Executive Functions

Executive Functions Roundup

Matt Fidel — Wed, 13 May 2026 15:13:04 GMT

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Midjourney

The Office of Legal Counsel concluded in an opinion dated May 12 that section 303 of the Civil Rights Act of 1960 authorizes the Department of Justice to compel states to produce unredacted voter registration lists and that no other provision of law bars DOJ from sharing those lists with the Department of Homeland Security. (Memorandum Opinion.) A DOJ lawyer on Tuesday submitted the OLC opinion to the Sixth Circuit ahead of today’s oral argument in United States v. Benson, which concerns Michigan’s refusal to turn over voter registration data. (Additional Citation.)

The Eleventh Circuit on Tuesday denied rehearing in President Trump’s appeal from the dismissal of his civil RICO suit against Hillary Clinton, the Democratic National Committee, and others over alleged efforts to tie him to Russia during the 2016 election. (Order.) For background, see a previous Roundup.

According to the New York Times, DOJ officials are considering settling President Trump’s $10 billion lawsuit against the Internal Revenue Service over leaked tax returns. Terms under discussion reportedly include dropping IRS audits of Trump, his family members, and businesses. (NYT.) For background on the suit, see a previous Roundup.

Defense Secretary Pete Hegseth, Chairman of the Joint Chiefs Gen. Dan Caine, and Pentagon Comptroller Jay Hurst appeared before the House and Senate subcommittees that oversee defense spending on Tuesday. Hurst told lawmakers the cost of the war with Iran has risen to roughly $29 billion. (CBS.)

The Department of Homeland Security said Tuesday that David Venturella, a former career ICE official, would serve as the next acting director of ICE. Before rejoining the agency last year, Venturella worked as an executive at a private prison company. (NYT.) (WSJ.)

Food and Drug Administration Commissioner Marty Makary resigned on Tuesday, reportedly following months of clashes over policy with senior administration officials. President Trump announced that Kyle Diamantas, the deputy commissioner for food, will step in as acting FDA commissioner. (Truth Social.) (WSJ.)

President Trump late on Monday night shared a post on Truth Social calling for the arrest of former President Barack Obama, in addition to dozens of other posts attacking his political opponents and relitigating the 2020 election. (Truth Social.) (WaPo.)

PayPal agreed to waive roughly $30 million in transaction fees for certain small businesses to settle a DOJ probe into funding initiatives for minority-owned businesses. The fee waivers will apply to businesses owned by veterans or involved in farming, manufacturing, or technology. (WSJ.)

Jonathan Shaub, who previously served as attorney-adviser in OLC, argued that OLC’s recent opinion declaring the Presidential Records Act unconstitutional is “embarrassing” and inconsistent with decades of executive branch practice and Supreme Court precedent. (Lawfare.)

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

Blanche v. Perlmutter: The government filed an emergency application on October 27 requesting the Supreme Court to stay a district court interlocutory injunction that temporarily reinstated Shira Perlmutter to her role as Register of Copyrights while litigation over her removal continues. Chief Justice Roberts formally set a deadline of November 10 for a response to the application. Perlmutter submitted a response on November 10. Blanche submitted a reply on November 12. The Court deferred the application for stay on November 28 pending the Court’s decisions in Trump v. Slaughter and Trump v. Cook.

Trump v. Cook: The government filed an emergency application on September 18 requesting the Supreme Court to stay a preliminary injunction issued by a district court that blocked President Trump from removing Federal Reserve Governor Lisa Cook. Cook filed an opposition to the request on the same day. The Chief Justice formally set a deadline of September 25 for a response to the application. Cook filed a response on September 25. On October 1, the Court deferred action on the stay application pending oral argument in January 2026 and established a supplemental briefing schedule. Additional amicus briefs were filed on October 29. Both sides filed supplemental briefs on November 19 and the Court heard oral argument on Jan. 21, 2026.

Mullin v. Doe: The government filed an application on February 26 requesting the Supreme Court stay pending appeal of a preliminary injunction issued by a district court preliminarily enjoining then-Secretary of Homeland Security Kristi Noem from terminating temporary protected status designation for Syria. The government asked the Court to construe the application as a petition for a writ of certiorari before judgment and grant the petition. On March 16, the Court consolidated the case with a challenge to the Department of Homeland Security’s termination of Temporary Protected Status designations for Haiti and granted certiorari before judgment of the consolidated cases while deferring action on the government’s request for a stay.

Trump v. Miot: The government filed an application on March 11 requesting the Supreme Court to stay a lower court order postponing then-Secretary of Homeland Security Kristi Noem’s decision to terminate temporary protected status designation for Haiti. The government also asked the Court to treat the application as a petition for a writ of certiorari before judgment and grant the petition. On March 16, the Court consolidated the case with Mullin v. Doe.

Executive Functions Roundup

Matt Fidel — Tue, 12 May 2026 15:00:26 GMT

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Midjourney

Justice Alito on Monday extended an administrative stay blocking a Fifth Circuit order that had stayed the Food and Drug Administration’s Biden-era decision to allow mifepristone, a commonly used abortion pill, to be distributed by mail. The order extended until May 14 an earlier administrative stay that was set to expire Monday. (Order.) (WaPo.) (SCOTUSblog.) Adam Unikowsky argued that the Supreme Court should keep the stay in place while the litigation continues because Louisiana, the plaintiff in the case, lacks standing, and because the FDA’s decision was legal. (Unikowsky.)

The majority of a three-judge panel of the Sixth Circuit on Monday held that immigrants arrested inside the United States after entering without inspection cannot generally be subjected to mandatory detention under 8 U.S.C. § 1225(b)(2)(A). The ruling aligns the court with the Second and Eleventh Circuits, which have rejected the Trump administration’s mandatory detention policy, while the Fifth and Eighth Circuits have upheld it and the Seventh Circuit declined to rule on the issue. (Opinion) (Politico.)

The Wall Street Journal reports that President Trump’s private complaints to acting Attorney General Todd Blanche over leaks related to the Iran war has prompted an aggressive Justice Department push to investigate leaks, including grand jury subpoenas seeking records from reporters and discussions with the Pentagon about leak probes. (WSJ.)

President Trump said Monday he intends to suspend the federal gas tax “until it’s appropriate.” The measure would require congressional approval. (NBC.)

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

Executive Functions Roundup

Tia Sewell — Mon, 11 May 2026 14:40:52 GMT

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Midjourney

A three-judge panel of the Eleventh Circuit on Friday declined to stay a district court decision barring the Department of Homeland Security from implementing a seven-day notice requirement for members of Congress to visit ICE facilities. (Order.) (NYT.)

President Trump announced on Sunday that Iran’s latest proposal to end the war with the U.S. was “totally unacceptable.” (NYT.) (WaPo.)

President Trump is reportedly planning to fire Marty Makary, commissioner of the Food and Drug Administration following clashes over vaping, abortion, and drug policy. (WSJ.) (NYT.) (WaPo.)

The Justice Department announced on Friday that it is seeking to revoke the citizenship of 12 immigrants alleged to have obtained naturalization through fraud or false testimony about past criminal acts. The individuals are “accused of serious offenses — including providing material support to a terrorist group, committing war crimes, and sexually abusing a minor.” (Press Release.) (NYT.)

The New York Times reports that the Trump administration used an urgent no-bid contracting exemption supposed to be used only to prevent “serious injury, financial or other, to the government” in order to award a $6.9 million contract to repaint and reseal the Lincoln Memorial Reflecting Pool ahead of the country’s July 4 birthday party. (NYT.)

Energy Secretary Chis Wright said in an interview on Sunday that “this administration is in support of” every measure that could be taken to lower gas prices for Americans in response to a question about temporarily suspending the federal gas tax. (NYT.)

Justice Department lawyers told Judge Dabney Friedrich (D.D.C.) that they expected former President Joe Biden to seek to prevent the government from releasing roughly 70 hours of partially redacted audio recordings from his 2017 interviews with ghostwriter Marc Zwonitzer. The recordings, sought by the Heritage Foundation, were obtained during Special Counsel Robert Hur’s classified-documents investigation. (Joint Status Report.) (Politico.)

U.S. Southern Command announced that it conducted another boat strike against an alleged drug trafficking vessel in the eastern Pacific on Friday, killing two individuals and leaving one survivor. SOUTHCOM said that it “immediately notified the U.S. Coast Guard to activate the Search and Rescue system for the survivor.” (X.) (NYT.)

Scott Anderson argued that “the War Powers Resolution may yet serve as a limited constraint on the executive branch’s use of military force, in manners that may complicate the Trump administration’s attempts to close out the [Iran] war on terms of its own choosing.” (Lawfare.)

Adam Keith and Amanda Strayer argued that Congress should more closely scrutinize who the Trump administration is removing from the sanctions list and why. (Just Security.)

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

Executive Functions Roundup

Tia Sewell — Fri, 08 May 2026 16:37:18 GMT

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Midjourney

A three-judge panel of the U.S. Court of International Trade on Thursday struck down President Trump’s proclamation imposing a 10 percent across-the-board tariff under Section 122 of the Trade Act of 1974. The majority granted summary judgment and a permanent injunction to importer plaintiffs Burlap and Barrel, Basic Fun, Inc., and the state of Washington, while dismissing the claims of the remaining states for lack of standing. (Judgment.) (NYT.) Ilya Somin explained that the “decision rests primarily on the ground that the government failed to prove that there is any balance-of-payment deficit of the kind required by the statute.” (Volokh Conspiracy.)

Judge Beryl A. Howell (D.D.C.) granted a motion to enforce her earlier preliminary injunction against warrantless immigration arrests in the District of Columbia. She held that a January 2026 ICE memorandum improperly defined “escape risk” and did not require officers to consider community ties before making warrantless arrests, contrary to her prior order. (Memorandum Opinion.) (NYT.) (WaPo.)

U.S. Central Command announced that “U.S. forces intercepted unprovoked attacks and responded with self defense strikes” as Navy destroyers transited the Strait of Hormuz on Thursday. (X.) President Trump said that the ceasefire with Iran remains in place despite the attacks, telling reporters, “They trifled with us today. We blew them away.” (WaPo.)

The New York Times reports that Saudi Arabia denied the United States access to its airspace and bases for President Trump’s planned naval escort operation through the Strait of Hormuz, which forced the administration to abandon the effort less than 24 hours after it was announced. (NYT.)

Republican Rep. Tom Barrett on Thursday introduced a bill that would authorize military operations in Iran until the end of July and impose limits on the scope of the ongoing campaign. (Joint Resolution.) (NYT.)

News outlets reported that the D.C. Circuit appeared likely to rule against the government in its appeal of a lower court preliminary injunction barring the Defense Department from punishing Sen. Mark Kelly for his comments urging service members to disobey unlawful military orders. (NYT.) (The Hill.) (CNN.) For background on the district court’s ruling, see a prior Roundup.

Lawyers for alleged White House Correspondents’ Dinner gunman Cole Tomas Allen on Thursday moved to disqualify U.S. Attorney Jeanine Pirro and Acting Attorney General Todd Blanche from direct involvement in the prosecution of their client. The motion argues that the officials’ presence at the event and their subsequent public comments about the shooting create at least the appearance of a conflict of interest. (Motion.) (CNN.)

The Wall Street Journal reports that the White House is considering an executive order to create a formal oversight process for advanced AI models after Anthropic’s new Mythos model alarmed senior administration officials, including Vice President Vance. According to the Journal, the administration’s response has left some advisors “fearful that it represents a reversal on AI policy and an overreaction.” (WSJ.)

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

Executive Functions Roundup

Vishnu Kannan — Thu, 07 May 2026 17:11:52 GMT

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Midjourney

The majority of a three-judge panel of the Eleventh Circuit on Wednesday ruled that immigrants arrested inside the United States after entering without inspection are generally eligible for bond hearings and rejected the government’s argument that they must be subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A). (Opinion.) (Politico.)

Judge J.P Boulee (N.D. Ga.) on Wednesday denied Fulton County officials’ bid to force the FBI to return more than 600 boxes of 2020 election records seized pursuant to a January search warrant tied to a federal investigation into alleged election irregularities. (Order.) (NYT.)

The Department of Justice said Tuesday that it will ask the Supreme Court to allow the United States to substitute for President Trump in his appeal of the jury verdict against him in a defamation suit brought by E. Jean Carroll. In a filing supporting President Trump’s request to stay the Second Circuit’s mandate, DOJ said it plans to seek certiorari over the court’s refusal to substitute the United States as the defendant under the Westfall Act. Politico notes that the move, if successful, “would doom Carroll’s case” because the federal government cannot be sued for defamation. (Joinder.) (Politico.)

The Justice Department on Wednesday sued Colorado in the U.S. District Court for the District of Colorado over a 2013 gun-control law that prohibits the sale, transfer, or possession of a “large-capacity magazine” in the state. The complaint alleges that the magazine ban violates the Second Amendment. (Complaint.) (NYT.) On Tuesday, the government filed a Second Amendment lawsuit against Denver and the Denver Police Department over a 1989 city ordinance banning “assault weapons” within the municipality. (Complaint.)

The head of DOJ’s Civil Rights Division announced on Wednesday that a Title VI investigation found that the medical school at U.C.L.A. had illegally “discriminated against other applicants to benefit preferred race classes of Black and Hispanic” in its admissions process. (Notification.) (NYT.)

According to MS NOW, the FBI has reportedly opened a leak investigation that focuses on Sarah Fitzpatrick, the Atlantic staff writer who reported on concerns among bureau employees about Director Kash Patel’s excessive drinking and erratic behavior. A spokesperson for the FBI denied the reporting. (MSNOW.) (The Atlantic.)

The FBI on Wednesday searched the offices of state Sen. L. Louise Lucas, the Democratic president pro tempore of the Virginia Senate, in addition to a cannabis retail business co-owned by the lawmaker. Sources reportedly told the Washington Post and the New York Times the raids took place as part of a corruption investigation opened during the Biden administration. Lucas suggested the investigation was politically motivated. (NYT.) (WaPo.) (WSJ.)

Politico reports that the Department of Homeland Security is abandoning its streamlined training for new ICE agents and plans to dispatch veteran federal immigration officers to provide recent hires who completed the fast-track program with additional instruction. (Politico.)

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

Executive Functions Roundup

Tia Sewell — Wed, 06 May 2026 16:34:21 GMT

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Midjourney

The majority of a three-judge Seventh Circuit panel affirmed a district court’s Oct. 7 extension of a 2022 consent decree limiting ICE’s use of warrantless immigration arrests in the Chicago field office and affirmed in part and reversed in part the court’s Nov. 13 order requiring the release of detainees arrested in violation of the consent decree or whose arrests “potentially” violated 8 U.S.C. § 1357(a)(2). On the issue of whether immigrants arrested without warrants are categorically subject to mandatory detention without bond hearings, Judge John Z. Lee rejected the Trump administration’s position, Judge Thomas Kirsch endorsed it, and Judge Doris Pryor declined to reach the merits of the question. (Opinion.) (Politico.)

Judge Melissa DuBose (D.R.I.) said on Tuesday that she would refer Justice Department lawyer Kevin M. Bolan for possible disciplinary proceedings after he acknowledged withholding information about an ICE detainee’s alleged criminal history in the Dominican Republic. (NYT.) See yesterday’s Roundup for background.

A federal grand jury in D.C. on Tuesday indicted Cole Tomas Allen, the man accused of storming a security checkpoint outside the White House Correspondents’ Dinner with a shotgun, on four counts. He is charged with attempted assassination of President Trump and other firearms offenses. (Indictment.) (WaPo.)

President Trump on Tuesday said that he has paused Project Freedom, the U.S. effort to guide ships through the Strait of Hormuz, to see if the United States and Iran can finalize a “Complete and Final Agreement” to end the war. (Truth Social.) (CBS.)

The Commerce Department on Tuesday announced agreements with Google, Microsoft, and xAI to provide the government with prerelease access to frontier AI models for security testing. (Press Release.) (WaPo.) Dean W. Ball and Kevin Frazier discussed how the Trump administration could pursue a voluntary prerelease AI testing regime despite likely lacking authority to mandate frontier model vetting. (Lawfare.)

The Equal Employment Opportunity Commission filed a civil rights lawsuit against the New York Times in the U.S. District for the Southern District of New York on Tuesday. The EEOC alleged that the Times had discriminated against a white male employee by denying him a promotion on the basis of race or sex. (Press Release.) (NYT.)

The Education Department has opened an investigation into Smith College, an all-women’s school in Massachusetts, to determine whether it violated Title IX by allowing transgender students to enroll. (Press Release.) (NYT.)

Senate Republicans included $1 billion for White House security upgrades tied to President Trump’s “East Wing Modernization Project” in the immigration bill released on Monday. The text states that the funds cannot be used for “non-security elements” of the project. (WaPo.)

U.S. Southern Command announced on Tuesday that it had struck another alleged drug vessel in the eastern Pacific, killing three people. (X.) (NYT.)

The Wall Street Journal reports that over the weekend, President Trump “upbraided Food and Drug Administration Commissioner Marty Makary for not moving quickly enough to approve flavored vapes and nicotine products.” (WSJ.)

Tess Bridgeman and Brian Finucacane argued that the Trump administration’s claim that the War Powers Resolution’s 60-day clock stopped because of the U.S.-Iran ceasefire “is even more unconvincing than attempts by President Donald Trump’s predecessors to circumvent the 60-day clock.” (Just Security.)

George Packer examined how venture capitalist and former White House AI and crypto adviser David Sacks helped align Silicon Valley’s “tech right” with the Trump administration while advancing deregulatory policies on AI and cryptocurrency. (The Atlantic.)

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

Executive Functions Roundup

Vishnu Kannan — Tue, 05 May 2026 16:45:07 GMT

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Midjourney

Judge Anthony J. Trenga (E.D. Va.) on Monday overruled the government’s objections and affirmed a magistrate judge’s ruling that the court, rather than the Justice Department, must review materials seized from Washington Post reporter Hannah Natanson to protect First Amendment and statutory press safeguards in a leak investigation. (Memorandum Opinion and Order.) (WaPo.) For background on the case, see prior Roundups.

Judge Michael Maddox (D. Md.) at a hearing on Monday ordered the pretrial release of Aurelio Perez-Lugones, the government contractor charged with leaking classified information to Natanson, and set trial for Feb. 22. (Docket.) (Politico.)

Judge Melissa DuBose (D.R.I.) said at a hearing Monday that she is weighing whether to hold officials from the Department of Homeland Security or the Department of Justice in contempt of court after DHS issued a “patently false” press release alleging that she knowingly released an ICE detainee wanted for murder in the Dominican Republic. A lawyer for DOJ submitted a statement apologizing for failing to disclose information regarding the detainee’s criminal history. (Response to Order to Show Cause.) (Politico.)

Defense Secretary Pete Hegseth said today that the U.S.-Iran ceasefire “is not over,” despite exchanges of fire between Iranian and American forces in the Strait of Hormuz on Monday. He also stated that Project Freedom, the U.S. operation to guide commercial vessels through the strait, is “separate and distinct from Operation Epic Fury.” (CBS.)

U.S. Attorney Jeanine Pirro will not appeal a ruling by Judge James Boasberg (D.D.C.) quashing subpoenas to the Federal Reserve. Her office on Monday instead asked the court to vacate its prior decisions, as the department has now closed its investigation into the Fed and Chairman Jerome Powell. (Motion.) (WaPo.)

The Justice Department is seeking the identities of every election staffer and volunteer poll worker who helped administer the November 2020 election in Fulton County, Ga. The demand was disclosed on Monday when lawyers for the county filed a motion to quash a grand jury subpoena seeking the information. (ABC.) (NYT.)

U.S. Southern Command announced it struck another boat allegedly engaged in drug trafficking operations in the Caribbean Sea on Monday, killing two men. The strike brings the death toll of the boat striking campaign to at least 187. (NYT.)

Bob Bauer argued that the risk of expanding presidential power should guide the debate over Supreme Court reform and cautioned that Court expansion could strengthen the executive. (Executive Functions.)

Jim W. Ko and Jonathan Stroud argued that the Trump administration is reshaping AI governance through “managed federalism,” using executive coordination and funding leverage to influence state regulation without congressional action. (Lawfare.)

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

How the Wrong Supreme Court Reforms Could Expand Presidential Power

Bob Bauer — Tue, 05 May 2026 15:30:17 GMT

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President Trump departs the Supreme Court after attending oral arguments in the birthright citizenship case, April 1, 2026. (White House Photo by Daniel Torok)

The Supreme Court decision in the Louisiana voting rights case, Louisiana v. Callais, has ignited condemnation by critics and calls for aggressive Court reform. On the list of potential reforms is Court expansion, or “packing,” which is one response to the core complaint that the conservative majority is implementing a hard-right ideological agenda, one that is also in some respects partisan, or exhibiting a moral blindness that valorizes a polity placed in the control of white Americans.

In this post, I will set aside engagement with the Callais decision. As a Democrat concerned about the weakening of the Voting Rights Act, I have little to add to other more thoughtful critiques of the decision. I do agree with my colleague Rick Pildes that the decision was a “long time coming.” Yet the Court has also unwisely injected itself into the struggle over the control of Congress in the current midterms. It remains to be seen whether the rush on the part of Republican governors to capitalize on the decision to create more districts favorable to their party this fall will succeed. The Court has a role to play here: It can take steps to contain the immediate fallout from the decision in the coming months.

My concern in this post is to consider how Democrats, progressives, and other critics of the Court should think about reform in relation to the major constitutional question of the times: the vast expansion of presidential power (or claim to power), unchecked by a feckless Congress controlled by the president’s all too-eager-to-please co-partisans. One clear issue requiring close attention is how Court reform could worsen the trend toward the aggrandizement of presidential power. Much Court reform is being advocated on the case for its short-term effects: reducing the power of this Court. Attention should also be paid to the longer-term effects in weakening the Court—described by Sarah Isgur as the “last branch standing”—and strengthening the president’s hand.

The current Court majority is made up in part by justices selected by Trump in his first term—a process that was heavily influenced by the Federalist Society, with nominees drawn from the conservative elites. Trump discovered by experience that this was not what he wanted: As he has expressed in no uncertain terms, he now deeply regrets the effect of his reliance on the Society. He wanted loyal judges, not on the conservative program, but instead on the Trump team. On all the available evidence, Trump has no concern for jurisprudential philosophy, craftsmanship, or consistency. Hence his rage at the Court for failing him on the tariff question and, he seems sure, preparing to deal him a further defeat on birthright citizenship, and maybe other pending decisions of importance. But just as the president is unhappy with the Court, so are his opponents.

As a result, the Court and Court reform will likely be very much before the voters in the next presidential election. The pressures on presidential candidates to make commitments of one kind or another about the Court and its reform will be intense. Most candidates critical of the Court will pledge to “do something about it,” just as presidents are expected to do something about everything. The implications of various reform proposals may get short shrift, particularly the effects of reform on the presidency and its powers.

What this means for reform like Court “packing” or “expansion” is that a president whose party controls the Senate can take no chances with the nominees they select for the new spots. They are not promising the voters independence and its correlate, fine judging qualities. They are pledging results. They will be under pressure to put forward either reliable ideologues or (in what might otherwise be a welcome change), lawyers drawn from service other than on the bench. The race will be on for activists, loyalists, and true believers. Each president will be striving to make the Court his or her own.

In some administrations, presidents in an era of repeated Court expansions may feel free to begin communicating directly with justices on pending cases. Trump already does so frequently on Truth Social. Who is to say that it stops there? Norms are crumbling to the ground all over the place, and it is not clear why the norms governing a president’s relationship to the Supreme Court are any better protected from erosion than those that once defined the sphere of independence entrusted to the Department of Justice. The whole point of packing is for each dissatisfied party to move the Court back in its preferred direction as soon as it has the White House and a Senate majority. The expectations may turn out to be such that ongoing communications with justices may be one way to ensure success or achieve course corrections.

Consider, too, other actions that Congress may take to rein in the Court, like jurisdiction-stripping measures to prevent it from deciding certain cases. Here again, the legislation under consideration will not only or primarily spring from congressional deliberation. It will be directed by a president, or at least depend on his or her approval.

Court reform may be due: I certainly think so, having argued like many others for term limits for decades. Under the most frequently discussed reform that would set an eighteen-year limit, and when fully enacted after transition from the present system, each president would wind up with no less than two choices per term. Bad things, like bad appointments, can happen even under this system. But arguments for term limits can be argued in neutral, institutional terms (just as opponents can object on the same basis). The system provides for more orderly, less volatile changes in composition. We do not end up, as we do with Court packing, with a Court of a large and ever-expanding institution jousting continually—just as their nominating presidents intended—across the political and ideological divide. This is itself a check on the risks of expanded presidential authority.

Executive Functions Roundup

Ema Rose Schumer — Mon, 04 May 2026 18:07:13 GMT

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Midjourney

President Donald Trump told Congress in a letter sent “consistent with the War Powers Resolution” on Friday that hostilities with Iran “have terminated” following the April 7 ceasefire. The WPR’s 60-day deadline to end the conflict or seek congressional authorization was set to fall Friday. (Letter.) (NYT.) Andrew McCarthy argued that the 60-day clock “cannot be suspended by pretending there is a ‘cease-fire’ even as our forces impose a blockade on the enemy.” (National Review.) Jack Goldsmith argued that the administration’s interpretation of the WPR was “wrong but not crazy.” (Executive Functions.)

President Trump on Sunday announced “Project Freedom,” a plan for the U.S. military to “guide” stranded ships through the Strait of Hormuz. He warned that any “interference” with the process “will, unfortunately, have to be dealt with forcefully.” (Truth Social.) (TIME.) U.S. Central Command stated that 15,000 service members will support the operation, which began today. (X.)

U.S. Attorney Jeanine Pirro suggested in an interview on Sunday that if an ongoing probe by the Federal Reserve’s inspector general uncovers malfeasance related to Fed building renovations, her office may again pursue a case against Fed Chair Jerome Powell. (NYT.) (CNN.)

Acting Attorney General Todd Blanche said the Justice Department will not broadly prosecute people who post the “86 47” message despite charging former FBI Firector James Comey over a photo containing the phrase. He stated that Comey’s case is different because of additional, undisclosed evidence gathered during an 11-month investigation. (NYT.) Bill Shipley argued that the new indictment against Comey “is likely to survive pretrial attempts to get it dismissed on the merits.” (Shipwreckedcrew.)

An Associated Press review of court records found a “pattern of defiance of lower court decisions” in President Trump’s second term, with federal judges citing violations in at least 31 cases spanning immigration, spending, and policy changes. (AP.)

The Defense Department announced on Friday that it will withdraw 5,000 troops from Germany following a clash between Germany’s chancellor and President Trump regarding the war in Iran. (NYT.)

A federal grand jury in California indicted Carlos Ivan Mendoza Hernandez, a Salvadorian national shot multiple times by ICE agents during a traffic stop on April 7, on assault charges. Prosecutors allege Hernandez rammed his vehicle into two officers during an attempted arrest. (Press Release.) (NYT.)

President Trump on Friday signed an executive order imposing new sanctions on Cuban officials. (Fact Sheet.)

William Baude wrote about abuse of power in the second Trump administration. (SSRN.)

Quinta Jurecic argued that the Department of Justice under Acting Attorney General Todd Blanche “is entering a hyperaggressive new era.” (The Atlantic.)

Cullen O’Keefe, Alan Rozenshtein, and Christoph Winter presented a research agenda to examine “risks to the rule of law from the use of frontier AI systems in the executive branch.” (Lawfare.)

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

Trump’s Interpretation of the War Powers Resolution Is Wrong But Not Crazy

Jack Goldsmith — Mon, 04 May 2026 17:40:54 GMT

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A U.S. helicopter hovers near the USS Milius on May 2 as the destroyer patrols regional waters in support of the U.S. blockade operations against Iran. (CENTCOM photo.)

In perhaps the least surprising legal development of the year, the Trump administration last Friday denied that the War Powers Resolution (WPR) of 1973 required withdrawal of troops from the war with Iran.

The only mystery was what the theory would be. Would the administration refuse to comply because, as the president, vice president, and secretary of state had recently said, the WPR was (in some unexplained way) unconstitutional? Nope. Would the administration extend the 60-day clock for 30 days under Section 5(b) in order to keep troops in the fight during a drawdown? Nope.

Instead, the president said in a letter to Congress that the “hostilities” (a WPR term) that began on Feb. 28 had “terminated” due to the April 7 ceasefire, after which there had “been no exchange of fire.” (This latter claim was highly misleading.) The letter’s logic was that because hostilities had ceased, so too had the duty to withdraw troops.

I find this interpretation of the WPR implausible. But it is far from the first time presidents have relied on implausible WPR interpretations to skirt the statute.

President Trump said over the weekend that “So many presidents, as you know, have gone and exceeded [the WPR],” and added: “It’s never been used. It’s never been adhered to.”

Trump is not right here, but he is not entirely wrong. Presidents and their lawyers have since the WPR was enacted massaged its loose, ill-defined, and at times overbroad language to circumvent the statute. The Trump position today builds on those WPR-stretching precedents. Still, Trump’s actions and actions by members of Congress show that it is wrong to say that the WPR is irrelevant or toothless.

A Page of History

On April 12, 1975, Office of Legal Counsel chief Antonin Scalia advised Attorney General Edward Levi that President Ford could lawfully send troops to South Vietnam to evacuate American and certain Vietnamese citizens endangered by a North Vietnam invasion of South Vietnam. Scalia acknowledged that WPR Section 2(c)’s statement of the president’s constitutional war powers “would clearly prevent” Ford’s contemplated action. But he noted that a different section (8(d)(1)) disclaimed an intent to narrow the president’s Article II constitutional powers, which he concluded allowed the action.

As Oona Hathaway once said, “there’s a good case to be made that [the Scalia] memo marks the beginning of the end of the War Powers Resolution.” But only the very beginning. Many other maneuvers in subsequent years would weaken it as a legal constraint.

One gambit has been to read the phrase “hostilities” in the WPR opportunistically. A trigger for the president’s duty to report to Congress under Section 4(a)(1) is the introduction of U.S. forces into “hostilities” or situations that clearly indicate “imminent involvement in hostilities.” And (glossing over important technicalities) the duty to terminate the use of military force under the WPR after 60 (or 90) days typically turns on whether “hostilities” persist at that point.

Presidents’ lawyers have long construed the phrase “hostilities” to deny the applicability of the WPR in “hot war” situations.

For example, the Reagan administration appeared to deny that U.S. troops were introduced into hostilities or imminent hostilities for WPR reporting purposes when over 1,000 Marines were sent to Lebanon for supposedly non-combat operations, even after “Marines were killed or wounded” from hostile fire in August 1983. (Congress disagreed and enacted a law, signed by Reagan, declaring the WPR clock triggered but authorizing the mission for 18 more months. Despite Reagan’s signing statement questioning the WPR trigger, this was a rare congressional war powers victory.)

Similarly, the Obama administration in its 2013 congressionally unauthorized Libya conflict claimed at the ostensible WPR deadline that it was not engaged in “hostilities” even though it was dropping bombs to suppress Libyan air defenses and “against discrete targets” in Libya. The administration in testimony by State Department Legal Advisor Harold Koh maintained that this situation did not amount to “hostilities” because the U.S. mission, exposure of U.S. forces, risk of escalation, and military means were all “limited” at the deadline, especially compared to major ground wars like Vietnam that the WPR framers mainly had in mind. In reaching these conclusions, Koh said that “hostilities” is an undefined and “ambiguous standard” and that Congress had “no fixed view” on what it would encompass.

The Lebanon and Libya examples raise the question of what intensity of conflict amounts to “hostilities.” A different way that presidents have exploited “hostilities” is by treating particular military events as discrete “hostilities” for purposes of starting and stopping the WPR clock and thus avoiding its overall impact even though the events were part of a consolidated military operation.

The Reagan administration used this tactic in the 1987-1988 “Tanker War” against Iranian forces after the United States agreed to reflag Kuwaiti ships to deter attacks on vessels from Iran. The administration filed WPR letters for individual encounters with Iran and often said that it viewed the incident “as closed.” As Brian Finucane has explained, “Filing multiple reports for what was in fact a single, continuing conflict over the course of at least ten months, allowed the executive branch to stop and reset the 60-day clock for withdrawing from hostilities.”

The Obama administration did something similar in its initial uses of force against the Islamic State in 2014. The administration sent WPR letters to Congress for practically every round of strikes against the Islamic State over several months.

There have been many other WPR-avoiding tactics over the decades. Here is an important example from Kosovo, and others are collected here and here. But the “hostilities” interpretations sketched above are most relevant to Trump’s position.

The Trump Position

The conflict with Iran is the largest and most consequential congressionally unauthorized military activity since the Korean War. The United States has wrought enormous destruction in Iran. At least a dozen U.S. soldiers have died. Hundreds have been injured. The U.S. military presence in the region is enormous. The United States had “boots on the ground” in Iran, at least for the rescue operations.

The WPR does not itself authorize any of this. The legality of the war up to last Friday turns on one’s reading of Article II. The WPR became relevant last week because it might have required the war’s termination even assuming the war were constitutional.

If the April 7 ceasefire had been a peace agreement followed by military drawdowns, the WPR clock would not have run last Friday. Under just about any definition of “hostilities,” hostilities would not have been extant or imminent then.

One might interpret a genuine ceasefire in light of the two lines of hostilities precedents outlined above to conclude no WPR violation. First, one might think the ceasefire ends a discrete military endeavor that began on Feb. 28, and that if the ceasefire fails, the clock would start anew.

Second, one might conclude that even though the U.S. engaged in “hostilities” for a long time after Feb. 28, the ceasefire brought it below that legal threshold. And one might point out, for example, that on April 7 the military engagement with Iran, which nominally stopped, was much less intense than the military engagement in Libya deemed not to trigger the WPR deadline.

I imagine that the Trump lawyers have something like this combined “hostilities” theory in mind—assuming, that is, that they are worrying about it at all. While I think the precedents could be used in this way with certain ceasefires, I don’t think the argument works here.

The main reason is that the WPR clock continues to run, even if there is a complete pause in hostilities, if U.S. forces persist in a “situation[] where imminent involvement in hostilities is clearly indicated by the circumstances.” A ceasefire (which in some definitions means a cessation of hostilities) could in theory render involvement in hostilities both over and non-imminent. But the one on April 7 did not do so. Both hostilities and plausible imminent hostilities continued after April 7.

First, on April 13, the United States initiated a “blockade” on Iranian ports—an affirmative act of war that Iran claimed violated the ceasefire. On April 19, the U.S. Navy seized the Iranian ship Touska after the USS Spruance fired “several rounds from [its] 5-inch MK 45 Gun into Touska’s engine room” and disabled the ship. The U.S. has also boarded other Iranian ships. And Central Command said a few days ago that “45 commercial vessels have been directed to turn around or return to port to ensure compliance.” Each of these encounters are a situation where imminent hostilities are clearly indicated.

Second, Iran has continued since the ceasefire to use and threaten force in the region that could easily sweep in U.S. forces.

Third, the U.S. military footprint has grown significantly since the ceasefire.

Fourth, Trump announced yesterday that CENTCOM would guide ships through the Strait of Hormuz. The operation will involve “over 100 land and sea-based aircraft, multi-domain unmanned platforms and 15,000 service members in support of the project.” Iran claims that this action violates the ceasefire and threatened to target and attack ships in the strait of Hormuz. Trump said yesterday that “[i]f, in any way, this Humanitarian process is interfered with, that interference will, unfortunately, have to be dealt with forcefully.”

Fifth, yesterday was not the only time since the “ceasefire” that Trump has threatened military action. For example, on April 19 he said that “Iran decided to fire bullets yesterday in the Strait of Hormuz” and threatened, absent a peace deal, to “knock out every single Power Plant, and every single Bridge, in Iran.” He has engaged in other threateningly belligerent rhetoric since the ceasefire.

These and other facts lead me to conclude that U.S. troops at the time of the ceasefire and ever since remained at least in a “situation[] where imminent involvement in hostilities is clearly indicated by the circumstances.”

Loophole-scouring government lawyers could, of course, disagree, especially in light of Congress’s purposeful vagueness concerning “hostilities” that Koh mentioned.

They might, for example, distinguish “hostilities” before and after the April 7 ceasefire, and argue that the clock started anew sometime after April 7. But unlike past salami-slicing efforts, the administration has not set the predicate for this argument by filing discrete WPR letters.

Or they could argue that the post-April 7 situations do not portend imminent hostilities. This argument seems hard to square with the reality of continued and threatened hostilities and with the United States’ longstanding broad view of “imminence” for law of war purposes.

But it finds a bit of precedential support in the 1987 “reflagging” of Kuwaiti oil tankers and related U.S. military escort operations in the Persian Gulf. The Reagan administration apparently concluded that “hostilities” were not actual or imminent despite a large military and minesweeping presence, mine damage to U.S. ships, and hostilities in the region. But this “hostilities” interpretation came at the reporting stage, not the termination stage, and the U.S. military presence and threats of hostilities are larger now than in 1987.

These are some of the reasons why I conclude that the Trump position that hostilities ceased on April 7 is so large a legal stretch as to be wrong. It is hard to say whether the stretch is greater than some of the past stretches on which the position probably relies. But it certainly comes in a higher-stakes context.

The WPR’s Influence

Courts have never enforced the WPR and they aren’t going to start now. It is up to Congress to exercise its prerogatives—to cut off appropriations, to impose restrictions on the use of military force, and the like—to enforce the constraints in the WPR. It has done this in the past—for example, in curtailing Reagan’s military actions in Lebanon in 1983.

Presidents will continue in their opportunistic interpretations of the WPR until Congress imposes responsive pain. This is obviously hard to do. It is highly unlikely, absent a disaster much greater than we have seen to date, that today’s Congress could impose serious constraints related to Iran with large enough majorities to overcome a Trump veto.

But that doesn’t mean the WPR is irrelevant. It has had an impact at the margins in many past conflicts, and it is having an impact in the current one.

First, it is noteworthy that the administration that has often been cavalier about legal restrictions and that has made unprecedentedly broad Article II claims did not declare the 60-day clock in the WPR unconstitutional despite senior official statements to that effect. Presumably it declined to do so because it worried about the consequences of the firestorm that would have erupted in Congress. It is also remarkable that this administration has felt the need to communicate formally with Congress about its Iran activities, albeit with the usual “consistent with the WPR” disclaimer. The president was worried enough about the WPR to send Congress the letter on Friday.

Second, the WPR has been a focal point for debate about the legality and wisdom of the Iran war. Because of Section 7 of the WPR and 50 U.S.C. § 1546a, the Democrats in the Senate and House have been able to force numerous votes to restrict or end hostilities with Iran. These votes are increasingly difficult for some Republican members of Congress, given the unpopularity of the war. In the last Senate vote, for example, Sen. Susan Collins, who is up for re-election in November, switched to support the resolution to curtail the war.

Third, and relatedly, the WPR’s “sixty-day clock and special legislative procedures help ease congressional collective-action problems and make congressional opposition to ongoing military operations less politically risky,” as Matt Waxman has argued. He added that “legislative mechanisms themselves, such as debates and hearings, make it difficult to conceal or misrepresent congressional preferences about war and peace.”

These WPR-related consequences are not much, but they are not nothing. Politics are the only constraint on the president’s endeavors against Iran. But law can influence politics even when law is interpreted opportunistically by presidents and not reviewable in court. The WPR has facilitated political discussion and criticism, often in the language of illegality, and that has helped build political pressure—at least a bit.

I thank Tia Sewell for editorial assistance.

The Many Challenges of AI Safety

Jack Goldsmith — Fri, 01 May 2026 20:15:40 GMT

Jack chats with Sebastian Mallaby, senior fellow at the Council on Foreign Relations, about his new book The Infinity Machine: Demis Hassabis, DeepMind, and the Quest for Superintelligence. They discuss current challenges in AI safety, the U.S.-China race and prospects for cooperation, and the emerging risks posed by powerful new models like Anthropic’s Mythos. They also talk about tensions between frontier labs and the U.S. government, and the trajectory toward greater government control.

Mentioned:

Sebastian Mallaby, The Infinity Machine: Demis Hassabis, DeepMind, and the Quest for Superintelligence (2026)

Thumbnail: President Trump delivers remarks at the White House AI Summit in Washington, D.C., Wednesday, July 23, 2025. (Official White House Photo by Joyce N. Boghosian)

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: Today I’m chatting with Sebastian Mallaby, who’s a senior fellow at the Council on Foreign Relations and an acclaimed biographer and writer. And we’re going to be talking about his newest book, which is called The Infinity Machine. Sebastian, thanks for talking with me.

Sebastian Mallaby: Thank you, Jack. Nice to be with you.

So tell us what the book is about. Who is Demis Hassabis, and why did you write a book about him?

So the book is about artificial intelligence, and it’s centered on this character, Demis Hassabis, who is, in a way, the OG sort of AI lab leader, right? He starts DeepMind, this startup in London, back in 2010, before AI could even recognize the photograph of a cat—like nothing worked. It was full AI winter.

So this is five years before Sam Altman and Elon Musk start OpenAI. It’s fully 11 years before Anthropic gets started. So he was extremely early.

So if you wanted to tell the story of the making of modern AI through a personality, you know, Demis’s career and intellectual development maps perfectly onto that story.

So the thing that’s most interesting to me about him is that, as you emphasize in the book, his real interest in this, I think it’s fair to say, is scientific and not profit-making. And he, at least at the outset, and I think even today, has a rather idealistic—to me anyway, idealistic or optimistic—conception of the technology and how it can be used.

But the story I also see is someone who—and I don’t mean this uncharitably—but who has basically engaged in a series of compromises or fudges with regard to those values as he’s gotten deeper and deeper into the AI competition.

So is that fair? And can you talk about that arc?

Yes. I mean, he started DeepMind in 2010 with an absolute focus on AI safety. In fact, he met his scientific co-founder, Shane Legg, at a safety lecture in which Shane projected that by 2030 or so, AIs would be sophisticated enough—cleverer than humans—have their own sort of objective functions, and would maybe start to threaten humans.

And this was the lecture over which they bonded. And then in 2014, Demis Hassabis sells his company DeepMind to Google. And part of the sale condition was that AI would not be used for military purposes, that it would be safeguarded by a sort of ethics oversight committee that would be separate from the corporate leadership of Google.

So he took it very seriously. And then this continues for a while. Between 2016 and 2019, he wages a secret battle, a thing called Project Mario, where he’s trying to put pressure on Google’s leadership to have this independent safety oversight board, because Google kind of reneged on the deal at the point of sale in 2014.

And then after 2019, it kind of fades away. And, you know, by now you have Google being willing to provide AI to the national security establishment. In the US, there is no safety and ethics oversight board.

And Demis is left explaining to me, well, you know, I feel as if, you know, if I lean into Google and I’m part of the team there, and I, you know, understand the different pressures that a corporation is under, then I have a seat at the table. And so when push comes to shove, I can chime in in favor of safety. And so I’m a good person—trust me—is kind of the bottom line, which is a sort of flimsy scaffolding of reassurance for an alarmed world.

Especially since—I mean, this was also a time—a lot of this is happening at a time before ChatGPT amazes the world a few years ago with whatever model it was, I can’t remember. And suddenly there’s this massive competition among several frontier models that has been extremely fierce.

And now we’re in a massive competition among those labs and with Chinese firms, and the countries are in fierce competition. And he’s now leading—you talk in the book about how they combined, how Google combined its AI efforts—and he’s leading it.

So he’s really leading, in some sense, this fiercely competitive charge, which isn’t taking—doesn’t appear to be taking—safety all that seriously. Is that fair?

Yeah, it’s fair. And, you know, I think there’s a slight caveat in that his style is to pursue safety ideas secretly. I mean, he doesn’t talk about them.

And Dario Amodei, the leader of Anthropic, is extremely public when he picks a fight with the Pentagon, when he releases this new model called Mythos, where he’s publicly said, you know, this is too dangerous to release generally, so I’m going to release it to a sort of restricted list of people. He likes to be very out there in public with it.

Demis Hassabis, on the other hand, did two important things, to my knowledge, about safety. One was this secret battle I described before, which he was so unkeen to have sort of move into the public sphere that when I discovered it through leaks from other people, you know, I had to talk to his general counsel, who was trying to tell me I wasn’t allowed to publish that. So he really didn’t want that to be public.

And then secondly, he told Rishi Sunak in 2023, after ChatGPT came out, “Mr. Prime Minister, you know, I have an idea for you, which is you could have an international discussion on AI safety—invite the Chinese, invite everybody—start a process that might lead to some kind of understanding internationally on AI safety.”

Demis never told me that he told the Prime Minister that. I only know this because other people, like the Prime Minister’s advisers, told me. So he didn’t advertise what he was doing.

So I think he’s trying to do things now, but they’re not in the public view. So that’s a slight caveat. But basically, you’re right. I mean, he’s leading one of the major labs, Google DeepMind, in frontier AI, racing as fast as he can, even releasing, by the way, open-weight models, which by his own analysis are dangerous because you can’t control them once they’re out there.

And so there is this contradiction—you could call it even hypocrisy—between his stated beliefs about AI safety and what he’s actually doing. And so then the question is, well, how harshly does one judge him? And I’ve just floated the word hypocrisy.

But on the other hand, were he to quit his job and go off and become a professor somewhere and pursue research, which I think is the alternative path for him, it wouldn’t make the world safer, right? There’d still be this race dynamic.

To be clear, I wasn’t judging him. And he seems—I’m trying to understand—he seems like a thoroughly decent, honorable, brilliant guy. I’m just trying to understand the mindset of someone who, from a very young age, had these extraordinary scientific ambitions, which he’s been as important as anyone in making possible.

And—but safety and this kind of benign vision has always been part of it, and it just seems to have been overtaken by reality—mostly competitive, financial, and global competition reality. And I’m just wondering how he processes that. That’s what I’m getting at.

Absolutely. I mean, I was exactly trying to do the same thing—to kind of figure out how you process it and sort of portray that. And, you know, at the end of the book, he tells me, you know, I’m in a paradoxical situation.

On the one hand, Shane Legg and I projected back in 2009, 2010 that by around 2030, AI would be very powerful. And that’s kind of what’s going to happen. And we’ve been central to building it. So, you know, I’ve delivered on this vision in an amazingly gratifying way.

On the other hand, I had this hope that I could control the technology somehow and make it safe, and that hasn’t worked.

And, you know, when you want to ask, you know, why did it turn out so contrary to his expectations? You know, it’s the Oppenheimer syndrome. Oppenheimer led the Manhattan Project, built the amazing technology, and was an incredible scientific leader as well as a scientist, and thought he could sort of go and sell Truman not to use the bomb or to give the technology to the UN or whatever.

Truman just kicks him out of his office and says, “Don’t bring that guy in here again.” So scientists think that they can control their inventions, but often the inventions have their own will.

Okay, you’ve written a lot of interesting essays closer to the topics of this Substack in connection with the publication of the book. And I just want to talk about some of these policy and governance themes that are implicated—that are talked about in the book—but that you’ve talked about, I think, more in connection with the publication of the book.

First of all—and you’re, you know, the keenest of observers of these various relationships and where we are in these AI races—so I just want to get your temperature on, first, what is the state of the relations between the U.S. government and the frontier labs?

I mean, we know about the DOD confrontation with Anthropic and then with Mythos, the government trying to apparently get its hands on that technology, or at least try to reach some kind of accommodation with Anthropic.

How do you see—I want to go through different pieces of the relationships and the competitions at stake here—how do you see the relationship right now between the US government and the frontier labs?

Well, I think it’s just worth saying at the beginning that, you know, the background—if one goes back to 2023, 2024, the two years after ChatGPT came out, it made all this feel urgent—the background was that there was a lot of collaboration.

And if you talk to people, I think, you know, Ben Buchanan, who was at the National Security Council doing AI policy, is on the record about this. He says, you know, whenever I talked to the labs, there was no resistance to the idea of regulation. It was more the opposite—that they were telling me, “Hey, this is serious. This is powerful. This is scary. This is coming. You need to do something.”

And so when he wanted to, you know, set up the AI Safety Institute, which happened in the Biden years or so on, there wasn’t much pushback, contrary to sort of what one might suspect. There wasn’t much pushback from the objects of the regulatory impetus.

Now, the regulation at that point was extremely, you know, emergent. It wasn’t really biting very much. But still, it’s worth noting that the baseline here is collaboration.

Then you move into 2025. President Trump is in office. He essentially doesn’t want to talk about regulation. He’s more keen on competition, acceleration—just make sure the U.S. has the most powerful AI. And so that kind of goes off the agenda.

Now, in 2026, it comes back, both because of this fight over Anthropic’s models and how they are used by the national security establishment, and because of Mythos, the cybersecurity model.

And I’d say that right now you have this sort of, you know, weird and sort of unstable contradiction of impetuses, where on the one hand, you know, the administration has deemed Anthropic to be a supply chain risk, which is an extraordinary name to attach to a U.S. company. I think it’s the first time that’s ever happened.

And so it’s extremely antagonistic. And you had this Slack message that Dario Amodei, the head of Anthropic, wrote, and which got leaked. It was a Slack message to his own staff. And what he said was something like, you know, “The Trump administration wants dictator-level obeisance from me, and I’m not going to give it.” So that shows you the temperature of the relationship there.

But on the other hand, they are talking together about Mythos, and, you know, Amodei went to the White House to speak to people about it a couple of weeks ago.

So I think it’s a mixture of suspicion and sort of a distant relationship, but then at the same time, a need created by Mythos that—wow, you know, we have no choice but to talk to each other, and we’re going to have to do that.

So two questions following up. One is, I could never really tell how serious—I think some more serious than others, maybe Anthropic—how serious the labs were when they said, “Please regulate us.” Sam Altman testified to that: “Please regulate me.”

I don’t believe he really thought that. It’s clearly—but it’s a good thing to say when you’re developing this massively dangerous, consequential technology in the private sector. In case something goes wrong or, you know, it’s always nice to have said we asked to be regulated and you didn’t do it.

I’m just wondering how serious that request is, especially given in the last presidential election, a lot of the big money behind—or at least in connection with—the AI labs, the kind of Silicon Valley big money, went all in for Trump. And, you know, David Sacks gets installed in the White House and implements this kind of libertarian policy, hands-off policy.

So first question: how serious is that request to be regulated?

Well, I think when we talk about Silicon Valley in broad-brush terms, we need to actually break that down a bit. And you’ve got someone like Marc Andreessen, whose commercial interests as a venture capitalist are that he wants to back, you know, upstart challenger AI labs. He’s not going to back, you know, the big hyperscalers because they don’t need his money, right?

So he wants to back essentially startups that are probably going to use open-weight models. And so open-weight, by definition—you cannot be in favor of regulation and be in favor of open weight. You know, open weight is the least regulated type of AI distribution mechanism.

And so, yes, when you’re talking about Marc Andreessen, he’s extremely pro-Trump and extremely deregulatory and laissez-faire. And so there’s no seriousness whatsoever in any comment to the fact that you need more safety if it’s coming out of his mouth. I think, to be fair, it’s not coming out of his mouth.

True, correct.

So then you move to other people who are saying that they want to be regulated. And I think in some cases, someone like Sam Altman probably is straightforwardly, you know, insincere.

But I’d say that, you know, all of these characters who are running the frontier labs have said things at different times, and they’ve both wanted safety. And when Sam Altman created OpenAI in 2015, the rationale for creating it was safety and for the AI to be used for the public good. And who knows? I think he might even have meant it in 2015.

But as time has gone on and the race dynamic has become so white-hot, any instinct he might have had to be sincere about wanting to be slowed down has been overwhelmed by his desire to win the race.

But I think there’s both sides of that. Inside one human being, there could be two personalities. And I think, you know, there’s just a different balance in these different people.

So, you know, probably Sam Altman is the most prone to going for acceleration rather than regulation kind of when a stress point comes. I’d say Dario Amodei is the most prone to be safe when a stress point comes. Demis is somewhere in between. Elon—I don’t think he’s really been tested.

So last question in this vein—it just, how likely is it—let me put it this way—it seems inevitable, given the rapid changes in these technologies and the growing perceived dangers in the technology—Mythos being one example, but there are lots of examples.

And given the stakes of these technologies in private hands in the United States, so given the dangers they’re spewing and the stakes vis-à-vis the competition with China and national security more generally, it seems inevitable to me that—set aside legality for a second—it seems inevitable to me that the United States gets its hands on this.

And I don’t know what the mechanism looks like or what the institution looks like, but that the U.S. government cannot afford not to, in some sense, own this technology, both for its own purposes and for safety purposes. True or false?

Broadly true. I mean, by “own,” you would include, I think, control. I mean, it could be a regulatory model.

Yeah, let me be clear: I don’t mean technically own. I mean control. That’s a better word.

So then I think true, yes. I think, in fact, we’ve just run that experiment in the last few weeks, because you had a deregulatory, pro-accelerationist administration in power. And all of a sudden, an actual case of an AI that threatens stability emerges in the form of Mythos.

And it looks as if it could unravel all kinds of building blocks of the internet and cyberspace. Banks would have their bank accounts emptied, et cetera, et cetera. And they turn on a dime.

And all of a sudden, the Treasury Secretary is saying to the Fed chairman, “We need to call the heads of the banks and tell them to take this seriously. And, you know, we need to get our hands on this.” He’s—you know, Scott Bessent, the Treasury Secretary, reportedly has floated the idea of, you know, sort of—I forget what the term is—but you’ll know—essentially requisitioning or having power over the technology.

And Bessent just said, okay, this is so important in terms of statecraft that we’ve got to mention it, bring it up in the summit with Xi Jinping in the middle of May.

So they’ve flipped. They’ve done a 180, exactly as you predict. So I think you’re correct.

And—okay—and one reason they’re doing that is because of the larger China competition. So talk about the U.S.–China competition in AI, please. Where do you see it today? I know that’s a big question.

Well, maybe—I mean, I think actually that it’s—maybe I want to push back on your premise. I think that the reason they flipped is less about China and more about domestic chaos, right? They don’t want the internet to be hacked and, you know, the banking system to crash. It’s not—that’s not necessarily about China. That’s about domestic security.

Don’t you think it’s about both? I mean, if these technologies are—so fair enough, it’s about domestic security, but it’s also about China being able to defeat government systems, China threatening both to steal and to disrupt things in the cyber realm. I mean, I think technology has an advantage as a national security advantage.

Yes, but I think—okay, we’re going to—I think this conversation is going to go in a direction where we need to clarify one thing right now, which is that there are two kinds of worry about powerful AI in terms like—the big worries, I would say.

One is that—and essentially this is about bad guys getting it and doing bad stuff with it. And there’s two kinds of bad guy, right? There’s China. And in 2022, when the Biden team—before ChatGPT, by the way—saw this coming, they put the semiconductor export controls in place because they didn’t want China to have cutting-edge AI, because in their view, the bad guy to worry about was China.

And there’s a whole second category of bad guys, which is sort of rogue states, terrorists, criminals, et cetera, et cetera. And I think it’s just very important to clarify that there are two kinds of threat.

And I think it’s important to distinguish two ways of dealing with these threats, because in the Cold War analogy, the way to control the danger of nuclear war between the Soviet Union and the United States was mutual destruction and the balance of deterrence.

The way to control nukes from being loose and falling into the hands of terrorists and rogue states was a totally different mechanism, which was the Non-Proliferation Treaty, which wasn’t perfect, but it worked kind of for a while.

So, you know, that’s an important distinction because of, I think, where we’re going to go.

And so, going back to Mythos—Mythos is in the category of both, right? It could be that the Chinese government gets it, but more immediately, it could be just the criminals get it.

And the criminal threat or the terrorist threat is posed not merely by the prospect that China gets this technology and releases it on an open-weight basis, but also that Meta does, right? Or Mistral in France, or Cohere in Canada. There’s a bunch of other labs that could open-weight this stuff, or even just not open-weight—just release it on a proprietary basis, but much more expansively than Anthropic did.

Or have it stolen.

Yeah, right. And there was a hack of Anthropic’s Mythos.

Okay, fair—perfectly fair distinction. I want to come back to it, but can we talk about—you wrote a piece in The New York Times about U.S. policy toward China, chip restrictions, and why you thought that was a bad idea. And then I wanted to get to the nonproliferation treaty idea that you just mentioned.

So can you just tell us why you think that the Biden approach may not have been optimal?

Sure. So at the time I supported it because I thought it had a chance of actually preventing China from getting cutting-edge AI. It turns out it didn’t stop China from getting cutting-edge AI.

And the proponents of semiconductor export controls will say, well, it’s because the controls were not tight enough. But we’ve run this experiment since 2022, so it’s four years now. And we’ve done it under two different administrations.

And in neither case, if you look at the chart of the performance gap between the top model in America and the top model in China, that gap—America’s lead—has shrunk. And it shrunk under Biden, and it shrunk under Trump.

So I’m just skeptical of any regime in which we impose semiconductor export controls or some expanded version thereof that actually works in stopping China from getting powerful AI. They may be like two months behind us, six months behind us, something like that, but that’s not very long.

But just before we go further, I always understood the goal not to stop them but to slow them. And even with workarounds, the United States maintains its edge.

And are you saying that it would be better in maintaining that edge to get rid of the chip controls? That argument, I don’t understand.

Fair. Okay, that’s very fair. So yes, I agree that the controls slow them down. My point is simply that it’s not very much—it’s six months. Does six months really make us feel a lot more secure?

I’m open to—you know, this is a finely balanced argument, which is why I’m excited to have it with you. You could argue that a six-month lead is a lot, and that, you know, if you get Mythos six months before the Chinese do, that’s enough to harden your systems such that when they have it, they can’t use it to any devastating effect.

And also enough to compromise all of their systems.

Yeah, true.

Sorry, keep going.

So I guess my view—my view has been subject to revision—my view has been that a six-month lead over China isn’t enough to feel that’s a big geopolitical win, because, you know, I was thinking, I guess, more of, you know, the conventional integration of the AI into weapon systems, drone swarms, this kind of stuff.

And whether you’re six months ahead of the adversary in that case, you know, they just pick a time to invade Taiwan when they do have—they have caught up.

Now—and, you know, if you think about the Mythos example again—wouldn’t they wait until a moment of near parity? Because these things sort of—you know, you have a jump that the U.S. does, and then the Chinese are fast followers, and then they jump up so that the gap is reduced or minimized. And then they would have a strategic parity that they could use.

So I just observe that it’s not a very big lead. And then you have to ask, what was the cost of the policy? Because if there was zero cost to imposing the semiconductor equipment ban, and there was a marginal gain, then you’d probably take it.

But I contend that there is a cost, in the sense that if we go back to my distinction between two kinds of rogue—China is a rogue, but also terrorists and criminals are rogues—we need to keep our eye on that second category of risk.

And that involves getting China involved, because if they produce open-weight models, which is what they do at the moment, then we know that terrorists will get it.

So the deal is: We give you chips, and you shut down your open-weight models. And what does the form of cooperation look like? Because I’m not so sure that the third-party rogues aren’t going to get the bad stuff, even in the absence of open-weight models. That’s a large assumption.

Yeah.

And I’m skeptical—and I’ll get to this in a second—I’m skeptical that any agreement between the United States and China, about which I’m skeptical, can have powerful effects on third-party countries and private actors.

So what does the cooperation between the United States and China look like? And what is the virtuous story about what the deal is and what cooperation looks like?

I think the best analogy is the Cold War and nuclear nonproliferation. And so in that story, you have both the International Atomic Energy Agency, which kind of keeps track of nuclear material and tries to, you know, by accounting for it, prevent it from being used in secret nuclear weapons.

And then you have later—in fact, 12 years later—the negotiation of the Non-Proliferation Treaty in 1968, which kind of makes compliance with the IAEA mandatory for countries that want to have access to civilian nuclear power.

And I think that’s the sort of model where, in AI, you keep track of big clusters of compute, which can be used to train powerful AI models. And that’s one kind of safety provision, so that you know what’s being trained.

And then secondly, you don’t have open-weight models, which, once they are released, anyone can do anything with them. And that’s just too dangerous. You wouldn’t do that with nuclear material. I don’t think you should do that with AI.

And the deal is that, you know, countries which are going to want what they call sovereign AI—that’s already a bit of a catchword—if you’re France or you’re Germany or, you know, Kenya or whoever, yes, you want to be able to train your domestic AI models on, you know, the Swahili texts or whatever—the Swahili oral tradition—that, you know, you want to make it kind of culturally friendly to your own culture. And that’s all good.

But in return for getting access to models, which you can then post-train in a way that, you know, fits your sovereign AI objectives, you agree to these safety standards: no open weight, you know, we’re going to know where you’re training it, we know what the cluster is, we keep an eye on that so that if you’re trying to make cyber weapons, we’re going to see it.

And so I think it’s something like that.

So, I’m going to state why I’m skeptical and give you the last word on this, and then I have a final question.

So the nuclear Non-Proliferation Treaty—some people think—wasn’t a terribly wonderful success. Not every country joined it. The countries that didn’t join it developed nuclear weapons. It hasn’t prevented some countries from appearing to develop nuclear weapons.

But it’s a relatively simple treaty. It basically says no development of nuclear weapons. I mean, it’s a little more complicated than that, but—and we have a sense of what nuclear weapons are. There’s a problem about pre-development and how do you control that—that’s always been a problem with the treaty.

But let’s imagine that that treaty is a success, despite the adverse evidence. It just seems massively more complicated here because there are so many things you might regulate—chips, data, data centers, know-how, the models themselves.

So you’re going to be regulating all of these things. It’s much, much more difficult to have a verification regime in this context. Dual use is prevalent everywhere. It’s very hard—it seems to me, correct me if I’m wrong—to hide bad uses, bad developments, new models, and the like.

Verification regime in this context, which involves not just government-to-government, but deeply into the private sector of both countries, to private companies of both countries, and so on and so forth. Enforcement seems to me—not clear how that’s going to work.

Let’s just imagine that it works bilaterally between China—that we somehow work this out where there’s this virtuous regime where we’re both doing safety and none of us—or none of them—are doing bad uses or acceptable bad uses within the competition.

But I don’t understand, you talk about all the dangers from these third parties, both private and public actors, how this regime is going to handcuff them and all the verification and enforcement problems there, and then on top of that, there’s a massive need for speed.

This stuff is getting very, very dangerous very quickly. And it’s inconceivable that such a treaty or such an international organization would happen in the foreseeable future.

So that’s why I’m skeptical, in a nutshell.

That’s quite a long list.

You don’t have to go through the whole list, but is there a reason not to be skeptical?

Well, I think the first reason not to be too skeptical is that it’s kind of massively defeatist in the face of a serious threat, right? You know, the Mythos vision, where you have random criminals who can steal everybody’s money from their bank accounts, is not a good one.

And so I think trying to lean into the possibility of some sort of regulation that avoids that is important. And if you’re going to do that, it’s got to be international, because obviously you can commit those crimes from some offshore base on a Chinese model. And so if the Chinese have been excluded from any such deal, it’s pointless.

So I think, you know, “don’t give up” is the first message.

And then secondly, I think there are more kind of choke points on which the US, in particular, can get a grip. And if it had China with it, it could definitely get a grip.

And the choke points essentially are the making of the chips and the operation of the chips in clusters. I mean, at the moment, overwhelmingly, the majority of compute clusters are in the United States, and the ones which are not in the United States are using U.S. chips and U.S. equipment—or the equipment of, you know—even in the case of ASML, the Dutch company that builds the lithography machines to engrave the chips—that’s a Dutch company, but they have operations in the United States. They are fully going to comply with U.S. coercion.

So I think essentially the whole of the Western camp—and you and I have talked about this in the past in the context of other things, like the regulation of the internet—all of the Western AI, including—and I would include the Middle East and stuff like that—have touch points in America, which they care about, like the customers they want to serve, the way they’re going to raise money, the chips they’re going to use, other technology around the chips, the cooling material and all that.

If you brought the full might of the United States down on them, they don’t have an independent ecosystem, and they couldn’t do anything.

So I believe the U.S. has a lot of control. The only place it doesn’t control is China. That’s the only credible technological possibility of a totally separate ecosystem that rises up and, you know, provides an alternative source of AI compute power.

So if you had two countries on board—China and the US—I believe that some form of nonproliferation is possible.

Of course, I accept that in the past, nonproliferation for nuclear stuff was not perfect, and there would be people who didn’t sign and all that stuff—but better than nothing.

Fair. Okay, that’s a fair answer. Let me ask you one last question. And I haven’t heard you speak about this, so I don’t know if you have views on this.

At least in the United States, a lot of people are—we’ve been focused on—our earlier conversation was about the danger of these technologies being in private hands and the need, perhaps, since the federal government is the guarantor of the public interest and the supplier of public goods that we can’t rely on the private sector for, there’s a natural assumption that the government should perhaps, at least for dangerous uses—as for negative externalities and the like—have some access to and control over these technologies. That’s the basic argument.

But there’s another worry, which is the worry of the government possessing these technologies and the bad things the government could do with these technologies. And there’s an endless list. You know, it supercharges surveillance. One can imagine perfect control.

You know, we’re talking a lot in this country about the unitary executive. Well, you can imagine everyone being plugged into the presidential AI and taking immediate directions, and you can also imagine that taking nefarious uses.

There’s a real worry about government having these things. And so that’s just another worry in this whole horrible calculus of trade-offs that one has to think about. And I wonder if you have any thoughts about that.

Yeah, I mean, probably fewer thoughts than you do. But I would say that, first of all, I agree that AI is a centralizing technology. So the internet was a decentralizing technology in the sense that it became easier for less powerful actors with fewer resources to have as much information as the powerful ones.

And so the state, which might have had a good monopoly on some forms of important data, suddenly those data were democratized, and lots of people in the private sector could get them. You know, satellite surveillance of what’s going on on the ground, you know, was—I mean, it’s maybe not just the internet—but you have companies like Planet, which provide excellent images of what’s going on on the ground. That’s a private company, a startup in Northern California, which makes its data available to lots of customers.

And so you get the kind of democratization, privatization, diffusion of knowledge.

But with AI, you need to have as much data as you can. And then when you train on all that data, you sort of have this ability to centrally control, centrally understand things. And if the AI is held closely and not distributed, that’s an extremely centralizing phenomenon.

So, I mean, at the moment, you know, the way AI is being built is sort of in the hands of, you know, 10 or something companies. But they release it fairly openly, and so it’s pretty democratic.

But were that to change in the future—as we’ve been discussing—in a more closed way, it’s maybe government basically controlling domestic producers to the point where they could demand that they get one of the most powerful models only for the government or something like that.

Yes, that’s very centralizing and very disturbing in terms of civil liberties. And indeed, we’ve seen that argument come up explicitly in the fight between Anthropic and the Pentagon—not the Mythos one, the one before—where Dario Amodei made two objections. One was about autonomous lethal weapons. The other one was about the use of his AI for domestic mass surveillance.

And his point specifically was, you know, the law has not caught up to deal with the prospect of this very powerful AI in the hands of the government. And until it catches up, I don’t want my system to be used for this, because democracy lags behind where the tech is.

So I do think there’s a sort of whole set of concerns there, which you’re correct to raise. I’m not sure I’m pushing the argument beyond what you said in your question.

No, that’s great. I say I share his concern. The law has not caught up to the possible uses. And I think we’re going to be learning that over the next months and years.

Sebastian, thank you very much. It’s truly an extraordinary book. It’s not just about one person—it’s really a history of artificial intelligence and an exploration of all sorts of related issues. It’s a touching personal story, and it’s told accessibly and vividly and brilliantly, as usual. Thanks very much.

Thank you, Jack. It’s been a great pleasure.

Executive Functions Roundup

Ema Rose Schumer — Fri, 01 May 2026 16:04:12 GMT

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Midjourney

Defense Secretary Pete Hegseth contended Thursday in testimony before the Senate Armed Services Committee that the president is not required to seek congressional authorization under the War Powers Resolution to continue the military campaign in Iran because a ceasefire “pauses, or stops” the 60-day clock. President Trump formally notified Congress of the operation on March 2, meaning the 60-day deadline would otherwise expire today. (NYT.) (WaPo.) (WSJ.)

The Senate on Thursday blocked Democrats’ sixth attempt to advance a war powers resolution to limit President Trump’s authority to continue the military campaign in Iran. (CBS.)

CNN reported that expenses to repair U.S. military bases in the Middle East will likely bring the real cost to date of American military operations in Iran to between $40 and $50 billion. The Pentagon’s top financial officer told lawmakers on Wednesday that the U.S. has spent $25 billion since the conflict began in February. (CNN.)

The House of Representatives on Thursday voted to approve a Senate-passed bill to fund the bulk of the Department of Homeland Security. The bill, now headed to President Trump’s desk, will fund all of DHS with the exception of Border Patrol and ICE. Republican lawmakers plan to fund those agencies through the reconciliation process, which does not require Democratic support. (WaPo.)

Congress on Thursday passed another short-term extension of Section 702 of the Foreign Intelligence Surveillance Act, which authorizes the intelligence community to collect without a warrant communications of foreigners abroad, even if those subjects are interacting with Americans. (NYT.) (WaPo.)

The Justice Department on Thursday released a 197-page report detailing how the “Biden Administration’s policies regularly clashed with a Christian worldview and burdened traditional religious practices.” The report was published by the Task Force to Eradicate Anti-Christian Bias pursuant to a presidential executive order. (Report.) (NYT.)

President Trump on Thursday announced his latest pick for surgeon general, marking the president’s third attempt to fill the post of America’s top doctor. The confirmation of his previous pick stalled due to opposition, including some Republican lawmakers, over her views on vaccines and wellness. (WaPo.) (NYT.)

Andrew C. McCarthy argued that President Trump’s use of the legal system to go after political opponents is weakening rather than accelerating his agenda, as illustrated by Federal Reserve Chair Jerome Powell’s decision to remain on the Fed’s board for the foreseeable future. (National Review.)

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

Executive Functions Roundup

Vishnu Kannan — Thu, 30 Apr 2026 16:04:38 GMT

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Midjourney

News outlets reported that the Supreme Court “appeared closely divided” over the Trump administration’s efforts to terminate Temporary Protected Status for Haitian and Syrian nationals during oral argument on Wednesday. (Transcript.) (NYT.) (WSJ.)

Federal prosecutors in Illinois on Wednesday dropped felony conspiracy charges against protestors involved in a demonstration outside an ICE facility in the Chicago area last September. The prosecutors indicated they will proceed with a case on misdemeanor counts of impeding a federal agent against four of the six individuals formerly charged. (Notification of Docket Entry.) (NYT.)

According to the Wall Street Journal, the White House opposes a plan from Anthropic to expand access to its powerful new model, Mythos, to an additional 70 companies and organizations. (WSJ.)

In an indictment unsealed on Wednesday, prosecutors in the U.S. Attorney’s Office for the Southern District of New York alleged that a Mexican governor and nine other current and former Mexican officials conspired to import drugs into the United States by assisting the Sinaloa cartel in exchange for bribes. (Indictment.) (NYT.)

House Republicans on Wednesday narrowly passed a budget plan enabling up to $70 billion in new funding for ICE and U.S. Customs and Border Protection through the reconciliation process, which allows certain fiscal legislation to pass the Senate with a simple majority. (NYT.)

The Justice Department and the Bureau of Alcohol, Tobacco, Firearms, and Explosives announced Wednesday a set of 34 regulatory changes to roll back federal gun restrictions following a review directed by an executive order entitled “Protecting Second Amendment Rights.” (Press Release.) (NYT.)

Eric Columbus and Molly Roberts argued the case involving President Trump’s ballroom project “may test just how far national security deference by the courts to the executive can stretch.” (Lawfare.)

Andrew McCarthy wrote that the new indictment against James Comey, if it results in conviction, “would eradicate the people’s First Amendment right to free political expression.” (National Review.)

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

Executive Functions Roundup

Augustus Bayard — Wed, 29 Apr 2026 16:37:11 GMT

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Midjourney

A three-judge panel of the D.C. Circuit on Tuesday granted the Defense Department’s request for a stay pending appeal of an April 9 district court order “to the extent that it entitles journalists to access the Pentagon unescorted.” The ruling leaves other parts of the district court’s order in place. (Order.) (WSJ.) For background on the case challenging Pentagon press restrictions, see a previous Roundup.

A grand jury in the Eastern District of North Carolina on Tuesday indicted former FBI Director James Comey on two counts for allegedly threatening President Trump. The charges stem from a photo he posted to Instagram depicting seashells arranged to read “86 47,” which prosecutors claim represented “a serious expression of an intent to do harm to the President of the United States.” (Indictment.) (NYT.) (WaPo.) (WSJ.) Eugene Volokh analyzed the indictment and argued that “it is not reasonable to interpret Comey’s post as a true threat.” (Volokh Conspiracy.)

Judge Jesse M. Furman (S.D.N.Y.) ruled Tuesday that former prosecutor Maurene Comey can pursue her wrongful-termination suit in federal court, rejecting the Justice Department’s effort to route the case to the Merit Systems Protection Board. Judge Furman held that because Comey “was fired pursuant to Article II of the Constitution,” rather than the Civil Service Reform Act, her claims fall “outside the universe of cases that Congress intended the MSPB to resolve.” (Opinion and Order.) (Politico.)

The Justice Department on Tuesday announced that a grand jury indicted David M. Morens, a former National Institute of Allergy and Infectious Diseases official, on charges including conspiracy and destruction and concealment of federal records related to the COVID-19 pandemic. (Indictment.) (WSJ.)

The Southern Poverty Law Center filed a motion Tuesday in the Middle District of Alabama seeking to compel the government to retract allegedly false statements made by Acting Attorney General Todd Blanche and refrain from making further false or otherwise prejudicial public comments about the center. (Motion.) (NYT.) For background on DOJ’s indictment of the SPLC, see the Roundup Library.

The Supreme Court today heard consolidated oral arguments in Mullin v. Doe and Trump v. Miot, which challenge the Department of Homeland Security’s termination of Temporary Protected Status for Haitian and Syrian nationals. (Livestream.) (NYT). Adam Unikowsky presented a mock debate to illustrate the questions at issue. (Adam’s Legal Newsletter).

The New York Times reports that the Department of Education “resolved roughly 30 percent fewer complaints of discrimination in American schools last year than in 2024, the sharpest year-to-year decline in more than three decades.” (NYT.)

According to Sen. Jeff Merkley, the Government Accountability Office has agreed to examine the Justice Department’s handling of the release of the Epstein files. The GAO told lawmakers that it will coordinate with the DOJ inspector general, which is also investigating the matter, to avoid duplication. (WaPo.)

Scott Levy argued that the breadth of executive discretion during government shutdowns weakens congressional leverage. (Lawfare.)

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

Executive Functions Roundup

Vishnu Kannan — Tue, 28 Apr 2026 15:41:09 GMT

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Midjourney

A three-judge panel of the the Second Circuit today ruled that noncitizens already present in the United States are not subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A) and affirmed a district court’s grant of habeas relief to a Brazilian national who was detained in September 2025 after living in the United States for two decades. The decision creates a circuit split, putting the Second Circuit at odds with the Fifth and Eighth Circuits, which have each upheld the Trump administration’s detention policy. (Opinion.) (Politico.)

Prosecutors on Monday charged Cole Tomas Allen, the suspected gunman at the White House Correspondent’s dinner, with attempted assassination of the president and federal firearms charges. Allen made his initial appearance in the District Court for the District of Columbia on Monday and did not enter a plea. (Complaint.) (Affidavit.) (NYT.)

Citing Saturday’s attempted assassination, Acting Attorney Todd Blanche and two senior Department of Justice officials on Monday filed a motion in the District Court for the District of Columbia for an indicative ruling dissolving the court’s injunction of the proposed White House ballroom. (Motion.) The National Trust for Historic Preservation, the plaintiff in the case, indicated that it would oppose the motion in an April 26 letter to DOJ and maintained that despite “Saturday’s awful event,” the president cannot construct a ballroom on White House grounds without congressional authorization. (WaPo.)

Judge Gerald J. Pappert (E.D. Penn.) on Monday granted the University of Pennsylvania’s motion to stay his order requiring the university to comply by May 1 with a subpoena from the Equal Employment Opportunity Commission seeking information related to alleged antisemitic harassment of Jewish employees. The stay will remain in effect until the Third Circuit issues its decision and mandate in the university’s appeal. (Order.) (Memorandum.) (NYT.)

According to the New York Times, the Equal Employment Opportunity Commission under Chair Andrea Lucas has pressured staff to prioritize and fast-track discrimination cases “that fit the Trump administration’s priorities” and “that have little evidence and tenuous legal bases.” (NYT.)

Politico reports that Todd Blanche could lead the Justice Department for months without Senate confirmation, as legal ambiguity over federal vacancy and succession laws may allow him to remain in an acting role beyond the 210-day limit imposed by the Federal Vacancies Reform Act. (Politico.)

Two senior administration officials reportedly told the Atlantic that Vice President J.D. Vance has repeatedly questioned the accuracy of information from the Defense Department regarding the Iran war and expressed concerns about depleted weapons stockpiles in discussions with President Trump. (The Atlantic.)

Erwin Chemerinsky argued that if the Iran war continues through Friday without congressional authorization, the war will clearly be illegal and that the federal judiciary should enforce the law. (NYT.)

Peter Harrell wrote that “Trump’s recent Section 232 tariff actions push the legal boundaries of the statute and should face greater legal and congressional scrutiny.” (Lawfare.)

Matteo Wong and Lila Shroff examined scenarios in which the Trump administration could assert control over AI companies, from full to “soft” nationalization. (The Atlantic.)

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

Executive Functions Roundup

Tia Sewell — Mon, 27 Apr 2026 16:04:58 GMT

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Midjourney

A three-judge panel of the D.C. Circuit on Friday upheld a district court ruling that President Trump cannot use a presidential proclamation to bypass the Immigration and Nationality Act’s removal procedures or categorically bar asylum claims by people arriving at the southern border. Writing for the majority, Judge J. Michelle Childs concluded that “the INA’s text, structure, and history make clear that in supplying power to suspend entry by Presidential proclamation, Congress did not intend to grant the Executive the expansive removal authority it asserts.” (Opinion.) (NYT.)

A three-judge panel of the Board of Immigration Appeals on Friday held that Deferred Action for Childhood Arrivals (DACA) status alone does not justify terminating removal proceedings. The panel remanded the case and ordered it transferred to a different immigration judge. (Interim Decision.) (NPR.)

Federal authorities are reportedly investigating a note left by the man suspected of attempting an attack at the White House correspondent’s dinner on Saturday, identified as 31-year-old Cole Tomas Allen. According to the New York Times, the writing expresses anger at the Trump administration and indicates that senior officials were intended targets. (NYT.) Citing the attack on Saturday evening, President Trump and top Justice Department officials pushed for accelerated construction of the proposed White House ballroom, which they said was needed for presidential security. (Truth Social.) (X.) (NYT.) (WaPo.)

The Justice Department said on Friday it will resume federal executions using lethal injection and authorize additional methods, including firing squads, as part of a broader effort to expand the use of the death penalty. (Press Release.) (Report.) (NYT.) Chris Geidner discussed the report accompanying the department’s announcement. (Law Dork.)

Two nonprofit groups on Friday sued the Trump administration in the District of Columbia over an April 2 internal White House directive entitled “Records Retention Policy After Office of Legal Counsel Finding that the presidential Records Act is Unconstitutional.” The lawsuit, brought against President Trump in his official capacity, challenges the policy as unlawfully weakening federal recordkeeping obligations mandated by Congress. (Complaint.) (NYT.) For background on the OLC opinion and another lawsuit brought against it, see Jack Goldsmith’s chat with Marty Lederman. (Executive Functions.)

U.S. Southern Command on Friday conducted another strike on an alleged drug vessel in the Eastern Pacific, killing two. (X.) (NYT.)

President Trump on Friday reportedly ousted multiple members of the National Science Board, an independent body overseeing the National Science Foundation. (WaPo.)

Bob Bauer argued that FBI Director Kash Patel’s libel lawsuits seem to run afoul of the Department of Justice’s ethical standards, concluding that “Patel’s use of private legal action in these circumstances is appropriate for DOJ inspector general review.” (Executive Functions.)

Andrew Weissman critiqued the DOJ’s indictment against the Southern Poverty Law Center. (Just Security.)

Michael W. McConnell argued that many of the Supreme Court’s interim docket decisions “are subject to legitimate criticism, but the wholesale condemnation of the practice is misguided.” (WaPo.)

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

The FBI Director and His Libel Lawsuits

Bob Bauer — Mon, 27 Apr 2026 12:52:02 GMT

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President Donald Trump participates in a press conference with FBI Director Kash Patel in the Oval Office, October 21, 2025. (White House photo.)

FBI Director Kash Patel has now filed two defamation suits, one against a former FBI official and the other against the Atlantic and one of its reporters. Both suits allege that the defendants falsely portrayed him as unfit for the job he holds. The day after Patel filed the second suit in federal district court in Washington, D.C., a federal judge in Texas dismissed the first. It may seem unsurprising that a Trump administration official would strike back against unfavorable press coverage in this way. The president has brought multiple suits against press organizations with allegations of one kind or another that they published false stories injuring him as candidate, businessman, and president.

But Patel is a senior Department of Justice employee, not the president, and he is bound by the executive branch-wide standards of conduct that all department officials must observe. They implicate his ethical obligations to keep his personal interests—in this case, holding onto his job—separate from his public responsibilities as FBI director. Those ethical standards include compliance with the requirement that employees subordinate private interest, or “gain,” to public service. The ethics rules in the executive branch are replete with concerns about the separation of public service from private interest. The FBI Ethics and Integrity Program Policy Guide advises bureau employees that the “statement, ‘Public service is a public trust’ underlies all aspects of Government service” and that “FBI employees have a responsibility . . . to place loyalty to . . . public service above private gain.”

The public reporting so far on Patel’s motives in bringing the suit suggests a strong personal interest in staving off a dismissal from his post. Patel alleges that the Atlantic seeks to “drive him from office” and that it “has for months pursued a demonstrable editorial campaign” to “cast his tenure as failing.” He challenges the article’s “central thesis” that Patel “is a derelict and erratic leader, who abuses alcohol to the point of being unfit for his duties.” That thesis is apparent from the title of the article that prompted the suit: “Kash Patel’s Erratic Behavior Could Cost Him His Job.” Patel’s defense is that he is, in fact, an outstanding FBI director who has “achieved historic law enforcement results” that are detailed at length in the complaint.

The context in which Patel brought the suit adds to the evidence that his lawsuit is a response to his job insecurity. Administration officials have suggested in background comments to the press that “it’s only a matter of time” before he is fired. In these circumstances, it is reasonable to suspect that “the complaint [is less] a serious defamation claim and more a desperate performative plea to convince Donald Trump that Patel is ‘a fighter’ who doesn’t deserve to be kicked to the curb like so many other scandal-plagued administration officials.”

Doubtless the suit may also be intended to send a message to other publications critical of Patel’s FBI directorship that they run the risk of drawing a lawsuit seeking hundreds of millions of dollars in damages. But this objective circles back to the same overriding concern with limiting reporting that could cost him his job. And even if Patel also genuinely believes that he has been defamed, the possibility of multiple motives cannot spare him from inquiry into a reason, and perhaps the predominant one, that is inconsistent with the applicable standards of conduct.

One might be relieved that the government is not paying for the suit—and it is certainly better that taxpayer funds are not being used to cover the costs of these legal actions. But that misses the point. In the case of Patel, the public does not have a clear and distinct interest in Patel’s remaining FBI director. Patel clearly does have that interest and is taking personal legal measures to protect it. The relief he is seeking includes monetary damages payable to him.

In application, this public-private separation draws most attention when it protects against the exploitation of official power to achieve private gain, such as where government employees seek to use their official position or influence to gain a financial advantage for themselves, their friends, or their families. However, the insulation of public responsibility from private interest that the ethics rules seek to achieve sweeps even more broadly. For example, the executive branch rules generally do not permit government employees to endorse products or services, even if they or others close to them do not expect to benefit.

Patel’s lawsuit establishes in various ways the tension between his official role and personal interest in keeping it. Now that Patel has taken his case outside the government, the president will have to consider whether his firing would be a victory for the much derided “fake news.” As one commentator noted, “Trump was reported to be losing patience with him, but he’s probably not going to fire him until the controversy calms down.” That is good for Patel, who buys time, but not so much for whatever moves might have been underway within the DOJ and the White House to dismiss an FBI director whose continuing tenure may be damaging to the bureau.

A libel action is also always a risk-laden proposition for the plaintiff, who exposes himself and others to legal discovery, including document production and testimony under oath. Not only Patel but other officials would be subject to depositions seeking detailed information about a range of matters that bear on how the administration is meeting its law enforcement responsibilities. Patel may be ready to run those risks to defend his reputation and keep his job, but he is spreading the risks of this lawsuit around to others in the government who may care less than Patel does about his job security—and who now face involvement in a libel suit.

One objection to this line of reasoning might be that government officials should be able to defend against baseless damage to their reputations and that the “actual malice” standard for successful suits under New York Times v. Sullivan serves to ensure that only the truly meritorious suits will survive. But the Supreme Court fashioned the “actual malice” standard to safeguard “the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.” The ethical rules that emphasize that public office is a “public trust” and require public officials to perform official duties without regard to personal self-interest present different questions. It is, of course, possible to conceive a libel suit by an executive branch official that alleges harm to reputation but does not inject personal interests into the conduct of his or her public responsibilities. On what we know so far, this does not seem to be Patel’s case.

The entire question of Patel’s use of private legal action in these circumstances is appropriate for DOJ inspector general review. The inquiry would be useful in bringing out relevant facts that are not currently available in the public record. Is Patel financing the suit, or are other private parties footing the bill? If others are putting up money, who, and how did they become involved? Did Patel discuss with other bureau employees—such as a key communications adviser who was formerly his “longtime personal publicist”—whether filing of the defamation suits might bolster his chances of keeping his job? Did Patel inform the attorney general and the White House that he planned to take legal action, and did they give explicit approval? Following review, what will this DOJ conclude about the ethical issues raised by this strategy?

I thank Ema Rose Schumer and Tia Sewell for editorial assistance.

Executive Functions Roundup

Matt Fidel — Fri, 24 Apr 2026 15:29:16 GMT

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Midjourney

U.S. Attorney Jeanine Pirro announced today that her office will close its criminal investigation into the Federal Reserve and Fed Chair Jerome Powell. She stated that the central bank’s inspector general “has been asked to scrutinize the building costs overruns” and said that she “will not hesitate to restart a criminal investigation should the facts warrant doing so.” (X.) (WSJ.)

The Department of Justice’s inspector general has opened an investigation into the government’s handling of Epstein files. The IG, William M. Blier, said in a statement that his “preliminary objective is to evaluate the DOJ’s processes for identifying, redacting, and releasing records in its possession” as required by the Epstein Files Transparency Act. (WSJ.)

Federal prosecutors in the Southern District of New York charged a U.S. Army Special Forces soldier involved in the operation to capture Nicolas Maduro with using classified information to place bets on a prediction market. The indictment alleges that the soldier netted “more than $400,000 in illegal profits” and subsequently attempted to conceal the proceeds. (Indictment.) (WSJ.)

The Justice Department has reportedly identified at least 384 naturalized citizens for potential denaturalization and plans to assign those cases to prosecutors across 39 U.S. attorneys offices. (NYT.)

The Pentagon announced on Thursday that “U.S. forces carried out a maritime interdiction and right-of-visit boarding” of a sanctioned vessel carrying oil from Iran in the Indian Ocean. It is the second such tanker seized by the U.S. military in the region this week. (NYT.)

The Justice Department announced on Thursday it will reclassify F.D.A.-approved marijuana and state-regulated marijuana from a Schedule I drug to a Schedule III drug. The action came days after Trump publicly complained that the department had not moved quickly enough to implement his December executive order on rescheduling to increase medical marijuana research. (NYT.)

President Trump said on Thursday he has started a renovation of the Lincoln Memorial Reflecting Pool using a contractor he knows from his years in real estate. (NYT.)

William Baude and Richard Re argued that criticisms of the Supreme Court’s Clean Power Plan memos conflate distinct doctrines on irreparable harm and overstate claims that the Chief Justice applied the wrong standard of review. (Divided Argument.)

Steve Vladeck contended that pushback on the New York Times’ Clean Power Plan scoop overlooks evidence that the Court applies its interim docket standards inconsistently, often favoring Republican administrations over Democratic ones. (One First.)

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

Executive Functions Roundup

Vishnu Kannan — Thu, 23 Apr 2026 14:56:02 GMT

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Midjourney

The Justice Department has reportedly agreed to pay $1.25 million to settle a lawsuit brought by former Trump campaign adviser Carter Page over errors and omissions in the FBI’s surveillance warrant applications during the Russia investigation. Page had petitioned the Supreme Court for a writ of certiorari in December 2025 after lower courts dismissed his claims. In a filing on Wednesday, Solicitor General D. John Sauer informed the justices that the parties had reached a settlement. (Brief.) (NYT.) (Politico.)

According to the New York Times, the FBI began investigating a Times journalist after she published a story last month detailing Director Kash Patel’s alleged use of bureau resources to provide his girlfriend with government security and transportation. The bureau told the Times that it is not pursuing a case, though “investigators were concerned about how the aggressive reporting techniques crossed lines of stalking.” (NYT.)

Defense Secretary Pete Hegseth on Wednesday fired Navy Secretary John Phelan. His departure reportedly follows months of internal tensions. (WSJ.) (NYT.)

Several Democrat lawmakers are urging the acting inspector general of the Transportation Department to investigate whether Federal Aviation Administration Chief Bryan Bedford violated his ethics agreement by delaying the divestment of airline stock and potentially profiting from the timing. (Politico.)

Crypto entrepreneur Justin Sun on Tuesday sued World Liberty Financial, a Trump family-backed crypto firm, in the Northern District of California. The complaint alleges the firm sought to “leverage the Trump brand to profit through fraud” and engaged in “criminal extortion” by threatening to burn Sun’s tokens and report him to U.S. authorities if he sued to recover them. (Complaint.) (WSJ.)

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

Executive Functions Roundup

Augustus Bayard — Wed, 22 Apr 2026 16:06:45 GMT

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Midjourney

Judge George C. Hanks, Jr., (S.D. Tex.) on Tuesday granted a motion to dismiss a defamation lawsuit brought by FBI Director Kash Patel over comments made by a former FBI official on Morning Joe. (Memorandum Opinion and Order.)

The Department of Justice on Tuesday indicted the Southern Poverty Law Center for alleged financial crimes stemming from its payments to secret informants in extremist groups, a program the Justice Department claims defrauded donors. (Indictment.) (NYT.) (WSJ.) Chris Geidner considered the program’s history, concluding that the “idea that donors were defrauded by the existence of one program that’s been known about for 45 years and that had cost the organization just a minuscule portion of its budget in any given year is an unbelievable stretch.” (Law Dork.)

The district attorney in Durango, Colo., on Tuesday charged a Customs and Border Protection officer with assault and criminal mischief stemming from an altercation with a protester caught on video last October. (NYT.)

The New York Times reports that the Justice Department on Monday night rescinded recently issued subpoenas tied to an investigation into John Brennan, the former CIA director. (NYT.) For background on the Justice Department’s investigation into Brennan, see the Roundup Library.

Secretary of Homeland Security Markwayne Mullin said on Tuesday that DHS would be unable to pay employees the first week of May without a congressional deal to fund the department. (NYT.)

The Senate on Tuesday advanced to the floor a budget resolution that would allow Congress to fund ICE and Border Patrol through the reconciliation process, avoiding a filibuster. (NYT.)

The Pentagon on Tuesday presented how it planned to spend the $1.5 billion requested in next year’s defense budget, a nearly 50 percent increase in defense spending. (WaPo.)

President Trump on Tuesday extended a ceasefire between the United States and Iran to allow Iran to submit a proposal to end the war. (Truth Social.) (NYT.)

The Washington Post reports that on Sunday two CIA officers in Mexico died in a car crash—which also killed two Mexican officials—while returning from a counternarcotics operation. President Claudia Sheinbaum of Mexico said that her government would investigate whether the operation violated Mexican national security laws. (WaPo.)

The Washington Post reports that the contract governing donations to build a White House ballroom, which was disclosed in litigation, maintains anonymity for donors and excludes the White House from a conflict-of-interest review process typical in routine federal fundraising contracts. (WaPo.)

President Trump on Tuesday predicted he would lose the birthright citizenship case and claimed that some Republican appointees to the Supreme Court show “very little loyalty to the man who appointed them or, more importantly, the ideology from which they came to be Nominated and Confirmed.” (Truth Social.)

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