Welcome back, Deadline: Legal Newsletter readers. And thanks to Jessica Levinson for guest writing last week’s recap on Donald Trump’s New York sentencing. This week was packed with legal news ahead of Trump’s inauguration Monday — so let’s jump right in.

TikTok lost its Supreme Court battle against a U.S. ban that’s set to start Sunday, but it still might win the political war. The justices rejected a First Amendment challenge from the popular social media app, citing national security fears of Chinese control. But the app’s fate is unclear as Trump returns to the White House with an apparent openness to keeping TikTok alive. In a video posted to the app after the ruling, TikTok CEO Shou Chew — who’s expected to attend Trump’s inauguration as an honored guest — praised the president-elect for his “commitment to work with us to find a solution that keeps TikTok available in the United States.”

The First Amendment also featured in a SCOTUS hearing this week involving pornography. Texas is defending a state law requiring age verification to access sexual content online, and the adult industry raised a free-speech challenge. One of the more memorable lines from the hearing was Justice Samuel Alito asking how the popular website Pornhub compares to the old Playboy magazine. We expect a ruling by July in the case with vast implications for constitutional rights.

The justices added a new batch of appeals to review, including a case about LGBTQ-themed books. The case brought by a religious rights group asks the court to resolve a contentious question: “Do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?”

And we finally got to see Jack Smith’s report — the volume on the federal election interference case, anyway. Attorney General Merrick Garland released that part of the special counsel’s report, and one interesting aspect was Smith’s explanation for not alleging insurrection. A conviction under that charge could have disqualified Trump from office. But of course, the Supreme Court’s immunity rulingwhich Smith subtly critiqued in his report, would have blocked a trial on any charges before the election.

Smith’s classified documents volume is still secret. That’s partly because Garland agreed to shelve it while the Justice Department tries to revive charges against former Trump co-defendants Walt Nauta and Carlos De Oliveira. The legal concern is that it could unduly prejudice defendants who might still face a jury trial. Recall that Trump-appointed Judge Aileen Cannon dismissed the documents case last year, and DOJ withdrew its appeal to revive Trump’s charges after the election, due to a federal policy against prosecuting sitting presidents. While public release of the report isn’t imminent, Cannon presided over litigation this week about whether Garland can share it secretly with select members of Congress, a matter that prosecutors argued is none of the judge’s business. Nonetheless, she held a hearing Friday and was reportedly skeptical of DOJ’s urgency to share the report with Congress.

Meanwhile, congressional Democrats urged Garland drop the case against Nauta and De Oliveira,”https://www.BLN.com/deadline-white-house/deadline-legal-blog/jack-smith-report-trump-merrick-garland-legal-war-rcna187946″ target=”_blank”>so that the public can see the full documents report. In the likely event that Garland doesn’t do that, Trump’s DOJ will start off in the awkward position of pressing an appeal that, if successful, would restore charges for the purpose of moving toward a trial that would center on the president’s alleged criminality surrounding national defense information and obstructing justice. (He pleaded not guilty in all four of his criminal cases, with the only one of them that went to trial, in New York state court, resulting in a conviction.)

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So don’t be surprised if the Trump DOJ withdraws the classified documents appeal. Department leadership is set to be stacked with his personal lawyersas attorney general pick Pam Bondi faced questions at her confirmation hearing this week about her independence (or lack thereof) from Trump. Among other things, she had trouble conceding directly that Trump lost the 2020 election. Republicans appear poised to confirm her to the top cop post.

However compliant Trump’s DOJ would be in the Nauta/De Oliveira matter (among others), he could also kill the case himself with pardons. As President Joe Biden this week set a clemency record for nonviolent drug offenders, the pardon gap between Biden and Trump grew starker ahead of Trump’s return. One of the many outstanding clemency questions is what he’ll do with the Jan. 6 cases, in which he has vowed widespread relief.

But how many Jan. 6 defendants (if any) will Trump pardon? And how quickly? We’ll revisit those and other clemency questions as Trump’s second term gets underway, with New York City’s indicted Democratic mayor, Eric Adams, flying to meet Trump in Florida on Friday.

Speaking of Trump and pardonsa huge story in the legal community this week was the indictment of legendary lawyer and SCOTUSblog publisher Tom Goldstein. The federal tax indictment in Maryland tells a cinematic story of the renowned attorney playing high-stakes poker around the globe and failing to pay taxes back home.

And what, you might wonder, does that have to do with Trump and pardons? Back in November — right after Trump’s election win — Goldstein wrote a New York Times op-ed arguing for “abandon[ing]” the president-elect’s criminal cases. I thought it was an odd piece at the time, and I wrote my own response explaining why I thought so. But in retrospect, was the lawyer positioning himself for clemency?

That’s just one data point supporting the possibilitybut here are two more. Goldstein is represented by lawyers who’ve also represented Trump, John Lauro and Christopher Kise (in a statement, they said they’re “deeply disappointed that the government brought these charges in a rush to judgment without understanding all of the important facts. Our client intends to vigorously contest these charges and we expect he will be exonerated at trial”). And finally, there’s the timing of the charges. Is it a coincidence that the indictment came just days before the Trump DOJ takes over? Stay tuned.

Have any questions or comments for me? I’d love to hear from you! Please emaildeadlinelegal@nbcuni.comfor a chance to be featured in a future newsletter.

Jordan Rubin

Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined BLN, he was a legal reporter for Bloomberg Law.

South Dakota Gov. Kristi Noem, Donald Trump’s pick to lead the Department of Homeland Security, isn’t too keen on the department’s whole “thwarting foreign manipulation” thing.

At her confirmation hearing Friday, Noem gave her thoughts on the Cybersecurity and Infrastructure Security Agency (CISA), which was formed during the first Trump administration. For background, Trump fired Chris Krebs as CISA director after the 2020 election, following Krebs’ work to debunk Republican lies about voter fraud. The agency has been under fire from Republicans ever since for its work countering mis- and disinformation.

Noem suggested she wants to restrict some of that worksaying the agency has gotten “far off mission” and that its leaders are “using their resources in ways that was never intended.” She said “the misinformation and disinformation that they have stuck their toe into and meddled with should be refocused back onto what their job is,” which Noem said is to “support critical infrastructure” by protecting “small businesses” and utility companies from cyberattacks.

Given that protecting national infrastructure is a major component of the agency’s work, there’s no reason to believe the agency needs to be refocused on the mission. It’s also odd to hear Noem talk about the need to protect Americans’ data from foreign cyberattacks while downplaying the need to combat misinformation in the same breath. Stolen data can be used by foreign actors to target Americans with misinformation and manipulation campaigns. In fact, in 2016, that happened — to Donald Trump’s benefit. And it’s fair to say that’s factored into the GOP’s general aversion to thwarting misinformation over the last several years.In his farewell address, Joe Biden warned about the Big Tech oligarchywhich largely consists of social media owners and executives who are coalescing around Trump. And he warned that they could use misinformation to maintain their power.

As DHS secretary, Noem would be on the front lines of America’s war against misinformation and in a key role to confront those manipulators looking to influence us all. She showed no interest in doing so at her confirmation hearing Friday.

Ya’han Jones

Ja’han Jones is The ReidOut Blog writer. He’s a futurist and multimedia producer focused on culture and politics. His previous projects include “Black Hair Defined” and the “Black Obituary Project.”

On Tuesday, Pete Hegseth sailed through his first Senate confirmation hearing. It was shocking, although perhaps it shouldn’t have been, to watch someone on his way to likely confirmation who has been dogged by so many moral and ethical concerns, from reports of his excessive drinking to his questionable nonprofit management to allegations about sexual misconduct. (Hegseth has denied wrongdoing and was not charged.) It seemed that if ever there was a shaky candidate for heading an organization of more than 3 million people, it was the former Fox News host.

If ever there was a shaky candidate for heading an organization of more than 3 million people, it was the former Fox News host. But it didn’t shake out that way.

But it didn’t shake out that way. Blue Light News’s nightly letter was titled “The death of the Senate confirmation hearing,” stating that “today we learned only one thing: after decades of smash mouth Senate confirmation hearings, they’ve become all but useless as a vetting exercise or a check on presidential power.” A headline from Blue Light News read, “Democrats’ hopes of derailing Trump nominees are fading fast.” Washington newspapers had spoken; Hegseth’s future as secretary of defense  was a fait accompli.

Now it wasn’t a complete disaster; Democrats got some good moments in there. In perhaps the most evocative exchange of the hearing, Black Hawk helicopter pilot and Illinois Sen. Tammy Duckworth asked Hegseth to name the countries in the Association of Southeast Asian Nations (ASEAN). “I know we have allies in South Korea and Japan in AUKUS (a pact between Australia, the United Kingdom and the U.S.) with Australia,” Hegseth replied. He was not even close. “None of those three countries are in ASEAN,” Duckworth responded, adding, “I suggest you do a little homework.”

Sen. Tim Kaine was able to push a line of questioning about Hegseth’s reported drinking and bad behavior, which was important. But as much as well-aimed questions helped expose Hegseth’s questionable character and eligibility for the high-stakes role, I think Democrats would do better if they would realize that the math is not on their side — there are 53 Republican senators, so these Cabinet nominees can only lose four senators, and or President-elect Donald Trump — and that lecturing the nominees about their past is not as effective as nailing them down and highlighting what they plan to do.

Democrats do best when they take a page from the Mehdi Hasan playbook and nail the candidates on specifics — then follow up with more specifics. We saw some of this with the questions put to Scott Bessent on Thursday for his confirmation hearing for treasury secretary.

“Yes or no, will you recommend cutting Medicaid?” Sen. Ben Ray Lujan asked Bessent. When Bessent failed to deliver a satisfactory response, Luján asked the question again.

Bessent stumbled through yet another nonresponse.

Another promising example  was when Sen. Bernie Sanders pushed Bessent on the minimum wageforcing the investor and hedge fund manager to say he doesn’t support raising the federal rate.

“You don’t think we should change the federal minimum wage of $7.25 an hour?” Sanders asked.

“No, sir,” Bessent replied.

Democrats may not actually be able to derail a confirmation — it’s historically fairly rare that a nominee is not confirmed, although it happens. That doesn’t mean they shouldn’t absolutely try, but they also need to reassess the value and purpose of a public hearing, and use it to their advantage. Democrats have an opportunity to shape the narrative, to explain to voters, on the record, what Trump is about to do. With all the misinformation and disinformation clouding the political ecosystem, there’s a responsibility here that shouldn’t be ignored.

It can be tempting to use the hearings as a personal showcase or an opportunity to grandstand, but that doesn’t move hearts and minds or votes. We know, for example, that Hegseth is no feminist. Democratic senators pontificating on this helps no one at this point. But asking specific questions like Duckworth did potentially can, by exposing real knowledge gaps and exactly why a person is unqualified for a role.

Mike Pence is already going after Robert F. Kennedy Jr. using his Advancing American Freedom platform to try and knock him out for not being anti-choice enough. Perhaps Democrats could focus on getting RFK Jr. to admit that he’s actually pro-choice. Better yet, remind Republicans that he is, in fact, a Democrat.

A lot of Trump’s Cabinet nominees have figured out that they are playing to an audience of one. Florida Attorney General Pam Bondi, for example, refused to answer the question of who won the 2020 election, saying, “President Biden is the president of the United States. There was a peaceful transition of power.” When Sen. Chris Murphy pushed Sen. Marco Rubio about Trump’s international business conflicts, Rubio was careful with his response. But while nominees play to their audience of one, it’s Democrats’ responsibility to play to the audience that really matters here: the American people.

I urge Democrats to keep this in mind as hearings continue in the coming days and weeks.

Kennedy in particular has a history of being a wild card in interviews. In his upcoming hearings, Democrats need to press him on abortion, his fealty to Trump, his advocacy of raw milk. Or focus on something that might enrage Mitch McConnell, like the misinformation he’s spread in the past about the polio vaccine. As we plan for more hearings following Trump’s inauguration, Democrats are going  to need to get more creative. It’s not always easy to think differently but, right now, it’s their constitutional responsibility.

Molly Jong-Fast

Molly Jong-Fast is a political analyst for BLN, special correspondent for Vanity Fair and host of the podcast “Fast Politics with Molly Jong-Fast.”