The Supreme Court on Friday allowed a ban on TikTok to take effect. Last year, President Joe Biden signed a law that would ban the platform unless its Chinese parent-company, ByteDance, sold it. In handing down its ruling, the court rebuffed an effort by the platform, some of its users, numerous free-speech advocates, and President-elect Donald Trump to halt the ban from taking effect.

The case pitted Congress’ national security concerns against the free speech rights of TikTok and its users. The court released an unsigned majority opinion, along with two separate concurring opinions but no dissents.

The majority held the ban passes constitutional muster because any potential free speech implications would be overridden by serious threats to national security. “There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community,” the court held. “But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.” It concluded that the law does “not violate petitioners’ First Amendment rights.”

The court took the case on an expedited basis, with just nine days between last week’s oral arguments and the deadline for the ban to take effect. As a result, the justices stressed their decision is narrow and declined to reach significant questions such as whether the First Amendment was indeed implicated and, if so, how much.

In spring 2024, Congress passed the law requiring ByteDance to sell US-based TikTok, or else the platform would go dark. TikTok sued to halt it, as did several content creators. The federal government has warned that ByteDance’s ownership puts the Chinese government in a position to use the app to spy on Americans by vacuuming up their personal data, and that it could enable China to manipulate the algorithm to further geopolitical goals.

The court found TikTok’s data collection activities to be a significant national security concern that alone justified the law. But Justice Sonia Sotomayor, in a concurring opinion, stressed that social media algorithms, as the court recently held in a separate case, are a form of protected speech. “TikTok engages in expressive activity by ‘compiling and curating’ material on its platform,” she wrote.

Along with TikTok and some users, Trump mounted his own campaign to keep the platform online, asking the justices to halt the law until after his inauguration, on the premise that he alone could broker a deal to preserve the app while alleviating the government’s national security concerns. This was not exactly a legal request, but more of a request for an extralegal action.

The court’s decision to let the law take effect does not preclude Trump from trying to negotiate a sale of TikTok that would allow the platform to remain online, including by brokering a deal involving a political supporter. Trump is also reportedly mulling an executive action to halt the law—although legally, that is unlikely to succeed because presidents cannot overturn laws by fiat.

During his first term, Trump sought to ban TikTok, but he made an about-face, apparently after determining that the app—and his newfound vocal support for it—would help his 2024 presidential campaign. While the sell-or-ban law was passed on a bipartisan basis, a number of Republicans have recently followed Trump’s lead in walking back support for the measure. Democrats, too, have begun to change course. Senate Minority Leader Chuck Schumer (D-N.Y.) said yesterday that he would work with the new administration to find a solution, and the Biden administration announced that it would defer implementation to the next president. It seems that without bipartisan support, there is little political will to implement what Congress said it needed—and what the Supreme Court just green-lighted.

Whatever happens, the platform’s future is no longer in the court’s hands, but back in the realm of politics.

The Supreme Court on Friday allowed a ban on TikTok to take effect. Last year, President Joe Biden signed a law that would ban the platform unless its Chinese parent-company, ByteDance, sold it. In handing down its ruling, the court rebuffed an effort by the platform, some of its users, numerous free-speech advocates, and President-elect Donald Trump to halt the ban from taking effect.

The case pitted Congress’ national security concerns against the free speech rights of TikTok and its users. The court released an unsigned majority opinion, along with two separate concurring opinions but no dissents.

The majority held the ban passes constitutional muster because any potential free speech implications would be overridden by serious threats to national security. “There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community,” the court held. “But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.” It concluded that the law does “not violate petitioners’ First Amendment rights.”

The court took the case on an expedited basis, with just nine days between last week’s oral arguments and the deadline for the ban to take effect. As a result, the justices stressed their decision is narrow and declined to reach significant questions such as whether the First Amendment was indeed implicated and, if so, how much.

In spring 2024, Congress passed the law requiring ByteDance to sell US-based TikTok, or else the platform would go dark. TikTok sued to halt it, as did several content creators. The federal government has warned that ByteDance’s ownership puts the Chinese government in a position to use the app to spy on Americans by vacuuming up their personal data, and that it could enable China to manipulate the algorithm to further geopolitical goals.

The court found TikTok’s data collection activities to be a significant national security concern that alone justified the law. But Justice Sonia Sotomayor, in a concurring opinion, stressed that social media algorithms, as the court recently held in a separate case, are a form of protected speech. “TikTok engages in expressive activity by ‘compiling and curating’ material on its platform,” she wrote.

Along with TikTok and some users, Trump mounted his own campaign to keep the platform online, asking the justices to halt the law until after his inauguration, on the premise that he alone could broker a deal to preserve the app while alleviating the government’s national security concerns. This was not exactly a legal request, but more of a request for an extralegal action.

The court’s decision to let the law take effect does not preclude Trump from trying to negotiate a sale of TikTok that would allow the platform to remain online, including by brokering a deal involving a political supporter. Trump is also reportedly mulling an executive action to halt the law—although legally, that is unlikely to succeed because presidents cannot overturn laws by fiat.

During his first term, Trump sought to ban TikTok, but he made an about-face, apparently after determining that the app—and his newfound vocal support for it—would help his 2024 presidential campaign. While the sell-or-ban law was passed on a bipartisan basis, a number of Republicans have recently followed Trump’s lead in walking back support for the measure. Democrats, too, have begun to change course. Senate Minority Leader Chuck Schumer (D-N.Y.) said yesterday that he would work with the new administration to find a solution, and the Biden administration announced that it would defer implementation to the next president. It seems that without bipartisan support, there is little political will to implement what Congress said it needed—and what the Supreme Court just green-lighted.

Whatever happens, the platform’s future is no longer in the court’s hands, but back in the realm of politics.

TikTok could fade to black in the U.S. in a matter of days after the Supreme Court rejected its appeal to halt a law that will ban the popular video app as of Jan. 19 unless Chinese parent ByteDance sells its stake. “There is no doubt that, for more than 170 million Americans, TikTok offers […]

Government employees who report possible malfeasance are almost certain to be targeted by the second Trump administration. Mark Zaid is a lawyer likely to represent some of them; over the past two decades, he has provided legal counsel to a long list of federal employees and intelligence officers, including whistleblowers.

His most high-profile whistleblower case, however, was that of the intelligence officer who reported to an inspector general that then-President Donald Trump pressed Ukrainian President Volodymyr Zelenskyy to find political dirt on his presidential rival. While dangling military aid to Ukraine that Congress already had approved, Trump asked Zelenskyy to investigate the family of Joe Biden, a leading Democratic contender to face Trump in 2020. This whistleblower’s 2019 report led to Trump’s first impeachment case.

The case of that whistleblower—whose identity Zaid has never revealed publicly—was far from the first time a concerned citizen came forward with potentially damaging information about the government: In 2002, FBI special agent Coleen Rowley wrote a letter to then-FBI Director Robert Mueller alleging that the agency failed to properly investigate a terrorist later found to be connected to the September 11 attacks. Another whistleblower was military police officer Joseph Darby, who informed the Army Criminal Investigation Division of pictures showing US military personnel torturing inmates at Iraq’s Abu Ghraib prison in 2004.

These two early-2000s whistleblowers followed the proper channels by reporting their allegations to the relevant authorities. They were granted some professional and physical safety protections in exchange but still faced personal hardships. Future whistleblowers are likely to face far worse.

This interview has been edited for length and clarity.

What has changed about whistleblowing since the first Trump administration?

The Ukraine intelligence community whistleblower case was just like countless other cases that I had handled over the decades prior: A whistleblower came forward with reasonable concerns and handled the matter lawfully and properly within set procedures, and then we helped navigate that individual through the process to ensure that they were fully protected. What made that case so different was that it involved the president of the United States and that the president and his allies made it personal and ignored the norms and standards that were otherwise believed to exist.

Is the risk of retribution even higher in Trump’s second term?

The real discomfort is that the Supreme Court decision from the January 6 prosecution has effectively given him near or full immunity for any presidential- type action. So if he strips us of our security clearances, he’s protected. If he instructs his agencies not to take seriously anything that we as lawyers might do for our clients and retaliates against our clients, he’s protected. If he orders an IRS audit of those whistleblowers or his critics to see what falls out, he’s protected. It is such a broad mandate that he could hypothetically shoot someone on Fifth Avenue and potentially be legally protected if he does that as part of his presidential duties.

Is there any recourse for people who are targeted?

Suppose, on his first day of office, the president says: “Here’s a list of 150 individuals who I believe worked against me, and therefore, they are a threat to the national security of the United States. Their clearances are hereby revoked.” That is the end of the road. There’s no ability to legally challenge that in a viable way. The real defense for many federal employees or critics is going to be time and transparency. There may be some legal actions that we can bring if he issues his executive order about eliminating civil service protections. There will be lawsuits, and we may prevail in one or more. But it will probably be in the next administration, because four years is not a lot of time to litigate claims…I have had cases where Congress stepped in against the executive branch in national security cases to protect whistleblowers. But for that to happen, all the stars have to align, and it’s got to be the party in the majority, not the minority.

Who do you think Trump will target?

Presumably, those who will be prioritized are the ones who he most frequently rails against: General Mark Milley or special prosecutor Jack Smith. Strangely enough, nobody’s ever heard Jack Smith say anything. But every filing has his name on it, so he gets targeted. I’m not very concerned about anyone who engaged in activities as a member of Congress, whether past or present, because I have my doubts that—other than a small number of extremist MAGA devotees— Republican members of Congress would support it.

And journalists could be implicated, too, right? 

I fully expect it. There is no journalistic privilege when it comes to classified information, or what we call national defense information in the Espionage Act; disclosure of it, dissemination, printing, or publishing that information puts any journalist and their media outlet on the chopping block for prosecution. The only thing that has stopped that from occurring over the course of a century has been public policy, practice, and norms—none of which will presumably exist in the second Trump administration. I can easily see, in an effort to prosecute those who caused a leak, that journalists’ phones are tapped, that journalists are surveilled physically, that their emails are confiscated—all done through judicially issued warrants.

What protections is a whistleblower supposed to have?

If they go through the inspector general’s office, their identity is to be protected. My colleague took the Ukraine whistleblower to the inspector general’s office and formally filed a protected disclosure that legally guaranteed the inspector general was not allowed to reveal the identity of the individual. During the impeachment trial in the Senate, Sen. Rand Paul (R-Ky.) submitted questions that had the name of an individual who he believed was the whistleblower, and they were the only questions that the chief justice refused to read aloud and discarded. There was nothing legally requiring him to do that, but it was a recognition by the chief justice of the need to protect the identities of whistleblowers, especially when they pursue their pathway through proper and lawful channels.

We learned later that the White House was intentionally leaking the name of who they believed the whistleblower was through numerous media outlets. And the media outlets, to their credit, refused to publish it. But the White House knew who the whistleblower was, and they absolutely were pushing the name. Even then, they were at least doing it behind the scenes quietly, and the system still worked. In a second Trump administration, I have little doubt that Donald Trump, at the podium among others in his administration, would simply say the name.

That’s a great segue to my next question, which is, what could happen to someone if they were identified as a whistleblower, rightly or wrongly?

Obviously, they could be subject to administrative repercussions. But of greater concern are the physical threats of violence and harassment from nongovernmental personnel who believe they would be vindicating and supporting the president of the United States by taking action against a perceived traitor.

I had armed protection for two months, bodyguards who were living with me 24/7, because of death threats as the lawyer for the whistleblower. And I knew whenever the threats would increase what had happened, and it was usually people like Rush Limbaugh, [Sean] Hannity, Laura Ingraham, or [Tucker] Carlson saying my name.

Have people started getting on your books as a preventative measure?

I wouldn’t say a large number, but certainly, there have been individuals who work within the federal government who have contacted me in anticipation of prospective retaliation.

What else can concerned government employees do?  

Don’t do anything on your government computers or government phones. You have to be careful about printing anything on government computers. You have to be careful who you talk to. We literally are back in the days of the Red Scare, where you have to be concerned about who overhears you in the hallway, as to whether you’re a team player or not. That at least is the anticipation of what it might become like.

As an expert, what are you doing in this space to prepare?

There are several groups that I am in conversation with who were created for the purpose of defending against where the second Trump administration crosses the line. I’m doing so informally, in the sense of compiling a list of lawyers, accountants, psychologists, and psychiatrists who are willing to provide pro bono representation to those who are targeted. I’m also still doing work with my nonprofit, Whistleblower Aid. We provide free legal representation to whistleblowers, both in the private and public sectors, and have been doing so for nearly a decade. I really want to emphasize that this is more about addressing violations of established norms and policies and subversion of the rule of law, rather than creating entities to combat the Trump administration. I’m not a partisan—regardless of what the MAGA folks think or the [Rep. Alexandria Ocasio-Cortez] supporters think.

What will retribution look like?

I expect a lot of the repercussions inside the administration to be employment terminations. It could be more aggressive prosecutions, but I am not going so far as to expect that. You may have, pun intended, trumped-up charges and things like that. Or people in the dead of night taken to be interrogated. Can we get there? It is a slippery slope. 

When I was in college 40-plus years ago, I did a paper on Germany, and I never understood how such a civilized cultural environment fell so quickly into what the 1930s and ’40s became. I didn’t understand that until I watched the MAGA movement.

This story was published in partnership with The Trace, a nonprofit newsroom covering gun violence in America. A version of this story was first published online in July.

For decades, McLean Bible Church has served as the place of worship for many of DC’s Republican elite. The sprawling evangelical megachurch in Vienna, Virginia, boasts a roster of former parishioners that includes everyone from Ken Starr to Mike Pence. Donald Trump once dropped in after a round of golf.

McLean Bible is also where, in 2017, a senior pastor named Dale Sutherland formed a nonprofit called Act2Impact, described in state records as an “auxiliary” of the church that would “preach the gospel” and “conduct evangelistic and humanitarian outreach.”

That mission was short-lived.

Two years later, Sutherland—once an undercover narcotics officer in DC—left McLean Bible and filed papers to rename Act2Impact. It became the Constitutional Defense Fund (CDF), which would “promote and secure” constitutional rights. “We aim to defend and strengthen those rights through methods that will include litigation and other means,” the filing stated.

“We want to get a case before the Supreme Court.”

Around this time, Sutherland also leaned into a new persona: the Undercover Pastor. “Buying cocaine and preaching Jesus. A weird combo,” notes his website, which touted a newsletter—“get biblical wisdom delivered to your inbox”—and YouTube channel. “I used to lock people up,” he likes to say. “Now I’m trying to set people free.”

Sutherland is much less forthcoming about CDF, which since its re­christening has been at the center of a ­far-­reaching, multimillion-dollar legal campaign to dismantle America’s gun laws. From 2020 to 2023, CDF funneled more than $14 million to the DC law firm Cooper & Kirk and a constellation of gun rights groups, which together have helped file at least 21 lawsuits challenging gun restrictions.

These suits, aimed at getting an ­eventual Supreme Court hearing, concern bans on semiautomatic assault-style rifles and high-capacity magazines, as well as restrictions on young adults buying and carrying handguns. In October, the court heard one of the cases, a challenge to the government’s ability to regulate home-assembled, unserialized “ghost guns.”

Most of the money that CDF spent on this vast effort came via Donors Trust, a pass-through fund founded in 1999 with the aim of “safeguarding the intent of libertarian and conservative” philanthropists who seek to channel their wealth into right-wing causes. The trust has more than $1 billion in assets and is not required to identify its donors.

In short, anonymous funders bankrolled a legal attack aimed at giving the Supreme Court’s conservative majority an opportunity to rewrite firearms laws. It’s akin to the Christian right’s abortion playbook—but for guns.

The Firm

In August 2019, before stepping on a podium in Colonial Williamsburg, Charles Cooper was introduced as a “legend” of the conservative legal world. He began by warming up the crowd at a gathering of the Convention of States Project, which seeks to amend the Constitution and eliminate what supporters consider ambiguous language that has enabled liberal advances. “Are there any freedom-loving, anti-communist patriots in this room?” The audience cheered. “Do any of you cling to your Bibles and your guns?”

The day before, Cooper had lost his decades-long­ gig as the National Rifle Association’s outside counsel. As details of financial abuses at the organization became public, many rallied around then-CEO Wayne ­LaPierre. Cooper did not and was purged.

Before representing the NRA, Cooper held a key role in the Justice Department. His Reagan-era DOJ opinions—for instance, one finding that employers could refuse to hire those with AIDS—burnished his reputation as a strident conservative. Cooper tapped Samuel Alito to be his deputy and, two decades later, would guide him through the Supreme Court confirmation process. By then, Cooper had founded Cooper & Kirk, which became known as the conservative movement’s prestige advocate. It hired zealots from elite law schools, including Sens. Ted Cruz and Tom Cotton, as well as Noel Francisco, who would become Trump’s solicitor general in his first term. Cooper defended Proposition 8, California’s ban on gay marriage, and represented Jeff Sessions when the then-attorney general was under scrutiny for his contacts with Russian officials in 2016.

Cooper’s Williamsburg speech was titled “The Real Threat to the Second Amendment.” He described how his work had contributed to split circuit court rulings on whether people have a right to carry guns outside the home for self-defense. A case that would resolve that question, he noted, was before the Supreme Court.

Cooper was referring to New York State Rifle & Pistol Association v. Bruen, which challenged a state law requiring applicants for concealed carry permits to demonstrate a heightened need for protection. At the time, Cooper & Kirk was representing the plaintiffs. Although the firm did not argue the case before the court—that job was given to star Supreme Court advocate Paul Clement—invoices show that in April 2021, the month the justices agreed to hear Bruen, Cooper & Kirk managing partner David H. Thompson conferred with lead attorneys on the case about an “amicus panel,” a body of subject experts that advises on litigation strategy.

CDF money went to attorneys and advocacy groups that filed briefs backing the plaintiffs. Such filings, known as amicus briefs, are integral to legal strategy and are often cited in higher court rulings. Thompson filed an amicus brief in Bruen on behalf of the Second Amendment Foundation, which has received CDF funding. Another partner at the firm did so on behalf of J. Joel Alicea, himself a Cooper & Kirk attorney identified in the brief only as a professor at Catholic University. The CDF-funded Firearms Policy Foundation (since renamed FPC Action Foundation) and a closely related group, the Firearms Policy Coalition, filed their own amicus brief. So did the archconservative Claremont Institute, which got a $105,000 CDF grant in 2021 to support gun rights. John Eastman—the lawyer who helped rally Trump’s faithful before they stormed the US Capitol on January 6, 2021, and is now under indictment in Georgia and Arizona for attempting to subvert the 2020 election—wrote the Claremont brief. (Eastman’s law license has been temporarily suspended in California and DC.)

The Supreme Court’s 6–3 decision in Bruen was momentous. Conservative justices not only struck down New York’s law, but also established a new test for the constitutionality of all gun restrictions. No longer should courts weigh the government’s interest in reducing violence or promoting public safety against the right to bear arms, the majority said. Rather, the ­constitutionality­ of gun laws should depend on whether they’re similar enough to restrictions in place when the Second Amendment was adopted in 1791, or when the 14th Amendment was ratified in 1868—points at which, the justices said, the original meaning of the Second Amendment is best discerned.

Thanks to Bruen, lower courts have been deluged with gun law challenges. In the last two years, judges have issued, on average, more than one Bruen-related ruling daily, and firearms restrictions are being struck down at an unprecedented clip. “We are more excited than ever about the future,” declared Brandon Combs, who directs both the Firearms Policy Foundation and the Firearms Policy Coalition, after the Bruen ruling. “Indeed, FPC is already working with the exceptional litigators at Cooper & Kirk—truly the best in the space—on the largest Second Amendment litigation program in the country.”

The Plaintiffs

Of course, before Cooper & Kirk can get involved, a plaintiff is needed. That’s where the Second Amendment Foundation and the Firearms Policy Coalition come in. They not only act as plaintiffs themselves, but they also recruit individuals who can claim standing, a direct injury from the law that’s being challenged.

Since 2020—the year Trump replaced Justice Ruth Bader Ginsburg with Amy Coney Barrett—a torrent of funding from CDF has helped turn the groups into juggernauts. In the three years prior to 2020, they were plaintiffs in 22 federal actions; in the three subsequent years, that number jumped to 61. “We want to get a case before the Supreme Court,” Second Amendment Foundation founder Alan Gottlieb said in 2023. “And the quicker these cases move, the better for gun ownership and for gun rights.”

Gottlieb is known for direct-mail and marketing savvy, and for cashing in on right-wing causes through private companies that have business arrangements with his advocacy groups. He created the Second Amendment Foundation in the early 1970s, and in 1984, he pleaded guilty to felony tax fraud. He was sentenced to a year in prison, which he served largely on work release. (More recently, the attorney general of Washington state investigated Gottlieb, who sued in response, claiming political harassment.)

In the late 1980s, Gottlieb gained public notice as an architect of the Wise Use movement, which capitalized on a backlash to federal control of land in Western states and environmental regulation. “I’ve never seen anything pay out as quickly as this whole Wise Use thing has done,” Gottlieb said in an interview from the time. “It touches the same kind of anger as the gun stuff, and not only generates a higher rate of return, but also a higher average dollar donation. My gun stuff runs about $18. The Wise Use stuff breaks $40.” When news stories linked the movement to the Reverend Sun Myung Moon’s Unification Church, Gottlieb described them as “overplayed.” In 2023, he headlined the Rod of Iron Freedom Festival, an event hosted by the Rod of Iron Ministries, which is led by a son of Moon. The MAGA-allied church glorifies AR-15-style rifles—the type of gun used in an attempt to assassinate Trump at a campaign rally—seeing in them the biblical “rod of iron,” Christ’s prophesied instrument of dominion at Armageddon.

In November 2022, Gottlieb gave a deposition as part of a challenge to an Illinois gun law. He testified that an anonymous funder was paying his counsel, Cooper & Kirk, which had given him a statement outlining how much money the donor had spent to support roughly a dozen foundation lawsuits underway in 2021. When asked whether he knew who was paying Cooper & Kirk, Gottlieb testified, “I wish I did.”

That remark alarms some experts, who argue that rules of professional responsibility require that a client knows who is paying their counsel before consenting to representation. “He’s either just lying or the firm is delinquent in getting informed consent,” said Dru Stevenson, a professor at South Texas College of Law Houston who specializes in legal ethics and firearms regulation. In response to written questions, Gottlieb said that his deposition answers were “accurate” and that “merely because a third party may have paid for some services rendered, the Second Amendment Foundation retains control over all legal direction, strategy, and settlement authority, which is wholly ethical.”  

Gottlieb is not the operation’s only player who is apparently unaware of his beneficiary’s identity. In 2021, CDF paid Gary Kleck, a professor emeritus at Florida State University whose work has been touted by gun interests for decades, $6,900, according to an IRS filing. Kleck told me the money was a consulting fee from Cooper & Kirk for work he’d done on Bruen. “I have no idea what the Constitutional Defense Fund is,” he said, “and had never heard of it before you contacted me.”

The Professor

Even when they go before a friendly court, the lawyers and plaintiffs need research to bolster their case. Enter Georgetown assistant professor William English, who in 2021 received a $58,750 CDF grant and the same year filed a key brief supporting the Bruen plaintiffs.

Last June, in an investigation revealing CDF’s dark money operation, the New York Times detailed how English’s Bruen brief was filed jointly with the Center for Human Liberty—which had been incorporated in Nevada two months earlier. (The center shares an address and leadership with the Firearms Policy Coalition and Firearms Policy Foundation.) The brief was prepared by a Manhattan attorney, Edward Paltzik, whose firm received $80,000 from CDF in 2021. It argued that, based on English’s own research, there was no link between right-to-carry laws, higher numbers of gun carry permits, and violent crime. The research had not been peer-reviewed.

English’s work suited the plaintiffs perfectly. Clement cited it during oral arguments, and Charles Cooper’s pal Alito did so in a concurring opinion. An update English later published concluded that assault rifles are in “common use,” a finding central to the movement’s legal advocacy post-Bruen. Gun interests have cited English’s work in dozens of motions and pleadings nationwide.

Academics on both sides of the gun debate have found defects in his scholarship. During a 2023 deposition in an Oregon case, Kleck, the Florida State professor, said English’s survey can’t be relied on. “He’s vague about exactly how he developed his sample,” Kleck said. “And there is nothing in his report to contradict the assumption that what he had was a self-selected sample.”

I’d been trying to get English and Georgetown to answer questions about his work since the Bruen ruling came down. Only after I paid a visit to the gated community where then-Georgetown President John DeGioia lived did the university’s communications office respond, stating: “Georgetown respects and supports academic freedom, including the right of its faculty members to conduct independent research. The University’s Institutional Review Board reviewed this study before the survey began, and the survey costs were supported by an external grant that did not flow through the University.”

However, the tax ID number that CDF reported to the IRS in conjunction with English’s grant is Georgetown’s. Asked to clarify the meaning of “did not flow through the university,” a Georgetown spokesperson said the university is “unable to identify any record of Constitutional Defense Fund funds flowing through Georgetown and is uncertain why the University’s tax identification number appears in CDF’s records.”

In late June, English published a Wall Street Journal op-ed in which he defended his work, bashed the Times, and characterized attempts by me and other reporters to get answers from him as “harassment.” English wrote that media outlets “are signaling that they will cancel academics who state inconvenient facts…Those of us who want to foster an evidence-based public-­policy discourse should reject these tactics, and courts should take note of them.”

The Middleman

Lawyers and academics all need to be paid, which brings us back to the Undercover Pastor.

Sutherland likes to tout his time with the DC police, but not all of his undercover work ended smoothly. In one early 1990s case, Sutherland and his partner Joseph Abdalla—who would later sit on the board of CDF—handled an informant named Arvell “Pork Chop” Williams, who was shot multiple times and killed. When federal prosecutors tried members of the drug crew suspected in the killing, it emerged that Williams had been allowed to continue making street buys for Sutherland, who was posing as a Georgetown University construction worker seeking crack, despite the fact that Sutherland’s presence caused dealers unease, according to court transcripts. At trial, evidence went missing, including a pager in Sutherland’s possession that defense attorneys argued could shed light on the crimes. “I am going to get the chief of police and the United States attorney in here and read them the riot act,” the judge said at one point. “To lose evidence of various kinds day after day is just not satisfactory.” Prosecutors dropped the murder charge but obtained drug conspiracy convictions against the defendants.

After Sutherland left the DC police force in 2013, his role at McLean Bible, where he’d long held staff positions, grew. In 2016, he began talks with the Southern Baptist Convention on a partnership to “plant” churches in the DC region. Sutherland founded an entity called New City Network, an arm of McLean Bible, to carry out the work. Concerned that the partnership violated McLean’s constitution, which requires the church to remain unaffiliated, a group of members filed suit against McLean in 2022.

The legal battle revealed a complex series of money transfers totaling more than $7 million between McLean, the convention, and New City Network. Satisfied that records and testimony demonstrated the partnership had indeed violated McLean’s constitution, the plaintiffs dropped the suit in 2023. In a letter summarizing the case, however, their attorney made clear that questions remain: “Current and former church leaders deposed could not explain the reasons for this unorthodox payment structure, or state with confidence where the money went specifically.” A church webpage allows that “financial transactions for the church planting were sometimes confusing,” but says an independent audit accounted for the money spent. 

In a deposition, Sutherland said he’d left McLean Bible and his role leading New City Network in May 2019. He was unable to name any churches the network had started, save for one in Falls Church, Virginia, where he and his son-in-law now preach. “For Heaven’s sake,” Sutherland said. “I can picture all the pastors in my head. I just can’t think of the names they gave their churches. Boy oh boy.”

One of the plaintiffs in the suit, Jeremiah Burke, said Sutherland’s limited recall was an act. “He repeatedly recounts, in his podcast and on his Instagram page, in vivid detail, events from 20 and 30 years ago with absolute precision, events in which he is the hero,” Burke said. “However, in his deposition, having sworn under oath to tell the truth, Dale somehow couldn’t call to mind details of significant events from the recent past.”

A former McLean Bible elder, who spoke on condition of anonymity to discuss internal church matters, described Sutherland as “kindhearted” and a “warrior for the Lord,” but also “deceptive.” During the church planting drive, he said, Sutherland “did things the way he wanted to, he just kind of ran rogue.” The elder said Sutherland “is a pretty good talker, he can sell pretty well,” and would “cuddle up next to” the church’s “big donors.”

As Sutherland left McLean Bible and established CDF, he began to collect more money from his array of nonprofits, including Code 3 Association, whose stated goal is better relations between police and the public. (Abdalla is a director there, too.) In 2020, these nonprofits paid Sutherland and his private company, Code 3 Consulting, more than $200,000. Over the next three years, Sutherland collected more than $1 million from his nonprofits. He also began flipping DC properties, buying at least a dozen homes valued at $7 million and selling them for more than $11 million.

In short, Sutherland has been awash in cash since he filed paperwork to create CDF. In one sense, he’s an odd middleman. People who know him can’t recall Sutherland expressing support for scuttling gun laws. “I never heard him talk about the Second Amendment or gun rights,” the former elder said. “I never did, nope, and I was with him a lot.”

But Sutherland’s history overlaps with another of the operation’s main figures. Speaking to an interviewer in 2023, Thompson, the Cooper & Kirk managing partner who has overseen much of the firm’s Second Amendment work, praised the church that was his spiritual home for two decades. “I grew up Episcopalian,” said Thompson, who did not respond to written questions for this story, “and about 20 years ago, I became a born-again Christian and went to McLean Bible Church.”

Twice while investigating this story, I knocked on the door of Sutherland’s home to no avail. Attempts to reach him by phone failed. Then, in mid-June, he answered. I asked him how he’d come to be running money through CDF to Cooper & Kirk. “Sir, I am in the car with my grandson,” Sutherland said, “and I am not talking.”

The Dark Money

In 2016, a young man in Washington state, angry and jealous after a breakup, bought an AR-15-style rifle, 60 rounds of ammunition, and multiple 30-round magazines. Then he killed three people, including his ex-girlfriend, at a house party. He later blamed his actions in part on easy access to guns. The killings prompted the state legislature to enact a ban on high-capacity magazines and assault rifles. The Second Amendment Foundation and the Firearms Policy Coalition, as co-plaintiffs, filed suits in 2022 and 2023 to strike down the bans. Cooper & Kirk is their counsel in the magazine capacity case. English’s survey findings were cited by the plaintiffs in both ongoing suits. But after the state subpoenaed English in the assault rifle case, the plaintiffs agreed not to rely on his work.

Autumn Snider’s son, 19-year-old Jake Long, was the first to be shot and killed at the party. Snider said those with the means to fund litigation meant to affect public policy should be free to do so—as long as they do so openly. “You have the obligation to reveal who you are and should have the confidence to provide transparency to the public,” Snider told me. “If you can’t be forthcoming with who you are, that is a red flag.”

Defenders of using dark money to support litigation liken the practice to anonymous political speech, which enjoys First Amendment protection. But such arguments have limits, said Adam Winkler, a constitutional law professor at UCLA who has written a book on the gun debate. “First Amendment rights are mitigated by the need to ensure the integrity of the judicial system,” Winkler argues. “We generally don’t allow parties in a case to be anonymous.” Anonymous funding arrangements—not uncommon in the realm of impact litigation—effectively allow an “end run” around judicial ethics safeguards, he said. “How do you know whether there is any impropriety, any influence peddling?” Winkler said. “It’s fundamentally problematic.”

Seth Endo, an associate professor at Seattle University School of Law, said the debate involves fundamental questions about the role of courts. If courts are neutral arbiters of the rights and responsibilities of disputing parties, then it’s easy to argue that disclosure is irrelevant. However, if courts are not detached umpires but themselves political agents that drive social change—certainly a charge leveled at the Supreme Court—then the public has a strong interest in knowing who’s enabling litigation.

Given Cooper & Kirk’s ties to deep-­pocketed conservatives, there are any number of suspects who may be routing millions of dollars through Donors Trust to Sutherland’s CDF—and on to the advocacy groups and their lawyers.

Donors Trust is a pass-through that effectively conceals the identities of individuals and groups backing right-wing causes. (On the left, organizations like the Tides Foundation do the same.) Those who give to Donors Trust can say how they’d like their money to be spent, but they don’t have the final word. In exchange for giving up that control, they get upfront tax benefits. Prominent funders and architects of the modern conservative movement, including the Koch brothers, the Bradley Foundation, and hedge fund tycoon Robert Mercer, have all moved money through Donors Trust. 

Sutherland’s CDF ended 2023, the last year for which IRS filings are available, with $330,000 in Donors Trust cash on hand. In 2022, he formed a similarly named nonprofit in Virginia, and in 2023, he did so in Utah. In September 2024, six weeks after this story was initially published, Sutherland dissolved CDF, according to state records.

A French documentary series on Sutherland called Dale ­L’Infiltré, or Dale Undercover, was unveiled early last year. In it, Sutherland describes himself as an avid shapeshifter whose undercover guises included a drug kingpin, arms dealer, and Mafia boss. Several of the operations that the series highlights were aimed at getting guns off the street in DC. “I had to come up with these crazy schemes and then try and convince people that it was true,” Sutherland says. “This is where my faith made a big difference. I felt an extra confidence, a strength, to be able to face dangerous situations mentally.”

The Justices

On October 8, Pete Patterson, a partner at Cooper & Kirk, stood before the Supreme Court and argued that the Biden administration had overstepped by enacting a rule to crack down on ghost guns.

The firm, which was once again representing the Firearms Policy Coalition, had successfully steered the case through the right-wing 5th Circuit Court of Appeals. One of the individual plaintiffs—a former police officer and teacher named Jennifer VanDerStok—said in an interview with a gun rights group that she was “representative of the average American patriot” and warned of “deep state involvement” in an effort to “subvert our nation.”

Informed of Sutherland’s ties to the case, a former colleague, retired DC police Sergeant Gerald Neill, said: “I don’t understand why he would do that. From my point of view of the world, and probably Dale’s, we don’t want people to have ghost guns.”

Patterson told the justices that the 2022 rule—which requires serial numbers and background checks for “ready-to-build” gun kits—was improper because such products shouldn’t be covered by a federal law regulating items that can be “readily converted” into firearms. The argument quickly turned into one of competing food analogies: “I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions. Is that a Western omelet?” Alito asked Solicitor General Elizabeth Prelogar, who was defending the ghost gun rule. No, she replied, because those ingredients could be made into something other than an omelet.

Barrett then offered a more apt comparison: “Would your answer change if you ordered it from HelloFresh and you got a kit, and it was, like, turkey chili, but all of the ingredients are in the kit?” Yes, Prelogar said.

A majority of the justices seemed to agree with Prelogar, though a ruling isn’t expected until the middle of 2025. Other cases tied to the dark money operation continue to advance. The court is currently considering one of them, a challenge to Maryland’s assault rifle ban, that could topple similar laws across the country.

The Supreme Court on Friday heard oral arguments on the future of TikTok—whether to let the platform go dark on January 19 according to a bipartisan law passed by Congress, or to intervene and spare the platform.

The case pits the First Amendment free speech rights of TikTok and its users against the government’s assertions that the platform poses a national security risk. With bipartisan support, Congress passed a law that will essentially ban TikTok in the United States on January 19 unless ByteDance, the Chinese-based company that owns TikTok, divests the platform.

Genuflecting to national security over fundamental rights has led to some of the court’s most regrettable decisions.

The Supreme Court does not generally like to second-guess the federal government when it comes to national security concerns, and is therefore likely to ultimately uphold the law. While the justices did express doubts about some of the government’s national security rationale, it’s unclear if there are strong enough to delay the law from taking effect, or to overturn it as an unconstitutional infringement on the right to free speech.

The government’s national security arguments are twofold. First, that TikTok vacuums up user data that it then sends to its corporate owner, the China-based ByteDance, where the Chinese government can access it. The People’s Republic of China has been designated a foreign adversary with a documented strategy of gathering vast quantities of data on Americans.

The justices seemed genuinely concerned about this national security risk. Justice Brett Kavanaugh raised the fear that China would gather data on teenagers and people in their twenties “that they would use that information over time to develop spies, to turn people, to blackmail people, people who, a generation from now, will be working in the FBI or the CIA or in the State Department.” Even the lawyers for TikTok and content creators challenging the law acknowledged the threat. But, they said, it was not enough to make the law constitutional.

The government’s second national security argument, which the justices were more skeptical of, is that China can use TikTok to covertly manipulate its 170 million users. Multiple justices had problems with this rationale. After Prelogar suggested that China might benefit from fomenting arguments between Americans, Chief Justice John Roberts sensed an opportunity for a joke. “Did I understand you to say a few minutes ago that one problem is ByteDance might be, through TikTok, trying to get Americans to argue with each other?” he asked, then answered with the punchline. “If they do, I say they’re winning.”

The courts use various levels of scrutiny to determine whether a law is constitutional. If a law abridges the right to free speech, for example, the courts subject it to a higher level of scrutiny, forcing the government must prove it had a compelling interest to abridge that right. The level of scrutiny can also be determined by whether the government is restricting certain viewpoints. In this case, TikTok and the content creators fighting the law claim that Congress passed a content-based free speech restriction. The government denies this. The law, they say, is content neutral; they are not banning any particular speech, but rather, the manipulation of that speech for geopolitical gain. “TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users,” Prelogar explained. “All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform.”

But the justices seemed to raise an eyebrow at the government’s defense here. Justice Elena Kagan, in particular, pushed back against the idea that a ban on manipulation is content-neutral because, ultimately, it does effect what content is shown. “Content manipulation is a content-based rationale,” Kagan said.

Moreover, the justices seemed dismissive of the idea that covert algorithmic manipulation is an actual national security problem. Kagan drew laughs from the courtroom when she stressed that, at this point, everyone knows China is behind TikTok. “It’s just because people don’t know that China is pulling the strings? That’s what ‘covert’ means?” Kagan asked. “Everybody now knows that China is behind it.”

Prelogar attempted to push back on this. “The problem with just saying, as a general matter, China has this capability and might at some point be able to exercise it and manipulate the platform is it doesn’t put anyone on notice of when that influence operation is actually happening, and, therefore, it doesn’t guard against the national security harm from the operation itself.”

Automatically genuflecting to government assertions of national security peril, especially when fundamental rights are at stake, is a habit that has led to some of the Supreme Court’s most regrettable decisions, including Korematsu, when it upheld the use of detention camps for United States citizens of Japanese origin during World War II. As Jeffrey Fisher, a Stanford Law professor who represented TikTok users, put it on Friday, “The government just doesn’t get to say ‘national security’ and the case is over.”

But the justices’ downplaying of the risk of covert manipulation also ignored the extraordinary power of social media and the difficulty of detecting and counteracting propaganda, misinformation, and narratives intended to weaken the United States or harm its citizens.

During the 2016 election, Russia used social media, including dozens of accounts on Instagram, to dissuade Black people from voting. Often, the Kremlin-backed effort would create accounts with an apolitical focus, then shift them to politics once it had gathered an audience. With TikTok, China’s ability to manipulate is far greater. Instead of working to gather an audience through popular content, it could simply use algorithmic manipulation, powered by its vast data trove, to show certain voters information that would dissuade them from voting. They could use the algorithm to threaten public health by increasing fear of vaccines. The scenarios go on and on.

The justices seemed to dismiss the idea covert algorithmic manipulation is an actual security problem.

Algorithms are a potent tool. Because fear grabs users’ attention, algorithms have long prioritized scary and sensationalist material. It’s one reason that Facebook and YouTube radicalized an untold number of people to fear vaccines during the Covid-19 pandemic and helped spread conspiracy theories like Q’Anon. And these algorithmic decisions were motivated by profit—not ones designed to create geopolitical dominance by an enemy nation.

It’s quite possible that a majority of the justices could deem TikTok’s algorithm protected speech but also determine that the government’s national security interest is strong enough to curtail that right. It’s also possible that the justices could decide that algorithmic manipulation is a protected right of TikTok, a US-based company, but not, ByteDance, a foreign company. That may be the government’s argument: TikTok is free to use whatever algorithm it wants, but ByteDance, and through it, the Chinese government, does not have a similar right.

One wildcard is that the law is set to take effect the day before Donald Trump’s inauguration. Trump has asked the court to halt implementation of the law on the premise that he alone can reach a better resolution, claiming that “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.” During oral argument, Francisco likewise argued that the court should halt implementation of the law until the next administration.

Justice Samuel Alito, who suspiciously spoke by phone with Trump on Tuesday, raised the possibility of an administrative stay—a maneuver by which a court hits the pause button on a new law or regulation to give the it extra time to assess the situation. This may sound like a compromise solution, but halting a law passed by Congress from taking effect to allow a new administration to ignore it is a significant exercise of judicial authority.

The justices don’t appear happy about any of their options. But they have nine days to do something.

The Supreme Court on Friday heard oral arguments on the future of TikTok—whether to let the platform go dark on January 19 according to a bipartisan law passed by Congress, or to intervene and spare the platform.

The case pits the First Amendment free speech rights of TikTok and its users against the government’s assertions that the platform poses a national security risk. With bipartisan support, Congress passed a law that will essentially ban TikTok in the United States on January 19 unless ByteDance, the Chinese-based company that owns TikTok, divests the platform.

Genuflecting to national security over fundamental rights has led to some of the court’s most regrettable decisions.

The Supreme Court does not generally like to second-guess the federal government when it comes to national security concerns, and is therefore likely to ultimately uphold the law. While the justices did express doubts about some of the government’s national security rationale, it’s unclear if there are strong enough to delay the law from taking effect, or to overturn it as an unconstitutional infringement on the right to free speech.

The government’s national security arguments are twofold. First, that TikTok vacuums up user data that it then sends to its corporate owner, the China-based ByteDance, where the Chinese government can access it. The People’s Republic of China has been designated a foreign adversary with a documented strategy of gathering vast quantities of data on Americans.

The justices seemed genuinely concerned about this national security risk. Justice Brett Kavanaugh raised the fear that China would gather data on teenagers and people in their twenties “that they would use that information over time to develop spies, to turn people, to blackmail people, people who, a generation from now, will be working in the FBI or the CIA or in the State Department.” Even the lawyers for TikTok and content creators challenging the law acknowledged the threat. But, they said, it was not enough to make the law constitutional.

The government’s second national security argument, which the justices were more skeptical of, is that China can use TikTok to covertly manipulate its 170 million users. Multiple justices had problems with this rationale. After Prelogar suggested that China might benefit from fomenting arguments between Americans, Chief Justice John Roberts sensed an opportunity for a joke. “Did I understand you to say a few minutes ago that one problem is ByteDance might be, through TikTok, trying to get Americans to argue with each other?” he asked, then answered with the punchline. “If they do, I say they’re winning.”

The courts use various levels of scrutiny to determine whether a law is constitutional. If a law abridges the right to free speech, for example, the courts subject it to a higher level of scrutiny, forcing the government must prove it had a compelling interest to abridge that right. The level of scrutiny can also be determined by whether the government is restricting certain viewpoints. In this case, TikTok and the content creators fighting the law claim that Congress passed a content-based free speech restriction. The government denies this. The law, they say, is content neutral; they are not banning any particular speech, but rather, the manipulation of that speech for geopolitical gain. “TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users,” Prelogar explained. “All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform.”

But the justices seemed to raise an eyebrow at the government’s defense here. Justice Elena Kagan, in particular, pushed back against the idea that a ban on manipulation is content-neutral because, ultimately, it does effect what content is shown. “Content manipulation is a content-based rationale,” Kagan said.

Moreover, the justices seemed dismissive of the idea that covert algorithmic manipulation is an actual national security problem. Kagan drew laughs from the courtroom when she stressed that, at this point, everyone knows China is behind TikTok. “It’s just because people don’t know that China is pulling the strings? That’s what ‘covert’ means?” Kagan asked. “Everybody now knows that China is behind it.”

Prelogar attempted to push back on this. “The problem with just saying, as a general matter, China has this capability and might at some point be able to exercise it and manipulate the platform is it doesn’t put anyone on notice of when that influence operation is actually happening, and, therefore, it doesn’t guard against the national security harm from the operation itself.”

Automatically genuflecting to government assertions of national security peril, especially when fundamental rights are at stake, is a habit that has led to some of the Supreme Court’s most regrettable decisions, including Korematsu, when it upheld the use of detention camps for United States citizens of Japanese origin during World War II. As Jeffrey Fisher, a Stanford Law professor who represented TikTok users, put it on Friday, “The government just doesn’t get to say ‘national security’ and the case is over.”

But the justices’ downplaying of the risk of covert manipulation also ignored the extraordinary power of social media and the difficulty of detecting and counteracting propaganda, misinformation, and narratives intended to weaken the United States or harm its citizens.

During the 2016 election, Russia used social media, including dozens of accounts on Instagram, to dissuade Black people from voting. Often, the Kremlin-backed effort would create accounts with an apolitical focus, then shift them to politics once it had gathered an audience. With TikTok, China’s ability to manipulate is far greater. Instead of working to gather an audience through popular content, it could simply use algorithmic manipulation, powered by its vast data trove, to show certain voters information that would dissuade them from voting. They could use the algorithm to threaten public health by increasing fear of vaccines. The scenarios go on and on.

The justices seemed to dismiss the idea covert algorithmic manipulation is an actual security problem.

Algorithms are a potent tool. Because fear grabs users’ attention, algorithms have long prioritized scary and sensationalist material. It’s one reason that Facebook and YouTube radicalized an untold number of people to fear vaccines during the Covid-19 pandemic and helped spread conspiracy theories like Q’Anon. And these algorithmic decisions were motivated by profit—not ones designed to create geopolitical dominance by an enemy nation.

It’s quite possible that a majority of the justices could deem TikTok’s algorithm protected speech but also determine that the government’s national security interest is strong enough to curtail that right. It’s also possible that the justices could decide that algorithmic manipulation is a protected right of TikTok, a US-based company, but not, ByteDance, a foreign company. That may be the government’s argument: TikTok is free to use whatever algorithm it wants, but ByteDance, and through it, the Chinese government, does not have a similar right.

One wildcard is that the law is set to take effect the day before Donald Trump’s inauguration. Trump has asked the court to halt implementation of the law on the premise that he alone can reach a better resolution, claiming that “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.” During oral argument, Francisco likewise argued that the court should halt implementation of the law until the next administration.

Justice Samuel Alito, who suspiciously spoke by phone with Trump on Tuesday, raised the possibility of an administrative stay—a maneuver by which a court hits the pause button on a new law or regulation to give the it extra time to assess the situation. This may sound like a compromise solution, but halting a law passed by Congress from taking effect to allow a new administration to ignore it is a significant exercise of judicial authority.

The justices don’t appear happy about any of their options. But they have nine days to do something.

The Supreme Court on Friday heard arguments in TikTok’s emergency appeal seeking to block a federal law from going into effect that would ban the popular video app unless Chinese parent ByteDance sells its stake. TikTok and ByteDance argued that the law, set to take effect Jan. 19, violates First Amendment rights of its 170 […]

The Supreme Court on Thursday narrowly denied President-elect Donald Trump’s last ditch effort to delay his sentencing in the New York hush money case in which he was convicted of 34 felony counts in May. That sentencing will now proceed tomorrow, January 10.

Trump was found guilty of falsifying business records to cover up payments to adult film star Stormy Daniels in the lead-up to the 2016 election. The sentencing, as Judge Juan Merchan has already indicated, will not include prison time, a fine, or any condition of probation. But it will, officially, make Trump a convicted felon just 10 days before resuming office. Trump will still have the opportunity to appeal his conviction, and the Supreme Court might yet overturn it in the likely scenario the case is appealed to the highest court.

On multiple occasions, the Supreme Court has come to Trump’s aid. On Thursday, it stood down—at least for now.

Rather than intervene before Trump has exhausted his appeal opportunities in state court, the justices’ decision not to intervene allows the New York courts to handle the case as it would handle any other criminal proceeding. This decision is not a sign that the justices are skeptical of Trump’s legal demands or that they won’t later throw out his conviction. But the court—which has in the past year repeatedly taken extraordinary steps to protect Trump from legal liability—stood down. At least for now.

The decision was 5-4. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh would have granted Trump’s request and stopped the sentencing.

In July, the Supreme Court issued a momentous decision granting Trump sweeping immunity from prosecution for official acts made while president. Chief Justice John Roberts’ generous creation of this new right to immunity even barred most evidence from being admissible if it involved official acts. It is this aspect of July’s ruling that Trump attempted to leverage to halt his sentencing, arguing that his trial was tainted by evidence that entangled with his official duties as president. In their petition to the court, Trump’s personal attorneys (both of whom Trump has announced he will nominate to top positions at the Justice Department) argue for a very broad definition of inadmissible evidence, including social media posts from the president’s official account, information on financial disclosure forms, and testimony from former aides about conversations with the president.

In the court’s order, it listed two reasons for denying Trump’s emergency appeal: First, the issue can be resolved in the regular appeals process. Second, because Merchan has already promised to avoid a sentence that would impinge on Trump’s freedom, it will not detract from his ability to carry out his duties. The four dissenters did not give a reason for why they would have granted Trump’s request.

Had the justices halted Trump’s sentencing, it would have been ominous on two levels: First, as a sign of deference and rule-bending for Trump’s benefit, and, second, as a signal that the immunity decision will be interpreted in the broadest way possible.

Several justices’ impartiality towards Trump is in serious doubt. Ginni Thomas, the wife of Justice Clarence Thomas, encouraged efforts to overturn the 2020 election. Justice Samuel Alito flew two flags at his residences associated with the Stop the Steal movement attempting to overturn the 2020 election—but blamed both displays on his wife. Both justices would have halted the sentencing. On multiple occasions in the last year, the Supreme Court has come to Trump’s aid. It ensured he could remain on state ballots despite the 14th Amendment’s prohibition on insurrectionists holding federal office and it repeatedly delayed Trump’s trial for attempting to overturn the 2020 election until, at the last possible moment, it deeply damaged the entire case with its shocking immunity decision.

On Tuesday, hours before this appeal was filed, Alito and Trump spoke by phone. Alito claims that the call was to recommend a former clerk for a job in the new Trump administration. But this former clerk is already a partner at a big law firm and already served in Trump’s previous administration in the high-up position of chief of staff to the attorney general. He comes from a line of prominent Republican attorneys. But, as Alito told ABC News, which first reported the call, it was Alito who needed to personally provide a reference for his former clerk.

“William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position,” Justice Alito told ABC News. Alito denied discussing Trump’s petition in the New York case or any other business he has pending before the court, or likely will in the future.

That may be true. Perhaps Trump is far more involved in reference-checking than previously thought. But the connections between Trump and the GOP-appointed justices keep getting closer, and the ethical lines blurrier.

Weeks before the Supreme Court’s emergency session that could determine the fate of TikTok in the United States, Donald Trump on Friday issued a legal filing asking the high court to pause the law that would ban the Chinese-owned social media app if it isn’t sold by January 19.

The filing did not comment on the legal arguments of the law, which was signed under President Biden over national security concerns that have mounted in recent years. Instead, it touted Trump as “one of the most powerful, prolific, and influential users of social media in history,” noting his 14.7 million followers on TikTok. The president also echoed TikTok’s arguments that the law illegally restricts the First Amendment.

The filing marks the latest chapter in Trump’s shifting views regarding the popular app after he tried, and failed, to ban it in 2020. After meeting with TikTok’s CEO earlier this month, Trump hinted at possibly intervening before the law’s implementation, saying that he had a “warm spot” for the platform. In March, Trump experienced a similar reversal following a meeting with Jeff Yass, a conservative hedge-fund manager who happens to have a $33 billion stake in TikTok. All of this has come against the backdrop of Trump’s increasing coziness with some of tech’s most prominent billionaires.

D. John Sauer, Trump’s lawyer and nominee for solicitor general, wrote on Friday: “President Trump takes no position on the underlying merits of this dispute. Instead, he respectfully requests that the Court consider staying the Act’s deadline for divestment of January 19, 2025, while it considers the merits of this case, thus permitting President Trump’s incoming Administration the opportunity to pursue a political resolution of the questions at issue in the case.”

Whether the conservative Supreme Court with three Trump appointees will see the president-elect’s views as mere recommendations or as marching orders will be determined soon. As it stands now, the federal ban will go into effect next month—just one day before Trump’s inauguration, when as my colleague Pema Levy reports, an unprecedented era of political corruption will begin.

Weeks before the Supreme Court’s emergency session that could determine the fate of TikTok in the United States, Donald Trump on Friday issued a legal filing asking the high court to pause the law that would ban the Chinese-owned social media app if it isn’t sold by January 19.

The filing did not comment on the legal arguments of the law, which was signed under President Biden over national security concerns that have mounted in recent years. Instead, it touted Trump as “one of the most powerful, prolific, and influential users of social media in history,” noting his 14.7 million followers on TikTok. The president also echoed TikTok’s arguments that the law illegally restricts the First Amendment.

The filing marks the latest chapter in Trump’s shifting views regarding the popular app after he tried, and failed, to ban it in 2020. After meeting with TikTok’s CEO earlier this month, Trump hinted at possibly intervening before the law’s implementation, saying that he had a “warm spot” for the platform. In March, Trump experienced a similar reversal following a meeting with Jeff Yass, a conservative hedge-fund manager who happens to have a $33 billion stake in TikTok. All of this has come against the backdrop of Trump’s increasing coziness with some of tech’s most prominent billionaires.

D. John Sauer, Trump’s lawyer and nominee for solicitor general, wrote on Friday: “President Trump takes no position on the underlying merits of this dispute. Instead, he respectfully requests that the Court consider staying the Act’s deadline for divestment of January 19, 2025, while it considers the merits of this case, thus permitting President Trump’s incoming Administration the opportunity to pursue a political resolution of the questions at issue in the case.”

Whether the conservative Supreme Court with three Trump appointees will see the president-elect’s views as mere recommendations or as marching orders will be determined soon. As it stands now, the federal ban will go into effect next month—just one day before Trump’s inauguration, when as my colleague Pema Levy reports, an unprecedented era of political corruption will begin.

President-elect Donald Trump believes he can cut a deal that would keep TikTok legal — while addressing the U.S. government’s national security concerns. TikTok, under a law passed this year, faces a looming deadline that will make the video app illegal in the U.S. as of Jan. 19 unless Chinese parent ByteDance divests its ownership […]

Ahead of the Supreme Court’s Jan. 10 hearing on whether to grant TikTok an emergency injunction to prevent it from being banned by the U.S. government, several groups and members of Congress have weighed in on the issue — both against the law, arguing it violates First Amendment rights of TikTok’s users, and in support […]

The Supreme Court agreed last week to hear a case that could pave the way for states to kick Planned Parenthood clinics and affiliated doctors out of their Medicaid programs. The case threatens the ability of the nation’s largest family planning organization to provide their low-income patients with birth control, cancer screenings, and STI testing and treatment—services that have nothing to do with abortion.

Back in June, the Alliance Defending Freedom (ADF), the religious-right legal group behind the fall of Roe v. Wade, legal attacks on the abortion pill, and some of the most important anti-LGBTQ laws and Supreme Court cases of recent memory, filed the request that the nine justices hear this case.

They asked on behalf of their client, the South Carolina health department. That is part of a pattern: ADF has increasingly represented state governments in efforts to defend abortion bans and anti-trans laws. My colleague Pema Levy reported earlier this year that this work has raised ethical questions about how a religious organization that brings in over $100 million annually from mostly undisclosed donors can represent the public in court while also advancing a religious agenda.

The case, known as Kerr v. Planned Parenthood South Atlantic, dates back to the summer of 2018, when South Carolina Republican Gov. Henry McMaster ordered his state’s health department to declare any doctors or clinics who provided abortion “unqualified” to offer other family planning services. McMaster’s order didn’t have anything to do with the doctors’ resumes or the quality of their healthcare. Instead it was calculated to punish Planned Parenthood financially by making it ineligible to receive Medicaid reimbursements for the non-abortion services that, contrary to popular misconception, make up the vast majority of its work. Medicaid, which provides health coverage for people who are low-income, already does not cover abortion—a prohibition that has been federal law for decades. But “the payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life,” McMaster reasoned in his executive order.

Politically, the executive order was a way for McMaster to “take an anti-abortion stand,” per the resulting headlines. But practically, it hurt South Carolinian women on Medicaid who relied on their local Planned Parenthood clinic for everyday reproductive healthcare.

South Carolina wasn’t the only state to attack Planned Parenthood in this way. Arizona, Arkansas, Indiana, Kansas, and Texas all tried to impose similar restrictions, according to Jane Perkins, litigation director for the National Health Law Program. Texas was one of the few to succeed, and as I wrote in October, the attacks on Planned Parenthood there forced many reproductive health clinics to close, cut hours, charge patients new fees, or ration IUDs and birth control implants. Ultimately, they could only serve half as many patients. The teen birth rate rose an estimated 3.4 percent. 

In response to the restrictions, Planned Parenthood patients and state affiliates have filed a series of lawsuits, arguing that they violate a federal Medicaid provision dating back to 1967 that guarantees patients the “free choice” to see any “qualified” provider who agrees to take Medicaid. The whole point of that provision was to stop states from restricting patient options, which Congress worried would be a step toward socialized medicine.

Federal appeals courts have mostly agreed with this argument. At least four of them have decided that states that exclude Planned Parenthood from Medicaid are violating the “free choice” provision, and that abortion clinics and their affiliates “are qualified providers, and what the state’s doing here is essentially a policy or politically motivated activity to ban Planned Parenthood,” Perkins says. But a couple of courts, including the far-right Fifth Circuit, have thrown out the lawsuits on technical grounds, ruling that states have the power to decide if providers are “qualified,” and that individuals can’t sue over their decisions.

That’s the question the Supreme Court has now agreed to review in Kerr. If the court sides with South Carolina, “it would certainly pull the door open” for more states to kick Planned Parenthood out of their Medicaid programs, Perkins says. Such a ruling could have consequences beyond reproductive healthcare—giving states greater power to pick and choose which doctors can see Medicaid patients.

It would also be in line with the conservative justices’ recent tendency to declare that courts should defer to state decision-making on whether to restrict healthcare for women or trans people. That’s essentially what happened in Dobbs v. Jackson Women’s Health Organization, which allowed states to ban abortion. The same outcome appears likely in a current case, United States v. Skrmetti, where the justices seem poised to green-light state bans on puberty blockers and hormone therapy for trans minors. 

Perkins is worried about Kerr. “I sort of went through a hair-stand-on-end,” she says. Just two years ago, the Supreme Court took a case on a similar question, and reaffirmed the framework courts use to decide when individuals can sue over Medicaid provisions. That case is similar to this one, though it involved nursing homes rather than abortion providers.  “To come along not two years later and take a case on…enforcement of Medicaid provisions, it’s startling,” she says. “But I understand that this is a politically charged subject matter.”

Another factor that makes it different this time: It’s the Alliance Defending Freedom asking. “This is really different,” Perkins says. “This is a nonprofit organization that, my understanding is, has a religious mission. So here’s the question: What about the establishment clause [requiring separation of church and state] of the Constitution?”

The Supreme Court agreed last week to hear a case that could pave the way for states to kick Planned Parenthood clinics and affiliated doctors out of their Medicaid programs. The case threatens the ability of the nation’s largest family planning organization to provide their low-income patients with birth control, cancer screenings, and STI testing and treatment—services that have nothing to do with abortion.

Back in June, the Alliance Defending Freedom (ADF), the religious-right legal group behind the fall of Roe v. Wade, legal attacks on the abortion pill, and some of the most important anti-LGBTQ laws and Supreme Court cases of recent memory, filed the request that the nine justices hear this case.

They asked on behalf of their client, the South Carolina health department. That is part of a pattern: ADF has increasingly represented state governments in efforts to defend abortion bans and anti-trans laws. My colleague Pema Levy reported earlier this year that this work has raised ethical questions about how a religious organization that brings in over $100 million annually from mostly undisclosed donors can represent the public in court while also advancing a religious agenda.

The case, known as Kerr v. Planned Parenthood South Atlantic, dates back to the summer of 2018, when South Carolina Republican Gov. Henry McMaster ordered his state’s health department to declare any doctors or clinics who provided abortion “unqualified” to offer other family planning services. McMaster’s order didn’t have anything to do with the doctors’ resumes or the quality of their healthcare. Instead it was calculated to punish Planned Parenthood financially by making it ineligible to receive Medicaid reimbursements for the non-abortion services that, contrary to popular misconception, make up the vast majority of its work. Medicaid, which provides health coverage for people who are low-income, already does not cover abortion—a prohibition that has been federal law for decades. But “the payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life,” McMaster reasoned in his executive order.

Politically, the executive order was a way for McMaster to “take an anti-abortion stand,” per the resulting headlines. But practically, it hurt South Carolinian women on Medicaid who relied on their local Planned Parenthood clinic for everyday reproductive healthcare.

South Carolina wasn’t the only state to attack Planned Parenthood in this way. Arizona, Arkansas, Indiana, Kansas, and Texas all tried to impose similar restrictions, according to Jane Perkins, litigation director for the National Health Law Program. Texas was one of the few to succeed, and as I wrote in October, the attacks on Planned Parenthood there forced many reproductive health clinics to close, cut hours, charge patients new fees, or ration IUDs and birth control implants. Ultimately, they could only serve half as many patients. The teen birth rate rose an estimated 3.4 percent. 

In response to the restrictions, Planned Parenthood patients and state affiliates have filed a series of lawsuits, arguing that they violate a federal Medicaid provision dating back to 1967 that guarantees patients the “free choice” to see any “qualified” provider who agrees to take Medicaid. The whole point of that provision was to stop states from restricting patient options, which Congress worried would be a step toward socialized medicine.

Federal appeals courts have mostly agreed with this argument. At least four of them have decided that states that exclude Planned Parenthood from Medicaid are violating the “free choice” provision, and that abortion clinics and their affiliates “are qualified providers, and what the state’s doing here is essentially a policy or politically motivated activity to ban Planned Parenthood,” Perkins says. But a couple of courts, including the far-right Fifth Circuit, have thrown out the lawsuits on technical grounds, ruling that states have the power to decide if providers are “qualified,” and that individuals can’t sue over their decisions.

That’s the question the Supreme Court has now agreed to review in Kerr. If the court sides with South Carolina, “it would certainly pull the door open” for more states to kick Planned Parenthood out of their Medicaid programs, Perkins says. Such a ruling could have consequences beyond reproductive healthcare—giving states greater power to pick and choose which doctors can see Medicaid patients.

It would also be in line with the conservative justices’ recent tendency to declare that courts should defer to state decision-making on whether to restrict healthcare for women or trans people. That’s essentially what happened in Dobbs v. Jackson Women’s Health Organization, which allowed states to ban abortion. The same outcome appears likely in a current case, United States v. Skrmetti, where the justices seem poised to green-light state bans on puberty blockers and hormone therapy for trans minors. 

Perkins is worried about Kerr. “I sort of went through a hair-stand-on-end,” she says. Just two years ago, the Supreme Court took a case on a similar question, and reaffirmed the framework courts use to decide when individuals can sue over Medicaid provisions. That case is similar to this one, though it involved nursing homes rather than abortion providers.  “To come along not two years later and take a case on…enforcement of Medicaid provisions, it’s startling,” she says. “But I understand that this is a politically charged subject matter.”

Another factor that makes it different this time: It’s the Alliance Defending Freedom asking. “This is really different,” Perkins says. “This is a nonprofit organization that, my understanding is, has a religious mission. So here’s the question: What about the establishment clause [requiring separation of church and state] of the Constitution?”

The state of Utah has come up with its share of boondoggles over the years, but one of the more enduring is the Uinta Basin Railway. The proposed 88-mile rail line would link the oil fields of the remote Uinta Basin region of eastern Utah to national rail lines so that up to 350,000 barrels of waxy crude oil could be transported to refineries on the Gulf Coast. The railway would allow oil companies to quadruple production in the basin and would be the biggest rail infrastructure project the US has seen since the 1970s.

But in all likelihood, the Uinta Basin Railway will never get built. The Uinta Basin is hemmed in by the soaring peaks of the Wasatch Mountains to the west and the Uinta Mountains to the north. Running an oil train through the mountains would be both dangerous and exorbitantly expensive, especially as the world is trying to scale back the use of fossil fuels. That’s why the railway’s indefatigable promoters, including the state’s congressional delegation, will probably fail to get the train on the tracks. However, they have succeeded in one thing: providing an activist Supreme Court the opportunity to take a whack at the National Environmental Policy Act (NEPA), one of the nation’s oldest environmental laws.

Enacted in 1970, NEPA requires federal agencies to consider the environmental and public health effects of such things as highway construction, oil drilling, and pipeline construction on public land. Big polluting industries, particularly oil and gas companies, hate NEPA for giving the public a vehicle to obstruct dirty development projects. They’ve been trying to undermine it for years, including during the last Trump administration.

Last week, when the Supreme Court heard oral arguments in Seven County Infrastructure Coalition v. Eagle County, former Solicitor General Paul Clement channeled those corporate complaints when he told the justices that NEPA “is designed to inform government decision-making, not paralyze it.” The statute, he argued, had become a “roadblock,” obstructing the railway and other worthy infrastructure projects through excessive environmental analysis. “NEPA is adding a juicy litigation target for project opponents,” Clement told the court.  

“The court is doing the dirty work for all of these industries that are interested in changing our environmental laws.”

But NEPA has almost nothing to do with why the Uinta Basin Railway won’t get built. “The court is doing the dirty work for all of these industries that are interested in changing our environmental laws,” Sam Sankar, a senior vice president at Earthjustice, said in a press briefing on the case, noting that Congress already had streamlined the NEPA process last year. Earthjustice is representing environmental groups that are parties in the case. “The fact that the court took this case means that it’s just issuing policy decisions from the bench, not deciding cases.”

The idea of building a railway from the Uinta Basin to refineries in Salt Lake City or elsewhere has been kicking around for more than 25 years. As I explained in 2022, the basin is home to Utah’s largest, though still modest, oil and gas fields:

Locked inside the basin’s sandstone layers are anywhere between 50 and 321 billion barrels of conventional oil, plus an estimated 14 to 15 billion barrels of tar sands, the largest such reserves in the US. The basin also lies atop a massive geological marvel known as the Green River Formation that stretches into Colorado and Wyoming and contains an estimated 3 trillion barrels of oil shale. In 2012, the US Government Accountability Office reported to Congress that if even half of the formation’s unconventional oil was recoverable, it would “be equal to the entire world’s proven oil reserves.”

Wildcat speculators, big oil companies, and state officials alike have been salivating over the Uinta Basin’s rich oil deposits for years, yet they’ve never been able to fully exploit them. The oil in the basin is a waxy crude that must be heated to 115 degrees to remain liquid, a problem that ruled out an earlier attempt to build a pipeline. The Seven County Infrastructure Coalition, a quasi-governmental organization consisting of the major oil-, gas-, and coal-producing counties in Utah, has received $28 million in public funding to plan and promote the railway as a way around this obstacle. The coalition is one of the petitioners in the Supreme Court case.

“We don’t have a freeway into the Uinta Basin,” Mike McKee, the coalition’s former executive director, told me back in 2022. “It’s just that we have high mountains around us, so it’s been challenging.”

Of course, there is no major highway from the basin for the same reason that the railway has never been built: The current two-lane road from Salt Lake City crests a peak that’s almost 10,000 feet above sea level, which is too high for a train to go over. So the current railway plan calls for tunneling through the mountain. But going through it may be just as treacherous as going over it. Inside the unstable mountain rock are pockets of explosive methane and other gases, not all of which have been mapped.

None of this deterred the Seven County coalition from notifying the federal Surface Transportation Board (STB) in 2019 that it intended to apply for a permit for the railway. The following year, the board started the environmental review process, including taking comments from the public.

In December 2021, the STB found that the railway’s transportation merits outweighed its significant environmental effects. It approved the railway, despite noting that the hazards from tunneling “could potentially cause injury or death,” both in the railway’s construction and operation. It recommended that the coalition conduct some geoengineering studies, which it had not done.

Among the many issues the board failed to consider when it approved the project was the impact of the additional 18 miles of oil train cars that the railway would add to the Union Pacific line going through Colorado, including Eagle County, home to the ski town of Vail. Along with creating significant risks of wildfires, the additional trains would run within feet of the Colorado River, where the possibility of regular oil spills could threaten the drinking water for 40 million people. The deficiencies in the STB’s environmental impact statement prompted environmentalists to ask the DC Circuit Court of Appeals to review the STB decision, as did Eagle County.

In August 2023, the appeals court invalidated the STB’s approval of the railway. Among the many problems it found was the STB’s failure to assess “serious concerns about financial viability in determining the transportation merits of a project.” A 2018 feasibility study commissioned by the coalition itself had estimated that the railway would cost at least $5 billion to construct, need 3,000 workers, take at least 10 years to complete, and require government bond funding because the private sector had little incentive to invest in the railway.  

As Justin Mikulka, a research fellow who studies the finances of energy transition at the New Consensus think tank, told me in 2022, “If there were money to be made, someone would have built this railroad 20 years ago.” The appeals court was also skeptical that the railroad had a future: “Given the record evidence identified by Petitioners—including the 2018 feasibility study—there is similar reason to doubt the financial viability of the Railway.”

“If there were money to be made, someone would have built this railroad 20 years ago.”

Indeed, the plan approved by the STB claims the railway construction would cost a mere $2 billion, to be paid for by a private investor. So far, however, only public money has gone into the project. The private investor, which is also one of the petitioners in the Supreme Court case, is a firm called DHIP Group. When I wrote about the railway in 2022, DHIP’s website showed involvement in only two projects: the Uinta Basin Railway and the Louisiana Plaquemines oil export terminal, which had been canceled in 2021. Today, the long-dead Louisiana project is still listed on its website, but the firm has added a New York state self-storage facility to its portfolio—a concrete box that’s a far cry from a complex, multibillion-dollar infrastructure project.

DHIP’s website also touts its sponsorship of the Integrated Rail and Resources Acquisition Corporation, a new company it took public in 2021 with a $230 million IPO. But in a March 2024 SEC filing, the company disclosed that the New York Stock Exchange had threatened to delist it because in the three years since the IPO, it has done…nothing. (The company has managed to hang on.) Environmental concerns notwithstanding, DHIP seems unlikely to come up with $2 billion to build the railway. A spokesperson for DHIP did not respond to a request for comment.

Even if environmentalists had never filed suit to block it, the railway probably would have died under the weight of its own unfeasibility. Instead, the Seven County coalition appealed the decision to the Supreme Court, arguing that the appeals court had erred when it required the STB to study the local effects of oil wells and refineries that it didn’t have the authority to regulate. In July, the Supreme Court agreed to take the case.

Now the court stands poised to issue a decision with much broader threats to environmental regulation by considering only one question raised by the lower court: Does Supreme Court precedent limit a NEPA analysis strictly to environmental issues that an agency regulates, or does the law allow agencies to weigh the wider impacts of a project, such as air pollution or water contamination, that may be regulated by other agencies?

During oral arguments in the case, liberal Justice Sonia Sotomayor expressed frustration with Clement’s suggestion that the court prevent NEPA reviews from considering impacts that were “remote in time and geography.” She suggested that such an interpretation went against the heart of the law, noting, for instance, that if a federal agency allowed a car to go to market, “it could go a thousand miles and 40 states away and blow up. That’s a reasonably foreseeable consequence that is remote in geography and time.” A federal agency, she implied, should absolutely consider such dangers.

“You want absolute rules that make no sense,” Sotomayor told Clement.

Sotomayor seemed to be alone, however, in her defense of NEPA, and the majority of the other seven justices seemed inclined to require at least some limits to the statute. (Justice Neil Gorsuch recused himself from the case because his former patron, Denver-based billionaire Philip Anschutz, had a potential financial interest in the outcome of the case. His oil and gas company, Anschutz Exploration Corporation, has federal drilling leases in Utah and elsewhere and also filed an amicus brief in the case.)

While the justices seemed inclined to hamstring NEPA, such a ruling would be a hollow victory for the Utah railway promoters that brought the case. When the appeals court voided the STB decision approving the railway, it cited at least six other reasons it was unlawful beyond the NEPA issue. None of those will be affected by a Supreme Court decision in the Seven County coalition case. The STB permit will still be void, and the oil train will not get out of the station.

There will be winners in the case, however, most likely the big fossil fuel and other companies whose operations would benefit from less environmental scrutiny, should the court issue a decision reining in NEPA. For instance, the case could lead the court to strictly limit the extent of environmental harms that must be considered in future infrastructure projects, meaning that the public would have a much harder time forcing the government to consider the health and environmental effects of oil and gas wells and pipelines before approving them.

“This case is bigger than the Uinta Basin Railway,” Earthjustice’s Sankar said. “The fossil fuel industry and its allies are making radical arguments that would blind the public to obvious health consequences of government decisions.” The court will issue a decision by June next year.

Mr. Smith, please come in, have a seat. Our records show you’ve been with the State Department for 17 years, the past five in the Bureau of National Security and Nonproliferation. Now it has come to our attention through an anonymous tip to the America First Compliance Program that you made a derogatory comment about the president. A subsequent internal investigation discovered your wife donated $125 to Hillary Clinton’s 2016 campaign. Through further inquiry—with the assistance of the TrumpX social media team—we located a deleted post from your daughter’s timeline that included a photograph of her and your wife knocking on doors in west Philadelphia for Kamala Harris. Under the new Loyal Americans in Government executive order, we are terminating your employment as of this moment. As you might know, your position has been reclassified and no longer enjoys the civil service protections of the past. There is no right of appeal. My secretary will provide you the separation paperwork. You may leave now.

Donald Trump has many plans for his return engagement at the White House. Several will require police-state tactics.

During his 2024 campaign, Trump repeatedly and enthusiastically declared he would order the mass deportation of 11 million or so undocumented immigrants. At his rallies, diehard fans excitedly waved signs proclaiming the slogan they chanted: “MASS DEPORTATION NOW!” Such a program would require deploying a paramilitary force—or even the National Guard or the military—to locate migrants, apprehend them, and guard them in a network of prisons and detention camps. (Executives at private prison, security, and surveillance software companies are already salivating.) This system would depend on Trump ramping up monitoring of workplaces and neighborhoods, and on anonymous tip lines susceptible to abuse and false leads. (Have a problem with a neighbor? Report ’em.) Perhaps the forces rounding up migrants will be afforded special powers to evade civil liberties protections. As in East Germany during the Cold War, an atmosphere of terror and intimidation will pervade.

Expect something similar within the federal workforce. Months before he left office at the end of his first term, Trump issued an executive order that would have removed employment protections from civil servants deemed disloyal to the president and that could have required expressions of allegiance before being hired—in other words, loyalty oaths for Trump. The order created a new employment category called Schedule F, to be applied to perhaps tens of thousands of federal workers (maybe more), permitting them to be fired without cause. President Joe Biden rescinded the order upon entering the White House and, in October, his administration issued final rules aimed at preventing a future president from reinstating it. But Trump has vowed to bring the plan back on “day one” and turn a large section of the federal workforce into a Trump corps—a stated goal of Steve Bannon and other MAGA schemers.

Reviving Schedule F, Rep. Gerry Connolly (D-Va.) has warned, would be a “direct threat to our national security and our government’s ability to function.” Under such a regime, a broad range of federal employees—say, lawyers at the EPA who work on climate change, scientists at the CDC who prepare for pandemics, or analysts at the CIA who watch the Kremlin—could be dumped at will if they raise questions about a Trump position or don’t pay him obeisance. And the threat of a pink slip would not only silence dissent; it could be used to press government employees to take inappropriate actions—maybe jigger statistics to make Trump’s economic policies look good, or slow-walk disaster aid destined for blue states.

Independent, fact-based, and expertise-driven work across the executive branch would be threatened. Picture a world in which ratting on colleagues is encouraged and snitches roam the hallways of federal agencies looking for signs of disloyalty to Trump. The federal bureaucracy will become a frightening place for many public servants, likely triggering an immense brain drain.

There could be pressure to award government contracts, impose or lift regulations, or conduct investigations based on Trump’s lists of friends and foes. With this power, Trump would be able to threaten corporations, organizations, and people who piss him off. He could sic the IRS on them. He could order the imposition of tariffs to hinder specific firms and sectors. Most notably, Trump could instruct FBI agents and Justice Department prosecutors to investigate his rivals, even when there is no legitimate case. In the past, he has called for initiating criminal probes against Joe Biden, Alvin Bragg, Liz Cheney, Hillary Clinton, James Comey, Kamala Harris, Letitia James, Barack Obama, Nancy Pelosi, and many others. Were he to demand such investigations, it would turn the Justice Department into an agency of retribution, serving Trump’s revenge fantasies and shifting resources from legitimate endeavors. That would be good news for real criminals.

And what of the agencies that Congress has long intended to be insulated from presidential interference? The infamous Project 2025 policy blueprint—expected to be the basis of many Trump actions—calls for ending the independence of these powerful and important regulators, including the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Trade Commission. The Supreme Court would probably need to okay such a bold expansion of presidential power, but conservative groups recently took one challenge designed to provoke such a decision all the way to the high court. While the justices this past October declined—for now—to hear the case, Trump and his allies have mused about seizing control of these bodies, and Trump has openly discussed using the FCC to punish troublesome newscasters by pulling broadcasting licenses.

There are protections against spying on Americans. But with the Supreme Court ruling a president has wide-ranging immunity, what’s to stop him?

The military, too, might not be immune. In mid-November, the news leaked that Trump advisers were weighing an executive order that would create a “warrior board” of former senior military personnel to vet three- and four-star officers and recommend removals of any deemed unfit for leadership. Such a board would permit Trump to purge the military of leaders tied to DEI programs—whom he previously assailed as “woke generals”—or those he deems to be insufficiently devoted to him, creating a chilling effect throughout the Pentagon.

And there’s another way the military could be politicized. Trump allies have urged the revival of the Insurrection Act, which permits a president to use the military “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.” Trump loyalists have claimed he could declare undocumented migrants an invading army and set the military upon them. And in an interview late in the campaign, Trump proposed using the armed forces to go after “radical left lunatics.” He might want to do the same to others opposing his actions—what he calls “the enemy within”—and the Insurrection Act’s vague standards are ripe for abuse: Under the supposed goal of suppressing domestic violence, the military could be ordered to spy on Americans who might be planning protests.

Once he’s back in the White House, Trump will again have access to the extensive surveillance power of the intelligence community. He could compel agencies to spy on American citizens with whom he has a beef. They could be coerced to supply him with information he could use to pressure, embarrass, or harm a detractor. Doing so might be illegal; there are civil liberty protections against spying on Americans. But now that the Supreme Court has ruled a president has wide-ranging immunity against criminal prosecution, what’s to stop him? (During oral arguments, his lawyer suggested that, as president, Trump could order a Navy seal team to assassinate a political rival and be clear of prosecution.)

The same goes for other laws that prohibit abusing government power. It’s not just Trump who is free of guardrails. If other government officials break the law doing his bidding, he will have the power to pardon them. His minions will be well protected.

There are more than 430 federal departments and agencies. Trump could turn each into a ministry of fear, full of devotees who serve him, not the public interest, which he can use to target anyone who draws his ire. Meanwhile, the mass deportation program, should it come into being, will terrorize millions and create an infrastructure fueled by suspicion. If Trump succeeds in these authoritarian endeavors, it will radically reshape not only the US government but the very nature of America.

After the Supreme Court ruled nine years ago that the Constitution protected same-sex marriage, far-right groups, in need of a new rallying cry, turned their attention to transgender people—in particular, kids. That strategic shift has met with devastating success: In recent years, 24 states have made it illegal for doctors to provide trans youth with puberty blockers and hormone therapy—treatments supported by virtually all leading US medical organizations—for the purpose of alleviating gender dysphoria. 

Although anti-trans groups frame their campaign as a “Promise to America’s Children,” their ultimate goal has long been apparent: ending gender transitions for all people, including adults. As Terry Schilling, president of the American Principles Project, admitted last year, he and his allies were starting with children because that’s “where the consensus is.”

That agenda was front and center Wednesday morning when the Supreme Court heard arguments in United States v. Skrmetti, a landmark case that could prove to be as consequential for trans rights as the Dobbs decision has been for abortion. The case focuses on Tennessee’s ban on gender-affirming treatments for minors, passed last year. But throughout hearing, which lasted two and a half hours, lawyers repeatedly brought up the ramifications for adults as well.

A decision in Tennessee’s favor would pave the way for courts to uphold broader bans on gender-affirming care in the future. “There really is much more at stake,” says Katie Eyer, who teaches anti-discrimination law at Rutgers University, “including potentially the ability of people of any age to effectively get [gender] care in the United States.”

As I have reported, Skrmetti centers on the question of whether bans on gender-affirming care are a form of sex discrimination under the 14th Amendment, as the Biden administration, transgender kids, and their families have argued. If so, judges must closely examine lawmakers’ rationale and evidence for passing them (known as “heightened scrutiny”). If not, courts should rubber-stamp such laws when challenged (the so-called “rational-basis” standard).

Tennessee, of course, wants the rubber stamp. State Solicitor General J. Matthew Rice repeatedly argued on Wednesday that the 2023 ban does not treat people differently based on their sex, and thus does not merit closer scrutiny.

Under questioning from Justice Sonia Sotomayor, Rice said that if the court rules Tennessee’s current ban doesn’t require heightened scrutiny, a law banning gender-affirming care for adults wouldn’t either. “Your Honor, we think that if we’re assuming a similarly worded statute, that there still would not be a sex- or a transgender-based classification.”

“You’re licensing states to deprive grown adults of the choice of which sex to adopt?” Sotomayor probed.

“Your honor, I don’t think that’s a fair—” Rice began.

“That’s what you’re telling me,” Sotomayor cut him off.

The debate over adult bans isn’t hypothetical. Florida is currently enforcing a ban on gender-affirming care for minors that also significantly restricts adult care—preventing nurse practitioners from prescribing hormone therapy, for example, and requiring appointments to be in person rather than via telehealth. Officials in Ohio and Missouri have tried to use regulatory powers to impose rules that limit adult transition care. Other states have targeted insurance coverage. South Carolina, for instance, bans the use of Medicaid and other public funds for gender-affirming care, regardless of the patient’s age.

“When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you. Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”

Throughout the hearing, some conservative justices seemed to signal a desire to leave the legality of gender-affirming treatments for minors to states to decide—as the court purported to do when it overturned Roe v. Wade in 2022—citing the evolving nature of the scientific evidence. “The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor,” Chief Justice John Roberts said. Leaving the question to legislatures, rather than courts, would mean ruling that such laws get a lower level of scrutiny from judges.

In his exchange with Sotomayor, Rice seemed to argue that “democratic process” was enough to stop laws that are rooted in prejudice. “To the extent that a law dealing with adults would pass rational-basis review, that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws,” he said.

Sotomayor, whose formidable presence anchors the court’s progressive wing, wasn’t buying it. “When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you,” she retorted. “Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”

With the GOP set to take control of the White House and Congress in January, the “democratic process” could soon produce a nationwide ban on gender-affirming care for minors. If the Supreme Court decides to hold the Tennessee ban to a low bar, rather than requiring it to meet the higher level of scrutiny, its decision “would equally apply to a nationwide ban,” US Solicitor General Elizabeth Prelogar, representing the Biden administration, pointed out during the hearing.

At a rally outside the Supreme Court, Georgia Republican Rep. Marjorie Taylor Greene announced that she was reintroducing just such a bill, claiming the support of incoming President Donald Trump, Vice President JD Vance, and Speaker of the House Mike Johnson. “Those that worship evil are abusing our children, brainwashing our children to believe the lie that comes directly from Satan,” Greene declared.

To Ari, a 21-year-old trans college student from Tennessee who attended a rally in support of trans rights outside the courthouse on Wednesday, the question of whether the courts will protect transgender people from legislative attacks is a matter of life or death. Ari had joined the demonstration, they said, for the sake of the trans kids they’ve known who never made it to adulthood—including a high school friend who committed suicide.

“I think legislation like this only leads to more dead kids,” Ari said. “Tennessee, being one of the most poorly educated, most under-resourced states in the country, is ignoring its own problems in order to terrorize children and families who just want to support their kids.” 

After the Supreme Court ruled nine years ago that the Constitution protected same-sex marriage, far-right groups, in need of a new rallying cry, turned their attention to transgender people—in particular, kids. That strategic shift has met with devastating success: In recent years, 24 states have made it illegal for doctors to provide trans youth with puberty blockers and hormone therapy—treatments supported by virtually all leading US medical organizations—for the purpose of alleviating gender dysphoria. 

Although anti-trans groups frame their campaign as a “Promise to America’s Children,” their ultimate goal has long been apparent: ending gender transitions for all people, including adults. As Terry Schilling, president of the American Principles Project, admitted last year, he and his allies were starting with children because that’s “where the consensus is.”

That agenda was front and center Wednesday morning when the Supreme Court heard arguments in United States v. Skrmetti, a landmark case that could prove to be as consequential for trans rights as the Dobbs decision has been for abortion. The case focuses on Tennessee’s ban on gender-affirming treatments for minors, passed last year. But throughout hearing, which lasted two and a half hours, lawyers repeatedly brought up the ramifications for adults as well.

A decision in Tennessee’s favor would pave the way for courts to uphold broader bans on gender-affirming care in the future. “There really is much more at stake,” says Katie Eyer, who teaches anti-discrimination law at Rutgers University, “including potentially the ability of people of any age to effectively get [gender] care in the United States.”

As I have reported, Skrmetti centers on the question of whether bans on gender-affirming care are a form of sex discrimination under the 14th Amendment, as the Biden administration, transgender kids, and their families have argued. If so, judges must closely examine lawmakers’ rationale and evidence for passing them (known as “heightened scrutiny”). If not, courts should rubber-stamp such laws when challenged (the so-called “rational-basis” standard).

Tennessee, of course, wants the rubber stamp. State Solicitor General J. Matthew Rice repeatedly argued on Wednesday that the 2023 ban does not treat people differently based on their sex, and thus does not merit closer scrutiny.

Under questioning from Justice Sonia Sotomayor, Rice said that if the court rules Tennessee’s current ban doesn’t require heightened scrutiny, a law banning gender-affirming care for adults wouldn’t either. “Your Honor, we think that if we’re assuming a similarly worded statute, that there still would not be a sex- or a transgender-based classification.”

“You’re licensing states to deprive grown adults of the choice of which sex to adopt?” Sotomayor probed.

“Your honor, I don’t think that’s a fair—” Rice began.

“That’s what you’re telling me,” Sotomayor cut him off.

The debate over adult bans isn’t hypothetical. Florida is currently enforcing a ban on gender-affirming care for minors that also significantly restricts adult care—preventing nurse practitioners from prescribing hormone therapy, for example, and requiring appointments to be in person rather than via telehealth. Officials in Ohio and Missouri have tried to use regulatory powers to impose rules that limit adult transition care. Other states have targeted insurance coverage. South Carolina, for instance, bans the use of Medicaid and other public funds for gender-affirming care, regardless of the patient’s age.

“When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you. Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”

Throughout the hearing, some conservative justices seemed to signal a desire to leave the legality of gender-affirming treatments for minors to states to decide—as the court purported to do when it overturned Roe v. Wade in 2022—citing the evolving nature of the scientific evidence. “The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor,” Chief Justice John Roberts said. Leaving the question to legislatures, rather than courts, would mean ruling that such laws get a lower level of scrutiny from judges.

In his exchange with Sotomayor, Rice seemed to argue that “democratic process” was enough to stop laws that are rooted in prejudice. “To the extent that a law dealing with adults would pass rational-basis review, that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws,” he said.

Sotomayor, whose formidable presence anchors the court’s progressive wing, wasn’t buying it. “When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you,” she retorted. “Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”

With the GOP set to take control of the White House and Congress in January, the “democratic process” could soon produce a nationwide ban on gender-affirming care for minors. If the Supreme Court decides to hold the Tennessee ban to a low bar, rather than requiring it to meet the higher level of scrutiny, its decision “would equally apply to a nationwide ban,” US Solicitor General Elizabeth Prelogar, representing the Biden administration, pointed out during the hearing.

At a rally outside the Supreme Court, Georgia Republican Rep. Marjorie Taylor Greene announced that she was reintroducing just such a bill, claiming the support of incoming President Donald Trump, Vice President JD Vance, and Speaker of the House Mike Johnson. “Those that worship evil are abusing our children, brainwashing our children to believe the lie that comes directly from Satan,” Greene declared.

To Ari, a 21-year-old trans college student from Tennessee who attended a rally in support of trans rights outside the courthouse on Wednesday, the question of whether the courts will protect transgender people from legislative attacks is a matter of life or death. Ari had joined the demonstration, they said, for the sake of the trans kids they’ve known who never made it to adulthood—including a high school friend who committed suicide.

“I think legislation like this only leads to more dead kids,” Ari said. “Tennessee, being one of the most poorly educated, most under-resourced states in the country, is ignoring its own problems in order to terrorize children and families who just want to support their kids.”