There’s hardly anyone left in the Justice Department that has any deeper desire than just giving Trump what he wants. The few lawyers Trump didn’t purge resigned soon after it became clear the DOJ would be little more than personification of Trump’s vengeful whims.
Lawyers with decades of experience were replaced with Trump loyalists, former Trump lawyers, and prosecutors so devoid of real-world experience they may as well still be interns. Not that this has slowed the administration’s attempts to strip the US of anything that actually makes it great. The efforts continue, but the DOJ’s flag is flying at half-staff (at best), to mix a metaphor.
Meanwhile, even Trump-appointed judges are getting tired of the Trump DOJ’s bullshit. It has sustained thousands of losses in immigration cases, seen most of its high-profile vindictive prosecutions dead-ended by grand juries and judges, and engaged in mostly-futile deck-chair rearranging/goal-post relocations that haven’t delivered it the streak of wins it clearly feels it’s owed.
In this case, the DOJ did a little of everything. Deck chairs were rearranged to sub in rookie lawyers, goal posts shifted between Texas and Rhode Island (despite the central subpoena targeting Rhode Island medical entities), and DOJ lawyers spent most of their time refusing to engage honestly with the targets of the subpoena (Rhode Island Hospital), much less the federal courts handling the cases.
While the Texas court was ultimately more amenable to the DOJ’s demand for sensitive medical information about Rhode Island minors (in furtherance of the administration’s war on trans people), the proper venue — overseen by Trump appointee Judge Mary McElroy — expressed her frustration and anger in a recent order blocking the subpoena and suggesting sanctions might be just over the horizon.
DOJ has proven unworthy of this trust at every point in this case. It has misrepresented and withheld information to both this Court and the United States District Court for the Northern District of Texas (the “Texas court”). It did so in an obvious effort to shield it’s recent investigative tactics—previously rejected by every other court to review them—from this Court’s review, in favor of a distant forum that DOJ deems friendly to its political positions. Its representatives have, under oath, misrepresented salient facts. It has misled the parties with whom it was negotiating in Rhode Island, who have now been placed in an untenable and unprecedented procedural position. And when its attorneys came to this Court to explain their conduct, the senior attorney—who was present at many of the events that took place in this case—sat silently by as his counterpart, a junior attorney who has been practicing law for approximately six months and had no relevant information, was forced to answer questions about DOJ’s blatant disregard for the proper course of negotiations.
The government has long relied on the “presumption of regularity” in cases handled by federal courts. That presumption assumes the government is acting in good faith, even when it’s on the wrong side of the law. In less than two years, the Trump administration has destroyed this presumption — something the DOJ has had in its back pocket for most of the last two centuries.
TEXT ORDER. Because of the representations made to this Court by the respondents’ attorneys, as well as the findings of the Court in its order of May 14, 2026, this matter is referred for further proceedings under R.I. Dist. Ct. Local Rule 210(b). So Ordered by District Judge Mary S. McElroy on 6/5/2026. (Potter, Carrie)
Sorry, I know that’s all super-dry and doesn’t contain anything pithy enough for bold text, etc., but here’s what that means: some DOJ lawyers — including ones hand-picked by Trump to do his evil bidding — are potentially headed for discipline.
Rule 210(b) gives the court permission to refer government lawyers for discipline. The more interesting part of the rules directly precedes this, where it says the end result could be government lawyers being disbarred.
The evidence against the DOJ lawyers was covered comprehensively by Judge McElroy in her earlier ruling. To sum up: the DOJ lied. More formally, it “misrepresented” and “withheld information.” Those are both forms of lying, with the severity shifting depending on the context. And when the DOJ knew it had been caught doing it, the most senior prosecutor dumped the case into the lap of the most junior prosecutor in the jurisdiction and forced them to personally absorb the righteous anger of the judge, as well as handle all the uncomfortable questions DOJ officials decided they simply weren’t going to answer.
And, of course, having been called out and threatened with meaningful consequences, the Trump DOJ has decided to pretend it has always been forthright and honest.
“The Civil Division has thoroughly reviewed the District Court’s allegations and concluded that they are without merit. Our attorneys did not misrepresent facts, withhold relevant information, or otherwise mislead the Court. The Department stands behind its attorneys without reservation and has appealed the District Court’s erroneous order.”
I assume that any day now the DOJ will move past its (literally unbelievable) defense of efforts to directly (and personally) attacking Trump’s own appointee as an “activist judge” or (as it often does) claim this is somehow the fault of Joe Biden, who not only didn’t appoint this judge but wasn’t in office when the judge pointed out the DOJ (under this administration) no longer has a reliable reputation.
Sure, this isn’t nearly as satisfying as a coup or the immediate jailing of lying DOJ lawyers. But it is a step further than many judges are willing to go, no matter how often the DOJ lies, cheats, and flat out refuses to play by the rules.
Puerile, vindictive, and hateful is no way to run a government. That’s how Trump is running his, however. And that means his DOJ cannot possibly hope to stay on the good side of judges, not when it’s actively engaged in appeasing an autocratic megalomaniac and his enablers.
The lawyers currently staffing the DOJ cannot be excused for their actions. They have been called out time and time again for eroding the trust the DOJ has earned over the years by engaging in vindictive prosecutions, arguing in favor of blatant rights violations, and otherwise pursuing the corrupted version of lawfare that is the hallmark of this administration.
There are only two options at this point, considering the thousands of adverse rulings Trump’s DOJ has racked up. Either the remaining prosecutors are no more honorable or ethical than the man in the White House, or they’re so bereft of morals and ethics that it means nothing to sacrifice what’s left of these traits on the altar of MAGA.
Here’s more from the DOJ that’s nothing more than a blunt force object of oppression, completely beholden to this American version of fascism. To understand what has lead to a federal judge ripping into the DOJ (something that’s now as common as the administration pretending it’s fine to be openly racist again), you have to backtrack a little. Chris Geidner, a.k.a. Law Dork, has the background:
The Trump administration is apparently shifting tactics to advance its stated policy to “reduce or eliminate gender-related care to minors“ by using the U.S. Attorney’s Office in the Northern District of Texas to try and get invasive information from medical providers about transgender minor patients obtaining gender-affirming medical care.
The apparent shift came after more than a half-dozen federal judges across the nation have blocked the effort to obtain patient information through administrative subpoenas; following a hearing in multistate litigation against the Trump administration’s anti-trans policies; and in the midst of a sprawling dispute over the Justice Department’s effort to enforce one of the administrative subpoenas — issued last year against Rhode Island Hospital — in the same district in Texas.
Why is the DOJ using a Texas court to enforce a subpoena issued to a Rhode Island hospital? The answer is obvious. This is forum shopping by the administration, hoping to find courts more disposed to harming trans people than those found on the East Coast. If nothing else, the Fifth Circuit Appeals Court tends to be receptive of the DOJ’s advances now that Trump’s in charge, which means the rare adverse ruling might be immediately reversed or stayed once it’s appealed.
That didn’t work here, however. The case got sent to the proper jurisdiction. And, upon arrival, it has found an extremely unreceptive audience in the form of Judge Mary McElroy, who ended up with the case currently being deliberately and deceptively handled by the DOJ.
Judge McElroy wastes no time attacking the DOJ for its behavior and actions in furtherance of Trump’s hateful anti-trans agenda. These are the opening two paragraphs of her ruling [PDF], copy-pasted here verbatim:
The United States Department of Justice (“DOJ”) possesses immense prosecutorial authority and discretion. As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary.
DOJ has proven unworthy of this trust at every point in this case.It has misrepresented and withheld information to both this Court and the United States District Court for the Northern District of Texas (the “Texas court”). It did so in an obvious effort to shield it’s recent investigative tactics—previously rejected by every other court to review them—from this Court’s review, in favor of a distant forum that DOJ deems friendly to its political positions. Its representatives have, under oath, misrepresented salient facts. It has misled the parties with whom it was negotiating in Rhode Island, who have now been placed in an untenable and unprecedented procedural position. And when its attorneys came to this Court to explain their conduct, the senior attorney—who was present at many of the events that took place in this case—sat silently by as his counterpart, a junior attorney who has been practicing law for approximately six months and had no relevant information, was forced to answer questions about DOJ’s blatant disregard for the proper course of negotiations.
The bold sentences are stinging. But even the last sentence is damning. It says the DOJ attorney with the most experience refused to defend the government’s positions in what appears to be an act of abject cowardice. Instead, the senior attorney sent a junior attorney with less than six months experience to face the justifiable wrath of the court.
Underneath everything here is the ugly truth of the case: the DOJ is demanding hospitals turn over the names, social security numbers, addresses, clinical histories, and family information of any minors seeking gender-affirming care. The government should not have this information because it’s clear it intends to harm both the minors and their care providers for reasons it can’t actually justify under existing law.
That’s why it went forum shopping in Texas. And that’s why it deliberately withheld information from those challenging the subpoena and, indeed, the court itself.
The DOJ won’t play fair because if it does, it can’t hope to win. That much is clear, and is stated clearly by Judge McElroy. Here’s just one of several footnotes detailing the DOJ’s dishonesty.
It is well established that counsel are responsible for working in a cooperative, rather than an adversarial manner, and to confer in good faith when negotiating the parameters of a subpoena. The parties had done so up until DOJ’s about face on April 30, when it repaired to the Texas court and presented RIH with a fait-accompli motion to enforce (after it had submitted it), followed a few hours later by an order granting that motion. The Child Advocate learned of the subpoena and motion that targeted its children’s private information by a DOJ press release the next day.
Here’s more on that, from the body of the order:
This representation that the communication with RIH had ceased as of February 4, 2026, was clearly misleading, if not utterly false. At the hearing on this Motion, DOJ’s attorney attempted to justify the glaring omission by saying that the February 4, 2026 email was the last “such” communication. This is patently untrue because, just the day before filing the declaration containing this representation the attorneys for RIH had sent an email in response to DOJ’s request for a conference to discuss the terms provided in the February 4th email. This reckless disregard for the duty of candor owed to a federal court is appalling.
Leading the charge in lying to the court was none other than Lisa Hsiao, who currently serves as the head of the DOJ’s “Enforcement and Affirmative Litigation” office.
Ms. Hsiao also represented that requests regarding “patient-level clinical practices and drug safety” (Requests 11–15) were necessary because “without this information, DOJ cannot fully determine the scope of the violations, identify patterns of misbranding or fraudulent billing, or assess whether the conduct was undertaken with intent to defraud or mislead, as required for felony liability under 21 U.S.C. § 333(a)(2).” But Ms. Hsiao neglected to inform the Texas court that DOJ had agreed to anonymized data in several other jurisdictions. Her assertion that DOJ needed this information was therefore, at best, deceptive, if not intentionally and knowingly false.
There’s a footnote attached to this paragraph that shows this a pattern and practice of Ms. Hsiao when it comes to trying to destroy the lives of transgender minors.
This is not the first time Ms. Hsiao and her subordinates have, in their crusade to obtain transgender children’s medical records, acted in ways that appear to deviate from the norms of professional conduct expected of attorneys representing the United States.
The order notes that the DOJ’s forum shopping in Texas (despite seeking records from an entity located in Rhode Island on behalf of an investigation instigated in Washington D.C.) worked…. right up until it didn’t. The district court granted the government’s request to enforce the subpoena following an ex parte submission by the DOJ that cut RIH out of the loop. And the Fifth Circuit Appeals Court refused to stay this enforcement order pending appeal with a one-sentence denial.
In the end, the DOJ loses. The Rhode Island court quashes the administrative subpoena (i.e., self-issued) because it seeks information that is protected by state law and the US Constitution itself. It does not have the jurisdiction to block the Texas court’s enforcement order, but that ultimately doesn’t matter because the subpoena is no longer usable.
In signing off on the decision, the judge again points out this iteration of the DOJ is an embarrassment to every iteration that came before it.
[T]he discrepancy between the honorable conduct expected of federal prosecutors and DOJ’s tactics in this case is unsettling. The Court cannot help but share the sentiment that “[t]he presumption of regularity that has previously been extended to [DOJ] that it could be taken at its word—with little doubt about its intentions and stated purposes—no longer holds.” United States v. Oregon, No. 6:25-CV-01666-MTK, 2026 WL 318402, at *11 (D. Or. Feb. 5, 2026). It is regrettable that this is now the case.
Without a doubt, Trump’s DOJ will continue to shit all over the presumption of regulatory, overseen by equally evil people who will oversee those too spineless or devoid of morality to refuse to do Donald’s dirty work. But even if the DOJ manages to avoid being laughed out of court every time it engages in a case, it will never be able to erase the blighted legacy it’s leaving behind.
For the last five years, we had to endure an endless, breathless parade of hyperbole regarding the so-called “censorship industrial complex.” We were told, repeatedly and at high volume, that the Biden administration flagging content for review by social media companies constituted a tyrannical overthrow of the First Amendment.
In the Missouri v. Biden (later Murthy v. Missouri) case, Judge Terry Doughty—in a ruling that seemed to consist entirely of Twitter threads pasted into a judicial ruling—declared that the White House sending angry emails to Facebook “arguably involves the most massive attack against free speech in United States’ history.”
Never mind that the Supreme Court later reviewed the evidence and found that the platforms frequently ignored those emails, showing a lack of coercion, leading them to reverse the lower courts for lack of standing. To the “Twitter Files” crowd and the self-anointed “free speech absolutists,” the mere existence of government officials simply requesting private companies to look at terms of service violations was a sign of the end of the Republic.
So, surely, now that the Department of Homeland Security is issuing administrative subpoenas—legal demands that bypass judges entirely—to unmask the identities of anonymous political critics, these same warriors are storming the barricades, right?
Right? Riiiiight?
According to a disturbing new report from the New York Times, DHS is aggressively expanding its use of administrative subpoenas to demand the names, addresses, and phone numbers of social media users who simply criticize Immigration and Customs Enforcement (ICE).
In recent months, Google, Reddit, Discord and Meta, which owns Facebook and Instagram, have received hundreds of administrative subpoenas from the Department of Homeland Security, according to four government officials and tech employees privy to the requests. They spoke on the condition of anonymity because they were not authorized to speak publicly.
Google, Meta and Reddit complied with some of the requests, the government officials said. In the subpoenas, the department asked the companies for identifying details of accounts that do not have a real person’s name attached and that have criticized ICE or pointed to the locations of ICE agents. The New York Times saw two subpoenas that were sent to Meta over the last six months.
This is not a White House staffer emailing a company to say, “Hey, this post seems to violate your COVID misinformation policy, can you check it?” This is the federal government using the force of law—specifically a tool designed to bypass judicial review—to strip the anonymity from domestic political critics.
If Judge Doughty thought ignored emails were the “most massive attack on free speech in history,” I am curious what he would call the weaponization of the surveillance state to dox critics of law enforcement. Or… would he think it’s fine, because it’s coming from his team?
As the Times reveals, this is really all about intimidation.
Mr. Loney of the A.C.L.U. said avoiding a judge’s ruling was important for the department to keep issuing the subpoenas without a legal order to stop. “The pressure is on the end user, the private individual, to go to court,” he said.
The DHS claims this is about “officer safety,” but documenting the public actions of law enforcement officers in public spaces is a foundational First Amendment right. The moment these subpoenas are actually challenged in court by competent lawyers, the DHS cuts and runs.
The account owner alerted the A.C.L.U., which filed a motion on Oct. 16 to quash the government’s request. In a hearing on Jan. 14 in U.S. District Court for the Northern District of California, the A.C.L.U. argued that the government was using administrative subpoenas to target people whose speech it did not agree with.
[….]
Two days later, the subpoena was withdrawn.
This is the government effectively admitting that its demands are legally baseless. They are relying on the high cost of litigation to intimidate both the companies and the individuals. It is a bluff backed by the seal of the Department of Homeland Security.
And this brings us to the most glaring hypocrisy of the current moment: the absolute silence of Elon Musk and X.
Years ago, the “old” Twitter—the one Musk falsely derided as a haven for censorship—was the gold standard for fighting these exact types of demands. In 2017, Twitter famously sued the federal government to stop an administrative subpoena that sought to unmask an anonymous account critical of the Trump administration. Twitter argued, correctly, that unmasking a critic violated the First Amendment. They won. The government withdrew the subpoena.
Twitter (the old company, not the new monstrosity known as X) has a long history of this. In 2012, they challenged a court ruling that said users had no standing to protect their data. In 2014, they sued the DOJ for the right to be transparent about surveillance requests.
Contrast that with today. The Times report notes that Google, Meta, and Reddit have received these subpoenas. It mentions that Twitter previously fought them. But there is zero indication that Elon Musk’s X—the platform ostensibly dedicated to “free speech absolutism”—is lifting a finger to stop this.
While Musk is busy personally promoting racist ahistorical nonsense, the actual surveillance state is knocking on the door, demanding the identities of political critics. And we’ve yet to see anything suggesting Elon is even remotely willing to push back on his friends in the administration he helped get elected, and then gleefully was a part of for a few months.
And where are the scribes of the “Twitter Files”? Where is the outrage from the people who told us that the FBI warning platforms about foreign influence operations was a crime against humanity?
Matt Taibbi, who has spent the last few years on the confused idea that platform moderation is state censorship, offered a tepid, hedging response on X, saying “if true” this is terrible, before immediately pivoting to a strange whataboutism regarding investigations into actual proven Russian attempts at election interference.
It is true, Matt. The New York Times saw the subpoenas. The ACLU is fighting them in court. This isn’t a vague “if.” This is the government using administrative power to bypass the Fourth Amendment to violate the First Amendment.
It seems like we actually found that “censorship industrial complex,” huh?
Meanwhile, Michael Shellenberger and Bari Weiss seem to have nothing to say. Weiss now runs CBS News, which has its own problems with government pressure on speech—the network just pulled a Colbert interview with a Democratic politician after Brendan Carr threatened consequences for talk shows that don’t coddle Republicans. As far as I can tell, neither CBS News nor Weiss’s Free Press has mentioned the DHS subpoena story. The Free Press is instead running think pieces on how we may “regret” the release of the Epstein files.
Really speaking truth to power there.
This is what so many of us kept pointing out throughout the “Twitter Files” hysteria: the “free speech” grift was never about protecting individuals from the state. It was about protecting a specific type of speaker from the social consequences of their speech. The framework was always selectively deployed—outrage when a platform enforces its own rules against their allies, silence when the surveillance state comes for their critics.
The Trump administration is betting on that asymmetry. They’re betting that Google, Meta, Reddit, and Discord will quietly comply rather than spend millions in litigation over users who aren’t famous enough to generate headlines. They’re betting that the “free speech absolutists” will look the other way because the targets are the wrong kind of dissident.
Right now, the only institution consistently fighting these subpoenas is the ACLU. The platforms are folding. The “Twitter Files” journalists are hedging. And the man who bought a social media company specifically to be a “free speech” champion is busy posting memes.
Turns out we found the censorship industrial complex. And everyone who spent years warning us about it just shrugged.
Last week, a federal magistrate judge told the DOJ it could not arrest journalist Don Lemon. The DOJ appealed and lost that appeal too. The legal system said no.
So the DOJ arrested him anyway.
On January 18th, protesters interrupted services at a Minnesota church after discovering its pastor leads a nearby ICE field office. Journalists Don Lemon and Georgia Fort followed the protesters through the church’s publicly accessible doors to cover the story. They streamed the protest. They asked questions. They committed acts of journalism.
And by this morning they were both in federal custody (though since released).
Organizers of the protest, to the extent they had any real organizational control, were arrested. Pictures of at least one of those arrests were run through one AI platform or another to make those arrested appear to be in more distress than they actually had been.
When that didn’t quench the thirst for cruelty and fascism of this particular regime, Pam Bondi’s DOJ then attempted to go after the journalists themselves. For what crime? Anyone’s guess, honestly. The DOJ attempted to get arrest warrants for Fort and Lemon from the courts, which told them to fuck all the way off. The DOJ then attempted to appeal the rejection without informing the lower court, and attempted to get the Appeals Court to hide the request under seal. That wasn’t successful either.
But rather than admitting that violating the First Amendment rights of journalists was a total stinker of an endeavor, the DOJ convened a grand jury, apparently got an indictment, and then both Lemon and Fort were arrested at Bondi’s direction.
Local Minnesota reporter Georgia Fort, along with former CNN journalistDon Lemon, werearrested by federal agentsfollowing their coverage of aprotestat a church in St. Paul. Don Lemon’s attorney said he was “taken by federal agents” on the evening of Thursday, Jan. 29, while he was in Los Angeles covering the Grammy Awards. Local independent journalist Georgia Fort was also arrested at her home by federal agents.
A statement from the Center of Broadcast Journalism called the arrest “An assault on press and on the 1st Amendment.”
“Georgia Fort, a trusted and cherished journalist in Minnesota, was arrested in the early morning hours for doing her job by covering a pop-up protest at Cities Church in St. Paul,” the statement read. “It is an outrage that a vetted and credentialed member of the media would be in any way prosecuted for doing her appointed duty in covering news. If the federal government can come for Georgia no member of the supposed ‘free’ press is safe.”
This is incredibly dumb for a variety of reasons. For starters, the Minnesota courts, where any trial will take place, are not going to take kindly to the idea that it told the DOJ its requests for arrest warrants were hot garbage only to have that same DOJ end run around the courts to make those same arrests via a grand jury. It’s a slap in the face to the very court system within which the DOJ will have to operate. Elie Mystal is spot on about this at The Nation.
The arrests of the two journalists are clearly unconstitutional. You don’t need to be a legal scholar to know that arresting journalists for covering the news is a clear violation of the First Amendment. Lemon’s arrest is also flatly illegal. Last week, the Trump administration went to a federal magistrate judge, Douglas L. Micko, to ask for an arrest warrant for Lemon.The judge refused.The Trump administration then appealedand lost that appeal. The legal system literally said the government couldn’t arrest Lemon, but the government arrested him anyway, and they went all the way to Los Angeles (far from Minnesota) to get him.
Georgia Fort is a prominent Black journalist based in Minnesota. She was out front in covering the George Floyd protests, and expertly covered the trial of his killer, Derek Chauvin. I have little doubt that this prior reporting is among the reasons she was targeted by the Trump administration.
Add to that the very open question, based on the law that the DOJ is citing here, whether any of this actually violates a statute, by anyone involved in this at all. I would very much argue that it does not, by plain reading of the law. As Quinta Jurecic at the Atlantic notes, the legal argument is garbage.
The indictment itself makes for a strange read. No attorneys other than political appointees appear on the filing—a hint that career Justice Department employees might not have wanted to be involved. The government treats Lemon and Fort as co-conspirators of the protesters without acknowledging any protections afforded by their role as journalists. Both charges derive from the FACE Act, a 1994 law meant to prevent anti-abortion protestors from restricting access to reproductive-health clinics. Here, though, the Justice Department is leveraging a lesser-known portion of the statute that provides similar protections for freedom of religion in places of worship. Kyle Boynton, who recently departed from his position as a trial attorney in the Civil Rights Division, told me that this provision of the FACE Act has never been used—probably because “it’s plainly unconstitutional” as an overreach of Congress’s authority to legislate under the Commerce Clause. Boynton, who prosecuted FACE Act cases and crimes committed against houses of worship while at the Justice Department, was unimpressed with the legal reasoning in the indictment. “I think it’s very likely to face dismissal,” he said. Not only might courts find the statute unconstitutional, but Lemon and Fort could also contest the charges on First Amendment grounds, and the indictment doesn’t clearly show a FACE violation to begin with.
But it’s even dumber than that. As Dan Froomkin points out, part of the indictment tries to argue that the “overt acts” needed to prove a “conspiracy” is… that these journalists… interviewed the pastor. Or, as the DOJ says, “peppered him with questions.”
My goodness. How dare he commit acts of journalism?
Both arrested journalists are Black. The head of the DOJ’s “civil rights division,” Harmeet Dhillon, celebrated by retweeting Republican operative Mike Davis calling Lemon “a klansman.”
Davis, for those unfamiliar, went on a right-wing fabulist’s podcast before the 2024 election and promised that if Trump won, opponents would be “hunted.” He promised “retribution.” He said: “We’re gonna put kids in cages. It’s gonna be glorious…. We’re gonna detain a lot of people in the D.C. gulag and Gitmo.”
That guy is now calling a Black journalist a “klansman” for doing journalism, while the head of Civil Rights retweets it approvingly.
It’s not just Davis and Dhillon joyfully cheering on this blatant attack on the First Amendment. The White House itself posted a black and white photo of Don Lemon cheering on his arrest, calling it (ridiculously) the “St. Paul Church Riots” (there were no riots) and tweeting “When life gives you lemons…” along with chain emojis.
That will likely go right into Lemon’s filing for vindictive prosecution.
Courts have already ordered both Lemon and Fort released, though they’ll be back in court. In Lemon’s case, the judge refused to issue the requested $100k bond the government asked for. The court also will allow him to travel internationally on a pre-planned trip, even though the government demanded he hand over his passport. All of this seems clearly designed for blatant intimidation over media coverage.
The DOJ is now treating journalism as conspiracy, questions as overt acts, and coverage as crime. Courts told them no and they did it anyway—gleefully celebrating the end of the rule of law, openly gloating about punishing the President’s critics for their speech.
If you want to understand how far MAGA Republicans have strayed from any actual “free speech” principles, look no further than this: Congress issued a subpoena to Rolling Stone journalist Seth Harp, because he posted on X a publicly available online biography of someone involved in the illegal and unconstitutional kidnapping of Nicolas Maduro. There was no private information shared. There was no “doxxing” in any sense of the word.
Just to be crystal clear about what we’re talking about here: a member of Congress subpoenaed a journalist and referred him for criminal prosecution for posting information that was publicly available on a university website. Information that a university proudly displays on its own website. Information that, even if it were classified (which it isn’t), would still be constitutionally protected to publish.
Yet, because MAGA folks always need to attack anyone who makes them look silly, they went crazy. First, they got X to lock his account until he deleted the post. Harp explained how there’s no way you could consider this to be doxxing.
If you can’t read that screenshot, Harp’s detailed explanation of why he did nothing wrong is quite thorough and quite obviously true:
Yesterday, X admins locked my account and required me to delete certain posts in order to log back in. No explanation was given, but I had posted the publicly available, online bio of a Delta Force commander, a full-bird colonel, whose identity is not classified and which anyone skilled at FOIA can ascertain.
In no way did I “doxx” the officer. I did not post any personally identifying information about him, such as his birthday, social security number, home address, phone number, email address, the names of his family members, or pictures of his house. What I posted is still online on Duke University’s website for all the world to see.
If you serve in the US military, your personnel documents are public records, as they should be. Because I served in the Army myself, anyone can obtain my records, which show the units in which I served. Nothing exempts Delta Force from this basic transparency.
To illustrate these points, I also posted the records of deceased special operators, obtained through FOIA, that specifically say “Delta Force” on them, unredacted. In the spirit of fairness, I also posted my own service record. X required me to delete those posts, too.
Nothing about this should distract from the larger issue: Delta Force, acting on President Trump’s unlawful orders, which contravened every principle of international law and sovereignty, as well as the Congress’s prerogative to declare war, invaded Venezuela, killed scores of Venezuelans who posed no threat to the United States, and kidnapped the Venezuelan president, Nicolas Maduro, as well as his wife.
Every civilian official and military officer in the American chain of command who participated in this outrageously illegal and provocative act of war – which a supermajority of Americans oppose is the legitimate subject of journalistic scrutiny, and X has no business censoring my timely and accurate reporting.
And just to underscore how ridiculous this entire affair is: Duke University, apparently spooked by the controversy, has now scrubbed the bio from its website. The officer’s name and photo remain, but the biographical text—which revealed nothing even remotely sensitive—has been deleted. So Luna’s intimidation campaign worked, at least in getting a university to memory-hole publicly available information about one of its own fellows. This is exactly how chilling effects operate in practice.
And, for that, he gets a subpoena driven by MAGA Representative Anna Paulina Luna, who falsely claimed he was “leaking classified information.” She then followed it up by referring Harp to the DOJ:
That’s Rep. Luna misleading everyone and misrepresenting what Harp did, saying:
I have referred Seth Harp to the DOJ for investigation and to pursue criminal charges regarding the intentional publication of information related to Operation Absolute Resolve, including the doxxing of a U.S. Delta Force operator. That conduct is not protected journalism. It was reckless, dangerous, and put American lives at risk. The First Amendment does not give anyone a license to expose elite military personnel, compromise operations, or assist our adversaries under the guise of reporting.
Congress has a constitutional duty to investigate when national security is endangered, and no one is above oversight. It is also well within my constitutional authority to work with the DOJ to ensure that justice is served. I look forward to the results of a very thorough investigation and the potential filing of charges for violations of multiple U.S. codes.
I have confirmation that the DOJ has received the letter, and we look forward to their findings.
The only truthful part of that is that she has, in fact (ridiculously), referred Harp to the DOJ.
She’s wrong on every other account. He did not “doxx” anyone. And even if he was revealing “information related to Operation Absolute Resolve,” that is absolutely protected by the First Amendment.
It’s not even a close call. We did this 55 years ago in the Pentagon Papers case, where the Supreme Court made it abundantly clear that of course the First Amendment protects journalists publishing even secret government documents about military operations (which isn’t even what Harp did here)—documents that were actually classified, unlike the public university bio that Harp posted.
Take a moment to review all this: In 1971, the Nixon administration tried to stop the New York Times from publishing the Pentagon Papers—genuinely secret documents about the Vietnam War. The Supreme Court told Nixon to pound sand. Now, in 2026, we have a member of Congress going even further, not just trying to stop publication (which already failed half a century ago), but criminally referring a journalist for publishing information that was publicly available on a university website.
In a concurring opinion in the Pentagon Papers case, Justice Hugo Black wrote poetically about the power of the First Amendment protecting journalists especially when they are embarrassing the government:
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.
Rep. Luna either hasn’t read that, doesn’t understand it, or doesn’t care. Because what she is engaging in is out-and-out harassment of journalists doing their jobs, in an effort to intimidate and chill speech of reporters who report information that Luna and the MAGA Trump world would prefer not see the light of day.
That’s not how this works. It’s not how journalism works. It’s not how the First Amendment works, and it’s not how free speech works.
Journalists don’t work for the government and can’t ‘leak’ government information — to the contrary, it’s their job to find and publish the news, whether the government wants it made public or not. Identifying government officials by name is not doxxing or harassment, no matter how many times Trump allies say otherwise. Reporters have a constitutional right to publish even classified leaks, as long as they don’t commit any crimes to obtain them, but Harp merely published information that was publicly available about someone at the center of the world’s biggest news story.
You may recall that after the election in 2024, President Trump demanded that Republicans in the Senate kill the PRESS Act, which had been approved in the house with broad bipartisan support. That law, which would make it even more explicit how the First Amendment protects journalists was killed because Trump and the MAGA base have known all along that they need to violate the First Amendment rights of journalists to try to intimidate and silence them.
This fits a pattern that’s become impossible to ignore: the same people who spent years screaming about “big tech censorship” and “free speech” are now wielding actual government power to silence journalists who embarrass them. The same crowd that insisted Trump would “bring free speech back” is now cheering as he and his congressional allies deploy subpoenas and criminal referrals against reporters.
Remember, it was just a few years ago that Rep. Luna herself was apoplectically accusing the Biden administration of colluding with Twitter to censor users… because she didn’t understand what Jira is. Yet, here, she’s helping the bastardized remains of Twitter, X, silence a journalist herself.
In normal times you could trust that the DOJ would laugh at Rep. Luna’s call for prosecution. But these aren’t normal times. We’ve seen case after case after case of the DOJ bringing bogus, bullshit federal criminal cases against perceived enemies for no reason other than intimidation. That most of those cases are failing in the courts is besides the point. The process itself is the punishment.
And here, Rep. Luna is holding the censor’s axe, abusing her power as an elected official to intimidate and suppress the speech of journalists who were just reporting publicly available information. The First Amendment doesn’t stop applying just because the subject of journalism is inconvenient for the government. But Luna and her MAGA colleagues seem to think it does—or at least, they’re betting that their base won’t care about constitutional principles when it’s “their guy” doing the censoring.
When Immigration and Customs Enforcement officers stormed through Santa Ana, California, in June, panicked calls flooded into the city’s emergency response system.
Recordings of those calls, obtained by ProPublica, captured some of the terror residents felt as they watched masked men ambush people and force them into unmarked cars. In some cases, the men wore plain clothes and refused to identify themselves. There was no way to confirm whether they were immigration agents or imposters. In six of the calls to Santa Ana police, residents described what they were seeing as kidnappings.
“He’s bleeding,” one caller said about a person he saw yanked from a car wash lot and beaten. “They dumped him into a white van. It doesn’t say ICE.”
One woman’s voice shook as she asked, “What kind of police go around without license plates?”
And then this from another: “Should we just run from them?”
During a tense public meeting days later, Mayor Valerie Amezcua and the City Council asked their police chief whether there was anything they could do to rein in the federal agents — even if only to ban the use of masks. The answer was a resounding no. Plus, filing complaints with the Department of Homeland Security was likely to go nowhere because the office that once handled them had been dismantled. There was little chance of holding individual agents accountable for alleged abuses because, among other hurdles, there was no way to reliably learn their identities.
Since then, Amezcua, 58, said she has reluctantly accepted the reality: There are virtually no limits on what federal agents can do to achieve President Donald Trump’s goal of mass deportations. Santa Ana has proven to be a template for much larger raids and even more violent arrests in Chicago and elsewhere. “It’s almost like he tries it out in this county and says, ‘It worked there, so now let me send them there,’” Amezcua said.
Current and former national security officials share the mayor’s concerns. They describe the legions of masked immigration officers operating in near-total anonymity on the orders of the president as the crossing of a line that had long set the United States apart from the world’s most repressive regimes. ICE, in their view, has become an unfettered and unaccountable national police force. The transformation, the officials say, unfolded rapidly and in plain sight. Trump’s DHS appointees swiftly dismantled civil rights guardrails, encouraged agents to wear masks, threatened groups and state governments that stood in their way, and then made so many arrests that the influx overwhelmed lawyers trying to defend immigrants taken out of state or out of the country.
And although they are reluctant to predict the future, the current and former officials worry that this force assembled from federal agents across the country could eventually be turned against any groups the administration labels a threat.
One former senior DHS official who was involved in oversight said that what is happening on American streets today “gives me goosebumps.”
Speaking on condition of anonymity for fear of retaliation, the official rattled off scenes that once would’ve triggered investigations: “Accosting people outside of their immigration court hearings where they’re showing up and trying to do the right thing and then hauling them off to an immigration jail in the middle of the country where they can’t access loved ones or speak to counsel. Bands of masked men apprehending people in broad daylight in the streets and hauling them off. Disappearing people to a third country, to a prison where there’s a documented record of serious torture and human rights abuse.”
The former official paused. “We’re at an inflection point in history right now and it’s frightening.”
Although ICE is conducting itself out in the open, even inviting conservative social media influencers to accompany its agents on high-profile raids, the agency operates in darkness. The identities of DHS officers, their salaries and their operations have long been withheld for security reasons and generally exempted from disclosure under the Freedom of Information Act. However, there were offices within DHS created to hold agents and their supervisors accountable for their actions on the job. The Office for Civil Rights and Civil Liberties, created by Congress and led largely by lawyers, investigated allegations of rape and unlawful searches from both the public and within DHS ranks, for instance. Egregious conduct was referred to the Justice Department.
The CRCL office had limited powers; former staffers say their job was to protect DHS by ensuring personnel followed the law and addressed civil rights concerns. Still, it was effective in stalling rushed deportations or ensuring detainees had access to phones and lawyers. And even when its investigations didn’t fix problems, CRCL provided an accounting of allegations and a measure of transparency for Congress and the public.
The office processed thousands of complaints — 3,000 in fiscal year 2023 alone — ranging from allegations of lack of access to medical treatment to reports of sexual assault at detention centers. Former staffers said around 600 complaints were open when work was suspended.
The administration has gutted most of the office. What’s left of it was led, at least for a while, by a 29-year-old White House appointee who helped craft Project 2025, the right-wing blueprint that broadly calls for the curtailment of civil rights enforcement.
Meanwhile, ICE is enjoying a windfall in resources. On top of its annual operating budget of $10 billion a year, the so-called One Big Beautiful Bill included an added $7.5 billion a year for the next four years for recruiting and retention alone. As part of its hiring blitz, the agency has dropped age, training and education standards and has offered recruits signing bonuses as high as $50,000.
“Supercharging this law enforcement agency and at the same time you have oversight being eliminated?” said the former DHS official. “This is very scary.”
Michelle Brané, a longtime human rights attorney who directed DHS’ ombudsman office during the Biden administration, said Trump’s adherence to “the authoritarian playbook is not even subtle.”
“ICE, their secret police, is their tool,” Brané said. “Once they have that power, which they have now, there’s nothing stopping them from using it against citizens.”
Tricia McLaughlin, the DHS assistant secretary for public affairs, refuted descriptions of ICE as a secret police force. She called such comparisons the kind of “smears and demonization” that led to the recent attack on an ICE facility in Texas, in which a gunman targeted an ICE transport van and shot three detained migrants, two of them fatally, before killing himself.
In a written response to ProPublica, McLaughlin dismissed the current and former national security officials and scholars interviewed by ProPublica as “far-left champagne socialists” who haven’t seen ICE enforcement up close.
“If they had,” she wrote, “they would know when our heroic law enforcement officers conduct operations, they clearly identify themselves as law enforcement while wearing masks to protect themselves from being targeted by highly sophisticated gangs” and other criminals.
McLaughlin said the recruiting blitz is not compromising standards. She wrote that the Federal Law Enforcement Training Center is ready for 11,000 new hires by the beginning of next year and that training has been streamlined and boosted by technology. “Our workforce never stops learning,” McLaughlin wrote.
White House spokesperson Abigail Jackson also praised ICE conduct and accused Democrats of making “dangerous, untrue smears.”
“ICE officers act heroically to enforce the law, arrest criminal illegal aliens and protect American communities with the utmost professionalism,” Jackson said. “Anyone pointing the finger at law enforcement officers instead of the criminals are simply doing the bidding of criminal illegal aliens and fueling false narratives that lead to violence.”
Homeland Security Secretary Kristi Noem, the Trump pick who fired nearly the entire civil rights oversight staff, said the move was in response to CRCL functioning “as internal adversaries that slow down operations,” according to a DHS spokesperson.
Trump also eliminated the department’s Office of the Citizenship and Immigration Services Ombudsman, which was charged with flagging inhumane conditions at ICE detention facilities where many of the apprehended immigrants are held. The office was resurrected after a lawsuit and court order, though it’s sparsely staffed.
The hobbling of the office comes as the White House embarks on an aggressive expansion of detention sites with an eye toward repurposing old jails or building new ones with names that telegraph harsh conditions: “Alligator Alcatraz” in the Florida Everglades, built by the state and operated in partnership with DHS, or the “Cornhusker Clink” in Nebraska.
“It is a shocking situation to be in that I don’t think anybody anticipated a year ago,” said Erica Frantz, a political scientist at Michigan State University who studies authoritarianism. “We might’ve thought that we were going to see a slide, but I don’t think anybody anticipated how quickly it would transpire, and now people at all levels are scrambling to figure out how to push back.”
“Authoritarian Playbook”
Frantz and other scholars who study anti-democratic political systems in other countries said there are numerous examples in which ICE’s activities appear cut from an authoritarian playbook. Among them was the detention of Tufts University doctoral student Rümeysa Öztürk, who was apprehended after co-writing an op-ed for the campus paper that criticized the school’s response to the war in Gaza. ICE held her incommunicado for 24 hours and then shuffled her through three states before jailing her in Louisiana.
“The thing that got me into the topic of ‘maybe ICE is a secret police force’?” said Lee Morgenbesser, an Australian political science professor who studies authoritarianism. “It was that daylight snatching of the Tufts student.”
Morgenbesser was also struck by the high-profile instances of ICE detaining elected officials who attempted to stand in their way. Among them, New York City Comptroller Brad Lander was detained for demanding a judicial warrant from ICE, and U.S. Sen. Alex Padilla was forcibly removed from a DHS press conference.
And David Sklansky, a Stanford Law School professor who researches policing and democracy, said it appears that ICE’s agents are allowed to operate with complete anonymity. “It’s not just that people can’t see faces of the officers,” Sklansky said. “The officers aren’t wearing shoulder insignia or name tags.”
U.S. District Judge William G. Young, a Ronald Reagan appointee, recently pointed out that use of masked law enforcement officers had long been considered anathema to American ideals. In a blistering ruling against the administration’s arrests of pro-Palestinian protesters, he wrote, “To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police.” The Trump administration has said it will appeal that ruling.
Where the Fallout is Felt
The fallout is being felt in places like Hays County, Texas, not far from Austin, where ICE apprehended 47 people, including nine children, during a birthday celebration in the early morning of April 1.
The agency’s only disclosure about the raid in Dripping Springs describes the operation as part of a yearlong investigation targeting “members and associates believed to be part of the Venezuelan transnational gang, Tren de Aragua.”
Six months later, the county’s top elected official told ProPublica the federal government has ignored his attempts to get answers.
“We’re not told why they took them, and we’re not told where they took them,” said County Judge Ruben Becerra, a Democrat. “By definition, that’s a kidnapping.”
In the raid, a Texas trooper secured a search warrant that allowed law enforcement officers to breach the home, an Airbnb rental on a vast stretch of land in the Hill Country. Becerra told ProPublica he believes the suspicion of drugs at the party was a pretense to pull people out of the house so ICE officers who lacked a warrant could take them into custody. The Texas Department of Public Safety did not respond to a request for comment.
The Trump administration has yet to produce evidence supporting claims of gang involvement, said Karen Muñoz, a civil rights attorney helping families track down their relatives who were jailed or deported. While some court documents are sealed, nothing in the public record verifies the gang affiliation DHS cited as the cause for the birthday party raid.
“There’s no evidence released at all that any person kidnapped at that party was a member of any organized criminal group,” Muñoz said.
McLaughlin, the DHS spokesperson, did not respond to questions about Hays County and other raids where families and attorneys allege a lack of transparency and due process.
In Plain Sight
Months after ICE’s widely publicized raids, fear continues to envelop Santa Ana, a majority-Hispanic city with a large immigrant population. Amezcua, the mayor, said the raids have complicated local policing and rendered parents afraid to pick up their children from school. The city manager, a California-born citizen and Latino, carries with him three government IDs, including a passport.
Raids of car washes and apartment buildings continue, but the community has started to “push back,” Amezcua said. “Like many other communities, the neighbors come out. People stop in the middle of traffic.”
With so few institutional checks on ICE’s powers, citizens are increasingly relying on themselves. On at least one occasion in nearby Downey, a citizen’s intervention had some effect.
On June 12, Melyssa Rivas had just started her workday when a colleague burst into her office with urgent news: “ICE is here.”
The commotion was around the corner in Rivas’ hometown, a Los Angeles suburb locals call “Mexican Beverly Hills” for its stately houses and affluent Hispanic families. Rivas, 31, the daughter of Mexican immigrants, belongs to Facebook groups where residents share updates about cultural festivals, church programs and, these days, the presence of Trump’s deportation foot soldiers.
Rivas had seen posts about ICE officers sweeping through LA and figured Downey’s turn had come. She and her co-worker rushed toward the sound of screaming at a nearby intersection. Rivas hit “record” on her phone as a semicircle of trucks and vans came into view. She filmed at least half a dozen masked men in camouflage vests encircling a Hispanic man on his knees.
Her unease deepened as she registered details that “didn’t seem right,” Rivas recalled in an interview. She said the parked vans had out-of-state plates or no tags. The armed men wore only generic “police” patches, and most were in street clothes. No visible insignia identified them as state or federal — or even legal authorities at all.
“When is it that we just decided to do things a different way? There’s due process, there’s a legal way, and it just doesn’t seem to matter anymore,” Rivas said. “Where are human rights?”
Video footage shows Rivas and others berating the officers for complicity in what they called a “kidnapping.” Local news channels later reported that the vehicles had chased the man after a raid at a nearby car wash.
“I know half of you guys know this is fucked up,” Rivas was recorded telling the officers.
Moments later, the scene took a turn. As suddenly as they’d arrived, the officers returned to their vehicles and left, with no apology and no explanation to the distraught man they left on the sidewalk.
Through a mask, one of them said, “Have a good day.”
For years we’ve talked about the serious problems of the Bayh-Dole Act, which encouraged universities to patent every damn idea that anyone associated with the university came up with in the hopes of “commercializing” it. In practice this has been a total disaster. Universities locked up a ton of (often publicly funded) research behind “patents” and set up “tech transfer offices” expecting to get rich.
It didn’t work out that way. University research suffered because professors were much less willing to share information that might get wrapped up into someone else’s patents. Meanwhile, outside of a very, very small number of top universities almost all university tech transfer offices lost money. They expected that the patents were valuable, but that misreads the reality of how innovation works where execution tends to matter much more than the idea, and simply selling patent licenses is effectively worthless.
The only major “innovation” that Bayh-Dole then created was enabling patent trolls. One of the largest patent trolling operations ever, Intellectual Ventures, basically based its entire business model on buying up a ton of university patents that were effectively worthless (but allowing tech transfer offices to finally show some revenue), and then shaking down actual companies by saying “we have so many patents, we’re sure you infringe some, so just pay us a blanket license fee.”
When Bayh-Dole was first written there were some (accurate!) concerns that this would allow for the privatization and locking up of publicly funded research. To deal with this possibility, the law included what’s known as “march-in rights” that would allow the federal government to require the patent holder of a patent based on federally funded research to license that patent to others if specific conditions are met (e.g., failure to achieve “practical application,” unmet health or safety needs, failure to meet public use requirements, or lack of US manufacturing for US use).
In the 45 years since the law has passed, those march-in rights have never been used. Any time it’s even considered, such as to lower drug prices, Big Pharma throws an absolute shitfit and laughingly claims it would destroy innovation in the pharma world. This ignores just how much Big Pharma actually is based on enclosing and getting monopoly rents from federally funded research. Multiple high-profile petitions (often around outrageously priced drugs) have been denied despite ticking obvious “alleviate health or safety needs” boxes.
Even during COVID, when the concept of march-in rights was mentioned as a way to help limit the spread of the pandemic, the pharma industry closed ranks and insisted that using march-in rights to help against the pandemic would destroy the industry.
So it’s quite something, now, to see that the Trump administration is looking to use march-in rights against Harvard as part of its pressure campaign to get the university to capitulate to the Trump administration’s plan to reshape American education to be more white and MAGA.
The Trump administration on Friday launched an investigation into Harvard’s patents derived from federally funded research, threatening intellectual property potentially worth hundreds of millions of dollars and once again escalating a monthslong standoff between the University and the White House.
In a two-page letter to Harvard President Alan M. Garber ’76 — which was posted publicly on X — United States Commerce Secretary Howard W. Lutnick announced an “immediate comprehensive review” of Harvard’s compliance with the Bayh-Dole Act, a 1980 law governing inventions developed with federal research grants.
[….]
Lutnick specifically cited the federal government’s “march-in rights,” a provision of the Bayh-Dole Act that allows federal agencies to assume ownership of an entity’s intellectual property if it fails to meet the law’s requirements. No federal agency has ever exercised march-in rights — and the Friday move marks the first time patents have been used as a source of leverage in the White House’s crusade against higher education.
Quick reality check on the mechanics: “march‑in” under Bayh‑Dole (had it ever been used) compels licensing; it does not by itself “assume ownership” of a patent as the Harvard Crimson article suggests. Lutnick also threatens to “take title” over certain patents, implying he can do this under march-in rights, but that’s also wrong. Title can be threatened or reverted for certain compliance failures under different provisions, but march‑in is a licensing remedy, and it’s the funding agency (NIH, DoD, DoE, etc.) that actually marches in. Commerce, which Lutnick runs, (via NIST) sets guidance and can posture with “compliance reviews,” but it doesn’t unilaterally seize university IP no matter how much Lutnick implies otherwise.
Again, I want to make it quite clear how incredibly unprecedented this is. I think the Bayh-Dole Act has been an unmitigated disaster for innovation, and the only redeeming aspect of the law was the march-in rights to make sure that federally funded research couldn’t be locked up entirely away from innovation. But those rights have never been asserted, leading to the massive closing off of such taxpayer-funded research, enabling giant private companies to profit off taxpayer money for no direct return.
That’s the tell here: for decades agencies refused to use march‑in even where the statute explicitly contemplates it (lack of “practical application,” unmet health/safety needs). Now the White House is dangling a Commerce‑run “review” aimed not at unlocking life‑saving tech, but at punishing a disfavored university. If you wanted yet another case study in weaponizing an unused public-interest tool for raw political leverage, well, here you go.
In 45 years, the federal government has never—not once—been willing to use those rights to do things like lower drug pricing or to help people survive a global pandemic. And now Trump is exploring doing it only as a method of punishing Harvard for no damn reason at all beyond being scared that the people there are too smart and too diverse for him.
Two weeks into President Donald Trump’s second presidency, and just days after he pardoned hundreds of Capitol rioters, officials Trump had placed in charge of the Justice Department made a sweeping demand. They wanted the names of the thousands of FBI employees who had played a role in investigating the Jan. 6, 2021, attack on the U.S. Capitol.
Fearing mass firings, or worse, retaliation by the people they helped prosecute, a group of agents scrambled to enlist a legal team who could stop the administration in court. Norm Eisen, a prominent ethics lawyer now leading dozens of lawsuits against the Trump administration, agreed within hours to represent the agents pro bono, along with Mark Zaid, a veteran whistleblower attorney. For more firepower, the two approached the giant Chicago-based law firm Winston & Strawn, which has a history of providing free representation to people and organizations that squared off against Trump’s first administration.
But Winston declined to represent the FBI agents, three people with knowledge of the matter said. It was one of several cases Winston turned down in quick succession, they added, that would have pitted the firm against an openly retributive president.
Some of the country’s largest law firms have declined to represent clients challenging the Trump administration, more than a dozen attorneys and nonprofit leaders told ProPublica, while others have sought to avoid any clients that Trump might perceive as his enemies. That includes both clients willing to pay the firms’ steep rates, and those who receive free representation. Big Law firms are also refusing to take on legal work involving environmental protections, LGBTQ+ rights and police accountability or to represent elected Democrats and federal workers purged in Trump’s war on the “deep state.” Advocacy groups say this is beginning to hamper their efforts to challenge the Trump administration.
Their fears intensified after Trump signed a battery of executive orders aimed at punishing top firms over old associations with his adversaries. But as the Winston episode shows, Big Law began to back away from some clients almost the minute he returned to power. The country’s top firms remain deeply wary, even though the president has lost all four initial court challenges to those executive orders.
“The President’s Policy is working as designed,” said a lawsuit the American Bar Association filed against the administration in June. “Even as federal judges have ruled over and over that the Law Firm Orders are plainly unconstitutional, law firms that once proudly contributed thousands of hours of pro bono work to a host of causes — including causes championed by the ABA — have withdrawn from such work because it is disfavored by the Administration.”
The bar association itself has struggled to find representation, the lawsuit said. One unnamed firm, which has represented the association since the 1980s in lawsuits related to ABA’s accreditation of law schools, “is no longer willing to represent the ABA in any litigation against or potentially adverse to the Administration and its policies.” Sidley Austin, the sixth-ranked corporate firm by revenue in the world, has represented the ABA in at least five lawsuits over its accreditation practices since 1989.
The ABA and Susman Godfrey, which is representing the association in its lawsuit against the administration, declined to comment. Winston, Sidley and the White House did not respond to questions sent in writing.
Trump’s grievances with Big Law stem partly from its role in blocking his first-term agenda. In his executive order targeting Jenner & Block, a firm with close ties to the Democratic Party that fought Trump on transgender rights and immigration, he assailed the firm for allegedly “abus[ing] its pro bono practice to engage in activities that undermine justice.” Another firm, WilmerHale, was where former Special Counsel Robert Mueller worked before and after leading the Russian interference investigation.
The executive orders barred attorneys working for the firms from entering federal buildings where they represent clients, terminated the firms’ government contracts, revoked partners’ security clearances and required government contractors to disclose if they work with the targeted firms. Perkins Coie, one of Trump’s first targets, began to lose business “within hours,” its suit said. The judge who halted the executive order against WilmerHale wrote that the firm “faces crippling losses and its very survival is at stake.”
“I just think that the law firms have to behave themselves,” Trump said at a press conference in late March.
Nine corporate law firms behaved themselves in the form of reaching public settlements with Trump. The deals require them to provide $940 million in total of pro bono support for Trump-approved causes. There has been no public indication of the White House calling on them to perform specific work, and Trump has not released any new executive orders against firms since April.
Yet organizations that challenge the government are still feeling the chill.
“There’s been a real, noticeable shift,” said Lauren Bonds, the executive director of the National Police Accountability Project, a national nonprofit that brings lawsuits over alleged police abuse and was a frequent pro bono client of Big Law.
In November, as soon as Trump won reelection, a top firm that was helping NPAP develop a lawsuit against a city’s police force abruptly stopped attending all planning calls, Bonds said. Later, the firm became one of the nine that struck a deal with Trump, after which the firm half-heartedly told Bonds, she said, that it would reconsider the case in the future. Bonds declined to identify the firm.
Activist nonprofits have long relied on free representation because they typically lack the resources to mount major lawsuits on their own. Civil rights cases in particular are complex undertakings usually lasting years. Many call for hundreds of hours spent deposing witnesses and performing research, as well as upfront costs of tens of thousands of dollars. Big Law, with its deep ranks of attorneys and paying clients to subsidize their volunteer work, is in a unique position to help. In exchange, the work burnishes the firm’s reputation and serves as a draw for idealistic young associates.
“I know that [cases] have been shot down that in Trump Administration 1, firms would crawl over each other to get our name at the top of the case so that we could get the New York Times headline,” said a Big Law partner whose firm has not been one of Trump’s targets. “That’s the environment. What’s become radioactive has grown from a very small number of things to anything this administration and Trump might notice and get angry about.”
Jill Collen Jefferson, the president and founder of Julian, a small nonprofit that investigates civil rights violations, has felt the chill too.
Three years ago, Julian partnered with the elite law firm Wachtell, Lipton, Rosen & Katz, the country’s No. 1 corporate firm most years by per-partner revenue, to bring lawsuits against the town of Lexington, Mississippi, and its police force for racial discrimination.
“It wasn’t hard at all to get help,” she recalled. George Floyd’s death had raised public support for police accountability, and the details Julian was exposing in Lexington were especially grim. The police chief was secretly recorded promising to cover for a fellow officer if he killed someone “in cold blood.” A DOJ investigation released in 2024 found Lexington police operated in “a system where officers can relentlessly violate the law.” (The town’s board fired the chief, Sam Dobbins, over the recording. In a court filing, Dobbins said he was not guilty of “any actionable conduct” and denied Julian’s characterization of the recording, asserting that “the recording speaks for itself.” Julian’s litigation is still ongoing.)
Since January, when Trump began gutting police accountability measures, Jefferson’s efforts to recruit pro bono help have yielded almost no commitments. The official explanation many firms offer is that they lack the capacity to help, she said, though lawyers at those firms have privately told her that was false. Wachtell did not respond to a request for comment.
Jefferson now doubts Julian’s ability to bring a police abuse lawsuit it had planned to file before the statute of limitations expires this month.
“It’s been a nightmare,” she said. “People don’t want to stand up, and because of that, people are suffering.”
NPAP ultimately joined forces with another civil rights organization to salvage the case after its co-counsel disappeared from planning calls last November. But the suit will be “less robust” without the firepower of a major law firm, Bonds said. And NPAP’s capacity to file future suits is in question. Civil rights attorneys in NPAP’s network have developed novel legal theories for challenging arrests by Immigration and Customs Enforcement under state constitutions, but they lack enough outside partnerships.
“There are cases that aren’t being brought at a time when civil rights abuses are maybe at the highest they’ve been in modern times,” Bonds said.
Big Law was often in the vanguard of fighting Trump’s first administration. After he signed the 2017 travel ban affecting several predominantly Muslim countries, partners from Kirkland & Ellis and Davis Polk rushed alongside hundreds of other lawyers to international airports to help travelers stuck in limbo. Kirkland teamed up with the LGBTQ+ legal advocacy organization Lambda Legal to challenge Trump’s transgender military ban.
Now, Davis Polk is among the many firms that are avoiding pro bono immigration cases, The New York Times reported. Kirkland, by some measures the top moneymaker in Big Law, entered a deal with Trump to provide $125 million in pro bono work, and the firm is notably absent from Lambda’s nearly identical challenge to Trump’s reinstated ban on transgender military service members. Kirkland and Davis Polk did not respond to requests for comment.
Winston & Strawn’s annual pro bono reports show how its focus — or at least, its language — has changed. The firm’s 2023 impact report highlighted its advocacy on behalf of a transgender competitive marathoner. “I am also pleased to report that Winston dedicated 30% of our pro bono hours to racial justice and equity matters in 2023,” nearly double its share in 2020, wrote Angela Smedley, the pro bono committee chair. The 2024 report, published after Trump’s reelection, contained zero mentions of “equity” and spotlighted attorneys who helped small nonprofits navigate “complex mergers and business challenges.”
Eisen and Zaid, the lawyers representing the FBI agents, themselves became the target of a presidential memorandum in March that revoked their access to classified material. Both have aggravated Trump for years. Zaid represented a whistleblower who helped bring about Trump’s first impeachment.
Zaid sued to restore his security clearance in May, in a case that is ongoing. His lawyer, Abbe Lowell, is a high-profile defense attorney who left Winston this spring in order to form his own firm. Lowell said his goal is to represent those “unlawfully and inappropriately targeted.” New York Attorney General Letitia James, who won a fraud judgment against Trump and is now a target of his DOJ, was one of his first clients.
“The Administration’s attempt at retribution against Mark for doing his job — representing whistleblowers without regard to politics — is as illegal as its similar efforts against law firms that have been enjoined in every case,” Lowell wrote in an email to ProPublica.
Good-government groups and small and mid-sized law firms have stepped into the breach, helping to file hundreds of lawsuits against the Trump administration. And the four firms that sued Trump over his executive orders are devoting thousands of pro bono hours to others challenging the administration. Perkins Coie, for example, has replaced Kirkland as Lambda Legal’s partner in challenging Trump’s transgender military ban.
But until they build up the capacity to fully replace Big Law, Bonds said, some of the administration’s legally dubious actions will go unchallenged.
“There’s a financial resources piece that we’re really missing when we can’t engage a firm,” Bonds said. “Even if there’s a big case and we feel really confident about it, we’ll just have to pass on it.”
We’ve seen some pretty ridiculous attempts by government officials to intimidate judges over the years, but the Department of Justice’s new misconduct complaint against D.C. Chief Judge James Boasberg might take the cake for sheer absurdity. As Steve Vladeck breaks down in exhaustive detail, the DOJ is essentially arguing that a federal judge committed “misconduct” by privately expressing concerns to the Chief Justice that the Trump administration might not comply with court orders.
Spoiler alert: those concerns turned out to be entirely justified.
The complaint centers on comments Boasberg allegedly made at a March Judicial Conference meeting about “concerns that the Administration would disregard rulings of federal courts, leading to a constitutional crisis.” And these concerns were not even Boasberg’s own personal feelings. He was expressing what he was hearing from other judges on the court where he sits.
As Vladeck methodically demonstrates, DOJ’s theory collapses under scrutiny for four separate reasons.
First, the comments weren’t public. They were made at a private meeting of the Judicial Conference, and only became known because someone leaked a confidential memo summarizing the meeting. Vladeck nails why this matters:
Suffice it to say, DOJ never explains how a private comment at a private meeting that was made public only because a confidential memorandum memorializing the meeting was leaked could possibly violate Canon 3(A)(6). The best it can offer is the claim that, because the memorandum has become public, the comments they memorialize were illegitimate. But that’s true of anything a federal judge says in private. On that reading, a federal judge would violate Canon 3(A)(6) simply by discussing a pending case with a clerk or colleague—because that discussion might one day be made public.
Under DOJ’s logic, any private conversation a judge has could retroactively become “misconduct” if someone decides to leak it later. That’s not how judicial ethics work. That’s not how anything works.
Second, as noted above, Boasberg wasn’t pushing his own agenda—he was literally doing his job. As the D.C. Circuit’s district judge representative on the Judicial Conference, part of his role is to communicate his colleagues’ concerns to the Chief Justice. Vladeck notes that these appear to be “radical mischaracterizations of what actually happened,” and that Boasberg was simply “relaying concerns raised by his colleagues to the Chief Justice, almost certainly in response to a specific prompt that he do so.”
Third, and this is the kicker, Boasberg’s concerns were completely justified. Despite DOJ’s claim that “the Trump Administration has complied with every court order,” Vladeck points out that this is “quite obviously not true.”
Indeed, we all talked about how they were directly flouting judicial orders, and Boasberg himself wrote an opinion back in April (after he’d raised these concerns) finding probable cause that DOJ lawyers and government officials acted in “willful disregard” of a temporary restraining order when human trafficked Venezuelans to a Salvadoran gulag.
Let’s be clear about the timeline: a judge expressed valid private concerns that the government might not follow court orders, the government proceeded to violate court orders (including one from this very judge!), and now DOJ is claiming the judge committed misconduct for… being right?
And fourth, even if none of the above were true, there’s still no violation here. Boasberg didn’t say he was predisposed to rule against the government in specific cases. He didn’t prejudge any particular policies. He raised institutional concerns about governmental compliance with court orders—which is exactly the kind of thing members of the Judicial Conference should be discussing.
Vladeck identifies the real audiences for this charade. It’s not actually about disciplining Boasberg—the complaint is “laughably preposterous” and will almost certainly be dismissed. Instead, it’s about sending a message:
The first audience is other district judges—including those perhaps without the reputation and stature (and backbone) of Chief Judge Boasberg. Even frivolous judicial misconduct complaints come at a cost—especially when they’re filed not by private litigants, but by the U.S. Department of Justice. If the Chief Judge of the D.C. district court can come in for such treatment for doing nothing more than conveying his colleagues’ concerns to the Chief Justice at a meeting at which that’s his job, perhaps other judges will think twice the next time they want to publicly reprimand the government or otherwise say anything that could be construed in any way as reflecting comparable concerns about the behavior of the current Department of Justice.
This is straight-up judicial intimidation. File a bogus complaint against one prominent judge to cow the rest into silence. Remember that this is all happening against the backdrop of the Trump admin attacking a bunch of judges for daring to try to uphold the Constitution against a government determined to tear down the Constitution.
The second audience, according to Vladeck, is Trump supporters, who get fed misleading headlines about “biased judges” without the context showing how legally frivolous this complaint actually is. Indeed, Vladeck also calls out that this story “leaked” to MAGA mouthpiece, The Federalist, which clearly was given access to the confidential memo that an attendee had written up summarizing what was said that spurred this complaint… but did not publish it, suggesting that if we saw the full memo, in context, it would be clear how it was being misrepresented here:
Indeed, the fact that The Federalist appears to have obtained that confidential memo but has not published it seems to strongly suggest, among other things, that the memo is not only entirely benign, but that it may provide even further context for Boasberg’s remarks.
Also notable: The Federalist entirely avoided giving the (kinda important!) context that Boasberg was sharing the views he heard from other judges, rather than just expressing his own opinion.
Perhaps most galling is Attorney General Bondi’s tweet claiming Boasberg’s comments “have undermined the integrity of the judiciary, and we will not stand for that.”
The lack of self-awareness here quite something. What’s actually undermining judicial integrity is the Department of Justice filing baseless misconduct complaints against judges who dare to hold the government accountable when it violates court orders.
As Vladeck puts it:
In fact, the only thing undermining the integrity of the judiciary here is the Department of Justice filing a patently baseless and profoundly misleading misconduct complaint against a federal judge who did nothing more than diligently discharge his duties.
Federal judges aren’t supposed to be government cheerleaders. Part of their job is identifying systemic problems with how the legal system is functioning—including when the government isn’t complying with their orders. Encouraging judges to stay silent about such issues doesn’t strengthen judicial integrity; it eviscerates it.
The separation of powers isn’t supposed to be a one-way street where judges quietly rubber-stamp whatever the government wants to do. It’s supposed to involve actual checks and balances, which sometimes means judges pointing out when the other branches are acting lawlessly.
You know, that whole constitutional framework thing we’re supposed to have.
This complaint will almost certainly fail. But the damage is already done. Other judges are watching, and some might think twice before calling out government misbehavior in the future.
That’s not how a functioning democracy is supposed to work. But then again, intimidating judges into silence probably isn’t the behavior of an administration that’s particularly committed to democratic norms in the first place.
The 53-page report, titled “Delusion of Collusion: How the House Republican Majority Abused Oversight Powers to Protect Elon Musk and Silence His Critics,” exhaustively documents how Jordan launched a sham investigation in what appears to be a clear attempt to intimidate advertisers and bully them into subsidizing Musk’s ExTwitter, while falsely claiming it was about fighting “collusion.”
Because the Democrats tend to be inept and incompetent in explaining reality to people, Rep. Jerry Nadler released the report on New Year’s Eve where it basically got zero attention. As far as I can tell, the only news report to cover it was a small legal antitrust trade publication. By the time the ball dropped in Times Square hours after the report had been released, it had effectively disappeared.
However, it deserves way more attention for all of the nonsense it puts into the public record, specifically focusing on Jordan and Musk’s effort to attack GARM, a small non-profit that just worked with advertisers and social media platforms to encourage the platforms to protect the brand safety of advertisers. As we’ve covered, that attack was successful. Even though his ExTwitter had put out a press release talking about how excited they were to “rejoin” GARM just weeks earlier, Musk went on to sue GARM, which was almost immediately shut down by the World Federation of Advertisers.
The report breaks down how this was a clear case of Jordan and Musk weaponizing the government to silence critical speech.
By March 2023, Twitter’s value had fallen from $44 billion to $20 billion. The reason for this decline in value is no mystery, given the facts outlined above. Nevertheless, the Majority launched an investigation into the advertisers which have declined to spend money on the platform, accusing them of “colluding” to hurt the company’s profits. Since then, the Majority has spent countless dollars and hours of staff time trying to figure out why advertisers might be hesitant to risk their brands’ reputations on a platform whose owner told them, in November 2023, to “Go fuck yourself.”
Chairman Jordan’s so-called investigation culminated in a July 2024 “interim report” which used cherry picked documents and misleading transcript excerpts to suggest that the committee had uncovered evidence of “collusion” when in fact the very opposite is true. In fact, the complete and contextualized documents and testimony show that the Global Alliance for Responsible Media and its member companies were engaged in a pro-competitive effort to address the substantial brand risk that harmful online content poses to advertisers and to consumers.
Chairman Jordan’s report had an audience of one: Elon Musk. In fact, the entire report seems like pretext for a lawsuit Musk filed against various advertising entities and ultimately to silence the advertisers who expressed concern about content on his platform. The resources of this Committee should not be directed to further pad a billionaire’s bottom line.In contrast, this minority report is intended for the American public, who are entitled to the truth about this investigation and about Chairman Jordan’s true aims and abuse of congressional oversight power.
It’s hard to imagine a more blatant example of a powerful government official abusing his authority to carry water for a political ally and major GOP donor. The fact that Jordan is doing this while sanctimoniously claiming to be fighting the “weaponization” of government is beyond parody.
As the report calls out:
For the past 20 months, the Chairman of the House Judiciary Committee has abused his oversight power and the rule of law to push an agenda that would pervert the free market and undermine individual companies’ independent decisions as to where to place advertisements online. The spread of illegal, harmful, abusive, and false and misleading content online results in actual harm, both online and offline. We are left to conclude that the Majority’s ultimate goal was not to conduct antitrust oversight as they claim, but rather to silence criticism of harmful online content and those who promote it, deter content moderation, and protect the ability to use mis- and disinformation campaigns to achieve political ends.
Ya think? This was obvious from the beginning, but almost entirely ignored by the credulous media that uncritically amplified Jordan’s false claims.
The report thoroughly debunks Jordan’s flimsy antitrust pretext and exposes his true aim: strong-arming companies into boosting Musk and his political allies.
It also calls out the irony of the committee that claims to be fighting weaponization, actually being the chief party weaponizing the government against speech:
The Majority is engaging in a transparently political effort to use the antitrust laws to benefit their allies by conferring upon them outcomes that they could not otherwise achieve in the marketplace. This is not just a misuse of the antitrust laws, but fundamentally subverts the goals of those laws. The irony could not be greater. While spending most of this Congress attacking the Biden administration’s so-called weaponization of government, the Majority here is trying to weaponize the antitrust laws under a highly dubious theory to override legitimate market outcomes.
It also calls out the MAGA trend of falsely claiming that content moderation or boycotts could possibly violate the First Amendment:
Finally, the Majority bandies about words like censorship, in a misguided effort to evoke the First Amendment. But as the Majority well knows, the First Amendment only applies to government action. And in this case, the only governmental burdening of speech is the Majority’s onslaught against GARM and its members. It is an effort to bully the advertisers into subsidizing firms whose content moderation policies put brands and businesses at risk. It is an attempt to hijack free speech, as well as antitrust, for political purposes.
If reality mattered, this report would be a bombshell. But, again, everyone seems to be living in a fog of nonsense, where anything the MAGA world says it’s doing, no matter how obviously false, is treated as genuine. And any time anyone calls out the lack of clothes on the emperor, it’s dismissed as sour grapes or “derangement syndrome.”
The report is thorough and detailed. It explains why companies might not want to advertise on ExTwitter for totally legitimate business reasons, calling out examples of big brands having their ads show up next to “pro-Nazi” content, and noting that consumers (the marketplace again!) will often punish companies whose advertisements support such hatred:
Now consider the category of misinformation that the Majority alleges GARM’s members misapply to the detriment of conservative-voiced content. The GARM framework defines misinformation as “the presence of verifiably false or willfully misleading content that is directly connected to user or societal harm.” Consumer surveys suggested that inappropriate content, including misinformation, negatively affects brand trust and purchase behavior. These results explained, in part, why advertisers are concerned about the nexus between brand safety and misinformation. Additional studies examined this nexus in more detail. A 2024 article in NATURE reported the results of an experiment which demonstrated that consumers are likely to reduce purchases from firms that advertise on websites that publish misinformation compared to firms that do not. Unlike the surveys which measured intention to change purchase behavior, subjects in this experiment made actual economic choices. Additional research on consumer reaction to misinformation was provided by the IPG Mediabrands and Zefr MAGNA Media Trials Study which found that “advertising next to misinformation led to wasted dollars for brands, eroded brand perception, and negatively impacted KPIs [key performance indicators].”
The challenges of directing ad placement to trustworthy sites and away from misinformation sites continues to loom large. The 2024 NATURE study found that of the 100 most active advertisers, an astounding 79.8 percent that used digital advertising platforms had advertisements placed in online misinformation outlets in a given week. The authors attributed the problem to the use of such platform systems that allocate advertising to such websites. Another study, by the Pew Research Center, suggested that “for every $2.16 in digital ad revenue sent to legitimate newspapers, U.S. advertisers are sending $1 to misinformation websites.”
In sum, online advertising is very important for advertisers and for the websites that provide and host content, many of whose business models depend on it. But harmful content is challenging the business models of advertisers, content providers, and platforms alike. Consumers associate the online content with the brands that advertise there. When a brand is advertised near harmful content, its value is undermined because most consumers believe that the brand knowingly chose that content and site for its advertising.
In other words, there are completely and totally understandable business reasons for advertisers to stop advertising on ExTwitter.
And all GARM was trying to do was help advertisers make sure that they didn’t risk angering customers by having ads appear next to highly controversial content. And they did so in a way that everyone involved knew was just creating more information and allowing advertisers (and social media platforms) to make their own final decisions:
GARM’s voluntary frameworks, which the biggest social media platforms helped develop, provide structures for analysis and created a common lexicon. Much like the terms of art in marketing or expressions in mathematics, a shared terminology facilitates communication that is foundational for constructive working relationships across organizations. Such terminology enhances transparency, making market transactions more efficient. The buyer better understands what sellers are offering in terms of brand safety and the seller better understands what buyers want. Both advertisers and platforms benefit from this common approach and independent decision making is improved.
Crucially, the frameworks do not dictate advertising outcomes. Applying those frameworks is an inherently subjective exercise that includes tailoring to the specific requirements of the brands and leads to outcomes that vary across GARM’s members. Juhl described how GroupM customizes its work in ad placement to reflect the specific needs of their advertiser clients:
GroupM works to place our clients’ ads on media pursuant to their goals, preferences, and target audiences, and we continually engage with our clients to understand their particular risk tolerance levels. These risk tolerances shift due to our clients’ own business conditions and how they view the current political and social environments. Clients shift priorities very quickly and it is our job to execute their strategy with speed and precision. We always follow our client brand’s ad placement wishes.
It is also important to recognize that the application of the GARM frameworks usually operates within a firm’s set of marketing policies and hence was only one consideration among many. These marketing policies vary by firm. Most were created before the GARM frameworks and continue to shape online advertising choices.
But, Jim Jordan and Elon Musk bent over backwards to pretend that it was “illegal collusion” that violates antitrust law. And this report says that’s ridiculous to anyone who looked at all the facts.
The Majority’s July 2024 Interim Report offers no direct evidence of an agreement among GARM and its members. Mere status as a member of GARM would not, without more, support a finding of a conspiracy. Consistent with the key Supreme Court precedents Matsushita Elec. Industrial Co. v. Zenith Radio Corp.1 and Monsanto Co. v. Spray-Rite Service Corp., a plaintiff would have to “present evidence tending to show that association members, in their individual capacities, consciously committed themselves to a common scheme designed to achieve an unlawful objective.” In contrast, GARM and its members are absolutely clear that their advertising decisions are made independently. As Unilever USA President Patel testified during the hearing,
I want to be very clear on one crucially-important fact. Unilever and Unilever alone controls our advertising spending. No platform has the right to our advertising dollars. As we look across the available advertising inventory, recognizing we do not have unlimited money to spend on advertising, we choose the channels, the platforms, and the outlets that give us the greatest commercial benefit for our advertising investments.
During questioning Patel further confirmed that, “A hundred percent, Unilever makes its own decisions,” and does not follow any outside group’s direction to avoid any outlet. This sentiment is echoed by GARM’s Rakowitz during his transcribed interview:
Q: But just to nail down that point, GARM doesn’t tell individual members—
A: Absolutely not.
Q: —what to do?
A: No, we do not.
Q: Or where to place ads?
A: No, we do not.
Q: Or where to avoid placing ads?
A: We do not.
These comments are consistent with the advertiser decision making process discussed in Part IIB.
As the report highlights, nothing about this represents a serious antitrust inquiry.
A serious antitrust inquiry would need to address the ease of reaching and sustaining an agreement. Two major obstacles—large numbers of participants and participants with diverse interests—have long been recognized by antitrust law as making collusive schemes less likely. In the GARM setting, overcoming these obstacles would loom large.
The real reason companies stopped advertising on ExTwitter is no grand conspiracy to suppress free speech. It was a simple business calculation. Advertising there is bad for business:
The Majority focused on alleged harm caused by the demonetization of its favored conservative-voices. They assert that this loss of revenue is caused by a large conspiracy involving GARM and its 100 plus members to suppress conservative-voiced online platforms and outlets by stopping advertising support. But the most compelling explanation for this revenue decline is apolitical. Advertisers want to attract and retain customers. When their advertising is placed next to harmful content the advertisement instead repels customers. Not surprisingly, advertisers gravitate to outlets that pose less risk to their brands. Again, this isn’t rocket science.
Instead, the much more obvious conclusion is the one that we’ve been shouting from the rooftops for the past few years: that it’s Jordan who is weaponizing the government to silence speech:
As with other of this Committee’s recent investigations, we are left to conclude that its ultimate goal was not to “conduct[] oversight of the adequacy and enforcement of U.S. antitrust laws” as they claim, but rather to silence criticism of harmful online content and those who promote it, deter content moderation, and protect the ability to use mis- and disinformation campaigns to achieve political ends. The Majority’s desperate ploy to launder their failed censorship arguments through an antitrust framing itself fails. The Majority’s actions have intimidated organizations who call attention to the prevalence of hate, disinformation, and other harmful or unlawful content online. Fostering a more transparent, accountable, and responsible digital environment is not only lawful, it is good for businesses, consumers and the general public. Chairman Jordan’s investigation and others like it will undermine this work and lead to the further deterioration of our information ecosystem and will threaten free speech.
Antitrust is not about choosing winners and losers. It is about ensuring a fair fight. In this instance we see that the Majority is willing to condemn any outcome that they do not like as being unfair and the outcome appears to involve both a category of supposed victims as well as a particular victim—X. In fact, this investigation originated after the Speaker of the House Kevin McCarthy, Chairman Jordan, and Elon Musk were talking and Musk said, “‘by the way, there’s this organization GARM, because GARM is harm.’ [sic] I [Jordan] never forgot that sentence.” No he did not. Jordan embarked on an investigation whose outcome was a foregone conclusion and for which the resulting report’s title [GARM’s Harm] was effectively supplied by Musk himself. Despite all of the investigation’s shortcomings, it excelled in one regard—providing taxpayer funded discovery for the richest man in the world and one of Trump’s biggest donors. A lawsuit launched by X just days after the Majority’s interim report was released began by touting that the conduct was “the subject of an active investigation” by the House Judiciary Committee before reproducing the fruits of the subcommittee’s fishing expedition in the form of a document demand. Perhaps this assault on legitimate business activity seems worth it to the Majority.
It’s pretty scathing as Congressional reports go.
In the end, this sordid saga illustrates the dangerous way that accusations of “censorship” and “collusion” are being cynically weaponized to bully companies into amplifying favored political content. Jordan and Musk’s campaign against GARM sets a troubling precedent.
By abusing the power of Congressional oversight to intimidate advertisers and platforms, they are effectively arguing that companies have an obligation to subsidize and support any speech, no matter how hateful or harmful, or else be accused of “censorship.” It’s an attempt to pervert the free market to serve their political agenda.
But as this report makes clear, advertisers’ decisions on where to place their ads are driven by legitimate business considerations about brand safety and consumer sentiment, not some nefarious plot to silence conservatives. The real threat to free speech is not content moderation or advertiser boycotts – it’s government officials like Jim Jordan trying to use their power to dictate what speech must be subsidized and supported.
Sadly, given the current media and political environment, it’s unlikely this report will get the attention it deserves. But for anyone who cares about the future of online speech, platform governance, and the abuse of government authority, it’s essential reading. It shines a harsh light on Jordan and Musk’s cynical, dishonest campaign and the damage it has done to free speech and the free market.
