A Constitutional crisis in Washington mixes with a civic information emergency
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Good afternoon from Capitol Hill, where in week three of the Trump administration the judicial branch is slowly catching up to the flood of “blatantly unconstitutional” acts and violations of the rule of law that characterize an authoritarian transition.
This is not just the view of your man in Washington: There are more signs today that the papers of record are waking up to the Constitutional crisis posed by a president and a tech oligarch who neither respect the role and authority given to Congress in Article I, nor uphold the rule of law that U.S. officials swear an oath to protect and defend.
The warning indicators that scholars of authoritarianism and democracy monitor are all blinking red.
“The president is openly violating the law and Constitution on a daily basis,” Brendan Nyhan, a political scientist at Dartmouth College, told the New York Times. “We’re talking about the idea of whether the president has to follow the law at all,” he said. “That’s a sentence I never thought I’d have to say about the United States, but here we are.”
What we’ll see in Week 4 will be whether the administrations abides by the stays or injunctions federal judges are imposing or not.
If the guardrails of the judiciary do not hold, an unchecked imperial presidency will dismantle more agencies and purge more civil servants, before turning to weaponize of the vast powers of the federal government against the American people.
Republicans in Congress and the Supreme Court must find the courage to check the authoritarian transition before their powers to arrest it dwindle.
Misinformation smog shades public facts
Yesterday, I woke to ABC News reporting that President Trump had removed the Archivist of the United States and appointed Secretary of State Marco Rubio acting head of the National Archives and Records Administration since Inauguration Day.
Doing so would be in violation of the Vacancies Act and the plain rule of law, which mandates the deputy archivist serves should the AOTUS be removed — not another Senate-confirmed official.
It also would have been a surprise to me and others who have been watching to see if Trump retaliates against NARA or officials for referring him to the Justice Department for retaining presidential records after he left office, including classified documents — much less to the staff who have seen the AOTUS at work the last two weeks.
When I reached out, the National Archives confirmed to me that ABC‘s reporting was in error, as was Fox News as a result of picking up the false report without confirming with the agency:
“We obviously can’t speak for the White House. But Dr. Shogan has been running the agency since Inauguration Day. We have been working closely with the White House on a number of issues & have had no indication of any changes.”
ABC added an editor’s note to the bottom of their post that barely acknowledged the error, but did not retract the entire piece.
Every journalist must confirm & corroborate official claims — just as they should always do! Verify any claimed official act by demanding evidence, then verify it with an institution before going to press. People may plant more false stories as traps to undermine credibility of outlets or reporters.
For instance, Federal Election Commissioner Ellen L. Weintraub did receive a letter from President Trump informing her that she was “hereby removed.”
Her response: She tweeted it out and posted a reply:
“Received a letter from POTUS today purporting to remove me as Commissioner and Chair of the FEC. There's a legal way to replace FEC commissioners-this isn't it. I've been so fortunate to serve the American people and stir up some good trouble along the way. That's not changing anytime soon.”
As former FEC chair Trevor Potter said in a statement on the illegal termination, this is not how staffing our nation’s independent elections regulator works:
In claiming to fire a commissioner of the Federal Election Commission, the president violates the law, the separation of powers and generations of Supreme Court precedent. Congress explicitly, and intentionally, created the FEC to be an independent, bipartisan federal agency whose commissioners are confirmed by Congress to serve the vital role of protecting the democratic rights of American voters.
As the only agency that regulates the president, Congress intentionally did not grant the president the power to fire FEC commissioners.
As a former commissioner and chair of the FEC, serving under multiple presidents, I know firsthand the importance of this agency to a functioning democracy.
I was appointed as a Republican in the last year of President George H.W. Bush's presidency, and served through the Clinton presidency, because I was confirmed to a term appointment by the Senate.
With multiple FEC commissioners serving on expired terms and one vacant seat, Trump is free to nominate multiple new commissioners and to allow Congress to perform its constitutional role of advice and consent. It’s contrary to law that he has instead opted to claim to ‘fire’ a single Democratic commissioner who has been an outspoken critic of the president’s lawbreaking and of the FEC’s failure to hold him accountable.
Unfortunately, the entity able to hold Trump accountable remains the supine Congress.
While it may seem unthinkable in a party led and controlled by Trump, the recourse for a president who violates his oath of office is impeachment.Contrary to Senator Tom Tillis’ assessment, Republicans who are fine ceding constitutional power to Musk now should reconsider — and do more than “belly ache“ about it, or risk losing it.
Any Member of Congress who uphold their own oaths will have to decide in 2025 what bright constitutional lines they won’t tolerate Trump and Musk violating. More than impoundment is on the table on the road ahead.
Keep an eye and ear on this town tonight: there are always Friday night news dumps, but we might see more action while America turns its attention elsewhere. I’ll see you online.
