Trump's "blatantly unconstitutional" acts test the rule of law in the United States
Good morning from frigid Washington DC. It was quite a week. Thank you to new subscribers and long-standing members. Like many of you, I have been following the torrent of executive actions Trump has taken since he was sworn in on Monday. If you need to tune out to protect your mental health, I get it. Switching your civic information diet to "slow news" in print may be healthier for many people.
In this moment, I highly recommend to all of you the work of ProtectDemocracy at IfYouCanKeepIt.org, which offers a phenomenal resource on how to pay attention and parse what's happening: "Is it tangible? Does it harm real people? Will it cause anticipatory obedience? Does it make the authoritarian faction more difficult to dislodge?"
I'm trying to focus a similar lens to this inflection point in our history. My intention is to share not just what happened, but what it means, along with sources and original documents you may not find linked in mainstream news coverage. As I committed to you over the transition, I will focus upon actions that pose they clear threat to American democracy, not just words.
As always, I expect you to hold me accountable for getting both right: I am my own editor at present, but you are my bulwark against errors of fact or omission for the moment. Send ideas, corrections, tips, or encouragement to alex@governing.digital.
If you find this work useful or valuable, please amplify it to your networks, and consider upgrading to a paid membership, if you can afford to do so.
A note on kindness and mercy
This week has felt like a month, especially when combined with coordinating or providing care and education for a sick child over the past month and some challenging dynamics with family and friends.
I cannot overstate how on edge many people I know are now. Anger, grief, fear, uncertainty, and doubt all are swirling through our national consciousness. We are experiencing an epidemic of loneliness at the same time the social fabric is fraying in our country. The risk of political violence is growing, as is the glee of empowered partisans who feel free to express their cruelty, racism, or misogyny.
Please be safer, online & offline. Road rage is now a bigger risk. Take the time and space you need to care for yourself. Focus on what you can control and improve in your community, work, or your own life. Be kind, when you can. Disengage when you can’t. Give people extra time to respond. Check in, if folks you love go dark. Be a helper, if you can.
If you want to hit the trifecta of intolerance, ignorance, and bigotry, however, post online about religion, immigration, and the First Amendment at the same time. (It's like grabbing a third rail, but less fun.)
I experienced that in real-time when I challenged a Congressman who tweeted that a Episcopalian bishop should be added to a deportation list for daring to ask President Trump to embrace mercy for immigrants and marginalized Americans, chilling her freedom of expression, speech, and religion in one fell swoop.
You can watch Bishop Budde's homily and judge for yourself whether her call for mercy was out of the bounds of civility, or exactly where Christian leaders who believe in radical love and compassion should be standing today.
Counting down authoritarian threats to American democracy
On his first day in office, President Trump pardoned or commuted the sentences of partisans who had been convicted of assaulting police officers and seditious conspiracy in an unprecedented abuse of unchecked power. In doing so, he signaled to partisans and militias around the county that engaging in political violence on his behalf is acceptable.
He also ordered the Department of Justice to stop prosecuting partisans who had broken the law on January 6 or were implicated in the conspiracy the former special counsel was investigating. That is an existential threat to democracy, with outcomes for the rule of law and threat of extrajudicial violence from paramilitary forces that may be generational.
Trump also issued an executive order that a federal judge in Washington has blocked, declaring it “ blatantly unconstitutional.” (Score one for an independent judiciary upholding the Constitution. There will no doubt be losses, but this is notable.)
Trump also issued an order that extended a deadline for ByteDance to divest from TikTok by 90 days, simply altering the requirement that Congress enacted in a bill that President Biden signed into law and the Supreme Court upheld. (Apple and Google have removed TikTok from their app stores this week, likely reflecting their general counsels' doubt that said order shielded them from liability.)
Trump threatened to terminate the three Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB) if they did not resign by January 23. The PCLOB is an independent agency that Congress established in the 9/11 Commission Act of 2007 that is meant to "ensure that the federal government's efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties."
Terminating these members will deprive it of a quorum, neutering its ability to investigate or issue reports, thereby blinding Congress and the American people about whether anti-terrorism activities are violating civil liberties. As Alexandra Reeve Givens said, “President Trump’s attempt to expel members of the Privacy and Civil Liberties Oversight Board is a brazen effort to destroy an independent watchdog that has protected Americans and exposed surveillance abuse under Democratic and Republican administrations alike."
“PCLOB was created specifically to provide oversight over the kinds of government actions where the need for secrecy makes people most vulnerable to abuses of power.
“This effort to shoot the watchdog should set off alarm bells for how the President and his appointees seek to wield the government’s broad surveillance powers. And it could torpedo trans-Atlantic trade and data sharing agreements that depended on the PCLOB’s assurance of oversight when they were brokered.
“Congress cannot ignore this threat to erode a key agency charged with protecting Americans’ fundamental freedoms. The Senate must focus on this in the forthcoming confirmation votes for intelligence community leaders and take bipartisan action to ensure the PCLOB can continue its vital work with the independence that is critical to its operations.”
Last night, Trump removed key human bulwarks against corruption when he fired over a dozen inspectors general across the federal government – without the 30-day notice of intent he was legally obligated to provide to Congress.
In doing so, he's daring Congress and the courts to check and balance him. While presidents have the power to fire inspectors general, they are required by law to notify Congress of their intent to do so first and provide a substantive rationale, including specific reasons.
If it's not clear, Trump is testing the limits to his ability to break our laws and violate the Constitution without consequences. If the GOP does not check clear violations at the outset, much worse lies ahead for the rule of law in the United States.
Abusing power to direct unconstitutional acts and flout the rule of law is the kind of tyranny that the founders of our country decried centuries ago. President Trump is precisely the unscrupulous leader who rose to power through inflaming partisan passion with lies that President George Washington warned us all of in his farewell address to Americans, albeit to little avail:
All obstructions to the execution of the laws, all combinations and associations under whatever plausible character with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle and of fatal tendency. They serve to organize faction; to give it an artificial and extraordinary force; to put in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common councils and modified by mutual interests. However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.
Our system of government has separate but coequal branches designed to check in balance one another, but Congress and the Supreme Court have not only abdicated their roles over the last decade, but further empowered the corrupt demagogue by failing to bar him from holding office, enforcing the plain language of the Disqualification Clause of the 14th Amendment or the anti-corruption clauses of the Constitution, and finding immunity for official acts nowhere to found in the legal operating system of our nation.
In sum, it is the worst crisis for the rule of law in my lifetime, paired with a muted response from American society. I have struggled to find good words to adequately describe this existential moment, firing off updates on social media and lapsing into the relative comfort of analyzing tech policy changes, but failing to describe the historic contours of the accelerating threat in longer form.
The flood of actions is intentionally designed to overwhelm, intimidate, and flood the zone with cruelty expressly designed to instill hopelessness and fear. The authoritarian playbook is being deployed against Americans at scale.
I cannot speak for anyone else, but I see the relatively muted reaction in Congress to pardoning felons who were convicted of violently assaulting federal police officers and commuting the sentences of those convicted of seditious conspiracy as a harbinger of worse to come.
I don’t know where and when the line will be crossed that force Republican senators to check the presidency so clearly unbound by the constitution or rule of law. There is nothing practically to be done about President Trump or former President Biden’s pardons, as that power is near-absolute under our Constitution, checked only by the impeachment and removal from office that is currently unimaginable in this Congress.
In a different timeline, Democrats might have used their power to curb the authorities of the imperial presidency we see today, along with enacting reforms to American democracy commensurate to the danger. They would have enacted more good governance guardrails that anticipated the risk of an authoritarian gaining power who would be willing to weaponize the immense powers of the federal government against his political opponents – the precise abuse of power Trump convinced his supporters had been done to him.
I still retain hope that the distributed system of governance in our country will create sufficient friction to slow the authoritarian project now underway in the coming years, but no one should be blind to the inevitability of the human rights abuses that lie ahead as deportations scale.
Much depends upon more Republican Senators finding a spine to defy tyranny in the weeks and months ahead. Early signs offered by their willingness to confirm an unfit, grossly inexperienced man to be the next Secretary of Defense last night by a 51-50 margin are not promising. We are depending upon Republicans to hold the line against the darkest tide since the Civil War.
Many of the men and women of character who defined their careers as being constitutional conservatives either remain silent or have been driven out of a party that is consumed with achieving its ideological goals at the expense of our Constitution.
American fascism is ascendant, wrapped in the flag and bearing a cross, as is the chilling of dissent should people state should we see with our own eyes.
In many ways, Trump is our first Confederate president, right down to defending monuments erected to terrorize Americans in former slave states suffering under segregation. News media would serve Americans better by establishing if politicians are behaving like segregationists who seek to turn back the clock before the 1960s.
“Culture war” is a euphemism that obscures the effort to repeal civil rights and civil liberties from our fellow Americans because of who they are or who they love. “Culture war” is about seeking to abuse state power to disenfranchise racial minorites and GLBTQ Americans, enforcing the religious preferences of a white Christian minority in a vast nation that has been defined by pluralism and multiracial democracy in modern history under an oligarchy.
We will have to be smart, resilient, and very lucky to escape entrenchment and the establishment of a corrupt authoritarian family dynasty in a very different country.
Beware authoritarian blindness
Yesterday, STAT News reached out about a gag order on health communications. I’m trying to understand what’s happening, like everyone. I appreciated emergency room physician Dr. Jeremy Faust’s update on the attack on public health in his excellent newsletter.
From what I can tell, this is not just a "comms pause" on social media and other public-facing media. It’s also a limitation on publication of CDC research and –potentially – epidemiology data. As Dr. Faust noted last night, however, there was a health data update. That crucial element of our public health infrastructure isn't dark, yet.
As I wrote last year, the most important lesson from the pandemic a century ago and the pandemic that began in 2020 was to tell the truth, not to censor scientists and data.
Authoritarian blindness puts all of us at greater risk, creating confusion, doubt, and information voids that rumors, conspiracy theories, and propaganda will fill.
In 2025, we don't know what will happen, yet. We do know that the most important lesson from this recent pandemic is to tell the truth, and how we know it, not to censor scientists and doctors, much less defund basic research or abuse the bully pulpit with official lies.
Americans depend on the federal government to protect public health and national security, which requires clear, timely science communications with the press, public, Congress, and state and local agencies through trustworthy officials who regard public service as the public trust it is.
If you want a friend in Washington, don’t get a DOGE
This week, Trump also issued an executive order that renamed the United States Digital Service as the United States DOGE Service (USDS) and put it in the Executive Office of the President, shifting over from the Office of Management and Budget. The order created a temporary organization inside of USDS that will end on July 4, 2026.
This executive order’s focus on IT modernization and the structure of DOGE it defines are different than the mission and description Elon Musk laid out in the Wall Street Journal (WSJ). That may shift depending on how DOGE is directed, but modernizing IT — my beat for many years — is a different issue than regulatory reform, much less identifying staff and forcing them out, as Musk has intimated.
The structure is also important. Each volunteer “shall be considered an employee of the Federal Government in the performance of those services” – including conflicts of interest to prevent corruption. (I wonder how many ethics waivers we’ll see. Mina Hsiang got one to run USDS, as precedent.)
Musk and Vivek Ramaswamy wrote in the WSJ that DOGE staff would be “unpaid volunteers,” but the order describes units of special government employees (SGE), and DOGE is hiring full-time IT staff. The New York Times reported recruits are being told they’ll serve 6 months & that Musk and others may be a SGE — but as SGE status comes with a LOT of ethical constraints, regardless of whether DOGE is a formal advisory committee or not.
If the White House’s goal with DOGE is to collect data on agencies’ spending & the status of contracts with the intention of understanding how those IT systems are working and improving them, that is an absolutely nonpartisan, bipartisan mission. People from the White House have been making data calls for decades.
But a key question is whether modernization is the goal here, or if the required access to non-classified data and systems is the first step for the ideological projects Musk has described around deregulation or dismissal of civil servants.
While I'm inclined to wait and see what happens next, the fact that the DOGE teams have a lawyer and an human resources staffer suggests to me that the latter is what we should expect.
There is a fundamental incompatibility between a civic technology organization founded to make our government work better, and an administration and oligarch who intend to ‘dismantle government bureaucracy’.”
I tend to agree with Gideon Litchfield, who assessed that "there’s every indication that the US Digital Service’s new mission has everything to do with cost-cutting and firing people, and almost nothing to do with technology—except to make it easier for government agencies to share data, which could have either positive or nefarious uses."
"…we have to assume that Elon Musk, the man Trump named to run DOGE, is not suddenly about to become the world’s first centibillionaire IT specialist, but that the true aim is to make USD(OGE)S a Trojan horse for the White House to get its tentacles deep into the bowels of other government agencies so it can figure out what to cut."
New White House website omits official social media
The new White House website runs on Wordpress, again. Aside from a privacy policy and copyright boilerplate, there are currently 3 categories: administration, issues, & “news,” which includes remarks, briefings & statements, presidential actions, & “articles.” There’s no page for disclosures or /OMB or other departments yet.
At launch, WH.gov links to only 3 social media platforms: X, Instagram, & Facebook. But I determined this morning that this White House is also on LinkedIn and YouTube. There are no posts on the former, but archived videos at the latter have events & statements that aren’t noted & transcribed at WH.gov.
This is all smallball compared to the concerted assault on truth, the rule of law, & the Constitution we have seen this week, but I wanted to document it when I saw it as a reflection of how uncoordinated and unprofessional comms and press operations are at launch. It's a grim harbinger for access to information.
In my view, WH.gov was primarily a marketing & communications in the last two presidencies. This one did not delete pages, as some claim; they’re preserved by NARA at BidenWhiteHouse.archives.gov/omb, including all of the orders and memoranda that remain in force: Remember: Executive orders have authority when signed & published in the Federal Register, not WH.gov.
