The solicitor general on Thursday filed an emergency application with the Supreme Court for a stay of a district court judgment setting aside the Department of Homeland Security’s (DHS) third-country removal guidance. The First Circuit, which largely affirmed the judgment last week, dissolved its stay pending appeal on Wednesday night. (Application.) (NYT.) For background on the First Circuit ruling, see a previous Roundup.

Judge Timothy J. Kelly (D.D.C.) on Thursday granted a 14-day temporary restraining order requiring the White House to restore the “hard pass” press credentials of CNN, MS NOW, and POLITICO reporters, which it had revoked. (TRO.) (WaPo.)

The National Iranian American Council Action on Thursday filed a lawsuit in the U.S. District Court for the District of Columbia seeking a declaratory judgment that the U.S. war against Iran is unconstitutional. (Complaint.)

Current and former FBI agents and analysts who worked on the classified documents investigation and prosecution of President Trump filed a motion in the U.S. District Court for the Southern District of Florida on Thursday seeking “clarification” as to whether they “can freely discuss non-public information related to their work on the investigation with individuals outside of the DOJ, including but not limited to a federal grand jury and [their] own counsel.” (Motion.)

A Nevada deputy attorney general sent an email to DHS on Wednesday stating that the 185 individuals on the state’s voter roll whom DHS had alleged are noncitizens in fact are citizens. The email states that DHS had provided Nevada officials with “nothing of substance to suggest otherwise.” (Email.) (NYT.)

The Government Accountability Office on Thursday issued a report on ICE’s expansion of immigrant detention and removal operations, which concluded that “ICE has wasted funds on unsuccessful detention initiatives and lacks important information about the long-term affordability of its investments.” (Report.) (NYT.)

Zachary Price argued that while reforming the comptroller general’s office could help Congress reclaim its power of the purse, any reforms “would raise a number of fraught constitutional questions that require careful attention.” (Notice & Comment.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Department of Homeland Security v. D.V.D.: The government filed an application to the Supreme Court on September 24 seeking a stay of a district court judgment setting aside the Department of Homeland Security’s third-country removal guidance. Justice Jackson requested a response to the application by 4pm ET on September 28.

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security (DHS) program that used Social Security data to verify voters’ citizenship status. The League of Women Voters filed a response on September 15, and DHS filed its reply on September 16.

Almost a year ago, I wrote about the challenges facing the legal commentariat. The “timelines and richness” of their contributions to the democracy debate is indisputable. The apparent risk is that the arguments made map “too neatly on the authors’ political preferences.” The commentators “do best when resisting the powerful pressures of polarization and ideology that are among the very sources of disquiet in American democracy.”

Now, with the midterms only weeks away, a new challenge for that community arises in the form of what some have referred to as “fearmongering” and “electoral-process porn.” This style of writing is stridently alarmist about what the current government might successfully—not just try to do but successfully do—to subvert the electoral process this fall. Certainly, the threshold question of what qualifies as “fearmongering” is complicated. Trump’s rhetorical and legal assault on our voting systems warrants a healthy measure of concern, perhaps sometimes rising to a level of alarm. Putting before the public thoughtfully stated assessments of the threats and proposed responses is a service. The care with which it is done also matters. On one side of the challenge is informing the public; on the other is avoiding undue and damaging alarmism, which potentially drives voters from the polls and undermines their confidence in the legal institutions on which they depend for ultimate protection of their voting rights.

A recent case in point is former federal judge Michael Luttig’s New Republic article entitled “The Final Battle for America’s Democracy.” He worries that the decisive conflict may occur on or about January 3, if the current Republican majority in the House of Representatives adopts a scheme to prevent the seating of Democrats elected this November. He is not alone in working through the potential for such a scenario. And, as a commentator on this and Trump Administration abuses of power, Luttig occupies an important role: a noted former jurist, both a Republican and a conservative, speaking out on these issues to fellow Republicans. But his recent warnings about the “final battle for America’s democracy” on January 3 warrant a few cautionary notes.

The Luttig New Republic version of this scenario is different from the one he advanced on Substack in August. In the first version, Luttig suggested that Mike Johnson and the current Republican majority would act to block the seating of new members. But, as election law scholars like Derek Muller and Ned Foley pointed out, the House is not a continuous body: Republican control ends on January 3, which means that, if the Democrats win the House, the Republican Party is no longer, as of that date, the majority party. Their power as a minority to then seize majority control—to prevent the seating of members in the new Congress—would seem exceptionally hard to pull off, not that they might not try.

In the second version published in The New Republic, Luttig built the disaster scenarios around the actions of a temporary Clerk of the House who would do Speaker Johnson’s bidding in rigging the rolls of newly elected Democratic members eligible to vote for the new Speaker. By this move, the Republicans would alter the composition of the new Congress, unlawfully preserving the Republican majority until the courts could step in and restore constitutional order. While “weeks, if not months” passed before decisive judicial intervention, however, the United States would suffer a “paralyzing constitutional crisis, helplessly vulnerable to all the world’s evil.” China might move against Taiwan, Russia against Estonia.

For various reasons noted by other commentators, I do not rate these risks as particularly likely. But my focus here is not on the legal and other probabilities of these disaster scenarios, one of which predicts national and the other also international calamities. Two additional features of his presentation illustrate the challenges legal writers face as the vote draws nearer: the depiction of the courts, and the lure of politics.

On the courts

The Judge calls on and expects the courts to stop any January 3 electoral subversion. He applauds the federal courts for blocking “every one” of the unlawful Trump administration’s attempts “to rig the midterm elections.” Yet, he then suggests, in the same paragraph, that the federal courts will be “institutionally incapable of checking [Trump’s] final unlawful rampage” on January 3. Several paragraphs later, Luttig shifts course yet again and concludes that “whether the House constitutionally exercises its power not to seat members-elect will ultimately be determined by the federal courts and the Supreme Court.” And he emphasizes that the Supreme Court “will have the final word as to who will be seated in the 120th Congress of the United States.”

Judge Luttig does not intend for his audience to draw too much reassurance from this prospect of judicial intervention. To the contrary, he is not “overly sanguine about this Supreme Court.” He upbraids it for “betray[ing] the Constitution” when it refused (in what was a 9-0 decision) to decide that Trump could be removed from the 2024 ballot. He charges it with having “cynically authorized Trump’s lawlessness for the past two years” on the shadow docket. And he continues: “But surely by now this court must understand what it has wrought for the U.S. and the Constitution, and is aghast as we all are, even if it is not penitent.”

The message here is thoroughly mixed. What the public will extract from the mixture is not a high level of confidence that a Court with this alleged history of betraying the Constitution will rise, if called upon to do so, to the January 3 constitutional moment. It is not clear what purpose this broadside against the Court serves, except to shake confidence in the institutions critical in the defense against extreme anti-democratic measures like the January 3 scenario.

This article appeared shortly before the Court blocked the implementation, at least for this cycle, of a Postal Service rule, set into motion and supported by the administration, that would have severely hampered and destabilized mail voting throughout the United States. Luttig also did not note that, in this Term, the Court turned back another key administration challenge to mail voting. Contrary to a position Trump staked out by executive order and directed his attorney general to enforce, the Justices construed federal law to permit mail ballots postmarked by Election Day to be counted if election officials received them a specified number of days afterward. And Luttig makes no reference to the 2020 experience when the Court declined to intervene on behalf of an enraged Trump to rescue him from electoral defeat.

On politics

A second question about the Luttig approach is raised by his call for Republican House candidates to be challenged on the hustings to state their position on a House seating plot. He would like to see this be a campaign issue. Here he moves from legal to political advice. It is not clear how well this works. If Judge Luttig has overstated the legal threat, and if House Republicans cannot very likely do what he fears, then turning the scenario into a campaign issue simply elevates it.

Campaigns that take up the question of election subversion presumably should also address other, perhaps more probable, issues that a Trump refusal to accept the result would pose. Will candidates commit to calling for state officials to perform their ministerial duty in certifying election results? Will they refrain from endorsing, and perhaps even pushing back against, outlandish, false claims Trump might—almost surely will—make to cast doubt on the results? The consequences for public confidence in the process of campaigns dominated by these questions are unpredictable and hard to measure. Some will argue that it may stimulate voter turnout powered by defiance of these election subversion threats. It could also have the opposite effect, or different effects in different parts of the country, in different campaigns. More certain is the importance to voters of the meaning for their lives, across a range of day-to-day concerns, of the quality and integrity of the Trump government record.

Conclusion

State and local election officials are working long hours to conduct an election which the public may be confident will be fair and lawful. The legal commentariat has played, and will continue to play, an impressive role in informing the courts and the public about how the system works, about the relevant law and the legitimate legal conflicts that may arise—and about the ways in which the current president has launched a wholly unsupported and irresponsible assault on the integrity of this process. How this writing community goes about this task is more important than ever, as the voting, which has now begun, proceeds through Election Day.

Editor’s note: This piece is cross-posted at the NYU Law Democracy Project.

Opponents of Missouri’s 2025 Republican-drawn congressional map asked the Supreme Court on Tuesday to clarify that its Sept. 10 order bars enforcement of a subsequent district court injunction requiring the Missouri Secretary of State to use the map in the November elections. Alternatively, they asked the Court to stay the district court’s new injunction and the Eighth Circuit’s order requiring the district court to enter it. (Application.) (Opposition.) (Opposition.) (SCOTUSblog.) (WaPo.) For background on the litigation, see a previous Roundup.

Judge P. Kevin Castel (S.D.N.Y.) on Wednesday permanently enjoined New York’s Climate Change Superfund Act, which imposed strict liability on businesses that extracted fossil fuels or refined crude oil. Judge Castel granted summary judgment to the U.S. government on its claims that the Act was preempted by the Clean Air Act and the federal government’s exclusive authority to regulate foreign affairs. (Opinion and Order.)

The D.C. Circuit on Wednesday unsealed an opinion dated April 2023 in which a divided panel held that President Trump’s attempt to block a witness from testifying before a grand jury about his efforts to subvert the 2020 election lacked “grounding in the Constitution, the founders’ constitutional design or settled precedent.” (Unsealed Records.) The New York Times identified the witness as former Vice President Mike Pence.

A coalition of Democrats filed a lawsuit on Wednesday in the U.S. District Court for the District of Columbia seeking to block the Trump administration from deploying armed federal officers to polling sites, which are supposed to be “island[s] of calm in which voters can peacefully contemplate their choices.” (Complaint.) (Bloomberg.) (Democracy Docket.) For background on litigation challenging the potential use of federal troops in the midterm elections, see a previous Roundup.

The White House has reportedly withdrawn its plan to issue an executive order that would have established a commission with the authority to block National Institutes of Health research grants that did not align with the president’s agenda. (Semafor.) (NYT.)

Bob Bauer connected President Trump’s bans on the press to Attorney General Todd Blanche’s midterm political campaign activity, arguing that “both episodes reflect, in different ways, Trump’s exercise of presidential power to achieve maximum control of the information environment.” (Executive Functions.)

Joy Gordon examined how the Trump administration’s sanctions against Cuba have contributed to the island country’s current economic and humanitarian crises. (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security (DHS) program that used Social Security data to verify voters’ citizenship status. The League of Women Voters filed a response on September 15, and DHS filed its reply on September 16.

This week three press organizations sued to enjoin President Trump’s ban on their access to White House grounds and the briefing room. The network press pool then suspended its activity in an act of solidarity and protest. In this posting, I would like to address one aspect of the Trump administration’s war on the press that connects to another, ostensibly unrelated recent development: Attorney General Todd Blanche’s extraordinary involvement in midterm political campaign activity, such as his speech to the Republican National Committee’s midterm convention in Dallas and his appearances at campaign rallies.

On first look, the dissimilarity of the two developments may seem clearer than any connection. The administration’s press ban raises major constitutional questions about a president’s power to restrict unfavorable, or coerce more favorable, media coverage. Any legal question the AG faces arises under the Hatch Act restrictions on campaign activities by executive branch officials and employees. Unlike the constitutional challenge to the press ban now before the courts, the Hatch Act questions have received little attention, likely because, as noted below, no one has any reason to believe that much will come of them. What is left is the Attorney General’s breach of a norm—as Charlie Savage wrote, the “dismantling [of] another post-Watergate principle: that Justice Department leaders stay away from partisan politicking.” This would not strike many observers as a new development.

But both episodes reflect, in different ways, Trump’s exercise of presidential power to achieve maximum control of the information environment. The press ban, and Trump’s other assaults on the press, serve to keep unwanted speech from impeding the effectiveness of presidential communications. The mobilization of the AG and other senior officials to support campaign activities reflects a whole-of-government approach to getting those messages out. The constitutional issues complicate the first objective; the Hatch Act presents a challenge, more easily ignored, to the second.

Trump and the Press

Administrations before this one have shared the intense preoccupation with getting “good,” and limiting “bad,” press. As Jack and I have written, “The press presents more than an obstacle, or asset, to be shaped in the service of reelection. It also impacts the president’s capacity to manage public opinion in support of a governing program.” Good press aids the governing objectives of a president. Bad press undermines them.

Yet it was clear already in his first term that, while Trump was “not the first president to see the press as more ‘enemy’ than rival: out to get him,” he was unrivaled in his “rhetoric and centrality of press animus to his political program.” Trump has since his first term moved more aggressively toward the goal of limiting bad press than even the most militant of press-antagonistic presidents before him, Richard Nixon. Nixon’s war on the press was extraordinary for the times. It prompted the National Press Club to issue in 1973 a formal public report, accusing the administration of a “policy of massive official hostility” toward the news media. Both Nixon and Trump displayed acute personal paranoia about the press and sensitivity to bad coverage. Both utilized various means of retaliation and suppression, including high-pitched rhetorical attacks on the press’s credibility and resort to the abuse of official power, including enlisting the Federal Communications Commission in a campaign of intimidation. Trump has innovated, filing multibillion-dollar lawsuits against major press organizations over what he deems “fake news” coverage.

Trump’s conception of his office and its powers has lent extraordinary force and direction to this confrontation with the media. He sees no reason—certainly not in law or norms—to give any quarter to a critical press. He is taking to the limit the view that he should have unfiltered channels of communication with the public and the ability to shape an information environment that most effectively supports his message. In his first term, he sought to characterize his Twitter account as “personal” rather than “official,” enabling him to block unwanted users from a communications channel that he acknowledged as a means to “challenge media organizations whose coverage of his Administration he believe[d] to be unfair.” This move failed in court. With the ban on critical news media organizations, Trump is now taking to a wholly new, heightened level his drive to block interference with his messaging to the public.

Blanche on the Campaign Trail

It is not surprising that, in managing this information environment, Trump would also put to use any and all of the assets at his disposal, including his senior aides and officials. If he does not, as he doesn’t, see the Department of Justice as independent, and hence is indifferent to even the “appearance” of a politicized law-enforcement function, he will naturally call on the Attorney General to join in executing his communication strategy—even in support of partisan political messaging. If a president can direct the Attorney General in every respect, not to mention fire him for any disinclination to do as directed, he can demand that the Attorney General and any of his subordinates add their voices to Trump’s campaign appeals. Blanche has unapologetically answered the call: “I will always say yes to speak when the president of the United States asks me to.” By mobilizing Blanche, Trump can augment and reinforce messaging on favorite themes, like crime and immigration enforcement, that he and his party have been pushing in this campaign period.

As for the restrictions of the Hatch Act? The law’s purpose is to check partisan politics within the executive branch and protect the impartial administration of government, while allowing employees to engage off duty in the exercise of their constitutional rights of political participation. The law distinguishes “less restricted” employees from those who are “further restricted” because they serve in sensitive agencies, such as those in the intelligence community. The Attorney General is not among them. But binding on all is a prohibition on the use of “official authority or influence for the purpose of interfering with or affecting the result of an election.” This is a good-government measure, but it is also a restriction on partisan political speech by administration officials.

Under the Hatch Act, a Cabinet official like the Attorney General cannot in his official capacity engage in partisan political commentary or attend campaign events. Blanche and the White House deny for the record any Hatch Act violations, maintaining that he made his appearance at the Dallas convention in a personal and not official capacity. Ethics experts disagree. Joseph Tirrell, the former head of the DOJ ethics office, fired in 2025, notes that “[t]he Office of Special Counsel (OSC) has repeatedly made clear that a disclaimer cannot erase the use of official authority, information, or achievements for partisan purposes,” and that the “real question is simple: Would a reasonable person understand Blanche to be speaking as a private citizen or as the Attorney General of the United States?” He concludes that at least an investigation is warranted.

But there will be none. The law provides for the Special Counsel to bring enforcement cases to the Merit Systems Protection Board, except those involving Senate-confirmed officials, which are “presented to the President for appropriate action.” Trump, then, would decide what action (if any) to take. Blanche is safe. But the Attorney General would have no reason for worry in any event. The Trump administration in its first term made it clear that it had no intention of allowing the restrictions to affect the role of senior officials in political messaging. OSC had adopted the practice of referring to the president even complaints against White House staff in posts that did not require Senate confirmation. Senior advisor Kellyanne Conway repeatedly violated the limitation—“of a scale and severity never seen before”—prompting OSC to recommend to the president her termination. The White House took no action and further declined to make her available for congressional testimony on this issue. (In 2024, the then-head of OSC, Hampton Dellinger, announced that he would change OSC practice and bring Hatch Act complaints against White House staff to the MSPB rather than refer them to the president. Trump fired him less than a month after taking office for his second term.)

It is fair to note that the Biden administration also struggled with the Hatch Act speech limitations, finding itself at odds with OSC over the White House press secretary’s references to “MAGA Republicans.” But while the Biden White House counsel disagreed with OSC’s view that the use of the term was impermissibly political, the White House accepted it as the binding judgment of the Hatch Act’s enforcement authority. The Biden administration’s Department of Justice also imposed restrictions on even off-duty activities by political appointees, going beyond the law and seeking to invigorate the norm against politicized law enforcement in fact or appearance. In March of this year, Attorney General Bondi rescinded them.

Conclusion

The administration of an all-powerful president, as conceived and practiced by Donald Trump, does not accept opening the White House doors to any press organizations that would complicate or obstruct the delivery of his message. Critical reporting is “fake news” and “lies,” and this president is committed to deploying his entire government to combat it. Nor does Donald Trump accept limits on the resources he can muster, including the speech of government officials, to counter this threat to his communications priorities and strategies. In deploying these resources, he rejects the distinction between federal government speech on policy and its involvement in partisan political advocacy.

By Monday night, Trump responded to the intensifying conflict with the press by establishing an alternative news facility, “Trump TV: The Essentials Station.” We will see in the weeks to come whether Attorney General Blanche and other government officials may be directed to appear on this new outlet to address political as well as policy topics as November 3 approaches.

The solicitor general on Monday filed a petition for a writ of certiorari before judgment in Genalo v. D.C. The petition presents two questions: first, whether noncitizens subject to mandatory detention are entitled to a bond hearing if their detention becomes “unreasonably prolonged”; and second, whether the government must justify a noncitizen’s continued detention by clear and convincing evidence in any bond hearing. (Petition.) (SCOTUSBlog.)

The solicitor general on Monday also filed a cert petition in Trump v. Suri, which concerns whether a noncitizen detained pending removal proceedings may file a habeas challenge to his detention in federal district court “based on claims that also go to the validity of his being removed.” The government argues that noncitizens may not do so because the Immigration and Nationality Act channels review of claims arising from “any action taken or proceeding brought to remove an alien from the United States” to “an appropriate court of appeals.” (Petition.) (Reuters.)

Judge Kymberly K. Evanson (W.D. Wash.) on Tuesday dismissed the Justice Department’s lawsuit to compel the state of Washington to produce an unredacted copy of its statewide voter registration list. The decision marks the department’s 25th loss on this issue. (Order.) (Bloomberg Law.)

The San Francisco City Attorney David Chiu sued Trump Media & Technology Group Corp. on Monday in California Superior Court, challenging the legality of “Truth API,” which reportedly charges users $100,000 per month for early access to Truth Social posts by President Trump and other senior executive branch officials. (Complaint.) (NYT.) The complaint alleges that Trump Media is “aiding and abetting Trump’s violation of federal ethics and anti-corruption law” and is violating “other federal laws that protect against insider trading.” For background, see Jack Goldsmith’s conversation on the matter with Harvard Law School professor John Coates.

A coalition of states filed a pair of lawsuits in federal district court challenging the administration’s settlement agreements with private offshore wind developers. The agreements cancel the developers’ offshore wind leases and pay them to undertake “conventional energy projects.” (E.D.N.Y. Complaint.) (D. Me. Complaint.) (PBS.)

The president on Tuesday signed a new security agreement with Greenland and Denmark, which allows the United States to expand its military footprint on Greenland. (Agreement.) (WaPo.)

Steve Vladeck argued that the U.S. Court of Appeals for the Eighth Circuit’s decision Monday requiring Missouri to use its 2025 congressional map is “procedurally bonkers,” “substantively dangerous,” and “a far more serious instance of a lower court acting in direct tension with the Supreme Court’s directive than any of Justice Gorsuch’s three examples of ‘defiance’ in his NIH concurrence last August.” (One First.)

Kate Brannen and Tess Bridgeman outlined questions Congress should ask the Trump administration about the billions of dollars in Venezuelan assets the administration has asserted the United States controls. (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security (DHS) program that used Social Security data to verify voters’ citizenship status. The League of Women Voters filed a response on September 15, and DHS filed its reply on September 16.

CNN, MS NOW, Politico, and three of their White House reporters on Monday sued President Trump and three administration officials, alleging that the president’s ban on the outlets violates the First and Fifth Amendments. The plaintiffs also moved for a temporary restraining order restoring their reporters’ press passes. (Complaint.) (Motion for TRO.) (NYT.) President Trump wrote on Truth Social that the outlets had drawn “a great Judge, for them,” referring to Judge Timothy J. Kelly (D.D.C.), and that “as usual, we’ll go for appeal.” (Truth Social.)

A divided Eighth Circuit panel on Monday held that Missouri must use its 2025 congressional map in November, finding that switching maps between the August primary and the general election would violate Article I, Section 2. The ruling conflicts with a Missouri Supreme Court decision requiring the 2022 map and affirms a district court order that the Supreme Court had stayed on Sept. 10 pending appellate review. The Eighth Circuit’s injunction is stayed until Sept. 28 to allow for Supreme Court review. (Opinion.) (Politico.) For background, see a previous Roundup.

Chief Judge Jeffrey U. Beaverstock (S.D. Ala.) on Monday temporarily stayed three Department of Homeland Security immigration enforcement policies governing warrantless immigration raids on construction sites, finding the policies likely violate the Fourth Amendment and DHS regulations. (Order.) (Reason.)

The Freedom Economy Business Association, whose members include community development financial institutions, on Monday sued the Treasury Department in the District of Columbia to compel it to obligate $289 million in fiscal 2025 funds for the Community Development Financial Institutions Fund before the appropriation expires Sept. 30. The complaint alleges the money will lapse “not because Congress failed to act, but because the Executive Branch refused to.” (Complaint.) (Reuters.)

The Washington Post reports, citing internal records, that the Trump administration had committed at least $410 million as of June to facilitate third-country deportation agreements with 31 countries. (WaPo.)

David Noll argued that because Congress has authorized state officials to enforce statutes ranging from the Clean Air Act to the Dodd-Frank Act, state attorneys general can ensure “that the law retains its force even when the executive branch declines to enforce it.” (Just Security.)

Jack Goldsmith and John Coates discussed the legality of Truth Social’s “Truth API” service, which provides subscribers early access to the president’s posts for a fee of up to $100,000 per month. (Executive Functions.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security (DHS) program that used Social Security data to verify voters’ citizenship status. The League of Women Voters filed a response on September 15, and DHS filed its reply on September 16.

Mentioned:

• “Shadow SEC Statement No. 13: Insider Trading Institutionalized,” CLS Blue Sky Blog (Columbia Law School, September 8, 2026)

• Bob Bauer and Jack Goldsmith, After Trump: Reconstructing the Presidency (Lawfare Press, 2020)

• “Complaint,” in The Intercept Media, Inc. v. Trump, No. 1:26-cv-6867 (United States District Court for the Southern District of New York, August 12, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: President Trump regularly breaks news on his social media platform, Truth Social, where he posts market-moving presidential and White House announcements. The company now sells faster access to those posts for up to $100,000 a month. The advantage is apparently just 50 milliseconds, but that is enough to benefit traders.

To date, the early access has attracted more than a dozen subscribers. The arrangement effectively lets Trump profit off the presidency. Can this arrangement possibly be lawful?

To answer that question, I’m delighted to have a conversation with my Harvard Law colleague John Coates, the John F. Cogan, Jr. Professor of Law and Economics. John served as general counsel of the Securities and Exchange Commission, and before coming to Harvard, he was a partner at Wachtell Lipton, specializing in financial institutions. John, thanks for chatting with me.

John Coates: Happy to be here, Jack.

So did I accurately describe what Trump Media is selling, and is there more to say about that?

Yes, I think you captured it. If you pay roughly $1.2 million a year to Trump Media, you get Trump’s Truth Social postings ever so slightly before they hit the public website. And Truth Social, of course, is Trump’s primary way to talk to the public.

In fairness, just one little nuance: it’s not Trump himself selling this access. It’s Trump Media. He did create that company. He only owns 41% of it. He’s not an officer of it. His stock is in a trust. His son is the trustee. He’s the sole beneficiary of the trust, and Trump can revoke the trust at any time. So I say all that just to be fair. But nevertheless, yes, I think you captured it correctly.

So that’s good. But given that financial arrangement, is it fair to say that he is an ultimate beneficiary, at least in part, of this $100,000-a-month fee?

Yes. He’s directly profiting through his indirect ownership of Trump Media.

John, outside the Truth Social context, isn’t selling low-latency access to already public information a standard business practice done by Bloomberg, Dow Jones, and the like?

Yes. I mean, even 50 milliseconds of a timing advantage is commonly paid for by third parties in the markets. The easiest example is arbitrageurs who are trading in two different markets and see the same asset being traded at slightly different prices. They buy in one, they sell in the other, and the faster they can exploit that gap, hopefully before anybody else does, the more likely they’re going to profit from that. And so they’ll pay millions to co-locate—to physically locate their computer systems very close to the source of whatever information they’re trading on.

But here’s the difference between that, which is pretty common, and what’s going on here. In those situations, the public information is being both produced and sold by a for-profit company, typically either a news source or a market like the New York Stock Exchange. And selling access is something they’re entitled to do. They’re selling the right to get their information in a way that they can profit from the most.

Here, the information that’s being sold certainly doesn’t belong to Trump Media. And I don’t think it credibly belongs to Trump himself either. He’s functioning in a public role when he makes many of these announcements. I suppose you might divide his posts up into those that are just him ranting about his personal things—and maybe that has an effect on the market, and maybe you treat those differently—but when he announces over his posts that we’re going to war, he’s not announcing that as a private citizen or as a businessman. He’s announcing it as president. And that means that someone who’s profiting on that is indirectly paying him to trade in the market ahead of the public, on information that belongs to the public, on a differential basis.

Okay, there’s a lawsuit brought by The Intercept and the Freedom of the Press Foundation against Trump’s media company, alleging First and Fifth Amendment violations. But you wrote a really interesting post about why this might be an insider trading violation. Can you explain that? What’s the relevant law here, and why might this be an example of insider trading—if that’s even the right phrase?

Yeah, no, you’ve captured it. So the SEC, the Securities and Exchange Commission, where I used to be—I should disclose I was there in the Biden administration, so I’m not a neutral observer about all this. But I’d like to think I’d say the same thing if it were Biden doing this.

The SEC has long prohibited insider trading through a rule, among others, called Rule 10b-5. The Commodity Futures Trading Commission, the CFTC, does the same thing through its own rule in the derivatives markets, where, say, oil futures trade. One part of both bans says that anyone who’s in a fiduciary role, who’s got trust relationships with other people—a corporate CEO or corporate director is the most typical, but also lawyers and even priests, anybody who’s got some trusting relationship—cannot misappropriate information from whoever they owe the duties to.

In the case of the CEO, if it’s the CEO’s own company and he owns all the stock, fine, he can do whatever he wants. But if he’s CEO of a public company, he owes duties to all the shareholders of that company, and he can’t trade on information that he learns in his role as CEO of a public company without violating Rule 10b-5. Now, there are some exceptions and some nuances to it. But basically, that’s the law.

Now, further, Congress got tired of people complaining about them trading in the stock market. And so they finally passed something called the STOCK Act, which explicitly links the SEC rule that I just described, as well as the CFTC rule, to public status as a member of Congress, as well as to any federal government employee’s role as an employee, including specifically the president. And it says in that statute that these people are fiduciaries for purposes of their government roles, and they’re subject to all those insider trading laws, just like a CEO of a public company would be.

That’s basically the violation. It’s sort of straightforward on some level. If it were a different government official doing this, one the current administration didn’t like, they’d have ample legal room to go after them.

I just want to underscore something you said, because you said a lot of things there. The STOCK Act expressly applies to the president, which is really important for a whole bunch of legal issues. That distinguishes it from lots of other laws, and it arguably gets around a general rule that the president is not subject to criminal or civil statutes that don’t name him explicitly. It explicitly names him.

Yes.

And just say again: What’s the fiduciary duty that it describes?

I mean, it basically just cross-references, explicitly, the SEC rule, the CFTC rule, and all the case law that’s accumulated under them. And one thing you might be thinking here is, well, Trump himself is not trading. But that doesn’t matter, fundamentally. The way the insider trading law that’s hooked to the STOCK Act works, it’s not only the people trading in securities or futures based on material nonpublic information that they get from an insider, a fiduciary, who are in trouble. Likewise, the fiduciary is in trouble if they leak it in a way that they know is going to be used that way. And even worse, if they’re being paid money for that tip—if they’re a paid tipper—they’re just as liable under insider trading law. And therefore, through the STOCK Act, that same set of obligations applies to, take your pick, the speaker of the House, the ranking member on the Senate side, the president.

Trump Media has denied that it’s doing anything illegal here. Has it addressed the insider trading idea?

It certainly has not spelled out any public theory as to why it somehow is exempt. It’s pointed to the thing you asked me about a few minutes ago: people sell early access to private feeds of information all the time. And that’s true. And if that were all that’s going on here, it’d be fine. If it were Truth Social posting something about itself and selling early access to that, and the profit from those sales flowed to the company, they’re entitled to do that, just like Dow Jones could do.

But that’s not this, right? This is an investor in that company who’s also the president selling advance information—not about the company, and not even about his own personal views, but about things he’s about to do on behalf of the public, the nation.

Can you give us examples of the types of things that he has mentioned on Truth Social that might affect markets?

I mean, the war is the easiest, just because oil futures jumped 5 to 10% that day. So if you traded about $25 million 50 milliseconds ahead of anybody else, you’d have earned back the fee for the whole year from that one trade, because the price jumped up that much that day.

But other things—tariffs are clearly market movers in some contexts. There are both companies whose securities move and commodity prices that respond to them. Even if in the end the tariffs turn out to be unauthorized, in the meantime they’re having an effect, and that’s affecting asset prices. So that’s another category. Every time there’s an announcement about the pending war—or wars, I guess, at this point, given the number of countries involved—that will have an effect on diesel price futures. Any of these announcements has the capacity to move markets, because the U.S. is a causal force in the world.

It’s not likely—in fact, it’s impossible—that the Trump Justice Department or the Trump Securities and Exchange Commission is going to do an investigation, much less a prosecution or a civil action against the president. But in theory, before we get to immunity theories and pardons and things like that, is it possible? I mean, what’s the statute of limitations under this law, and is it possible for the next administration to enforce this law, in theory?

Yes. I mean, the default federal statute of limitations is five years, so it goes beyond the current presidency. And that’s the same also for SEC enforcement of its insider trading rule. So the liability, in theory, could extend well into the next administration. Whether a future SEC would have any interest in going after Trump personally after he stops being president, I don’t know.

And this law can be enforced criminally and civilly?

Yes, it’s got both criminal and civil components. The civil side has private rights of action attached to it. Those have shorter statutes of limitations. It’s basically two years from knowledge or five years from when they should have known. So it depends a little bit on how close you are before those suits could be brought. For the SEC, for civil actions, it’s five years.

So you spent a lot of time in your post talking about Trump v. United States, the immunity case, and the very complicated discussion in that case about immunity, which turns on public acts versus private acts. I don’t really want to go into that because, as you said, it’s not clear that Trump will be prosecuted after he leaves office. I think that the discussion of the line between public and private acts in Trump is incoherent, and I think it’s kind of impossible to predict whether immunity would attach if the next administration decided to prosecute.

I’ll just say that Nixon v. Fitzgerald, which is the case that established absolute immunity for the president from damages for official acts, to the outer bounds of his official acts committed in office, left open the possibility that if Congress specified that the president was subject to the law in question, and it was being enforced against him, he might not have immunity. And so it strikes me that if there’s going to be—and I agree that it’s not clear there would be any interest in this—but if there’s going to be a post-Trump legal action against the president, it’s much more likely to be civil, both because of Nixon v. Fitzgerald and because the pardon power, or a self-pardon, wouldn’t apply there. Does that make sense to you?

It does. And the main reason for thinking about the immunity stuff is more that if you were a third party and you were worried about aiding-and-abetting liability, or you might yourself be viewed as trading on material nonpublic information through this channel, you might make the argument that if Trump was immune, then somehow I’m immune. So it may come up even in a civil case, even one not against Trump.

But I agree, and I think that’s where the enforcement risk is greatest currently. One thing I haven’t mentioned: New York has its own version of this law, the Martin Act. The people paying for this feed right now are probably, some of them at least, in New York. If I were their lawyer, I would at a minimum be warning them to do this in a clear-eyed fashion—to recognize that they’re taking on significant risk as a result.

Just to underscore the obvious, I think we’re just going to see massive pardons at the end of this administration.

Everyone: “Can I get a pardon?”

Everybody conceivable, for every one of these schemes going on.

I think it’s going to be in the thousands, if not the tens of thousands. And I mean that very seriously. But that’s not going to help someone subscribing to Truth Social who’s prosecuted, or has a civil suit against them, under state law.

That’s exactly right. And there are also the private lawsuits that I don’t think the pardon affects either.

Could you just say a word about the private lawsuits? Who might bring those claims?

I mean, if you’re a counterparty—if you’re someone who sells slightly after some of these privileged buyers of the feed trade, so that you’re likely trading against them, and your price is therefore affected by their trade, and you can show that with data, which often you can if the price jumps are big enough—you can claw back, and sometimes get a multiple of, what they’ve gained from that. It’s probably not what’s happened to date, but as we approach the end of the administration, or possibly, if there’s a state-level action, even before then.

So we might see a Democratic-controlled Congress, or at least one house, at the end of this year, and we might see a new presidency in 2029. Looking at the situation, is there anything in these laws that you would change to prevent this kind of action? Or is it just that the law is there, but the problem is enforcement?

I think it’s mostly the second. I think it’s mostly, frankly, in the domain of your earlier book rather than in securities law or derivatives law. The one exception to that may be just completely nailing down the ethical constraints, because there’s the extra stuff. Remember, I said he’s got this in a trust, right? But it’s a revocable trust. Let’s actually make the president take all of his businesses and put them into a real trust with a third party, where he really has no control or influence over, or even knowledge of, what they’re doing. That would obviously be one way to avoid this particular mechanism.

Okay, John, that was very elucidating. Thank you very much.

Happy to be here, Jack.

A unanimous First Circuit panel on Friday affirmed in substantial part Judge Brian E. Murphy’s (D. Mass.) judgment setting aside the Department of Homeland Security’s third-country removal guidance on the ground that it violates the Administrative Procedure Act because it authorizes removals without “effective notice and a meaningful opportunity” to raise fear-of-persecution and fear-of-torture claims. The panel vacated, for lack of standing, declarations requiring DHS to first seek removal to a noncitizen’s home country, or to a country the non-citizen designated, before removing them to a third country. (Opinion.) (WaPo.) (Politico.)

Judge Allison D. Burroughs (D. Mass.) on Thursday granted partial summary judgment to education groups and vacated, as contrary to law and arbitrary and capricious, Office of Management and Budget apportionment footnotes conditioning Department of Education research funds on compliance with two of President Trump’s executive orders, including the January 2025 order ending federal diversity, equity, and inclusion programs. (Memorandum and Order.)

President Trump on Friday said he would bar CNN, MS NOW, and Politico from the White House, calling the outlets “fake news,” and the White House deactivated their reporters’ press credentials on Saturday. (WaPo.) The three outlets jointly stated Monday that they were filing suit. (X.) The five television networks that share pool coverage (ABC, CBS, CNN, Fox News, and NBC) then suspended pooled coverage of the president on Monday after the White House refused to let CNN take its turn as pool representative. (NYT.) Eugene Volokh argued that excluding outlets from spaces generally open to the press, like the briefing room, would likely be unconstitutional viewpoint discrimination. (Volokh Conspiracy.)

The Justice Department’s Office of Legal Counsel published an opinion dated Sept. 17 concluding that the federal law barring licensed firearms dealers from selling handguns to adults under 21 is unconstitutional under the Second Amendment as applied to 18-to-20-year-olds and “may not be enforced” against dealers who sell to them. (Opinion.)

The White House is reportedly drafting an executive order that would give an outside committee review authority over National Institutes of Health research grants. The order was discussed at a Friday Oval Office meeting where OMB Director Russell Vought accused the agency of funding “woke” initiatives and NIH Director Jay Bhattacharya defended its grant-making. (NYT.) (WaPo.)

President Trump wrote on Sunday that his planned triumphal arch in Washington would be “a top grade Military Complex/Triumphal Arch, to house, store, and have the rapid ability to use large numbers of drones, plus Snipers, on both the roof and plaza areas.” (Truth Social.) (NYT.)

Andrew C. McCarthy argued that President Trump’s threat to withhold the Kennedy Center’s congressionally appropriated renovation unless courts allow his name on the building is “yet another abuse of presidential power that only Congress can address.” (National Review.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security (DHS) program that used Social Security data to verify voters’ citizenship status. The League of Women Voters filed a response on September 15, and DHS filed its reply on September 16.

Judge Christopher Cooper (D.D.C.) on Thursday denied Rep. Joyce Beatty’s motion for an emergency hearing on the Kennedy Center’s temporary closure, but ordered the government to file a detailed status report on the closure and to provide at least 30 days’ notice before implementing any changes to the administration’s plans for the Center, “including but not limited to any ‘demolition’ of the Center’s main building.” (Order.) (The Hill.)

Judge Emmet Sullivan (D.D.C.) on Wednesday ordered the Justice Department to submit to the court for in camera review the interview notes underlying certain FBI interview reports in the Epstein files, and to begin reviewing and producing foreign-language materials in the files. (Memorandum Opinion and Order.) (The Hill.)

Judge Mary Kay Lanthier (D. Vt.) on Thursday dismissed the Justice Department’s lawsuit against Vermont’s secretary of state, which sought a copy of Vermont’s statewide voter registration list. (Order.)

President Trump on Wednesday issued a memorandum directing the Office of Management and Budget and the U.S. Trade Representative to remove Canadian-origin items from the federal civil procurement system to the extent practicable and permitted by law. (Memorandum.)

Hannah Bloch-Wehba argued that “the Privacy Act is ill-equipped to address contemporary privacy risks, much less to constrain an executive branch determined to use the data in its possession for new purposes,” and recommended reforms. (Just Security.)

David Chen argued that the anti-coercion principle articulated in NFIB v. Sebelius should be understood as a federalism constraint, not a Spending Clause constraint, given that the federal government “offers a variety of inducements to states beyond conditional spending,” such as “criminally investigating state and local officials who refuse to cooperate with its immigration enforcement agenda, refusing to deliver ballots in states that will not hand over voter data, and even surging armed agents into cities with disfavored policies.” (SSRN.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security (DHS) program that used Social Security data to verify voters’ citizenship status. The League of Women Voters filed a response on September 15, and DHS filed its reply on September 16.

Judge Rudolph Contreras (D.D.C.) ruled Tuesday that the Department of Homeland Security (DHS) “likely violate[d]” the First Amendment when it sent two federal agents with a warning notice to the home of David Streever, a Rochester, N.Y. man who had e-mailed disparaging remarks to the acting director of Immigration and Customs Enforcement. Judge Contreras issued a preliminary injunction barring DHS from “relying on the Warning Notice, issuing similar threats, or making good on the threats in the Warning Notice.” (Memorandum Opinion.) (WaPo.)

Rep. Joyce Beatty on Wednesday filed a motion for an emergency hearing, arguing that Kennedy Center officials appeared to be moving to close and renovate the building despite Judge Christopher R. Cooper’s (D.D.C.) recent preliminary injunction in an attempt to “evade the Court’s order by fait accompli.” (Motion.) Judge Cooper ordered a response by 10:00 AM Thursday. (Order.) Chris Geidner wrote that it will be difficult for Rep. Beatty and the court to force the administration to keep the Kennedy Center open, but that “sometimes the aim of a litigation is harm reduction.” (Law Dork.) See previous Roundup for background.

A unanimous First Circuit panel on Wednesday stayed a district court’s finding that the Department of Housing and Urban Development (HUD) failed to engage in notice-and-comment procedures before moving to set aside $1.3 billion of a $4 billion homelessness program as part of a policy shift from permanent housing support towards temporary measures. 22 states and the District of Columbia had challenged the move. The panel found HUD was likely to succeed on the merits and that upcoming award deadlines created a risk of irreparable harm. (Order.) (Reuters.)

The Government Accountability Office reported Tuesday that the Department of Government Efficiency’s deferred resignation program cost the government $6.7 billion in administrative leave spending in 2025. (Report.) (NYT.)

Martin Flaherty argued that “today’s degree of unchecked presidential authority in foreign affairs” should offer a cautionary tale for judicial expansion of presidential power in the domestic sphere. (SCOTUSblog.)

Andrew McCarthy reviewed the Trump administration’s recent first-ever use of the Alien Terrorist Removal Court, arguing that the resulting agreement between the government and the defendant finding her a removable alien terrorist had “benefits for each side.” (National Review.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security (DHS) program that used Social Security data to verify voters’ citizenship status. The League of Women Voters filed a response on September 15, and DHS filed its reply on September 16.

Judge Christopher R. Cooper (D.D.C.) on Tuesday enjoined the Kennedy Center’s Board of Trustees from affixing to the center’s facade an inscription reading “renovated and restored by Donald J. Trump” and from naming the center’s grounds after President Trump. (Opinion and Order.) (NYT.) In response, Trump threatened to cancel a planned $257 million renovation unless his name was restored to the building, even as the center’s board voted on Tuesday to close the center to begin repairs. (WSJ.) (WaPo.)

Judge F. Dennis Saylor IV (D. Mass.) on Monday preliminarily enjoined a Department of Homeland Security final rule that imposed a fixed four-year limit on certain student and work visas. Judge Saylor held that the plaintiffs were likely to succeed on their claim that the rule was arbitrary and capricious under the Administrative Procedure Act. (Memorandum and Order.)

The Justice Department on Tuesday asked the Supreme Court to review a Second Circuit decision invalidating the appointment of an acting U.S. attorney for the Northern District of New York and quashing subpoenas he issued to the state attorney general’s office. The government asked the court to resolve whether a first assistant designated after a vacancy arises may serve as acting officer under the Federal Vacancies Reform Act, and whether someone who is not an acting officer may be delegated the office’s non-exclusive duties. (Petition.) For background on the Second Circuit decision, see a previous Roundup.

FBI Director Kash Patel suggested on Tuesday during testimony before the Senate Judiciary Committee that he was open to sending federal agents to polling sites. (NYT.)

The Senate on Tuesday voted to block consideration of a bill regulating crypto currency that was supported by crypto companies but disfavored by Democrats who wanted stronger language preventing federal officials from profiting off of crypto ventures. (WSJ.) (NYT.)

Rep. Thomas Massie (R-KY) on Tuesday introduced a resolution to impeach Secretary of Defense Pete Hegseth for high crimes and misdemeanors over the war in Iran. (Resolution.) (NPR.)

Bob Bauer offered his initial takeaways from the Supreme Court’s emergency order on Monday declining to stay an injunction of the Postal Service’s mail-in-ballot rule. (Executive Functions.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security program that used Social Security data to verify voters’ citizenship status. The League of Women Voters filed a response on September 15.

Mentioned:

• “Order denying application for stay,” in United States Postal Service v. California, No. 26A305 (Supreme Court of the United States, September 14, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: Good morning. I’m here to discuss yesterday evening’s court ruling in the Postal Service case involving election mail. I’m not here as I normally am with my colleague Jack Goldsmith; this time I’m solo, and I’m just going to make a few brief observations about the case.

The first is that we are conjecturing about the future to some extent when we try to draw out the implications of the case, because not much other than by the dissent and briefly by Justice Kavanaugh was said. The court in its ruling found that there was a likelihood that the plaintiffs—that is to say, those challenging the government—would prevail on the merits, and that the normal factors that are weighed in determining an application for a stay like the one the government filed weighed against the government’s position. And that’s all it said, very briefly. Justice Kavanaugh had some more to say about his position, but again in very brief terms, and then a somewhat longer position was expressed by Justices Alito and Thomas in their dissent.

However, it seems to me that if we are going to abstract from the case and engage in a little bit of conjecture, we might conclude that this is a significant signal that eleventh-hour interventions in the electoral process are going to be viewed by the court very skeptically. And this ties back to various considerations that the court has been bringing to election cases, most notably in a case called Purcell v. Gonzalez. The Purcell case only applies to federal court orders late in the cycle; it does not apply by its terms as an equitable doctrine to the executive branch and any actions that the executive branch may take. But in that case and other cases, including one recently involving a candidate challenge to election rules, in a case called [Bost v. Illinois State Board of Elections], the court made clear that there are considerations unique to the election context: that as an election draws nearer, there is sensitivity to what legal developments may mean for the stable administration of the process and the potential disenfranchisement of voters.

In a 2020 case, for example, Justice Kavanaugh said—and I’m now paraphrasing—that it was important that the rules of the road be clear and settled before an election, and discussed the consequences if in fact they are not. I think that ties back to his concerns with the timing of this final postal rule, if it were to go into effect on a record that certainly suggested that it would have a destabilizing effect on the administration of the elections, that it might fail in certain respects to be implemented accurately, and that the results might be widespread disenfranchisement. So I think this question of timing is of great importance, because we don’t know what the administration might still do between now and election day.

A second comment that I would make relates to the record before the court, and I can’t stress this enough. There was an enormous measure of bipartisanship, including red-state election officials advising the court that even if they were not going to express themselves on the merits of this final postal rule, they just did not see that it could be implemented, or that they could comply with it, in the time between now and election day. This is extraordinarily important—to have some common ground about the destabilizing, disruptive effect that this final rule, if it were allowed to go into effect, would have on elections. So I think that’s extremely important.

A third observation: we don’t know whether in fact this rule will ultimately survive and become applicable in the 2028 elections. That’s simply unknown at this point. We know only that it’s not going to affect this election, and the question of what will happen next is an open question. But certainly it seems likely that this administration will pursue the implementation of the rule for the presidential and congressional election cycle of 2028.

That’s all we know, and yet it is encouraging to election officials around the country, and that’s both Democrats and Republicans, that their concerns will be taken into account, and the needs they have to prepare in some kind of systematic manner that ensures competent administration and is fair to voters.

And I would just close by saying something that is surprisingly missing from the dissent, but that is not missing from a district court decision the day before yesterday, on the Sunday before this ruling on Monday evening—a decision issued by a Trump appointee, a district court judge, in [a parallel] case: Judge Nichols. Judge Nichols also, in granting the preliminary injunction, found that it was defective on the merits, and that in balancing all the factors that go into determining whether emergency relief to the government was warranted, he concluded that the government’s case had in fact failed. But in weighing the public interest, Judge Nichols said that the right to vote is fundamental, and that the voters’ interest here—voters’ interest in avoiding confusion, voters’ interest in avoiding the potential that ballots would be disqualified in the rush to implement this rule—those were interests that had to be weighed very heavily in the balance. That’s missing from Justice Alito’s dissent. But I can’t help but think that as the election draws closer, it will be very much on the minds of the Supreme Court and other courts as they contend with other cases of this kind that may arise at the eleventh hour.

So those are some preliminary observations. Have a good day.

The Supreme Court on Monday denied the government’s application to stay Judge Indira Talwani’s (D. Mass.) preliminary injunction barring the U.S. Postal Service from implementing the mandatory sections of its mail-in ballot rule, finding the government “unlikely to succeed on the merits.” Justice Kavanaugh concurred on the narrower ground that applying the rule this year would violate the Administrative Procedure Act because election officials “do not have sufficient time to reasonably implement the rule before the elections.” Justice Alito, joined by Justice Thomas, dissented. (Order.) (SCOTUSblog.) For background on the rule’s litigation, see yesterday’s Roundup.

Federal prosecutors have subpoenaed former CIA Director John O. Brennan to testify before a Fort Pierce, Florida, grand jury on Oct. 15, according to a declaration his counsel filed Monday in Brennan’s records-preservation suit against the administration. The declaration states that Brennan is a target of an investigation into statements he made to Congress and a subject of a broader investigation into an alleged conspiracy to violate President Trump’s civil rights. (Declaration.) (Politico.) For background on the alleged conspiracy, see previous Roundups.

Senate Democratic Leader Chuck Schumer and Sen. Alex Padilla on Monday released a whistleblower disclosure alleging that U.S. Citizenship and Immigration Services officers were directed to impersonate individual voters to access voter records on state election websites in the Department of Homeland Security’s search for noncitizen voters. The disclosure states that the searches may violate state laws restricting those lookup tools to the voters themselves. (Letter.) (Disclosure.) (NYT.)

Twenty-two states and the District of Columbia, along with a coalition of cities led by New York City, on Monday filed separate challenges in the Southern District of New York to a new DHS rule expanding the public benefits immigration officers may consider in deciding whether a visa or green-card applicant is likely to become a “public charge.” The rule takes effect Friday. (Complaint.) (Complaint.) (Final Rule.) (NYT.) (WSJ.)

Judge Emil Bove III (3d Cir.) on Monday denied a motion seeking his disqualification from an immigration appeal, rejecting as “unserious” the argument that a January 2025 memorandum he issued as Acting Deputy Attorney General requires recusal. (Order.)

Sens. Cynthia Lummis, John Boozman, and Tim Scott on Monday released the final text of the Digital Asset Market Clarity Act, which would require the president, other elected federal officials, and their spouses to divest any significant financial interest in a business that issues or sponsors digital assets, or to place it in a qualified blind trust. A cloture vote is scheduled for Tuesday. (Bill Text.) (WaPo.) For analysis of an earlier version of the provision, see Bob Bauer’s July essay.

Paul Rasmussen and Annette Kwan argued that military officers have no constitutional warrant to block a president’s decisions; rather, the check on a president belongs to Congress, the courts, and the public. (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security program that used Social Security data to verify voters’ citizenship status. Chief Justice Roberts set a response deadline of 4 p.m. on September 15.

Judge Carl J. Nichols (D.D.C.) on Sunday preliminarily enjoined the U.S. Postal Service from implementing its mail-in ballot rule in its entirety, holding that challengers are likely to succeed on their claim that the rule is ultra vires because “[n]othing in the Postal Reorganization Act authorizes the Postal Service to impose new election procedures on state election officials.” The government’s application to stay Judge Indira Talwani’s (D. Mass.) parallel injunction remains pending in the Supreme Court. (Opinion.) (Order.) (AP.) Marty Lederman argued that the government’s reply brief in support of that application fails to address the harms the rule would impose on voters and states. (Just Security.)

The Supreme Court on Friday dismissed Genalo v. Black, a case on bond hearings for noncitizens in prolonged mandatory detention, after New York Gov. Kathy Hochul pardoned the conviction underlying the remaining respondent’s detention. The Solicitor General said the government stipulated to the dismissal “with the aim of identifying alternative vehicles” to return the questions to the Court later this term. (Letter.) (SCOTUSblog.)

A D.C. Circuit panel on Friday vacated the Department of Energy’s emergency order under section 202(c) of the Federal Power Act that required a Michigan coal plant slated for closure to remain in operation. The panel held that “[t]he mere possibility of an electricity supply shortfall—with no specifics about its potential severity, timing, location, or likelihood—does not warrant an emergency federal response.” (Opinion.)

Judge Susan Illston (N.D. Cal.) on Friday granted partial summary judgment against the Department of Homeland Security’s plan to cut FEMA’s staff by roughly half, holding that the plan is arbitrary and capricious under the Administrative Procedure Act. (Order.) (NYT.) (WaPo.) In a separate order, Judge Illston found that DHS officials intentionally used Signal’s auto-delete feature to destroy messages about the cuts, and imposed spoliation sanctions. (Order.)

The Justice Department on Friday announced that it had deported Nazira Haji Zada, a lawful permanent resident, to Afghanistan under the first removal order issued by the Alien Terrorist Removal Court. Haji Zada, who the government alleged supported her son and son-in-law’s plan for an Islamic State-inspired attack, was not charged with a crime and agreed to her removal on Aug. 20. (Press Release.) (WaPo.) For background, see a previous Roundup.

The Washington Post reports that the National Security Agency is planning its “most extensive internal restructuring in at least a decade.” A plan by NSA Director Gen. Joshua M. Rudd would create five new organizations—for artificial intelligence, China, cybersecurity, combat support, and global intelligence—each led by a new “mission director.” (WaPo.)

Jack Goldsmith argued, on the 25th anniversary of the 2001 Authorization for Use of Military Force (AUMF), that the statute’s importance “has dimmed,” and that now “[t]he real challenge is whether Congress can claw back or constrain the super-broad claims of Article II use-of-force power that the executive branch has made over the decades.” (Executive Functions.)

Bob Bauer argued that Secretary of State Denny Hoskins’s maneuvering for Missouri’s gerrymandered map illustrates the structural risk of the “entrusting of election administration to political party-affiliated officials,” and that the courts’ response suggests judicial alertness “could prove crucial” this fall. (Executive Functions.)

Bob Bauer and Jack Goldsmith discussed Republican pushback against the administration’s election interventions. (Executive Functions.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

United States Postal Service v. California: The government filed an application with the Supreme Court on September 6 seeking an immediate administrative stay and a stay pending appeal of Judge Indira Talwani’s (D. Mass.) preliminary injunction barring the U.S. Postal Service from implementing the mandatory sections of its mail-in ballot rule. California and the League of Women Voters each filed responses on September 9, and the government filed a reply in support of the application on September 10. A First Circuit panel on September 10 denied the government’s parallel stay application.

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security program that used Social Security data to verify voters’ citizenship status. Chief Justice Roberts set a response deadline of 4 p.m. on September 15.

Twenty-five years ago today, Congress passed the 2001 Authorization for Use of Military Force (AUMF), which President Bush signed into law a few days later. The AUMF famously authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

This statute has for a quarter century been the central legal authority for the United States’ military operations against terrorist organizations. But today its importance has dimmed. In part this is because the United States is almost out of the detention business. In part it is because certain terrorist threats have withered. In part it’s because presidents have developed robust substitute Article II theories. And in part it’s because Congress has quietly, through means other than the AUMF, approved and managed the “forever war” against terrorists.

When Congress passed the 2001 AUMF, many members believed they were authorizing force against nations, organizations, and persons with an actual nexus to the 9/11 attacks, and not beyond. But the nexus constraint was never firm. The Taliban and especially al Qaeda proved to be fluid organizations with loose and changing affiliations, and new threatening terrorist organizations sprang up.

Over time presidents stretched the AUMF through interpretation to meet these new threats. The Bush administration construed the AUMF to cover “associated forces” of al Qaeda and the Taliban. The Obama administration went along with this basic view and added a second important stretch when it extended the AUMF to cover the Islamic State, a group that did not exist on 9/11 and at the time of designation had no affiliation with al Qaeda.

On these and related theories, presidents since 9/11 invoked the AUMF to use force against an array of terrorists and terrorist organizations around the globe and as the legal ground for detention of many hundreds of alleged terrorists at Guantanamo Bay.

Today, however, the 2001 AUMF has less practical relevance than at any point since 9/11. As supplemented by the 2012 National Defense Authorization Act, the 2001 AUMF remains the basis for detention of the six people at Guantanamo who have not been charged with offenses. But the United States is otherwise out of the long-term military detention business (where AUMF support was vital) and relies now on a combination of targeted killing/incapacitation, proxy detention, and civilian trials.

As for the AUMF’s relevance to uses of force, the core al Qaeda threat is diminished but far from dead. (The United States does not appear to have used force against core al Qaeda since it killed Ayman al-Zawahiri on July 31, 2022.) For years the 2001 AUMF was the main domestic legal authority supporting U.S. military involvement in Afghanistan, but the United States withdrew in 2021. The Taliban now runs the government of Afghanistan, but hostilities against it have ended.

Some 2001 AUMF-related terrorist threats remain. The second Trump administration has invoked the statute to use force against al-Shabaab, the Islamic State, and al Qaeda-linked fighters in at least four countries.

But for uses of force against these organizations, and for all future threatening terrorist organizations, the AUMF is no longer practically important. As Bobby Chesney saw as early as 2014, Article II of the Constitution can operate as an omnibus use-of-force workhorse for counterterrorism operations.

Chesney showed that executive branch legal positions entailed the view that the president’s Article II power to act in self-defense of the nation gave him all the authority he needed to target terrorists and terrorist organizations. The key idea was a “continuous-threat model” under which “the Executive Branch has inherent authority to use force against a terrorist organization that has attacked before and is capable and willing to do so again, even absent evidence of a particular, looming plot to be stopped.”

This model combines the president’s broad Article II authority to use force in self-defense with a very flexible and expansive conception of imminent attack. Chesney discerned the model in pre-9/11 executive branch practice (involving proposed operations against Hezbollah, the 1986 strikes against Libya, and the 1998 strikes on al Qaeda in Afghanistan and Sudan). He then traced it through 9/11 and especially in Obama-era documents.

Something like this Article II theory of self-defense with broad imminence has been the basis for U.S. uses of force against Iran-backed militia groups, the Houthis, and, in a new-level legal move, suspected boat drug runners. Presidents have also expanded their self-defensive military powers against terrorists along other dimensions, including collective self-defense of partner forces. Today the Article II self-defense power as understood by the executive branch is even broader than when Chesney wrote.

Article II as interpreted by the executive branch thus provides everything a president needs to use force against any threatening terrorist organization, including all of the al Qaeda-associated and successor forces for which the AUMF is now invoked. Put another way, if Congress abrogated the 2001 AUMF tomorrow, the president would have all of the authority he needs under Article II to continue using force against all current terrorist threats around the globe.

Presidents will surely continue to invoke the 2001 AUMF against legacy terrorist organizations for path-dependent and prudential reasons. But they don’t need to, for the legacy organizations, or for future threatening terrorists or terrorist organizations that rise up.

This last claim is largely limited to what Matt Waxman and I have referred to as “light-footprint warfare”—manned and unmanned air power, long-range missiles, cyber operations, and special operations. This is how force is being conducted against terrorists today. But the relevance and sufficiency of the continuous threat model would be less certain if it once again becomes necessary to fight terrorists with heavy boots on the ground, since such military actions are harder to justify under Article II alone. That said, we know from the current Iran war and from past conflicts and executive branch positions that an Article II self-defense theory alone can justify massive concentration and uses of force.

Another conceivable limitation on the Article II theory is the War Powers Resolution (WPR), which requires the removal of troops from “hostilities” after 60 days unless authorized by Congress. (This requirement does not apply to congressionally authorized actions, including AUMF-authorized ones.) But the executive branch, again of both parties, has come up with powerful interpretive workarounds to render the WPR limitation a practical dead letter, at least with regard to light-footprint warfare.

Congress has not defended the WPR from erosion. Nor has it checked the president’s expansive interpretations of the 2001 AUMF and Article II in the counterterrorism context.

Indeed, Congress has been on board for presidents’ counterterrorism conduct since at least the Obama administration. It funds U.S. operations against terrorists, including actions the executive branch justifies under Article II. Through various statutes Congress has fostered “by, with, and through” campaigns that pursue counterterrorism objectives primarily via local partner forces with U.S. training and equipment support. These operations are often “the occasion for Article II-based [U.S.] uses of force against Islamist terrorists in unit self-defense or ‘collective self-defense of Coalition partnered forces.’” Congress funds these operations, and associated self-defense actions, as well.

***

The experience of the last 25 years yields three perhaps-obvious lessons.

First, presidents will construe statutory force authorizations broadly. And courts are inclined to go along. The Supreme Court in Hamdi blessed the argument that the authorization to use force included the power to detain. And the lower federal courts basically went along with presidential expansion of the AUMF to cover associated forces and others. If Congress wants to constrain a president’s use of force under an AUMF, its best bet is to impose a sunset requirement, which is hard to circumvent via interpretive glosses.

That said, and second, AUMF reform is now largely beside the point in light of the president’s continual expansion of his Article II war powers. And “if history is any guide,” as I once wrote, “courts are not likely to adjudicate a case that raises the legality of unilateral presidential uses of force abroad.” That leaves Congress as the only federal institution that could conceivably check the president here.

Third, Congress is not dead. Its 2012 NDAA intervention on detention was important. It recently repealed the 2002 and 1991 Iraq AUMFs. And as noted it has supported global counterterrorism operations and quietly managed them through mechanisms independent of the 2001 AUMF.

The real challenge is whether Congress can claw back or constrain the super-broad claims of Article II use-of-force power that the executive branch has made over the decades, not just in the counterterrorism context, but in other areas too. Such reform would require a top-to-bottom rethinking of congressional military funding and oversight, retractions of the delegations to the president over global deployments, and serious engagement and pushback (with defunding, confirmation, and other tools) by Congress against presidents’ expansive uses of Article II powers.

This is a very distant prospect indeed.

Editor’s note: This piece is cross-posted at Lawfare.

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The U.S. Supreme Court rejected the State of Missouri’s energetic attempts to dictate the use of a 2025 gerrymandered map for this fall’s election. The Missouri Supreme Court had held unanimously that the map was subject to a ballot referendum this fall and, by law, was not yet in effect. District lines drawn in 2022 would control. The Secretary of State took the same case to a federal district court and won a somewhat contrary ruling, leaving open whether the State had any map, old or new, in place. The U.S. Supreme Court declined to stay the state Supreme Court decision but stayed instead the conflicting ruling in federal court. The 2022 map now determines the shape of districts in which congressional elections this November will be held.

There are various potential explanations for the U.S. Supreme Court’s quick decision issued without opinions. One legal development of central significance was the Missouri Supreme Court’s ruling that, as a matter of state law, there is no lawful 2025 map in effect and available for use this fall. The Court decided the issue unanimously: the majority of the Court, five of seven, were appointed by Republican governors. The federal district court intervention may also have influenced the SCOTUS order, inasmuch as the Court has warned the lower courts against rule-altering interventions shortly before elections.

But another feature was the action of the state official, the Republican Secretary of State Denny Hoskins, who was engaged in maneuvering on behalf of the newly gerrymandered 2025 map. This feature underscores a major problem for the administration of elections in the United States: the entrusting of election administration to political party-affiliated officials who run for and are elected to their positions. As it happens, the map Hoskins was striving to secure would add one more Republican to the congressional delegation.

In the Missouri case, Hoskins waited for roughly eight months to complete a review for “sufficiency” of the petition for the referendum, which if it passed review, would block the 2025 map from use until the voters had rendered judgment. In the meantime, that map was used for the primary election. Then, one hour from the August 4 statutory deadline for this sufficiency determination, Hoskins announced that the 2025 map was not subject to referendum approval and could be used for the general election.

Hoskins’ move ensured that the predictable litigation to follow would be jammed into the final months of the election and the middle of the final preparations for the election. In that litigation, he also claimed that the use of the 2025 map in the primary precluded the use of the 2022 one in the general. In other words, he wanted the uncertainty about the referendum, for which he was responsible, to support his case for the use of the 2025 map in the general. Supporters of the 2025 map then turned to federal court, and Hoskins’ support for this new front in the battle for the gerrymandered lines landed him in contempt proceedings in the state court. The Court found him in contempt, finding that he had been “disingenuous” in his explanations of his actions. In particular, Hoskins failed to acknowledge that he had actively supported federal court intervention but instead professed to the state court that he attempted to comply with its order to use the 2022 map.

Candidates and parties agitate for favorable rules all the time and their interests are clear: they mean to win elections. Hence it is not uncommon for each side to profess outrage over legal strategies it gladly adopts when it comes to serving their political interests. When election officials engage in this conduct, the problem of partisanship in the shaping of election law jumps to a whole new level. Sometimes these officials have a choice of reasonable legal options and will choose the one compatible with their political preferences and interests of their co-partisans. And sometimes they prioritize political preferences and interests over legal and policy considerations.

After the contested 2000 presidential election in Florida, Congress acted in bipartisan fashion to put election administration on a more professional, nonpartisan footing. It funded the replacement of the notorious “hanging chad” punch card machines and established an agency, the Election Assistance Commission, to provide other financial and advisory support to the states to support the goal of professional election administration. In 2014, President Obama’s bipartisan Presidential Commission on Election Administration (which I co-chaired) acknowledged that “one of the distinguishing features of the American electoral system is the choosing of election officials and administrators through a partisan process.” But it affirmed that “election administration is public administration” and stressed that “the responsible department or agency in every state should have on staff individuals who are chosen and serve solely on the basis of their experience and expertise.”

This professional administration still thrives around the country in thousands of the more than 10,000 voting jurisdictions in this country. But the intrusion of raw political considerations, always a risk, remains a live concern at the senior levels of administration where officials elected to supervise the process are found. Those officials are both administrators and politicians. Some can manage the conflicts those dual responsibilities raise for them. Others will struggle. Polarization and the onset of election denialism espoused by the President of the United States have injected fresh pressures into this system.

Two key points remain to be stressed. The focus here is election administration and not policy: Republicans and Democrats will still disagree about whether voting security or voting access should drive the development of election rules. They will campaign for their offices on different policy commitments, and there is nothing in that that implicates them in untoward, unethical or illegal conduct. And, in the past, both parties have complained about election officials allegedly playing politics with election administration. In that sense, the dangers of partisan election administration are a bipartisan concern, even if Trump’s election denialism and attempt to exercise presidential power and pressure has vastly magnified the issue from his side of the aisle.

The Missouri case suggests, though it can never be certain, that the courts will be alert to the most egregious forms of politicized administration. Maybe that is all that can be hoped for: that the worst instances of this conduct will affect how the courts resolve election law controversies. This checking function could prove crucial in the months before and even after the election.

Editor’s note: This piece is cross-posted at the NYU Law Democracy Project.

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Mentioned:

• “von Glahn v. Hoskins,” No. SC101805 (Supreme Court of Missouri, en banc, September 3, 2026)

• “Order finding the secretary of state in civil contempt and purging the contempt,” in von Glahn v. Hoskins, No. SC101805 (Supreme Court of Missouri, en banc, September 10, 2026)

• “Brief of amici curiae 38 current and former state and local election officials,” in United States Postal Service v. California, No. 26A305 (Supreme Court of the United States, September 9, 2026)

• “Justice Department to Conduct Election Monitoring in Florida and Wyoming Primary Elections” (Department of Justice, Civil Rights Division, August 18, 2026)

• Maggie Mullen, “Gov. Gordon concerned by ‘aggressive’ DOJ election observers during Wyoming's primary election” (WyoFile, August 28, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Good morning, Bob.

Bob Bauer: Good morning, Jack.

As the fall congressional elections approach, there’s growing evidence that President Trump and his allies’ efforts to shape the midterms, from attacks on mail voting to aggressive gerrymandering, are meeting resistance even from some Republican quarters. Does this reflect growing Republican wariness, as polls show dissatisfaction with Trump’s performance? Does it reflect the practical problem that ballots have been printed or mailed, and that states are running out of time to alter election procedures? Or is it something else? That’s what we’re going to discuss. And so why don’t we start off by, Bob, just telling us what the main elements are of this Republican resistance, which might not be widespread, but it definitely exists.

Yes, we’re seeing some of it. Just how pervasive it’s going to turn out to be, and whether it’s going to intensify before November, is an open question. But we’ve seen it in a remarkable case in Missouri, having to do with an attempt to force a gerrymandered 2025 map onto the November ballot, to govern voter choice in that election. We see it in Republican resistance to the way that the Civil Rights Division is deploying and instructing observers for the primary elections here.

And we can expect to see those observers again in the general election in the fall. And we can see it also in an amicus brief that was filed in the election mail case, now pending before the Supreme Court, by some 38 current and former state and local election officials from some very red states. And so in all of those cases, we see pushback from Republican quarters, in different ways, in different forms, to the way that this denialist program has been launched on the part of President Trump and his allies.

Okay, let’s start with the Missouri case. What’s going on there?

There you have an action by the Missouri State Supreme Court to block a Secretary of State from engaging in some very aggressive legal maneuvering to ensure the gerrymandered map was used for the November elections. That map was adopted in 2025. However, the court held that a referendum on that map was going to go on the ballot, and the effect of that referendum is to make it impossible to use that map until the voters have rendered a judgment on it. And that would mean that a 2022 map, not the one Republicans prefer, would control in this year’s election.

And that court is a court that is dominated by a Republican majority. That is to say, five of the justices were appointed by Republican governors. So that’s a very interesting case, because that was a unanimous ruling.

And when it went up to the Supreme Court of the United States, because the supporters of the 2025 gerrymandered map fought it up to the Supreme Court of the United States, twice the court turned them back. Justice Kavanaugh, in one instance, without even referring the denial of the application for relief to the full court, and then on referral to the full court a second time as well.

And what was the primary legal ground for not allowing the 2025 map to prevail?

The question was whether or not the referendum that was to be put before the voters by petition; whether that referendum actually operated to disqualify the use of the 2025 map, whether it in effect suspended that 2025 map and required an earlier 2022 map to be used. And the court was unanimous in ruling that the referendum had to go onto the ballot with that effect. That is to say, that the 2025 map could not be used until the voters made a decision about it.

And that was, of course, in direct opposition to what the Secretary of State, a Republican, had concluded. But what was most interesting is that the court, again unanimously, found that the Secretary of State in that case had engaged in some very sketchy behavior to attempt to, in effect, get his scheme across the finish line. And they were pretty critical about it.

And when all was said and done, his behavior landed him in a contempt proceeding before the Missouri State Supreme Court. They found him in contempt. They concluded that once he’d relented and agreed that their earlier ruling stood and that the 2022 map was going to be used, he had essentially purged himself of the contemptuous conduct. So there were no further consequences to him, but they actually found him in contempt.

Okay. What about the second matter, involving the Civil Rights Division? What’s going on there?

So the Department of Justice does send monitors out to observe elections—I want to put the emphasis on observation—to determine, for example, whether or not elections are being conducted in a way that appears to comply with the requirements, say, of the Voting Rights Act and other federal election laws. And remarkably, observers that went out to Wyoming, reddest of red states, ran into significant conflicts with Republican officials in that state, because they engaged in behavior that really doesn’t fall under the category of traditional observation.

They were interviewing voters. They wanted to examine equipment. Long and short of it is, they were engaged in what appeared to be some kind of invasive audit or pre-investigative activity. The governor of the state, a Republican, said that this conduct was aggressive and disruptive. And local officials objected equally strongly and said that it was an intrusion into the state electoral administrative process that was unacceptable. So that’s the second case.

And where does that stand right now?

That stands in, essentially, objection rendered by the state, and the Department of Justice will or will not act on that objection in conforming its conduct to it, in other states or in Wyoming, in the future.

Okay, how about the amicus brief in the postal case? Was this filed by red states only, or is it a brief involving lots of red states?

It involves a lot of red states. Reading from the [complete] list: Kentucky, North Dakota, South Dakota, Georgia, New Hampshire, Kansas. [Those six are the states’ secretaries of state—including Georgia’s Brad Raffensperger—joined by Utah’s lieutenant governor, Deidre Henderson, who serves as that state's chief election officer. In the brief’s words: “Many Amici are Republicans. Several were elected to their offices on the Republican line, and several serve in Republican majority jurisdictions.”] Thirty-eight, as I said, former and current state and local election officials. They didn’t take the position that this final postal rule (that would put the Postal Service for the first time in the position of controlling and potentially objecting to the transmission of mail ballots); they didn’t take the position on the merits that the rule was necessarily illegal if implemented for a future election. But they took the position very strongly that this rule could not be implemented for the 2026 election. They said it would be effectively impossible to comply with without major confusion for voters and election officials. It would be disruptive to the electoral process. So that’s actually quite remarkable as well.

So Bob, what’s going on here? I mean, maybe there are a lot of things going on, but you spend a lot of time, I think, with state and local officials, election officials who have to do the hard and complicated work of running these federal elections, including in red states. So can you just give us a general sense of what the sentiment is among those officials about some of the Trump administration approaches to the fall elections? I mean, is there a general sense? Can you make a generalization about what officials in red states think about this, or is it varied?

Well, it varies, in one sense in that there are certainly some red state officials who support the administration’s, if you will, election denialist program. They think the system is flawed and rife with at least the potential for fraud. On the other hand, there are Democratic and Republican officials, and those in the professional election administration community affiliated with both parties, who have had enough of this.

Their job is a very difficult one. They’re under-resourced. They operate under tremendous time pressure and very unforgiving public expectation about how elections are going to go. And they are finding that the attacks on them, on the process—the suggestion that the system is being either maladministered or is outright corrupt—is offensive to them.

Now, what’s going on here? Who’s to say? Part of it is they cannot put up with this when they really are in the final stages of preparing for the election. And when I say final stages—in some states ballots are going out now or have just gone out. Ballots are being printed. I mean, rules are being set for the conduct of this election. So that’s part of it. It’s just a fundamental resistance to having this disruption at this time.

But who is to say what’s working more broadly in the background here; at long last, Trump and his allies on this subject may have just completely overshot the mark. And maybe in the background there’s less tolerance for it, because of the widespread frustration generally reflected in the president’s disapproval ratings, or his approval ratings, widespread dissatisfaction with the way the government is performing, and therefore less tolerance for his preoccupations with these elections. I suspect that is a factor. I can’t prove it.

But this is really significant, because if you’re going to find much more resistance here on a bipartisan basis, that could be very consequential for controversies that are going to almost certainly await us in the remaining two months of the election, on election day, and immediately thereafter.

So just a last question. Could you follow up on that about—I mean, is this the beginning? There are lots of skirmishes going on. We see more and more examples of this. Is this just going to continue to grow between now and November? Is that inevitable? Legal skirmishes about mail-in ballots, about how the election is going to be conducted, about the federal government, through the federal executive branch, through various means, trying to intervene, using its law enforcement discretion in the election. Do you expect to see significantly more examples of this?

I think you’d have to assume that’s the case. You’d hope it wouldn’t be. You can’t be sure. But there’s no reason to doubt it. I mean, Trump was at it again in the so-called midterm convention in Dallas the other day. He’s given a national address on the topic. He’s addressed the party and the nation at the midterms on this topic.

He is preoccupied both with the potential of losing the midterms, and also with his belief that at least some of the reason for that is going to be—if not all of the reason—a fraudulent election system that just prevents Republicans from winning unless Democrats fail to cheat.

So you’d have to think that at least at the federal government level—I’m going to give you one more example here as we close. At the federal government level, their attempts to push on this point are going to be at least constant, if not increasingly intense. The Department of Justice is once again threatening states with criminal investigation and suggesting that some investigations are underway, on some claim that election administration is somehow culpably failing to come to grips with the prospect of fraud. And that’s in a letter that was just again sent out in the last several days.

So this is not letting up at the federal government level. But the resistance may really be building on a bipartisan basis.

Okay, thanks very much.

Thank you.

The Supreme Court on Thursday stayed Judge Stephen R. Clark’s (E.D. Mo.) temporary restraining order enjoining Missouri Secretary of State Denny Hoskins from using any congressional map other than the Republican-drawn plan the legislature enacted in 2025, leaving in place the Missouri Supreme Court’s ruling that the plan cannot be used unless voters approve it in a referendum. The state court held Hoskins in contempt the same day for directing election officials to use the map, though it said a notice he issued that afternoon had “corrected his contemptuous conduct.” (Order.) (WSJ.) (Law Dork.) Steve Vladeck argued that the conflicting orders are “a mess partly of the justices’ making.” (One First.)

A First Circuit panel on Thursday denied the government’s motion for a stay pending appeal of Judge Indira Talwani’s (D. Mass.) preliminary injunction barring the U.S. Postal Service from implementing the mandatory sections of its mail-in ballot rule. (Order.) Adam Unikowsky argued that the rule exceeds the Postal Service’s authority over mail operations because it regulates voting activity rather than the mail. (Adam’s Legal Newsletter.)

The Justice Department on Tuesday petitioned the Supreme Court to review a Ninth Circuit decision holding that Sigal Chattah cannot serve as acting U.S. attorney for Nevada because she was named the office’s first assistant only after it fell vacant. (Petition.) (SCOTUSblog.) For background, see a previous Roundup.

The city of Denver and three civic organizations sued the Department of Homeland Security on Thursday in the District of Columbia over its policy of authorizing armed immigration officers to go to polling places for immigration enforcement. The complaint alleges that the policy violates a Civil War-era statute barring armed federal officers from election sites except “to repel armed enemies of the United States,” and that “[t]he specter of armed officers at polling places threatens the freedom of this upcoming election.” (Complaint.) (NYT.)

Joseph diGenova, the Reagan-era U.S. attorney appointed in April to lead the Justice Department’s “grand conspiracy” investigation into federal officials who investigated President Trump, abruptly resigned on Thursday. The resignation reportedly followed pressure from department leaders who had lost confidence in diGenova’s handling of the investigation, which had not produced an indictment. (Politico.) (NYT.)

Jack Goldsmith appeared on the New York Times podcast “Interesting Times” to discuss President Trump’s “unprecedented” self-enrichment in office. (NYT.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

United States Postal Service v. California: The government filed an application with the Supreme Court on September 6 seeking an immediate administrative stay and a stay pending appeal of Judge Indira Talwani’s (D. Mass.) preliminary injunction barring the U.S. Postal Service from implementing the mandatory sections of its mail-in ballot rule. California and the League of Women Voters each filed responses on September 9, and the government filed a reply in support of the application on September 10. A First Circuit panel on September 10 denied the government’s parallel stay application.

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security program that used Social Security data to verify voters’ citizenship status. Chief Justice Roberts set a response deadline of 4 p.m. on September 15.

A coalition of 23 states and the District of Columbia, and a group of civic organizations led by the League of Women Voters (LWV), responded on Wednesday to the government’s application to the Supreme Court to stay a district court order preliminarily enjoining implementation of parts of the United States Postal Service’s mail-in ballot rule. (States’ Response.) (LWV Response.) (SCOTUSblog.)

President Trump issued a series of proclamations on Tuesday barring importation of certain Canadian alcoholic beverages, dairy products, and motor vehicles. (Alcoholic Beverages Proclamation.) (Dairy Proclamation.) (Motor Vehicle Proclamation.) (AP.)

The Census Bureau on Wednesday issued a proposed rule that would exclude from the census count “illegal aliens and aliens whose legal status is less durable and indefinite in length than lawful permanent resident status.” The proposed rule also would “prohibit the inclusion of questions about race and ethnicity or sexual orientation on the decennial census short-form questionnaire or any questionnaire used for purposes of the enumeration.” (Proposed Rule.) (NYT.) (WaPo.)

The Justice Department has reportedly sent letters to election officials in 30 states, asking them to preserve records related to the 2024 election and warning the officials they are “currently under investigation.” (NYT.)

Elie Honig argued that President Trump’s tariffs on Canada are legally vulnerable. (Stay Tuned.)

Caleb Nelson argued in a new article that the “current Supreme Court has enthusiastically embraced… aggressively pro-President readings of the Constitution. But the text of the Constitution is at best ambiguous about the issues that the Court takes it to resolve. As for history, the Court has flitted imprecisely between the idea that history reveals a determinate original meaning on these points and the idea that historical practices have “liquidate[d] & settle[d]” ambiguities in the original meaning—but in any event, the Court is wrong about both its historical evidence and the theory of liquidation.” (SSRN.)

Miriam Seifter argued in a new article that in the face of “presidential aggrandizement, governors possess important and underappreciated powers to resist, counteract, and reshape national action.” (SSRN.) (Just Security.)

Ernest Young argued in a new article that “Congress retains—and has long exercised—the power to delegate authority to administer and enforce federal law outside the executive branch altogether to states and private persons….. These arrangements do not violate the unitary executive principle because states and private actors do not exercise the executive power “of the United States.” And they offer a degree of independence far beyond that of traditional independent federal agencies.” (SSRN.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

United States Postal Service v. California: The government filed an application with the Supreme Court on September 6 seeking an immediate administrative stay and a stay pending appeal of Judge Indira Talwani’s (D. Mass.) preliminary injunction barring the U.S. Postal Service from implementing the mandatory sections of its mail-in ballot rule. California and the League of Women Voters each filed responses on September 9. The First Circuit has not yet ruled on the government’s parallel stay application.

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security program that used Social Security data to verify voters’ citizenship status. Chief Justice Roberts set a response deadline of 4 p.m. on September 15.

The Trump administration on Tuesday asked the Supreme Court to stay pending appeal a district court order vacating a Department of Homeland Security program. The program used Social Security data to verify voters’ citizenship status. (Application.) (NYT.) (SCOTUSBlog.) For background, see a previous Roundup.

A unanimous panel of the D.C. Circuit on Tuesday affirmed a preliminary injunction barring the Internal Revenue Service from disclosing tax return information to Immigration and Customs Enforcement for immigration enforcement. The panel held that the data-sharing arrangement likely violated a taxpayer privacy statute. (Opinion.) (WSJ.)

The accreditation council of the American Bar Association voted on Tuesday to eliminate a requirement that law schools demonstrate a commitment to diversity and inclusion. The move comes after President Trump issued an executive orderthat asserted the ABA’s diversity requirement violated Students for Fair Admissions v. Harvard. (NYT.)

Bob Bauer argued that the Supreme Court’s interim order in the mail voting case “introduces serious uncertainties into the remaining weeks before the election if the executive branch launches another eleventh-hour intervention by executive order.” (Executive Functions.)

Marty Lederman argued that “the simplest, most straightforward way” for the Supreme Court to decide the government’s U.S. Postal Service mail-in ballots stay application is to deny the stay on the grounds that the balance of equities “overwhelmingly” favors the plaintiffs. (Just Security.)

Ilya Somin argued that the U.S. Postal Service’s final rule restricting mail voting runs afoul of the Constitution’s Elections Clause and the major questions doctrine. (Volokh Conspiracy.)

Andy Wright and Tara Ganapathy discussed the implications of the Justice Department’s Office of Legal Counsel executive privilege opinion on congressional oversight of the private sector. (Just Security.)

Andrew C. McCarthy published a three-part series on President Trump’s seizure of Venezuela’s oil reserves. (National Review.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

United States Postal Service v. California: The government filed an application with the Supreme Court on September 6 seeking an immediate administrative stay and a stay pending appeal of Judge Indira Talwani’s (D. Mass.) preliminary injunction barring the U.S. Postal Service from implementing the mandatory sections of its mail-in ballot rule. The First Circuit has not yet ruled on the government’s parallel stay application. Justice Jackson set a response deadline of 4 p.m. on September 9.

Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security program that used Social Security data to verify voters’ citizenship status. Chief Justice Roberts set a response deadline of 4 p.m. on September 15.