The Dictatorship
TikTok lost the legal battle, but may win the political war
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 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.
President Donald Trump celebrating his 80th birthday with UFC fights on the White House lawn was classless enough. Then Josh Hokit was given a microphone. After the UFC fighter won his cage match at Trump’s flamboyant celebration Sunday night, Hokit, who spoke mostly in disturbingly trite rhymes after his win, managed to further degrade the event. At the conclusion of his post-fight interview with announcer, podcaster and manosphere extraordinaire Joe Rogan, the athlete declared,“Michelle Obama is a man. Am I right, America?”
Many in the crowd of thousands of UFC fans ate it up, and expecting anything less would require an exceptional level of delusion. Misogynoir and transphobia have been lobbed against Obama at least since 2008, when America elected her husband, Barack Obama, president.
Misogynoir and transphobia have been lobbed against Obama at least since 2008, when America elected her husband, Barack Obama, president.
Misogynoir was coined by academic Moya Bailey in 2008 to describe the intertwining of racism and misogyny that targets Black women. As pervasive as it is, it took 15 yearsfor Merriam-Webster to add the word to its dictionary. Even in writing this piece, each time I’ve typed the term, spell-check suggests I have made a typo.
While it’s tempting to categorize Hokit’s remark as random, it was fully on brand for the athlete. ESPN reported, “In his post-fight interview at UFC 324 in January, Hokit called WNBA star Brittney Griner ‘a man.’”
He’s the poster child for misogynoir.
But his statement was also characteristic of the machismo that drove the event itself. Trump’s entire political persona is crafted in the mold of a strongmanan archetype that couldn’t exist without toxic masculinity. And when he was elected to the presidency a second time, Trump brought back to the forefront an erroneous vision of manhood. Hokit, and a lamentable number of other public figures, have since been empowered to espouse misogyny and preach the shallow gospel of toxic masculinity.
But showmanshiprepressed emotionality and a desperate adherence to benighted notions of manhood alone don’t suffice. Toxic masculinity also requires an allegiance to the desirability politics that are often informed by white supremacy. And Hokit gave it a shoutout Sunday night.
If toxic masculinity is a declaration of what we are expected to perceive as a quintessential depiction of manhood, then completing that picture requires a similar declaration about what we are expected to perceive as a quintessential depiction of womanhood. As has historically been the case, the beauty of Black women, as a whole, doesn’t align with mainstream ideals of attractiveness. So a Trump supporter’s recycling of a racist trope about the first Black first lady being a man was a natural offshoot of Sunday’s glorification of problematic masculinity.
Obama addressed misogynoir-laden and transphobic insults, among others, that she has faced over the years in her 2018 book “Becoming.” She writes, “I’ve smiled for photos with people who call my husband horrible names on national television, but still want a framed keepsake for their mantel. I’ve heard about the swampy parts of the internet that question everything about me, right down to whether I’m a woman or a man. A sitting U.S. congressman has made fun of my butt. I’ve been hurt. I’ve been furious. But mostly, I’ve tried to laugh this stuff off.”
I’ve been furious. But mostly, I’ve tried to laugh this stuff off.
michelle obama in her book “becoming”
Hokit thumping his chest after a violent brawl per the request of a strongman-in-chief, then deriding a high-profile Black female figure as masculine and thus, unappealing, was a true full-circle moment for the manosphere. Notice that Hokit didn’t do a full stop after he insulted Obama. He asked, “Am I right, America?”
At least that part made actual sense — Hokit’s instinct to seek validation is yet another manifestation of toxic masculinity. His question offered a boisterous representation of the need for male approval that exists in the manosphere and the willingness of problematic men to give one another an outsized influence on their behavior. It wasn’t enough for Hokit to disparage a prominent Black woman. He wanted someone to say, “Well done.”
As for his question, the answer is “no.” Hokit was the farthest from “right” as one gets. But the derision of Obama surely scored him brownie points in the manosphere. What better way to secure a nod of respect from the community than to denigrate, arguably, the most high-profile Black woman in the United States while at an event teeming with hypermasculinity?
But neither Obama nor any other woman, Black or otherwise, should have to bear the burden of men insulting them in a desperate quest to secure approbation from other men.
Hokit appears to be developing a habit of ascribing masculinity to Black women. He would be better served by questioning why his idea of manhood includes belittling women for applause.
Zahara Hill is a coordinating producer for MS NOW. She previously worked as a front page editor for HuffPost and the deputy editor for Blavity News.
President Donald Trump, with the support of Republicans in Congress, signed legislation last week funding federal immigration agencies through the end of his term. Americans should know how millions of their taxpayer dollars are being spent on the active destruction of their fellow human beings.
As part of my constitutional oversight responsibilities in Congress, I have visited Delaney Halla privately run detention facility in Newark, New Jersey, four times. From the first time I stepped into Delaney Hall, my worst fears were confirmed.
The smell of sewage permeated the building. The air felt stagnant, and I questioned whether there was adequate ventilation for detainees or staff.
What I witnessed with my own eyes was alarming enough. The smell of sewage permeated the building. The air felt stagnant, and I questioned whether there was adequate ventilation for detainees or staff. In the cafeteria, I saw a space that appeared far too small to accommodate the number of people being held. When I asked how hundreds of detainees were fed, I was told meals were served in waves beginning as early as 4 a.m.
Detainees described freezing temperatures, poor sanitation, spoiled food, isolation and being required to clean bathrooms and showers contaminated with urine and other biological waste without proper protective materials.
The most alarming thing I have witnessed, however, is the treatment — really, the lack of treatment — of people with serious and chronic medical conditions. I believe what I have witnessed at both Delaney Hall and the Elizabeth Detention Center amounts to nothing short of medical abuse.
While the Department of Homeland Security leadership may try to wave away accusations of inhumane treatment, they cannot wave away the effect of their medical negligence — nor should they be allowed to. Every time I have visited both the Delaney and Elizabeth detention centers, I encountered detainees whose health was deteriorating because of the actions overseen by DHS employees and contractors. Individuals with chronic health conditions were not monitored, critical medications are given sporadically or not at all and there is little to no continuity of care for the medically vulnerable.
Individuals with chronic health conditions were not monitored, critical medications are given sporadically or not at all, and there is little to no continuity of care for the medically vulnerable.
One woman detained with diabetes told me she was receiving only a fraction of the medication prescribed by her doctor. When I questioned medical staff, they confirmed her dosage had been reduced shortly after she entered detention without first contacting her pharmacy or physician. They also confirmed blood sugar readings consistent with poorly controlled diabetes.
I spoke with a man who suffered ongoing headaches and hearing loss after striking his head in a fall. He told me he feared seeking additional medical care because he had been warned he could be placed in isolation if sent to the hospital. When I raised the issue with facility leadership, they confirmed isolation was their policy.
Other detainees have described to me equally disturbing experiences, including a woman who said she suffered a miscarriage while in Immigration and Customs Enforcement custody after being denied proper medical care when symptoms first appeared. Another pregnant woman told me she feared for the health of her unborn child because she could not obtain the specialized care her condition requires.
These were not isolated complaints. And together, they paint a picture of a detention system failing to provide adequate medical care to the people in its custody.
The Department of Homeland Security insists healthcare is available inside Delaney Hall. What I witnessed firsthand tells a different story. Detainees may have access to care, but they are not receiving the care that their conditions, diagnoses, doctors or even our own good conscience would warrant.
When I questioned Homeland Security Secretary Markwayne Mullin about whether ICE tracks detainees with chronic illnesses such as diabetes, cancer and heart disease, whether those conditions are regularly monitored and whether independent health officials are allowed to inspect the facility, I did not receive answers. That lack of accountability should concern every American.
The consequences of these failures could be deadly. Severe hypoglycemia can become life-threatening within hours. Heart conditions can rapidly worsen without medication. Untreated infections can become medical emergencies, and the disruption of medication can have life-threatening consequences in the short and long run.
What makes this even more troubling is who is being detained.
Despite the administration’s rhetoric about targeting dangerous criminals, the people I met at Delaney Hall were overwhelmingly low-risk individuals being held for civil immigration violations, not criminal offenses. Some said they had legal status until this administration stripped it away. Others described being picked up off the street, or where they work, or at laundromats, schools and even outside courthouses or routine immigration appointments.
We cannot turn a blind eye to the conditions inside these facilities. Nor can we ignore the role of corporations such as the GEO Group, the company with an estimated $1 billion contract to operate Delaney Hall. Taxpayer dollars are being used to inflict profound human suffering, all too often condoned because those detained are viewed as “other.” To make matters worse, the $70 billion that Congress recently approved for ICE and Customs and Border Protection is in addition to $191 billion previously allocated to DHS with a party-line vote.
The least my Republican colleagues can do now is demand answers about what is happening inside facilities like Delaney Hall and hear firsthand from detainees about what they are experiencing. If they truly listen, they will be moved to action. I know I was.
Because the people I met at Delaney Hall are mothers, fathers, workers and neighbors. They are human beings. They deserve dignity, medical care and due process.
No matter where someone was born or what their immigration status may be, their humanity does not disappear when they enter a detention facility.
The measure of any nation is how it treats the people in its custody. By that standard, what is happening at Delaney Hall is a moral failure that extends far beyond its walls.
And when we allow due process, equal protection under the law and basic human rights to be denied to some, we weaken those protections for everyone. The Constitution is only as strong as our willingness to defend it. We must seek to protect it, starting by closing Delaney Hall.
Analilia Mejia, a Democrat, represents New Jersey’s 11th Congressional District in the U.S. House.
Today’s edition of quick hits.
* Russia’s latest deadly attack in Ukraine: “A large-scale Russian attack on Ukraine killed five rescuers in Kharkiv and wounded at least 20 people in the capital Kyiv on Monday as strikes set apartment buildings ablaze and sparked a fire at one of the country’s most significant religious landmarks. The rescuers were killed in Kharkiv by a second Russian strike as they fought a blaze caused by an earlier attack, Interior Minister Ihor Klymenko said. At least five other emergency workers were wounded.”
* From late last week: “A joint strike by the United States and Venezuela killed a leader of the Tren de Aragua transnational gang, President Trump and officials in both countries said on Friday, dealing a blow to a syndicate the Trump administration has blamed for an influx of violent crime and illicit drugs.”
* The right way to do it: “Hungarian lawmakers on Monday passed a constitutional amendment that would ban Viktor Orbán from returning to power. The amendment, approved by 135 votes in favor and 50 against, would limit prime ministers to just eight years in office if it becomes law. The amendment is written to apply retroactively, meaning that Viktor Orbán could not return as Hungary’s prime minister. Orbán served as prime minister for a total of 20 years.”
* A case we have been keeping an eye on: “A federal judge ordered the Trump administration on Friday to reinstall exhibits and signs on topics like slavery and climate change that it had removed from parks and monuments nationwide because they ‘do not align with its preferred narrative.’”
* Trump’s Department of Justice does what Trump wants: “The Justice Department’s Antitrust Division has signed off on Paramount Skydance’s $111 billion bid for Warner Bros. Discovery. The approval, first reported by Blue Light News, clears a major regulatory hurdle for a deal that has become one of the most closely watched media merger reviews of the Trump era.”
* Failing to make America healthy again: “A relentless measles outbreak in Utah has been spreading for nearly a year, putting the U.S. on a path to losing the measles-elimination status it earned more than two decades ago. Fueling the nearly 12-month outbreak: more parents opting not to vaccinate their children for school; infections hitting communities statewide; and lenient public-health policies on quarantining exposed students.”
* McConnell’s health issues persist: “Sen. Mitch McConnell, R-Ky, was hospitalized on Sunday, according to his spokesperson, who provided no details on the former Senate majority leader’s condition.”
See you tomorrow.
Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”
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