernick, a co-author of a key amicus brief in the Barbara v. Trump case. They discuss Solicitor General John Sauer’s shockingly weak presentation and how most of the court’s conservative justices seemed highly suspicious of the government’s position against birthright citizenship.

• Friends of Slate Hila Keren and Luke Boso, professors of law at Southwestern Law School, explain how the Supreme Court’s decision in Chiles v. Salazar failed to consider the LGBTQ+ adolescents who stand to be impacted. In an 8–1 opinion that limited the scope of a Colorado law banning conversion therapy for minors, Keren and Boso argue the justices were too focused on protecting the freedoms of the therapist challenging the Colorado law. “It ignored the young patients who would be in her clinic, exposed to her speech, and susceptible to internalizing ideas that may scar them for life,” they wrote.

• Lizelle Gonzalez lives in Texas and was arrested for ending her own pregnancy, despite state law explicitly stating women won’t be prosecuted for seeking out an abortion. When Gonzalez was eventually released from jail, she sued the district attorney and other officials involved in her arrest. So far, she’s been losing in court, and Mary Ziegler, law professor and leading historian on the U.S. abortion debate, wrote in Slate that this isn’t entirely surprising: “False-arrest claims are notoriously hard to win. A plaintiff like Gonzalez needs to show that law enforcement lacked even probable cause for an arrest. That’s more than just innocence.” As Ziegler, explains, though, the effects of this qualified immunity could be devastating for pregnant women.

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

Apparently, President Donald Trump’s “full, complete and unconditional” pardon for the roughly 1,500 rioters who violently assaulted the U.S. Capitol building and Washington police officers on Jan. 6, 2021, including those who pleaded guilty to felony charges and others who were serving prison time, did not go far enough. This week, a new class action lawsuit was filed by a group of participants in the Jan. 6 insurrection, claiming that the federal government owes them $18 million for injuries they allegedly suffered. It might be laughable if there wasn’t a real chance they could collect.

Alan E. Fischer, a member of the Proud Boys who was caught on video pushing against law-enforcement officers who were protecting an entryway to the Capitol, and throwing chairs, a traffic cone, and a pole at the police, is leading the suit. Fischer was faced with felony charges and was awaiting trial when the president pardoned him last year. At the time, he immediately tried and failed to file a class action suit in D.C. that blamed Washington law enforcement for violating his constitutional rights. Now he’s trying his luck elsewhere, filing a fresh class action suit in the Middle District of Florida, with U.S. District Judge Paul Byron—an Obama appointee—assigned to the case.

Fischer, alongside husband and wife Patrick and Marie Sullivan, who also participated in the Jan. 6 insurrection but did not face criminal charges, alleges that on that fateful day five years ago, “the crowd was composed of protesters who were overwhelmingly peaceful before the shooting by police started.”

Peaceful is an interesting choice of words. Slate’s own Aymann Ismail witnessed people smashing the windows of the Capitol building on Jan. 6, destroying furniture, and using barricades to break through doors. “They were trashing the place,” he wrote at the time. There is footage of rioters physically scaling the walls of the Capitol, seemingly on the hunt for then–Senate Majority Leader Chuck Schumer’s office, where they eventually started banging on the windows. There’s also widely available footage of rioters assaulting police officers with weapons, something Fischer himself was alleged to have done. The day was so not peaceful that the violence resulted in numerous deaths, including those of officers and Trump’s own supporters. The Justice Department arrested over 725 people, of whom nearly 230 were charged with assaulting or impeding law enforcement.

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Nevertheless, Fischer’s suit attempts to pin the blame for his and other rioters’ injuries on the United States Capitol Police and the Metropolitan Police Department of the District of Columbia. It asserts that the officers didn’t give protesters fair warning before engaging in force, pointing to a D.C. law. This argument won’t hold up, as a court is likely to find that the officers working the crowd on Jan. 6 were engaged in discretionary actions. “There’s some discretion of what’s the best way to do crowd control, right? There’s a whole bunch of people launching themselves at the Capitol—what is the best way to protect the Capitol? There’s no playbook,” Dennis Fan, a former DOJ prosecutor and a professor at Columbia Law School, told me.

The lawsuit also claims that the very same members of law enforcement whom Fischer was charged with attacking breached their duty “by failing to use reasonable care and actively exposing the protesters and class members to unreasonable risks of harm.”

These allegations are especially audacious considering that Fischer, the Sullivans, and every other person who was present at the Capitol on Jan. 6 whom this lawsuit is attempting to represent willingly chose to engage in protest over the certification of the 2020 election results. And when thousands of them also chose violence against officers, trespassed onto federal property, then vandalized the Capitol, they committed crimes that violated federal law. Their own actions enabled law enforcement to intervene, including by defending themselves and the hundreds of lawmakers sitting inside the Capitol. Harry Dunn, a former Capitol Police officer who faced this mob on Jan. 6 and testified before Congress, told Katie Phang how rioters knocked a police officer down and, as soon as his head hit the concrete, sprinted ahead to the west lawn. “They initiated the violence, and we responded,” Dunn said.

Although the plaintiffs in this case allege that they, and every class member they seek to represent, suffered some form of bodily harm on Jan. 6, they fail to mention how their own actions contributed to 140 police officers sustaining injuries that day too. Capitol Police officer Brian Sicknick died from a stroke he suffered after having been pepper-sprayed while trying to fend off rioters, while at least one other officer died by suicide in the aftermath of the insurrection.

This attempt by the rioters to claw millions of taxpayer dollars for personal injuries that are no one’s fault but their own is galling but not surprising. Upon assuming the White House again for his second term, Trump immediately pardoned the Jan. 6 rioters, before launching a new website attempting to rewrite the history of what happened that day. Emblazoned with an image of former House Speaker Nancy Pelosi, it brazenly reframes the events of Jan. 6, blaming Democrats and memorializing violent insurrectionists. This stance has clearly emboldened many; since the day of Trump’s mass pardons, at least 33 rioters have been rearrested, charged, or sentenced for other crimes, including just this week, when a man was sentenced to four years in prison for pleading guilty to possession of child sexual abuse material.

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Trump’s DOJ has also shown interest in helping settle the score for its allies with taxpayer-funded dollars. Last summer, the department agreed to pay out $5 million to the family of Ashli Babbitt, a Jan. 6 rioter who was shot and killed by police as she tried to enter the barricaded Speaker’s Lobby, doors deep inside the Capitol. Her family filed a wrongful death lawsuit, though the officer who shot Babbitt was cleared of any wrongdoing after a federal investigation found that he had reasonably fired in self-defense and in defense of hundreds of fleeing lawmakers. Then, in March, the DOJ paid $1.25 million to Michael Flynn, the disgraced former national security adviser from Trump’s first term, in a settlement deal over a wrongful prosecution lawsuit stemming from a 2017 case in which he admitted to lying to the FBI.

In normal times, a settlement for a case like Fischer’s would be out of the question, particularly because it’s a class action that includes individuals with vastly different levels of culpability. And the DOJ historically doesn’t like handing out blanket taxpayer dollars to just anyone. That said, there’s no certainty about what this DOJ will do.

“The most cynical view of this is that the people who went and committed criminal conduct are trying to collect their bounty,” Fan said. “And they see there’s a Department of Justice that, either correctly or incorrectly, is political.”

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Elsewhere in Jurisprudence

• In this week’s Amicus, as millions of Americans took to the streets for No Kings protests all over the country, Dahlia Lithwick unpacked what to make of the current state of our democracy. In conversation with Ian Bassin, co-founder and executive director of Protect Democracy, she discussed how, even though it looks as if U.S. democracy is sinking, there is hope on the horizon. With the president’s dangerously low approval rating and midterm elections right around the corner, Ian is confident that voters have had enough of Trump’s lawlessness: “We’re going to defeat this. We’ve done it before. We’ll do it again.”
  
  

• In the Slate Plus bonus episode, Dahlia and Mark Joseph Stern discussed Watson v. RNC, a case that will determine the future of mail voting. During oral arguments, the Supreme Court’s conservative justices seemed ready to invalidate dozens of state laws governing mail-voting procedures, right on the precipice of the midterms, which are expected to flip the balance of power in Congress. And that’s far from the only legal news of the week, as Dahlia and Mark also covered major jury verdicts against social media companies and the DOJ’s massive admission in federal court that it made material misstatements about an immigration courthouse-arrest policy that apparently never existed.

• On Wednesday, SCOTUS held oral arguments in Trump v. Barbara, a case that will determine the future of birthright citizenship. With Trump seated in the public gallery, seven of the justices quickly made it clear they had serious doubts about the government’s argument that the 14^th Amendment does not apply to parents who are in the country unlawfully. “Given the reality of this Supreme Court, it’s still quite assuring to see a cross-ideological majority of the justices line up to explain that, yes, the 14^th Amendment means what it says,” writes Mark in a piece breaking down the case.

• In more Supreme Court news, this week the justices issued a confusing 8–1 decision in Chiles v. Salazar, declaring that a ban on conversion therapy violates the First Amendment. As Mark explains, the decision is “profound hypocrisy masquerading as principle.” All the justices, minus Ketanji Brown Jackson, joined Neil Gorsuch’s opinion, which holds that talk therapy is a “quintessential form of protected speech” and that counselors engaging in it are simply expressing a viewpoint. Thus, a Colorado law banning conversion therapy is “presumptively unconstitutional.”

• Trump signed another problematic executive order on Tuesday, this time in an attempt to severely limit mail ballots. As friend of Slate Richard Hasen, a professor of law at UCLA and the director of the Safeguarding Democracy Project, explained, the order strives to establish a national list of every American citizen over 18 who is eligible to vote. If the U.S. Postal Service receives a mail ballot by someone not on the list, it would be rejected. Besides being blatantly unlawful, Rick posits, Trump’s endgame doesn’t actually have much to do with the literal mail-voting process and is instead an attempt to engage in “election-denialism theater.”
  

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

This week, the Supreme Court effectively shielded the nation’s law enforcement from consequences when it treats journalism as a crime. In rejecting an appeal in Villarreal v. Alaniz, the court has allowed local officials in Texas to remain immune from prosecution for arresting a journalist who published information she received from a government official. This case presented a strikingly simple question: Does it violate a journalist’s First Amendment rights if they are arrested for requesting and publishing information that a government employee willingly hands over? A lower court split sharply over the answer, but this Supreme Court, given the opportunity to weigh in to help settle the law and protect the freedom of the press all over the country, decided that the best answer was no answer at all, refusing to take up the case. In response, a single justice, Sonia Sotomayor, wrote a scathing critique of the court’s decision to abstain and of the 5^th U.S. Circuit Court of Appeals’ atrocious ruling protecting local police who had clearly trampled over a journalist’s First Amendment rights by arresting her.

The case of Villarreal v. Alaniz has been ping-ponging through the courts since 2019, when it was first filed by Priscilla Villarreal. She is a citizen journalist based in Laredo, in south Texas, and is considered a muckraker, a 10^th grade dropout who became a journalist to cover the ins and outs of the southern border, which is a focal point of her community. Her tactics were unconventional, often including livestreaming the news from her pickup truck to a now-defunct Facebook page as it was happening. In a town of roughly 260,000, her “news on the move” operation garnered about 100,000 followers. In 2019 the New York Times declared Villarreal “the most influential journalist in Laredo.”

Things took a sharp turn for her in 2017, when she was arrested at her home for allegedly violating section 39.06(c) of the Texas Penal Code. The obscure law bans a person from soliciting or receiving nonpublic information from a public servant by means of their office or employment with the intent to obtain a benefit. It had been enacted 23 years earlier and had never once been enforced, presumably because officials recognized that it would violate all sorts of First Amendment protections, perhaps most notably the freedom of the press. Yet Laredo officials used it against Villarreal when, six months before her arrest, she texted a source she had developed within the Laredo Police Department to confirm the names of the victims in two separate incidents, a suicide and car accident. City officials argued that she received a “benefit” from this exchange of information—an increase in popularity on Facebook.

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Villarreal was released on bond, and a judge dismissed her charges, declaring the Texas statute unconstitutionally vague. However, Villarreal fought back with a lawsuit demanding damages. She alleged that all the Laredo officials involved in her arrest had violated her First Amendment rights and were retaliating against her over her earlier reporting. The case spent years locked in court battles, with a district court judge first dismissing the case by claiming that the officials involved had qualified immunity, a doctrine created by the Supreme Court some 60 years ago that grants federal officials immunity from being sued under many circumstances. Eventually, the suit reached the notorious 5^th U.S. Circuit Court of Appeals, and in 2022 a three-judge panel ruled in Villarreal’s favor.

But when Laredo officials appealed to have the case heard en banc by the full panel of judges, it ruled 9–6 that there was no “obvious unconstitutionality” to what had happened to her. Judge James Ho, who ruled for Villarreal on the original panel, dissented from the majority. He argued that if Villarreal’s case “is not an obvious violation of the Constitution, it’s hard to imagine what would be.” Ho is easily one of the most ultraconservative judges on the 5^th Circuit, appointed by Donald Trump and infamous for his firebrand rhetoric against abortion, gun control, and vaccine mandates. As Slate’s Mark Joseph Stern wrote in praise of Ho’s position: “It is an ominous sign of the 5^th Circuit’s increasingly authoritarian jurisprudence that Ho must beg his colleagues to safeguard the most foundational guarantees of free speech.”

In 2024 Villarreal appealed to the Supreme Court, asking the justices to hear her case. On first pass, they vacated the 5^th Circuit’s 9–6 ruling and told the lower court to reconsider its decision. Six months later, the circuit court came to the same conclusion, ruling against Villarreal. She then went back to the Supreme Court, hoping it would finally take up her appeal.

Unfortunately for Villarreal—and for journalists all over the U.S. who are constantly in communication with all kinds of government employees in exactly the same way—the court rejected her appeal with no explanation, allowing the 5^th Circuit’s ruling to stand and preventing Villarreal from securing any damages for a clear abuse of her constitutional rights. Justice Sonia Sotomayor wrote a solo dissent: “It should be obvious that this arrest violated the First Amendment.”

Sotomayor methodically picked apart Laredo officials’ actions against Villarreal, as well as the Texas law they used to pin her down for simply doing her due diligence as a journalist, confirming details about a critical news story directly with the government. “By arresting Villarreal, rather than solely disciplining the employee for any wrongdoing, county officials took this ‘everyday journalism’ and transformed it ‘into a crime,’ ” she wrote. “This was a blatant First Amendment violation. No reasonable officer would have thought that he could have arrested Villarreal, consistent with the Constitution, for asking the questions she asked.”

Hiding behind the state law that seemingly legalized Villarreal’s arrest “does not and cannot insulate the officials from liability,” Sotomayor argued. She also noted that when Laredo officials had secured arrest warrants for Villarreal back in 2017, they did not disclose to the judge at the time how or why the information she had texted her police department source about was protected from disclosure. “There are good reasons to believe that it was not,” Sotomayor suggested.

As we collectively watch Trump’s second presidency play out, when he has weaponized every tool at the executive’s disposal to attack speech he does not like—Washington Post reporter Hannah Natanson, late night host Jimmy Kimmel, and a slew of major national news organizations come to mind—the Supreme Court’s lack of action threatens all Americans. Journalists have a singular ability to hold the Trump administration and local governments all across the country accountable, through shedding light on what they are doing and how they are wielding their power. Criminalizing this work without consequence doesn’t just endanger those journalists; it threatens everyday Americans who rely on local and national reporting in nearly all aspects of their lives.

Sotomayor smartly called out that the most dangerous part of the justices’ nondecision in Villarreal v. Alaniz is the message it sends to states and local law enforcement. “Under its view, police officers may arrest journalists for core First Amendment activity so long as they can point to a statute that the activity violated and that no high state court had previously invalidated, whether facially or as applied,” Sotomayor wrote. “This rule creates a perverse scheme in which officials can arrest someone for protected activity, decline to appeal a trial court’s decision declaring the statute unconstitutional (as the [Laredo] county did here), and use qualified immunity to avoid liability by citing back to that statute.”

At first glance, Villarreal may seem like a small fish, her case representing a tiny story in the larger picture of journalists all over the country covering wars, epidemics, and global economic policy. But no matter how big or small the work, journalists need to be able to seek information from government officials in order to do their jobs. This process is what led to the Pentagon Papers, and allowing it to be criminalized in the way that it was against Villarreal would make the service of journalism impossible.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• In the most recent episode of Amicus, Dahlia Lithwick and Mark Joseph Stern review the Supreme Court’s extraordinarily busy week, from a flurry of shadow-docket opinions to the justices’ sparring in public to the president issuing fresh threats to the justices. The duo also break down a consequential voting rights case in Watson v. Republican National Committee, its close connection to the SAVE Act, and how mail voting faces an existential challenge mere months away from the midterm elections. On Monday, the court heard the case. As Mark notes in his analysis: The court appears dangerously close to upending the 2026 midterms and potentially disenfranchising a significant number of voters.

• In the Slate Plus bonus episode, Dahlia and Mark discuss an explosive hearing in New Jersey, where U.S. District Judge Zahid Quraishi threw a prosecutor out of his courtroom. The scene was incredibly rare, with Quraishi telling federal prosecutors that their office had destroyed goodwill that had taken generations to build over a hearing that was supposed to be a straightforward sentencing for a defendant who pleaded guilty to possessing child sexual abuse material. Mark explains how, despite Quraishi being a Joe Biden appointee, he is no progressive icon, having previously served as assistant chief counsel for Immigration and Customs Enforcement and as a “detention adviser” for the military during the Iraq war.

• On Monday, the Department of Justice quietly caved in the aforementioned legal fight, seemingly at Quraishi’s behest, by accepting the judicial appointment of New Jersey’s U.S. attorney. Mark explains how the DOJ accepted a district court’s appointment of Robert Frazer as the new head of the state’s U.S. attorney’s office. This was a seat the Trump administration had tried to fill with Alina Habba, the president’s former personal attorney, but appears to have finally conceded. “This white flag marks the Trump administration’s biggest step back from its maximalist vision of a ‘unitary executive’ who holds total control over his entire branch,” Mark writes.

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

For well over a year, Donald Trump has made it very clear he has beef with Federal Reserve Chair Jerome Powell. From calling him a “numbskull” to a “stubborn moron” and threatening Powell with a “major lawsuit,” the president has been consistently bullying the chair to lower interest rates. Yet so far, Powell has not given in to Trump: On Wednesday, the Fed again declined to lower rates in the face of threats from Trump and after yet another report showing inflation to be stubbornly high.

Naturally, Powell’s refusal to yield led Trump to escalate, and soon enough the U.S. attorney’s office for D.C. launched a dubious criminal investigation to examine if Powell lied to Congress about the Fed’s yearslong renovation project of its headquarters. When prosecutors tried serving subpoenas to members of the Fed board last month, it immediately triggered a legal battle. And last week, James Boasberg—chief judge of the U.S. District Court for the District of Columbia—weighed in, mincing no words when agreeing to quash those subpoenas.

“There is abundant evidence that the subpoenas’ dominant (if not sole) purpose is to harass and pressure Powell,” Boasberg wrote, “either to yield to the President or to resign and make way for a Fed Chair who will.” The judge went on to point to “a mountain of evidence,” citing over a year’s worth of Trump’s own words, from interviews to Truth Social posts, in which he complained about Powell and said, again and again, that he wanted lower interest rates.

It’s worth mentioning that the president himself appointed Powell as Fed chair during his first term. Joe Biden then reappointed him to a second four-year term, which is set to end in May. Powell may not be going far, though, as he was separately confirmed to a 14-year term as Fed governor, a position that allows him to stay on the board of the Federal Reserve until 2028. (Governors typically resign altogether when their term as chair is up, but they have no obligation to do so, and Powell may not.) It is his continued presence on that board—along with Trump’s transparent desire to cow any other officials who might not bend to his whims—that has fueled Trump’s relentless pressure campaign, despite the fact that Powell has only two more months in the top job.

On Wednesday, following the Fed’s rate announcement, Powell upped the ante. After announcing that the Fed was holding interest rates, he vowed to remain in the job so long as the investigation into the Fed renovations was ongoing. “I have no intention of leaving the board until the investigation is well and truly over with transparency and finality,” he told reporters. He added that he hadn’t yet decided whether he would stay on as a member of the board after his term as chair ends, a successor is confirmed by the Senate, and the investigation is concluded, but suggested he could certainly stay in the job. “I will make that decision based on what I think is best for the institution and for the people we serve,” he said.

Why does Powell feel such freedom to stand up to Trump? The court’s role, and particularly Boasberg’s recent opinion, surely must be playing into this. “Apparently running out of patience, the White House recently launched a campaign to investigate Powell,” Boasberg wrote of the subpoena effort. Initiating a probe into the Fed’s renovations was a thinly veiled harassment campaign, as Boasberg concluded that the U.S. attorney’s office “produced essentially zero evidence to suspect Chair Powell of a crime; indeed, its justifications are so thin and unsubstantiated that the Court can only conclude that they are pretextual.” Still, quashing a grand-jury subpoena is one of the rarest of judicial actions. The Trump Department of Justice’s efforts had to constitute incredibly blatant bad faith to receive such a remarkable judicial pushback.

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It couldn’t have helped the DOJ’s position that Boasberg is probably one of the most experienced jurists in the U.S. judiciary when it comes to dealing with this administration’s snaky tactics. Last year, Boasberg oversaw the legal battle over Trump invoking the Alien Enemies Act in order to justify sending planes loaded with immigrants to El Salvador’s CECOT megaprison. The White House defied Boasberg’s restraining order at the time—while the president publicly vilified him and called for his impeachment—only to have the Supreme Court go back and forth on the issue before essentially siding with the government. Adding insult to injury, the DOJ filed a frivolous ethics complaint against Boasberg for allegedly holding a meeting with other judges during which he expressed concerns about the Trump administration’s potential to trigger a constitutional crisis. The complaint was dismissed last month.

Jeanine Pirro, the U.S. attorney for D.C., immediately went to the press to discuss her feelings about Boasberg’s assessment of her subpoenas. Wasting no time in calling him an “activist judge,” Pirro said Boasberg’s decision “neutered the grand jury’s ability to investigate crime” and left Powell “bathed in immunity.” She vowed to appeal.

What Pirro is perhaps choosing to ignore here is that Boasberg found her office’s work so inept, and the president’s disdain for Powell so glaringly obvious, that he was left with no other choice but to set aside a grand jury’s decision. “He’s saying it is improper to use a grand-jury inquiry to try to exert political leverage on another component of the executive branch,” Frank Bowman, a law professor at the University of Missouri and a former federal and state prosecutor, told me. “And of course, Trump has made this easy for Boasberg simply by constantly shooting off his mouth.”

Last year, Trump proclaimed that Powell “must NOW lower the rate,” then, during a press conference at Mar-a-Lago, called the Fed chair a “fool,” adding: “I’d love to fire him. Maybe I still might.” (As discussed below, Trump doesn’t have the ability to fire Powell without just cause, and the Supreme Court has telegraphed that it would protect the Fed’s independence here.) On brand as ever, shortly after the release of Boasberg’s decision to quash, the president posted a staggeringly long rant on Truth Social. As he complained about being stopped from probing Powell’s construction project, he suggested that the contractors involved also be “heavily investigated” and called for Boasberg to be removed from the judiciary because he is a “Wacky, Nasty, Crooked, and totally Out of Control Judge” who suffers from “Trump Derangement Syndrome.”

No matter how much Trump rails against the Fed, his legal battles against the institution are flailing—in part because it seems to be the one aspect of government that this Supreme Court will protect from presidential interference. Before Pirro went after Powell, Trump had tried to fire another Fed member, Lisa Cook, over flimsy allegations of mortgage fraud. But SCOTUS kept that attempted removal on hold while it considered the case. And during oral arguments in January, both the liberal and conservative flanks of the court expressed doubts in the government’s claim that Trump could oust Cook on the basis of an unproven allegation. “Once these tools are unleashed,” Justice Brett Kavanaugh—lately the president’s favorite justice—warned, “they are used by both sides and usually more the second time around. … What goes around comes around.”

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• In the most recent episode of Amicus, Dahlia Lithwick sat down with immigration and constitutional scholar Anna O. Law about her forthcoming book Migration and the Origins of American Citizenship. They break down the often ignored and disturbing history of mass migration in the U.S. and what exactly the Framers meant with the birthright citizenship clause of the 14^th Amendment. Their conversation includes an explanation of the historic Wong Kim Ark birthright citizenship case of 1898 just as the Supreme Court gears up to hear arguments in the consequential Trump v. Barbara case next month.

• In the Slate Plus bonus episode, things get graphic as Dahlia and Mark Joseph Stern discuss Judge Lawrence VanDyke of the 9^th U.S. Circuit Court of Appeals’ shocking dissent in a case about protecting the rights of transgender women. “This is a case about swinging dicks,” VanDyke proclaimed, as he kicked off a lurid solo dissent that managed to insult all 29 of his colleagues across the ideological spectrum. While the judge’s dissent grossly exaggerated the impact of the law in Washington state, it was clearly crafted for a singular audience: Donald Trump.

• On Monday, the Supreme Court surprised Mark. It refused to allow the Trump administration to revoke temporary protected status for more than 350,000 immigrants from Haiti and Syria. Instead, it agreed to take up the government’s case, which argues that it can revoke this status—this is something Justice Ketanji Brown Jackson has been fighting for nearly a year now. As Mark explains, the president’s attack on TPS “is one of the most far-reaching nativist policies of his second term,” and lower courts have consistently rejected it. By agreeing to take up the case on the merits, SCOTUS gives immigrants with TPS a few more months to plot a new life, in the likely event that the court’s supermajority sides with the Trump administration.

• Friend of Slate Hannah Story Brown, deputy research director on climate governance at the Revolving Door Project, made an interesting observation when SCOTUS agreed to take up a new climate case. Nowhere to be found were the words that had appeared in previous such cases: “Justice Alito took no part in the consideration or decision of this petition.” Brown explains Alito’s past with cases concerning oil and gas companies, with the justice often recusing himself from participation because he has invested somewhere between $60,000 and $245,000 in individual oil, gas, and coal companies. In this critical instance, though, Alito has refused to recuse, even though his conflict of interest hasn’t changed.

• In more analysis in the lead-up to Trump v. Barbara oral arguments, friend of Slate Smita Ghosh, appellate counsel at the Constitutional Accountability Center, explains how a lesser-known inheritance case from 1844 could very well become an important piece in the debate over birthright citizenship. The case of Lynch v. Clarke came about at a time when noncitizens could not inherit land, resulting in a dispute over whether a child born in the U.S. to parents who were temporary visitors here was still entitled to her family’s property. Ghosh argues that “Lynch illustrates that the traditional concept of citizenship was broader than the permanent-allegiance-and-domicile rule that Trump’s lawyers are advancing.”

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

On the campaign trail more than a year ago, Donald Trump proclaimed, “On Day 1, I will launch the largest deportation program of criminals in the history of America.” Almost immediately after being sworn into office for the second time, the president made it clear that this was not just a grandiose campaign promise, but a call to action that quickly and drastically exceeded expectations. Fifteen months into the second Trump administration, data tells us that not only have arrests by Immigration and Customs Enforcement risen drastically compared to during the Biden administration, but agents are disproportionately arresting immigrants without criminal records, and targeting refugees, green-card holders, Deferred Action for Childhood Arrivals program recipients, and even U.S. citizens. More horrifyingly, a record number of people have died while in ICE custody in fiscal year 2026. Despite this brazen unlawfulness, Trump is forging full speed ahead and his endgame is coming into clear view: a dystopian United States, stripped of any immigrants and littered with warehouses detaining everyone the administration deems un-American.

These stakes sound hyperbolic, but they were illustrated very clearly on Tuesday in the Senate testimony of the director of immigration studies at the libertarian Cato Institute, David J. Bier, who noted that the Department of Homeland Security has “joked” about deporting 100 million people. In an exchange with Louisiana Sen. John Kennedy, Bier clarified what such an effort would actually mean. “I think that advocating 100 million deportations is ethnic cleansing,” Bier noted. “When I talk about population purge, I talk about the fact that they’re trying to deport U.S.-born citizens, people born here. They’re trying to deport them as well. So it’s not a mass deportation agenda, it is also an agenda intended to reduce the population in the United States, including U.S.-born people.”

Amid all this, Homeland Security has been quietly snapping up warehouses across the country after the One Big Beautiful Bill Act awarded the agency $45 billion to build new immigration detention centers. It wasn’t until February, when internal agency documents were made public, that a coherent plan was revealed: the “ICE Detention Reengineering Initiative.” It details how ICE intends to spend $38.3 billion to develop “non-traditional” facilities—industrial warehouses—into detention facilities. “For ICE to sustain the anticipated increase in enforcement operations and arrests in 2026, an increase in detention capacity will be a necessary downstream requirement,” the document concluded. This plan seemingly represents the sentiment behind acting ICE director Todd Lyons’ comments last year in which he explained that he’d like to revamp America’s immigration system to be one “like [Amazon] Prime, but with human beings.” While the White House has reportedly been seeking to downplay this deportation agenda publicly amid a political backlash to its failed Minneapolis “surge,” the warehouses put lie to the notion that the administration is backing down in any way.

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So far, ICE has spent roughly $895 million on 10 warehouses all over the country, with seven sales still in progress, according to data compiled by Project Salt Box, a public advocacy group tracking DHS’ warehouse project. These purchase decisions are being made by fiat, as federally owned property is often exempt from local permitting and zoning rules. ICE has, more often than not, left local leaders in the dark about its plans. Mayors and town councils are finding out after the fact, when purchase agreements are nearly final, with virtually no opportunity to offer input on whether a community has the resources to support a detention center, let alone address residents’ concerns about having such a facility in their backyards.

Americans, whether they voted for Trump or not, almost all seem to agree that they do not want these detention centers in their neighborhoods. Quickly understanding the strain a massive facility housing thousands of people would have on a locale’s water and sewage systems, the negative environmental impacts, and a possible hit to property values, plus the morality of playing a part in a mass detention scheme, Americans have found yet another reason to coalesce against ICE. Successful public outcry has gotten ICE or property owners to back out of a warehouse sale in about half of recent cases, with Project Salt Box identifying at least 12 warehouse sales that were canceled, including in conservative-leaning areas like Hutchins, Texas; Ashland, Virginia; and Kansas City, Missouri. In blue Maryland, meanwhile, lawmakers are trying to pass a series of emergency bills that would restrict DHS by limiting where detention facilities can operate in the state.

The reality is that though one community may succeed in pushing out a detention center, the story doesn’t end there. “They are going to go somewhere else. They may have already gone somewhere else,” Eric Folkerth, a pastor who protested the Hutchins ICE purchase, told local media.

Roxbury, New Jersey, is a town that has been actively organizing against an immigrant detention center since January, shortly after the Washington Post revealed the small conservative town was on DHS’ list for a warehouse. So far, its efforts have been unsuccessful, despite a Republican mayor, all-GOP town council, and an electorate that decisively voted for Trump two years ago all collectively telling DHS officials an immigrant detention center is not welcome in Roxbury. City officials even offered the warehouse owner, Dalfen Industrial, 10 years’ worth of tax abatement, totaling about $20 million, if they agreed not to sell their warehouse to DHS. The offer was turned down.

I attended a recent protest outside of Roxbury’s City Hall, where one woman told me, “This will destroy this city.” She was worried that if ICE’s detention center plans went through, “Roxbury will be known as the concentration town.”

Over 1,000 residents from in and around Roxbury showed up to that protest on Feb. 28, and as they lined the long interstate where the small city hall office was located, the sound of honking cars was nearly constant as drivers showed their support. And anyone could easily see the warehouse in question from the protest, just a few blocks up the street. The massive 470,000-square-foot facility was nestled in a quiet neighborhood, surrounded by homes and towering trees. One small house with a sand-colored roof had a sign stuck in the grass toward the end of its long, winding driveway: “Immigrants are welcome here.”

A stone’s throw away from the Roxbury warehouse was a Mexican bakery serving delicacies like conchas and empanadas. Inside, the staff spoke imperfect English, but all wore smiles on their faces as they bustled around the establishment, tending to their customers. Did they know what was coming, right across the street?

I didn’t ask. I ordered a coffee, sat back in a worn wooden chair, and took in the warm glow of the string lights above me, arranged like a canopy over the entire restaurant. Latin music played in the background, loud enough to hear but soft enough to have a conversation with the person across from you.

The inside of this bakery was warm and welcoming, filled with diverse patrons who were happily sharing a meal together, in the shadow of the would-be concentration camp right next door. But the United States right outside that door felt cold and angry, with a president who refuses to stop tearing people away from each other.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• In the most recent episode of Amicus, Dahlia Lithwick unpacks how Christian nationalism made its way into the U.S. government with Rachel Laser, president and CEO of Americans United for Separation of Church and State. In the 1950s, Christian nationalism successfully got “God” inserted into the Pledge of Allegiance and national motto, and even on U.S. dollars. By the 1980s, the U.S. Supreme Court had ruled on a series of consequential cases that changed the definition of “religious freedom,” further eroding the separation of church and state. The Roberts court then paved the way for the Trump administration’s full embrace of Christian nationalism that we’re seeing today.

• In the Slate Plus bonus episode of Amicus, Dahlia and Mark Joseph Stern discuss Attorney General Pam Bondi’s newly proposed rule that attempts to block state bar associations from investigating Justice Department lawyers who are accused of state ethics violations. Bondi’s rule is a blatant attempt to slow-walk and even stop state bar investigations into her DOJ attorneys.

• As we await a decision in the Supreme Court case Chiles v. Salazar, Matt R. Salmon, friend of Slate, psychiatrist, and author of Pride & Prejudice: Healing Division in the Modern Family, explains the dangers of undoing a Colorado law that bans conversion therapy. As someone who personally experienced conversion therapy, Salmon argues that words spoken during therapy aren’t simply “First Amendment-protected” speech, but medical treatment that is subject to the same standards as any other medical intervention— “And when that treatment is based on deception, as in the case of ‘conversion therapy,’ it becomes fraud.” The court is set to rule on Chiles by the end of this term.

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From the moment Donald Trump was sworn into office for his second term, he made clear that a major priority of his administration would be pursuing vindictive actions against his perceived enemies. One of the earliest targets of this agenda of retribution: law firms. In his first months in office, Trump signed executive orders that targeted firms that supported DEI, represented the Democratic Party, advocated for liberal causes, or employed prosecutors who had worked on former special counsel Robert Mueller’s investigation into Trump’s 2016 campaign. At least nine other targeted law firms preemptively capitulated, agreeing to provide some $1 billion in pro bono work for causes agreeable to the president. Four decided to push back and sue. Over the course of a year, four separate judges ruled the president’s executive orders were unconstitutional. And this week, for a brief moment, it seemed like the Department of Justice was finally waking up to reality when it moved to dismiss its appeals in these cases.

That lasted less than 24 hours. By Tuesday morning, the Department of Justice submitted a new filing with the U.S. Court of Appeals for the D.C. Circuit asking to withdraw its motion to dismiss, which had been filed one day earlier. “Clown show authoritarianism,” Jameel Jaffer, law professor at Columbia University and inaugural director of the school’s Knight First Amendment Institute, commented.

The battle between Big Law and the Trump administration doesn’t immediately come off as being as existential as, say, the legal challenge over the president’s birthright citizenship executive order. But the attacks on large law firms are pernicious, because alongside satisfying Trump’s vindictiveness, they are also actively preventing people from being able to fight for their constitutional rights. As Trump directs federal agencies to cut off federal funding in crucial areas, target immigrants, and fire public servants, law firms play a vital role litigating against the government to remedy these harms. In Trump’s first term, firms spent countless hours representing people pro bono who were threatened by the administration’s policies; this time around, many have shied away from these fights, in no small part because the president strong-armed them into submission. And this week, as the DOJ walked back its motion to dismiss its appeals against four major law firms, the Trump administration reminded us it will stop at nothing to silence those who dare dissent.

To better understand Trump’s strategy in pursuing Big Law and the fallout it has caused,

I spoke with Deborah Pearlstein, director of Princeton University’s Law and Public Policy program. Pearlstein has been sharply critical of law firms’ surrender to Trump, arguing that their capitulation “hastens America’s slide from a system of constitutional democracy” to “a regime of fiat akin to those authoritarian governments our country has long stood against.”

Here’s our conversation, lightly edited and condensed for clarity:

Shirin Ali: The attack on Big Law seems like one element of the Trump administration’s strategy of taking down people and causes it does not like. It leverages executive authority to change laws and regulations as it pleases, while simultaneously attacking the legal pathways for people to challenge said changes.

Deborah Pearlstein: I think that’s exactly right. I think it’s an enormously important point and it’s way too often overlooked. The concern about the attacks on these Big Law firms is not about protecting Big Law as such. Every single one of these firms, the firms that made deals with the administration and the firms that fought back against the administration, made an enormous amount of money last year. They’re doing OK. What’s suffering as a result of these attacks: the ability of ordinary people who were on the receiving end of crackdowns to get good representation to fight back.

I think it’s important to view all of the attacks, including on universities, law firms, NGOs, media companies, as one piece challenging potential threats to the administration’s authority. Similarly, the lesson here is that the institutions that have been willing to fight back have the law on their side and have prevailed, at least in court. The problem has been a shockingly small number of law firms, universities, and media companies have been willing to fight back.

What do you make of the Justice Department walking back its motion to dismiss its appeal of four law firms challenging the president’s executive orders?

It was clear since [earlier this week] that there was some kind of a serious debate inside the Department of Justice, maybe inside the White House, about whether or not to proceed. It is extremely unusual for there to be a leaked report in advance of a Justice Department filing about what the filing is going to be. And you saw that happen hours and hours before there was any kind of filing. The Wall Street Journal reported that they were going to drop the appeal, and yet, it was hours and hours later that anything was actually filed that confirmed that. And only 12 hours or so after that, they changed their mind again.

Whatever their considerations were, there is clearly more than one faction inside the White House and the Department of Justice with a view. My guess would be that the president himself is insistent on pursuing the appeal, and the lawyers in DOJ rightly are advising that it is a losing case. The legality of the original executive orders was challenged by four different law firms in front of four different federal judges, and they all won, handily. That is, it was clear to all of these courts that an executive order targeting a firm because the firm represented clients that the president didn’t like was a violation of, among other things, the First Amendment of the Constitution. I think it is extremely likely that they will lose again on appeal, but in a higher court, so that the ruling doesn’t apply just to the four firms that were targeted, but now is a circuit-wide decision. I think it’s also entirely possible and maybe even likely that they’ll lose at the Supreme Court as well. I suspect there’s a very serious litigation strategy conversation going on there, but, for reasons we’ve seen in lots of cases in this administration, that kind of ordinary strategic thinking doesn’t always prevail.

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Would the agreements that DOJ previously negotiated with nine law firms, in exchange for dropping any federal investigations and allowing the firms to retain access to the White House and federal contracts, have been jeopardized if the agency accepted defeat in the ongoing litigation against the four law firms pushing back?

I think there are really two separate legal questions here. The cases challenging the executive orders argued that the orders were unconstitutional and they were held unconstitutional. The question of whether or not these separate deals that these other law firms struck, which nobody has ever seen in writing publicly, are legally enforceable or not is really a separate legal question.

I think the administration was always going to face an enormously uphill struggle in persuading a court that those agreements were enforceable, or indeed that they were agreements at all. And does this help? No, it certainly doesn’t help, but neither did the four decisions in which they lost on the constitutionality of the executive orders.

If the DOJ, and perhaps even the president himself, recognizes that challenging these four law firms’ lawsuits is an uphill battle, why continue the fight?

The president has had a lifelong pattern of pursuing legal cases with or without merit in an effort to either exact revenge or punishment on players he doesn’t like. This seems to me consistent with that approach. You could call that a strategy. I wouldn’t call it a legal strategy. If I were speaking on behalf of my political science colleagues, I would say it is textbook authoritarian playbook for would-be authoritarians to try to attack any independent institutional source of power that might challenge the authoritarian’s ability to carry out his will. The same reason why the White House and the administration wanted to target major universities, media companies, and the same way they have worked to make deals with major industry that they care about. Law firms, for exactly the same reasons, are a potentially independent source of power that can be used to effectively challenge the legality and success of the administration’s actions. I think if viewed as part of that broader strategy, continuing to pursue these cases and attacks against the law firms, especially as the elections approach, this makes perfect sense.

Watching the Trump administration pursue vindication actions is obviously alarming, but what has the fallout been, specifically after Big Law firms were targeted?

There have been enormous repercussions. Let me flag sort of two sets of impacts. One is in just the availability of representation, and particularly well-resourced legal representation to challenge administration initiatives. That availability goes for both pro bono clients and for paid clients. I’ll give you a couple of statistics, as there have been some wonderful investigative reports by Reuters and others that have begun to document these impacts. Dozens of major firms—clearly worried about political retaliation—have scaled back their pro bono work. So, representation from everything like diversity initiatives and immigration cases to all kinds of stuff, there’s been a radical change. Whereas in the last election cycle, we saw large law firms working really actively against various voter suppression efforts and election subversion efforts, now, they are simply not engaged in those cases at all. Last I checked, 29 different cases or efforts by the Trump administration to require states to hand over all of their voting rolls and voter data have all been challenged, but no large law firms are involved in those challenges. The result is that people and organizations, and not just liberal causes, but people whose Social Security benefits have been cut off and scientists whose research funds have been summarily dropped and so forth are trying to turn to small and medium firms looking for somebody to take on their representation, and those firms are overrun. That’s the real-world impact of the chilling effect. Law firms have really dramatically changed their willingness to take on any cause adverse to the administration.

On the other hand, there’s a much more promising effect that is developing in the profession. Coalitions of groups, including corporate general counsels, law firm partners, an initiative by a bipartisan group of retired federal judges, are coalescing to say, This is not what the legal profession is about and this is not what our ethical obligations require. They are making real efforts to use the power of those coalitions to get firms to change their behavior, working through not only corporate clients that those firms count on for revenue, but also top law students that the firms count on to serve on their staff.

Do you think that, despite facing many losses in court, the Trump administration has still succeeded in chilling dissent and getting people to succumb to the executive branch’s demands?

It’s important to keep focused on the two separate goals that the administration had. The first goal was trying to punish these firms, exact revenge against them and destroy their businesses, which is what the executive orders were aimed at doing. The lawsuits were essential in disabling that attack, and winning the lawsuits made it clear that those kinds of efforts wouldn’t succeed. The lawsuits were incredibly important in protecting the ability of firms that have fought back in the past to continue to do so. On the other goal, you’re absolutely right. The goal of chilling the willingness of any firm to take on causes adverse to the administration has been achieved, and then some, I would say, based on the reporting and the studies that have been done so far. That’s one of the really important broader lessons in countering authoritarianism. You need a whole toolbox full of tools, and litigation is an incredibly important tool for some purposes, but it doesn’t work for everything. It is entirely possible to win the litigation battle and lose the authoritarian war, and in this particular fight, that’s the direction we’re headed.

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ELSEWHERE IN JURISPRUDENCE

• In the most recent episode of Amicus, Dahlia Lithwick talks to Donald Verrilli Jr., former solicitor general under the Obama administration, about how lower court judges are being forced to adopt radical new positions on presidential authority, thanks to the Supreme Court. They also interpret Chief Justice John Roberts’ tariffs decision, which finally expresses some skepticism about the president’s chaotic and unprecedented approach to policymaking.

• In the Slate Plus bonus episode, Dahlia and Mark Joseph Stern discuss a stunning amicus brief filed by the U.S. Conference of Catholic Bishops in the birthright citizenship case in front of the Supreme Court. A body that has consistently stood by conservative causes, including restrictions on reproductive freedom, same-sex marriage, and transgender rights, has come out in staunch opposition to the president’s birthright citizenship executive order. Not mincing words, the group called the order “immoral” and “contrary to the Catholic Church’s fundamental beliefs and teachings regarding the life and dignity of human persons, the treatment of vulnerable people—particularly migrants and children—and family unity.”

• In a special bonus Slate Plus episode, Mark takes a deep dive into the legality of the president’s decision to thrust the United States into war against Iran. In conversation with Eugene Fidell, a visiting lecturer and senior research scholar at Yale Law School, the duo discuss how the president simply does not have the power to singularly declare war. This means that Trump’s conduct here is clearly impeachable, if only the Congress were willing to act.

• Dana Bazelon, friend of Slate and fellow at the Quattrone Center at Penn Carey Law School, was front-row at the Supreme Court this week as the justices considered yet another consequential gun rights case. This time it was for United States v. Hemani, a case that is challenging the constitutionality of a federal statute that makes it a crime for an unlawful drug user to possess a gun. And in a rare moment for this court, most of the justices seemed to agree that the current law is far too broad. It’s unclear, though, where the left and right wings of the court want to draw the line.

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

Earlier this week, U.S. District Court Judge Aileen Cannon made a not-so-subtle play for President Donald Trump’s attention. The Southern District of Florida judge—a longtime favorite of Trump’s—issued an order banning the release of a report detailing former special counsel Jack Smith’s criminal investigation into the hoards of boxes filled with classified documents that Trump took on his way out of the White House in 2021. With this decision, Cannon, who was confirmed just weeks before the end of Trump’s first term, went out of her way to rule on a question that she does not technically have jurisdiction over, while simultaneously positioning herself for a promotion—with a looming potential Supreme Court opening quite possibly on Cannon’s mind.

Just to remind you: Before Trump was elected, Judge Cannon slow-walked that investigation for months before ultimately ruling—without precedent and backed by no other court—that Smith had been illegally appointed, so his indictment of Trump had to be thrown out. This was 2024. Cut to this past Jan. 20, when Waltine Nauta and Carlos de Oliveira, Trump’s co-defendants in the classified documents case, submitted a motion requesting that Cannon permanently ban the U.S. Department of Justice from releasing Smith’s final report on his classified documents investigation, widely referred to as Volume II. (Volume I was his final report on his election interference case, which came out in January 2025 just before Trump reentered office.) On Monday Cannon granted that request, with a side of gratuitous attacks on the former special counsel.

Cannon’s order restated that Smith was wrongfully appointed as special counsel—again, she’s the only judge who’s come to this conclusion. She went further, though, accusing Smith of concocting a “brazen stratagem” to “circumvent” her initial ruling by … writing the report per the instructions of the special counsel statute. “To say this chronology represents, at a minimum, a concerning breach of the spirit of the dismissal order is an understatement, if not an outright violation of it,” Cannon wrote.

What Cannon claimed as a personal affront, though, was merely Smith following the law. Throughout the entire history of the special counsel statute, every single one has produced a final report detailing their investigations to the attorney general. And no matter if a Republican or Democratic administration was in power, the report was made public as a form of transparency. Nevertheless, Cannon decided to challenge history and argued that the Department of Justice cannot release Smith’s report because there’s never been a situation where “a former special counsel has released a report after initiating criminal charges that did not result in a finding of guilt, at least not in a situation like this one, where the defendants contested the charges from the outset and still proclaim their innocence.”

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That is categorically false. In 2019, former special counsel Robert Mueller conducted an investigation into Russian interference in the 2016 election and found evidence that Trump obstructed justice on multiple occasions. Though Mueller ultimately did not bring charges against Trump, probably because DOJ rules prohibit prosecuting a sitting president, he did explicitly state his investigation “does not exonerate” the president. And yet, Trump-appointed Attorney General Bill Barr still chose to make Mueller’s final report of his investigation public (with some redactions), even though there remained a chance that charges could be brought.

Cannon’s additional reasons to suppress Volume II—beyond her insistence that Smith had no power to compile or submit it—were characteristically incoherent. She wrote that allowing the public to see the prosecutors’ work product “would contravene basic notions of fairness and justice in the process, where no adjudication of guilt has been reached following initiation of criminal charges.” This claim has no actual basis in law or precedent: Courts routinely disclose this kind of information about criminal defendants who are charged but not convicted. For better or worse, the government can tarnish a defendant’s reputation by releasing investigative materials that make them look guilty in the absence of a guilty verdict. Cannon asserted that doing so here would violate “the presumption of innocence held sacrosanct in our constitutional order,” but that is nonsense. The presumption of innocence is a legal principle that applies at trial; it does not give courts a license to gag a co-equal branch of government in a lawless quest to protect a defendant’s reputation in the public eye.

Perhaps the most galling part of Cannon’s order, though, was that she issued it at all. Since January of 2025, the Knight First Amendment Institute of Columbia University has been pushing Cannon to release Smith’s report under the Freedom of Information Act. After she sat on those requests for the better part of 2025, the U.S. Court of Appeals for the 11^th Circuit finally intervened to compel Cannon to issue a response within 60 days. Finally in December she did, unsurprisingly denying the Knight Institute’s motion. The group immediately appealed her decision to the 11^th Circuit the next day.

Once the Knight Institute took its case to the appeals court, the question of whether Smith’s report on his classified documents investigation should be released to the public officially changed hands. Now the 11^th Circuit holds exclusive authority over the future of the report, not Cannon. In fact, the appeals court has already put the case on an expedited schedule, with oral arguments scheduled for June. Yet Cannon decided to publish her order anyway, in what seems like a transparent attempt to preempt—or influence—higher courts using Nauta and de Oliveira’s moot January motion as pretext.

“There has been no basis for Judge Cannon to prevent the release of Volume II since, for over a year, we’ve argued that she had no proper basis, no jurisdiction, to enjoin its release once the case fully came to an end,” Scott Wilkens, senior counsel for the Knight Institute and the leader of the group’s legal battle over the public release of Smith’s Volume II report, told me.

Notably, during this legal battle, Smith publicly testified before Congress about this decision to indict Trump just last month. “Our investigation developed proof beyond a reasonable doubt that President Trump engaged in criminal activity,” Smith said. “If asked whether to prosecute a former president based on the same facts today, I would do so regardless of whether that president was a Republican or a Democrat.” The president, as he’s known to do, took to Truth Social to share his thoughts, which included describing Smith as a “deranged animal” who Attorney General Pam Bondi should be “investigating”—part of Trump’s ongoing campaign to cow anyone he perceives as a threat with vindictive prosecutions.

Though undoubtedly problematic, Cannon’s decision to issue her latest order comes as no surprise. From the moment she was assigned to oversee Smith’s classified documents case, Cannon consistently contorted the law and used her position as a district court judge to issue decisions that would stymie Smith’s investigation and help Trump’s defense, despite facing some humiliating reversals along the way. Cannon remained steadfast in proving her loyalty to Trump, obstructing prosecutors at every turn, eventually dismissing charges altogether—and now seeking to prevent the results of Smith’s investigation from ever seeing the light of day.

Perhaps it’s no coincidence that Cannon chose to release her order on Monday, since just a few weeks ago rumors began swirling that Supreme Court Justice Samuel Alito is preparing to retire as soon as this summer. Who better to replace him than a young, fortysomething judge who has spent the past four years proving her fealty to the president in a case that dogged his presidential campaign, threatened him with prison, and which she just sought to bury once and for all?

It seems safe to assume Judge Cannon has an idea.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus Member!

Elsewhere in Jurisprudence

• In the most recent episode of Amicus, Dahlia Lithwick unpacks the Supreme Court’s latest decision ruling against President Donald Trump’s global tariffs, with Mark Joseph Stern. The 6–3 ruling is confusing, with numerous concurrences and dissents, but the bottom line is that six justices came together to declare Trump had exceeded his authority under the International Emergency Economic Powers Act in his monthslong tariff whiplash.

• In that same episode, Dahlia also examines the press clause of the First Amendment. In conversation with Sonja West and RonNell Andersen Jones, scholars and researchers who authored The Future of Press Freedom: Democracy, Law, and the News in Changing Times, they discuss what the Framers meant when they characterized the press as special, along with Trump’s escalating campaign against the press and its real-life consequences, as seen just last week with CBS blocking Stephen Colbert from interviewing a Democratic Senate candidate from Texas.

• During the Slate Plus segment, Dahlia and Mark discuss the bittersweet departure of Department of Homeland Security spokesperson Tricia McLaughlin, plus the case of a Justice Department lawyer who is being held in civil contempt by a Minnesota judge.

• Friend of Slate Mary Ziegler also explains the latest conservative fight over abortion down in Texas, where a midwife is facing civil and criminal charges for allegedly performing illegal abortions and practicing without a license. The case is far from a slam dunk for the state, though, illustrating just how tricky it is to prove an abortion actually occurred.

• In a piece about the Supreme Court’s decision in USPS v. Konan, Mark explains how the 5–4 decision manipulates commonly understood definitions of “miscarriage” and “loss” in order to afford immunity to the U.S. Postal Service when it intentionally destroys or refuses to deliver mail to Americans. And even more disturbing is the timing of the decision, coming just months ahead of midterm elections that will determine the balance of power in Washington and in which mail ballots will play a crucial role.

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds, and will be back with more dysfunction analysis next week.

For many of us, living in President Donald Trump’s America feels like a never-ending doom loop. Every day brings a fresh batch of headlines about the administration’s lawless attacks on independent federal agencies, the judiciary, and our democracy itself—and you can easily miss some important things. To help you sift through the noise, we’re launching a new newsletter: Executive Dysfunction. Each week, we will surface one important legal story that you may have overlooked amid all the ongoing chaos. We’ll be highlighting stories about how Trump is doing violence to the law, and stories about how people involved in shaping and upholding the law—judges, lawyers, lawmakers—are pushing back. And we’ll also keep you in the loop about what’s going on with our Slate Jurisprudence team, including Mark Joseph Stern and Dahlia Lithwick. Welcome to the first edition of Executive Dysfunction.

You may have missed it over the long weekend, but a partial government shutdown began on Saturday. After over a year of enduring President Donald Trump’s mass deportation agenda—as we’ve watched masked agents drag people through the streets, harass families in their homes, and even kill U.S. citizens in broad daylight—Democrats in Washington decided to use their power over federal funding to try to force change. Before signing off on any new dollars for the Department of Homeland Security, Democrats have put forth a list of 10 demands they want Republicans to meet in an effort to rein in a rogue Immigration and Customs Enforcement agency.

One big question remains, though, as we wait to see if the partial shutdown begins to affect the day-to-day of Americans in travel and other parts of life: Would the Democratic demands, if met, actually do anything to stem ICE’s abuses? This question has already spurred fights on social media, where some progressives are excoriating the Democrats for not asking for nearly enough, and others are praising these proposals as pragmatic solutions that will make a real difference. The truth is probably somewhere in between.

“What these mostly require is for ICE to follow laws and return to practices and procedures that had been standard practice for a long period of time,” Scott Shuchart, former assistant director for regulatory affairs for ICE under the Biden administration, told me. “And so they’re not very ambitious.” ICE would not be completely transformed by this particular set of Democratic demands; rather, it would return to a pre-Trump status quo when we were not witnessing masked agents rampaging across the entire country, pepper-spraying children, ripping disabled people out of their cars, and gunning men and women down in the street.

Senate Minority Leader Chuck Schumer and House Democratic Leader Hakeem Jeffries’ list of demands—unveiled in early February, shortly after Alex Pretti was shot to death by federal agents in Minneapolis—ranges from banning agents from wearing masks to outlawing racial profiling. Progressives want the party to go further, while activists have been pushing to simply abolish ICE completely. Voters want something to give, with polling consistently showing they are seriously concerned about the way the Trump administration is handling immigration enforcement.

When looking at Democrats’ list of demands, it’s important to consider that U.S. immigration law has not been significantly updated since Congress passed the Illegal Immigration Reform and Immigration Responsibility Act in 1996. Whatever the party manages to win in this government funding negotiation will likely be narrow and insufficient to solve our country’s biggest immigration challenges, but it could pare back some of the worst excesses and abuses of the current administration. Thus far, negotiations don’t seem to be going anywhere. It’s also hard to say whether ICE would even obey any new restrictions, given the administration’s persistent refusal to comply with congressional directives and the Supreme Court’s tolerance for such defiance. During a recent congressional oversight hearing, for instance, DHS leadership outright rejected a mask ban, one of Democrats’ key demands.

Let’s take a closer look at the list to try to assess whether the demands actually stand a chance of making a material difference in how ICE uses—and abuses—its vast power over immigration enforcement.

Targeted Enforcement

Democrats want to prohibit DHS officers from entering private property without a judicial warrant. This is something that’s technically already against the law, though the administration has attempted to circumvent that very basic right with little pushback. “That’s what the Fourth Amendment has always required,” Nayna Gupta, policy director at American Immigration Council, told me. “The hope here would be not just that Congress restates the law, but that they offer some consequences for the fact that officers don’t follow them, whether that’s dismissal of cases of anyone they arrest once they’re inside, or other disciplinary measures.” According to the public-facing list, there’s no real enforcement mechanism, though this may get sorted out in the writing of any legislation.

Also baked into this demand is a requirement that ICE officers verify that a person is not a U.S. citizen before holding them in immigration detention, as has reportedly happened countless times in recent months. This could be one of the harder things for Republicans to say no to. During congressional hearings last week, acting ICE Director Todd Lyons seemed to acknowledge how politically perilous it is for the agency to be detaining U.S. citizens, hemming and hawing when asked if ICE arrested and deported U.S. citizens, before saying that the agency did only “detain” Americans.

While this feels like a straightforward demand, Shuchart believes that Democrats not taking it further is a missed opportunity to rein in the indiscriminate detention of thousands of immigrants, whether or not they have any sort of criminal background or present any sort of flight risk. “I would like to see this Congress clarify the detention authority and undo this craziness that ICE is doing, where everybody is now subject to expedited removal and mandatory detention.”

No Masks and ID Requirement for Agents

Prohibiting immigration enforcement agents from wearing face coverings is something many states are already attempting to implement through legislation. However, these state efforts face challenges in court given broad federal authority to enforce U.S. immigration law and local officers’ fear of conflict with other armed law-enforcement agents. A federal judge recently blocked a new California law prohibiting federal agents from wearing masks, holding that it “unlawfully discriminates against the federal government” because it did not apply to all state officers as well. Although California could in theory address this defect, the ruling illustrates the constitutional challenges that states face when regulating a federal agency, and shows the need for a uniform, nationwide rule from Congress.

Congressional Democrats are also trying to compel immigration enforcement agents to display their agency, unique ID number, and last name. This would be a significant policy change, something Shuchart says would go beyond existing law. As Felipe De La Hoz recently noted in Slate, it wouldn’t reverse the fact that ICE is currently enrolling any and all federal law-enforcement agencies into a vast police “blob” as part of its immigration agenda. It would, though, allow people to at a minimum recognize who is taking part in any given enforcement action, leading to a greater potential for future accountability and a chance that agents will think twice before committing abuses.

Protect Sensitive Locations

Democrats want to prohibit DHS funds from being used to conduct enforcement near sensitive locations, including medical facilities, schools, child care centers, churches, polling places, and courts. If Republicans agree to this proposal, Shuchart said, it would be an enormous change in current policy.

This demand would revert back to the Biden administration’s position, and in theory would end the Trump administration’s strategy of arresting migrants who show up to court-mandated hearings. It could also stop ICE agents from entering hospitals and interfering with patients’ medical care, as was the case in Minnesota. Health care workers there reported an incident when ICE agents hovered over the bedside of a patient for more than 24 hours, at times shackling them to the bed and denying them privacy. In another encounter with ICE, agents remained present while a patient was being bathed.

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Stop Racial Profiling

Democrats also want to bar DHS officers from detaining people based on their ethnicity, spoken language, accent, or place of work. In September, the Supreme Court seemed to signal that these detentions—known as “Kavanaugh stops”—are permissible under the Fourth Amendment. But that decision does not prevent Congress from forbidding them by legislation. This would be a sea change in immigration policy if Democrats can get it.

However, as currently written, this proposal includes no penalty for DHS or individual officers if they were to violate such a ban. And if there is no way to hold agents or agencies accountable, then “it’s a meaningless restriction,” Gupta said.

Uphold Use-of-Force Standards

This is a critical demand where, according to Shuchart, Democrats have fallen short. They are asking that DHS institute a “reasonable use of force policy, expand training and require certification of officers. In the case of an incident, the officer must be removed from the field until an investigation is conducted.” However, the demand does not define what a “reasonable” policy is, nor does it mention how this would be implemented.

It’s worth noting that last year, the Trump administration shut down DHS’s Office for Civil Rights and Civil Liberties, an oversight agency that was responsible for investigating allegations against the agency from migrants, their families, and the public. Reinstating this office could play a critical role in upholding any use-of-force policy, according to Shuchart. It’s not in the list of Democratic demands, however. “I think the entire model of leaving the immigration agencies to their own devices and hoping for accountability on the back end just doesn’t work, and Congress needs to find a way to be much more prescriptive about what it expects,” Shuchart noted.

Ensure State and Local Coordination and Oversight

In light of the FBI stonewalling Minnesota prosecutors’ efforts to investigate the killing of Renee Nicole Good and withholding evidence from Alex Pretti’s death, Democrats are asking to codify a requirement that DHS “preserve the ability of state and local jurisdictions to investigate and prosecute potential crimes and use of excessive force incidents.” It also would require that evidence be preserved and shared with local jurisdictions. This issue flared up when the federal government appeared to allow the contamination of evidence from the scene of Pretti’s killing, then refused to let state investigators access that evidence in an alarming breach of protocol.

This reform could help states win federal court orders securing access to evidence when immigration agents commit violent crimes within their borders. But again, it does not create any new ways of holding immigration agents accountable for abuses, a weak spot across these demands. Until victims and their families can file claims against officers who violate their rights, there will be few disincentives against excessive use of force. “There are more meaningful reforms that could have been included, in particular ensuring that there is a way for people to individually sue federal officers who violate constitutional and civil rights,” Gupta said. Right now, it is almost impossible for victims to file such suits, thanks in part to a series of Supreme Court decisions shielding federal officials from accountability. But Congress has the power to effectively overturn these rulings and create liability for federal officials by statute.

Build Safeguards Into the System

Democrats want to hold DHS to a higher standard when it comes to immigration detention, as many of us have seen and read about the horrific conditions at detention centers, where illnesses are rampant, medical care is scarce, and access to clean water and food is limited.

Through this demand, Democrats are asking to standardize all buildings where people are detained, ensuring that each one abides by the same basic detention standards and requiring immediate access to a person’s attorney to prevent citizen arrests or detention. States would also be allowed to sue DHS for violating these requirements, and federal lawmakers would be allowed to inspect ICE facilities.

This demand, though, doesn’t address the specific sanitation issues at ICE detention centers, nor does it attempt to claw back the agency’s authority to set its own standards, where Shuchart believes that the real problem lies. “Congress needs to have enforceable detention standards in place, rather than letting ICE write its own detention standards and hoping that the Office for Civil Rights and Civil Liberties will hold them to that,” Shuchart said. “Because guess what? The administration got rid of CRCL, and now nobody on the outside is holding ICE to its standards.”

Body Cameras for Accountability, Not Tracking

Forcing federal agents to use body-worn cameras when interacting with the public has been a hotly debated issue, with some arguing it deters officers from misbehaving, while others feel it does little to inhibit abuses. (The agents who shot Pretti were reportedly wearing body cameras.) During that recent congressional hearing, acting Director Lyons confirmed that many federal agents are already using body cameras and the agency intends to roll them out to every agent.

Just last week, body-camera footage of a Border Patrol agent involved in the shooting of Marimar Martinez in Chicago was released, and it appeared to contradict DHS’s version of the incident. Body-cam footage from other violent incidents in Chicago demonstrated that federal agents were brazenly lying about protesters’ actions to justify excessive force against them. Shuchart said that policing experts tend to believe that body cameras are valuable, as they improve the quality of police interactions with the public. Especially considering the Trump administration’s lawless approach to immigration enforcement, where they have outright lied about what actually happened in high-profile ICE encounters, Shuchart thinks Democrats’ demand for body cameras is the right move.

Democrats also want to prohibit the footage from being used to track Americans in a database of people exercising their First Amendment rights, something that federal agents have threatened protesters with. This is a critical safety measure, as we’re seeing the administration abusing its powers to intimidate those who criticize it, and it seems to be surveilling dissenters.

The bottom line for this entire list of demands is that some of what Democrats are asking for would have a real impact in counteracting how ICE has been operating with impunity across the country, but it truly is a bare minimum. If they fold, though, without achieving many of these baseline limits on ICE’s ability to abuse citizens and noncitizens alike, Democrats will themselves be on the hook the next time ICE commits a high-profile atrocity like the ones we’ve seen so frequently in Minneapolis.

We hope you learned a thing or two from this edition of Executive Dysfunction, and if you enjoyed reading it, please consider supporting our legal journalism by becoming a Slate Plus member!

Elsewhere in Jurisprudence

• Dahlia Lithwick covered a number of these issues in the most recent episode of Amicus. Lithwick spoke with Linus Chan, a professor and lawyer in Minneapolis who has been working with clients caught in ICE’s snare during the recent surge, about the way ICE has been getting around the current restrictions that already exist on its detention authority.

• In that same episode, she also spoke with journalist Andrea Pitzer about the Stephen Miller campaign to expand the Department of Homeland Security’s capacity for mass detention and how it already resembles some of the darkest periods in human history.

• In the Slate Plus segment of that episode, Lithwick and Mark Joseph Stern discussed the various breadcrumbs that Supreme Court Justice Sam Alito has been leaving us that he intends to retire this summer, and what it would mean for the court for its staunchest partisan to step down.

• Amherst College law professor and Slate contributor Austin Sarat wrote about another issue that seems destined soon to reach the Supreme Court: whether Texas will execute a likely innocent man, Charles Flores, or whether the high court will force the state to reconsider Flores’ case.

• On Tuesday, Trump’s most vile spokesperson, Tricia McLaughlin, announced she would be departing her job at DHS. Stern explained how this is a bittersweet moment for immigration activists, who relied heavily on McLaughlin’s outlandish statements to disprove DHS lies in court.

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.