I agonized for a bit about the point I’m about to discuss. But I didn’t agonize for long because I decided there was not much to agonize about. The topic is the September federal budget showdown, essentially a replay of the March “continuing resolution” drama in which Democrats had their first shot at real leverage against Donald Trump. As you’ll remember, Democrats under Chuck Schumer’s leadership decided to hold out for nothing. This was not only a missed opportunity. It’s fair to say it drove a catastrophic collapse of confidence in the Democratic Party’s elected leadership in Washington, DC., an impact that has been reverberating through national and opposition politics ever since.
Now we have a literal replay of that moment. The White House again needs Democrats’ vote in the Senate for a continuing resolution to keep the government open. Democratic leaders have been insisting they won’t make the same mistake again, and recent reports suggest President Trump’s increasingly aggressive attempts to seize budget authority from Congress all but assure a government shutdown at the end of the month. But a closer look suggests that Senate Democrats will insist on no meaningful brakes on Trump’s lawless actions and may, perversely, help him hold Congress next year.
The Texas Senate passed new bounty hunter-style abortion legislation Wednesday night to quash mailed abortion pills, targeting a method that has slipped through the cracks of abortion bans and contributed to the slight rise in the total number of abortions since the Supreme Court decided Dobbs.
Trump administration attorneys asked the Supreme Court on Wednesday night to overturn Friday’s appeals court decision finding that most of Trump’s tariffs are unconstitutional. The filing came after Trump at a Tuesday press conference — ostensibly about moving Space Command from Colorado to Alabama — said his administration would swiftly seek a SCOTUS ruling.
The startling U.S. attack on an alleged drug-running boat in international waters off Venezuela is precisely the kind of no-holds-barred combat that Defense Secretary Pete Hegseth was clearing the way for when he began firing military lawyers as soon as he settled into his E-ring office.
As bad as some of the U.S. infractions were during the Global War on Terror — and I can scarcely believe I’m writing this — there still remained an understanding among the Dick Cheneys of the world that they needed to come up with at least a thread of an argument for what legal authority they were relying on, however pretextual, unpersuasive, and unavailing it might have been.
This astonishing sentence from the NYT suggests that President Trump — fully immunized for his official acts by the Roberts Court — has dispensed with even putting on a show of legally justifying this week’s attack: “Pentagon officials were still working Wednesday on what legal authority they would tell the public was used to back up the extraordinary strike in international waters.”
Shoot first, figure out the legal cover later.
The Trump administration couldn’t even get its facts straight on the story it was telling publicly, with Trump claiming the boat was headed to the United States and Secretary of State Marco Rubio initially claiming it was headed to Trinidad. Rubio later brought his public statements in line with Trump’s.
At this point, it would be credulous to accept without further proof the administration’s claims that this was a drug-running vessel — proof will be hard to provide since the boat was blown up and its 11 occupants were killed.
Of particular note is Trump’s unsupported claim those targeted in the killing were Tren de Aragua gang members. Trump has designated TdA as a terrorist organization and used that justification to invoke the Alien Enemies Act for the notorious removals of Venezuelan nationals, many of whom it’s now clear were not TdA members. In an ironic twist, the attack on the boat came the same week that the conservative 5th Circuit Court of Appeals ruled that TdA was not invading the United States for Alien Enemies Act purposes, making Trump’s invocation of the wartime statute unlawful.
Assuming it was a drug boat, former State Department lawyer Brian Finucane surveys the legal landscape for a lethal attack on alleged drug traffickers on the high seas. “The use of lethal force in this attack appears gratuitous and the administration has not explained why law enforcement tools were inadequate to address the situation,” he writes.
Another difference from the GWOT is that when the line was crossed — Abu Ghraib comes to mind — there was an official effort to minimize, dismiss, and distance the administration from the incident. While that avoided real accountability, it suggested at the barest minimum a recognition that a situation was problematic, if not wrong. Not now. The president himself, along with his secretaries of defense and state, are celebrating this attack.
Looming over all of this are the larger geopolitical tensions that Trump is actively stoking. On his orders, a massive naval deployment to the region was already underway, escalating tensions with Venezuela. Trump’s saber-rattling off its coast while putting a $50 million bounty on the head of President Nicolás Maduro is the kind of flex that echoes decades of past U.S. intervention in Latin America.
As chilling as the attack was, we may come to see it as a Tonkin Gulf-style precursor to a larger effort to destabilize Venezuela with unpredictable and even more dire consequences.
Comment of the Day
From a MM reader:
Murdering people in a boat. Was thinking about that this am. We spent WEEKS in a course in law school taught by Jack Goldsmith on whether you could even place prisoners at Guantanamo and give them military trials. This guy is just out here letting some violent hopped-up-on-testosterone idiots murder people in broad daylight like it’s a fucking video game. It makes me ill.
Notorious Louisiana Prison Now Housing Migrant Detainees
Homeland Security Secretary Kristi Noem (R) tours “Camp 57,” a facility to house immigration detainees at the Louisiana State Penitentiary in Angola, Louisiana, with Louisiana Gov. Jeff Landry (2nd R) and Attorney General Pam Bondi (2nd L) on September 3, 2025. (Photo by Gerald Herbert / POOL / AFP) (Photo by GERALD HERBERT/POOL/AFP via Getty Images)
Angola, the former Louisiana plantation that became one of the most brutal penitentiaries in the country, is now housing migrant detainees as part of President Trump’s mass deportation scheme. Attorney General Pam Bondi and DHS Secretary Kristi Noem personally visited the new facility, which officials are already turning into a meme: “Louisiana Lockup.”
The 2020 Election Rolls on and Jan. 6 Never Ends
In the background, the creation of a revisionist history of the 2020 election that can be used for further retaliation continues unabated. Just this week:
House Republicans established a new subcommittee helmed by Rep. Barry Loudermilk (R-GA) to reinvestigate the Jan. 6 attack.
The Trump DOJ has been seeking access to voting machines in Missouri that were used during the 2020 election. At least two county clerks have been contacted by DOJ official Andrew McCoy “Mac” Warner, a former West Virginia secretary of state, according to a memo shared with election officials and first obtained by the Missouri Independent via a public records request.
Texas Attorney General Ken Paxton (R) is headlining a “gun rights” event with a high-profile Jan. 6 rioter, TPM’s Hunter Walker reports.
Footnote of the Day
In her ruling that the Trump administration’s attack on Harvard is unconstitutional, U.S. District Judge Allison Burroughs returned fire from the Supreme Court on behalf of all federal judges:
Quote of the Day
Florida Surgeon General Joseph Ladapo on ending all vaccine mandates: "Every last one of them is wrong and drips with disdain and slavery."
Sen. Thom Tillis (R-NC) signaled on Wednesday that he would oppose any effort to have the Senate consider a new nominee to replace Lisa Cook, whom President Trump fired from the Federal Reserve’s Board of Governors last month a few days after MAGA influencer-turned-Federal Housing Finance Agency director Bill Pulte announced he had referred supposed allegations of mortgage fraud against Cook to the Justice Department. Cook is just one of three of Trump’s political (or, in Cook’s case, apolitical) enemies whom Pulte has claimed to have found evidence of “mortgage fraud” against in recent months.
Texas’ top law enforcement official is set to appear alongside a man known as the “Lectern Guy” who served prison time for being among the crowds that broke into the U.S. Capitol on January 6, 2021 to protest President Donald Trump’s election loss.
This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at The 19th.
For months, President Donald Trump’s base and congressional Republicans have fought over the release of files and documents related to Jeffrey Epstein, the late disgraced financier and convicted sex offender.
But Wednesday, Epstein’s survivors took the floor.
Over a dozen survivors of Epstein and his co-conspirator Ghislaine Maxwell gathered at the U.S. Capitol, first for a nonpartisan rally hosted by the organization World Without Exploitation and then at a news conference hosted by a trio of lawmakers uniting across the political spectrum to push for more transparency.
“What once kept us silent now fuels that fire and the power of our voice,” said Epstein survivor Jess Michaels. “We are not the footnotes in some infamous predator’s tabloid article. We are the experts and the subjects of this story. We are the proof that fear did not break us.”
Survivors, their lawyers and advocates came to the Capitol asking for three main things: a full release of the Epstein files, justice for survivors and no presidential pardons or concessions for Maxwell, who is serving a 20-year federal prison sentence after pleading guilty to sex trafficking charges.
One big threat that looms over free and fair elections for president is that a tie in the Electoral College or a disputed race gets thrown to the House. That could be a real dispute or, far more likely, a manufactured dispute as part of stealing the presidency. Critically, in this situation, the House does not vote as a majority. It votes by state delegation and the assumption is that the GOP holds the majority of state delegations because of their advantage in low-population Republican states. That’s all true and it leads to lots of bad scenarios. But it’s worth focusing on because it’s not a total done deal. This 2023 piece from the Kyle Kondik at the Center for Politics at UVA goes through the different delegations and the possibilities in each one. A bit of luck and focus could close off this path to a stolen presidency.
An email from TPM Reader PK on yesterday’s post about seating a new Congress in 2027.
Your post was dead on today. I can easily see a scenario where [T]rump GOP majorities in both houses refuse to seat enough Democrats to retain control. There’s actually some examples of this back in the 19th Century where the clerk of the House refused to acknowledge various members-elect. In any event, there could be several Ds elected in states where the GOP SecState refuses to certify the election based on bogus fraud charges—all helped along by bogus DOJ/FBI investigations. And even if the vote is certified, sore loser GOP candidates could ask the House to determine the winner in their races. Again a GOP majority could then seat the losing GOP candidates by a simple majority vote.
In any event, congressional Dems need to figure out how they will handle such a scenario.
The last point is key. This isn’t a call for dooming but rather preparation.
The whole call of “will there be free and fair elections” is simply the wrong question to the degree it is framed as a binary question or of something that Trump will “do.” Under the present circumstances you need to battle to ensure the votes are counted and the results enforced as much as you need to turn people out and get them, as best you can, to vote the right way. This part of the equation shouldn’t be a contest. But under the present circumstances it is a contest.
You have to take it as a given that Trump will exploit every power he has to corrupt the elections in his favor. In the executive branch, where the Constitution gives him a lot of power — and the corrupt Court wants to give him unlimited power — he’s taken all of it. The key with elections is that the forces of opposition actually have quite a lot of power, starting with the key fact that states run elections and the federal government has very little practical access into the process let alone legal authority over it. States have large bundles of executive sovereign authority. January 6th is a very helpful and very instructive example. You need to be red teaming every link in the chain to know what the possibilities are and be prepared for them.
The two key issues I see, from an initial review, is the certifying authorities in the various blue and purple states (usually but not always governors and secretaries of state) and the Clerk of the House. The Clerk of the House is the fulcrum of House continuity in the interregnum between the expiration of one House’s authority and the seating of the next one. That’s usually a pretty no-nonsense career person. We got some preview of this during the Speaker votes for Kevin McCarthy. If that person is a GOP toady that’s very bad. Because the Clerk is the person who — like they wanted of Pence in 2021 — could simply decide to accept some certificates of election and reject others. They have zero authority to do it. But they could.
Again, it’s a matter of thinking through all the possibilities and being prepared.
5th Circuit Smacks Down Trump on Alien Enemies Act
In the most important court decision on a day full of them, the most conservative federal appeals court became the first to address the substance of President Trump’s invocation of the Alien Enemies Act and found it to be unlawful.
The late-in-the-day Tuesday ruling by the 5th Circuit Court of Appeals torpedoed the premise for Trump’s AEA deportations. On a 2-1 vote, Judges Leslie H. Southwick (Bush II) and Irma Carrillo Ramirez (Biden) found the AEA to be a wartime law not applicable to criminal gangs like Venezuela’s Tren de Aragua. The panel found there was no “invasion” or “predatory incursion” as required by AEA.
Judge Andrew Oldham (Trump) dissented in strong terms, and it’s not at all clear that this decision would stand up if the full 5th Circuit were to re-consider it.
The weekend deportations in March, the defiance of court orders to stop the removals, the incarceration of more than 200 Venezuelan men at CECOT in El Salvador for months — all of it was predicated on an unlawful invocation of the Alien Enemies Act.
Trump Violated Posse Comitatus Act
U.S. District Judge Charles Breyer of San Francisco ruled that President Trump’s use of the National Guard in California in a law enforcement capacity violated the 19th century Posse Comitatus Act.
To be clear, Breyer didn’t find Trump’s big anti-immigration show of force with the National Guard to be unlawful in and of itself. A federalized National Guard can be used to protect federal installations and personnel, Breyer ruled, but it can’t engage in domestic law enforcement activities.
“President Trump and Secretary Hegseth have stated their intention to call National Guard troops into federal service in other cities across the country—including Oakland and San Francisco, here in the Northern District of California—thus creating a national police force with the President as its chief,” Breyer warned.
The California deployment – Trump’s over-the-top response to protests against mass deportation – was full of examples of the National Guard being used as a local police force, Breyer found. He concluded that the Trump administration’s violations of the Posse Comitatus Act were willful and blocked the National Guard from engaging in further law enforcement activity.
Appeals Court Blocks Trump’s Firing of FTC Commissioner
This decision may be short-lived given where the Supreme Court is headed, but the D.C. Circuit Court of Appeals ruled that President Trump did not have the power to unilaterally fire Democrat-appointee Rebecca Kelly Slaughter from the Federal Trade Commission. Relying on existing Supreme Court precedent, the appeals court reinstated her to her position. The problem, of course, is that the Supreme Court has all but overruled its own precedent on independent agencies and is likely to formally overturn it soon.
Through the Looking Glass
A separate D.C. Circuit panel issued a travesty of a ruling in that confounding Environmental Protection Agency grants case which the Trump DOJ has tried but so far has failed to turn into a criminal prosecution.
You’ll recall that this Biden EPA grant program worth $20 billion was the target of wild conspiracies and false accusations from the MAGA right. EPA Administrator Lee Zeldin and the Trump DOJ went after the program aggressively, scaring Citibank into freezing account funds, leaving some EPA contractors high and dry. Then-acting U.S. Attorney Ed Martin kept pursuing the case, reportedly using grand juries outside of D.C. after the senior career prosecutor overseeing the criminal division of his office was forced out for refusing to play along in the case.
The Trump appointees on the panel — Judges Neomi Rao and Gregory Katsas — bought the conspiracizing and false accusations hook, line and sinker, and cleared the way for the EPA to claw back the billions of dollars in funding, as Politico witheringly noted:
The court seemed especially taken with the “gold bars” video cited regularly by Zeldin — an undercover recording of an EPA staffer last December who colorfully described the Biden administration’s rush to obligate additional grants under the IRA before the Trump administration took power. That staffer and other Biden officials have said he was referring to other grant programs, not the GGRF, which the IRA required to have been obligated by September 2024.
Obama appointee Nina Pillard found herself once again in dissent:
“The agency has no lawful basis — nor even a nonfrivolous assertion of any basis — to interfere with funding that, pursuant to Congress’s instructions, already belongs to Plaintiffs, who in turn have committed it to energy infrastructure development and advanced manufacturing projects according to Congress’s plan.”
It’s truly an egregious decision that validates (i) an administration disinformation campaign; (ii) a prosecutorial witch hunt; and (iii) a muscular executive branch that can ignore Congress and the funding laws it passes.
The price for having two Trump appointees on the motions panel back in March, when this case first arose, continues to be steep. The full D.C. Circuit will likely be asked to re-consider this case.
Sign of the Times
An earnest 84-year-old Reagan appointee to the federal bench seemed stunned and saddened after he was preposterously scolded last month by Justices Brett Kavanaugh and Neil Gorsuch for allegedly ignoring Supreme Court precedent on its emergency docket.
The public thrashing by the justices for a failure to properly divine the inscrutable meaning of barely explained emergency docket decisions has been called out by commentators. But it still left U.S. District Judge William Young of Boston to try to pick up the pieces of the National Institutes of Health funding case. He issued a pained apology from the bench Tuesday:
Before we do anything, I really feel it’s incumbent upon me to — on the record here — to apologize to Justices Gorsuch and Kavanaugh if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States. I can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer.
The Retribution: Mail-In Voting Edition
In another episode of bald and unequivocal retaliation, President Trump announced Tuesday that he was relocating the headquarters of U.S. Space Command to Alabama from Colorado to punish it for … having mail-in voting:
Trump on moving Space Force base from Colorado: "The problem I have with Colorado — they do mail in voting. They went to all mail in voting, so they have automatically crooked elections. And we can't have that."
Illinois Gov. JB Pritzker (D) warned in alarming tones Tuesday that the Texas National Guard was being deployed to a Navy base his state in preparation for what would amount to an unwelcome invasion by a fellow sovereign state.
The move would be different from Trump’s deployment of the National Guard in D.C. (not a state) and in California (where he federalized it in accordance with the law). To engage in law enforcement activities and get around the Posse Comitatus Act problem that we already discussed above, the National Guard would have to remain unfederalized. That’s what makes this such an unusual situation.
Later in the day, a spokesman for Texas Gov. Greg Abbott (R) denied that he was planning to deploy the Texas National Guard to Illinois. As we wait to see if this plays out, Georgetown law professor Steve Vladeck surveys the legal landscape implicated by this particular scenario.
IMPORTANT
In a legally dubious and regionally destabilizing attack, the United States took offensive military action against an alleged cartel motorboat in international waters off Venezuela. Eleven people were reportedly killed in the aerial attack on the marine vessel.
The move comes after the Trump administration set in motion certain legal implications earlier this year by dubbing narco-cartels as terrorist organizations.
“The action comes amid a major buildup of U.S. naval forces outside Venezuela’s waters, the NYT reports. “The administration has also stepped up belligerent rhetoric about fighting drug cartels and labeled Venezuela’s president, Nicolás Maduro, a terrorist cartel leader.”
The paradigm shift from treating drug trafficking as a law enforcement problem to a military target will have far-reaching and lasting consequences for the rule of law at home and abroad. Drug trafficking alone is not a capital offense, but the U.S. military is now summarily executing suspected drug traffickers on the high seas.
Quote of the Day
“If you often feel at a loss for words right now, that’s understandable. Significant new elements are in play, along with classic autocratic tactics. The sabotage of America by a sitting U.S. president is a tragic and history-making innovation.”–NYU history professor Ruth Ben-Ghiat
