Speaker Mike Johnson raises white flag of surrender over House

February 12, 2025

It was a mixed day in the effort to defend the rule of law against the unfolding coup. It was also a bizarre day. Elon Musk stood next to the Resolute Desk and answered questions from journalists while Trump played second fiddle, seated and (mostly) mute. Dark memories of Rasputin hung over the tableau like a sinister presence. Musputin?

Here is the top line: The courts continue to hold the line, and Trump says he will obey court orders even though the evidence suggests otherwise. See The Hill, Trump says he'll abide by court orders that block parts of his agenda. (“The answer is I always abide by the courts, always abide by them. And we’ll appeal. But appeals take a long time.”)

As noted by Marc Elias of Democracy Docket in this excellent explainer video, federal judges seem to be collectively angry at Trump and Musk for playing “hide the ball,” “twenty questions,” and “the dog ate my homework” when faced with clear and direct orders. Elias’s explanation is helpful, reassuring, and provides insight into why Trump (and the DOJ) may realize that they must obey court orders. See Democracy Docket, Judge Says Trump Admin Violated Court Order, Threatens Contempt.

Despite Trump's answer that he will obey court orders, Musk continues to “cut” funds that have been appropriated by Congress under Article I. To say that Trump is abiding by court orders (and the Constitution) contains the significant implied qualifier, “But only to the extent that I get caught.” Cold comfort, indeed. Sadly, as discussed below, we cannot trust the assurances given in court by the DOJ. Caution and skepticism are warranted.

The most significant political development was in the House, where Speaker Mike Johnson said that Trump was welcome to trammel the constitutional authority of Congress. See HuffPo, Mike Johnson Says 'The Courts Should Take A Step Back'. (“The courts should take a step back and allow these processes to play out. What we’re doing is good and right for the American people. Judges aren’t allowed to control the executive’s legitimate power.”)

Mike Johnson knows full well that impounding funds appropriated by Congress violates Article I of the Constitution and the Impoundment Control Act of 1974. The court orders are narrowly tailored to restrain the illegitimate exercise of power by Trump. But Johnson’s comment was meant to signal that House Republicans would not object to their neutering by Trump. Indeed, the fact that Johnson used “we” (“What we’re doing”) shows that House Republicans are co-conspirators in the coup.

Which leaves us where we were yesterday: The courts are the first line of defense and American citizens are the second line of defense. Several readers expressed puzzlement about my call for us to serve as the “backstop” for the courts, saying they did not understand what actions I was encouraging.

So, to remove any ambiguity, let's try again: Trump's willingness to abide by court rulings will be informed by the degree to which his lawlessness provokes mass demonstrations, work stoppages, boycotts, tax strikes, and civil disobedience.

If Trump believes he can ignore court orders without provoking those reactions by the people, he is more likely to ignore the authority of the courts.

But if he believes that ignoring the courts will lead to mass demonstrations, work stoppages, boycotts, tax strikes, and civil disobedience, he will be incentivized to comply with court orders.

In other words, we are the backstop for the courts (a baseball reference), and also the reinforcements, the calvary, and the source of the “consent of the governed.” If we threaten to withdraw that consent, the courts have greater leverage over Trump, and he is more likely to abide by their rulings.

It is therefore vitally important that we belong to and participate in grassroots resistance organizations. Grassroots groups are stepping up to organize mass resistance. Join them. Support them. Show up. Encourage your friends to join. That is how we will backstop the courts.

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Let’s look at some of the most important developments.

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Trump's aluminum tariffs.

In the avalanche of news over the last few days, I failed to mention that Trump announced a 25% tariff on aluminum imports. Auto manufacturers and other businesses have said the tariff will lead to “chaos” in the supply chain. See Quartz News, Ford CEO says Trump tariffs are causing 'chaos' for automakers.

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On the legal front

In a significant development, a judge on the First Circuit Court of Appeals refused to issue an emergency stay of a lower court ruling compelling Trump to “unfreeze” all federal loans and grants. See HuffPo, Appeals Court Won't Halt Judge’s Order Requiring Trump Administration To Unfreeze All Federal Cash.

In a second matter, the Department of Justice admitted that its prior representation that DOGE employees had only “read only” access to private data was false. See Politico, Treasury officials: Musk ally ‘mistakenly’ had power to alter payments system.

But some federal employees are disregarding the court order to “unfreeze” grants and loans. Some federal employees continued (as of late Monday evening) to refuse to comply with Judge McConnell’s order “unfreezing” federal grants and loans. See The New Republic, FEMA Tries to Appease Trump by Ignoring Court Order on Funding Freeze.

Per The New Republic,

In an email sent Monday, Stacey Street, FEMA’s director of the Office of Grant Administration, ordered her subordinates to “put financial holds on all of your awards—all open awards, all years (2021, 2022, 2023, 2024).”

Earlier Monday, U.S. District Judge John J. McConnell had said that the Trump administration had continued to block federal grants, ignoring the judge’s previous directive restraining the disastrous executive order that would have stripped funding from an array of essential government services.

So, while Trump says that he is obeying court orders, people in his administration are not.

And Trump continues to authorize Musk to engage in actions that are likely violations of Article I. Just before the bizarre press conference, Trump authorized Musk to implement a massive layoff of federal employees—likely a violation of federal civil service protection, union contracts, and (depending on how the layoffs are implemented), a violation of the Impoundment Control Act of 1974 and Article I of the Constitution. See Scripps News, Trump signs executive order to reduce the overall size of government.

But in a potentially hopeful sign, the Office of Personnel Management has apparently withdrawn an order to terminate any employee within their “probationary employment” tenure. Instead, terminations will focus on “low performers” within that group. See The Hill, OPM directs federal agencies to address low performers. (“The Office of Personnel Management (OPM) is instructing agencies that they do not have to fire all federal employees still on probation but is encouraging them to remove any low performers.”)

A final note regarding another judicial victory, a judge has ordered the administration to restore website data for health agencies, including information regarding tracking and prevention of sexually transmitted diseases. See The Hill, Judge tells health agencies to restore website data. (The removal “violated a provision requiring federal agencies to provide “adequate notice or reasoned explanation.”)

Democratic Senators challenge Trump and Musk

Senator Dick Durbin demanded the GOP slow the confirmation process on Kash Patel because of allegations that he perjured himself in prior testimony before the Senate. See Talking Points Memo, Durbin Implores Senate GOP To ‘Pause’ On Patel Amid Claims He Covertly Managed FBI Purge. Durbin sent a letter detailing allegations from a whistleblower, who alleged that “Patel personally orchestrated a “purge” of senior law enforcement officials within the bureau.” Patel testified that he had no knowledge of the terminations.

And Senator Adam Schiff demanded that the White House investigate Musk’s conflicts of interests in his role on the DOGE committee. See The Hill, Schiff presses White House on Musk conflicts of interest, ethics. Schiff wrote to Susie Wiles, White House Chief of Staff,

[A]s a “special government employee,” Musk is subject to a federal criminal conflict of interest statute that bars government employees from participating in matters in which they have a financial interest.

Trump thereafter fired the chief ethics watchdog for the White House, who promptly obtained a court order suspending his termination. See Politico, Judge to Trump-terminated ethics watchdog: You’re un-fired.

The actions by Durbin and Schiff may not ultimately be successful, but they are the type of actions that all Democrats rightly expect from their congressional representatives.

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Attacks on the press

The White House barred the Associated Press from an event in the Oval Office because the AP has made an editorial decision to continue to refer to the Gulf of Mexico as the Gulf of Mexico, rather than the “Gulf of America,” as Trump mandated in an executive order. The White House sent a memo to the AP saying that the AP would be barred from a White House event because the AP was failing to “align itself with Trump's executive order.” See The Bulwark (video), This is some dark sh*t.

Memo to the press: Trump is selectively picking you off, one at a time. The obvious solution is to stick together. If the White House bars the AP from press events, then the entire White House press corps should refuse to attend the event. If you don’t stick together, you will fall (and fail) alone. See, e.g., NYTimes, Trump and Musk Attack Journalists by Name in Social Media Posts.

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Opportunities for Reader Engagement

Yesterday, I discussed the statement by the American Bar Association calling on lawyers to defend the rule of law. That statement is a very positive development. Today, the organization Lawyers Defending American Democracy (LDAD), published a document entitled, LDAD announcement re Foreign Corrupt Practice Act and Call to Action by the Bar and Law Schools.

After discussing the decision by the DOJ to not enforce the Foreign Corrupt Practices Act, LDAD writes,

We call on bar associations across the country, law school deans, law firms, and other legal organizations to recognize the urgency of this moment. These are the guardrails of democracy and the rule of law. Cautionary quiet only compounds the danger. Tomorrow will be more urgent, not less so.

LDAD is a great organization for attorneys looking for a place to make a difference. You can see LDAD in action when its co-founder and chair Scott Harshbarger, the former two-term Attorney General of Massachusetts, speaks at a program entitled: State of our Democracy and the Rule of Law - Sleepwalking into Autocracy. (Click on link for details of the program.)

Registration is free and open to the public. The program will take place on February 18, 2025 at 7:00 pm Eastern. Register here: Meeting Registration.

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Concluding Thoughts

This is a rough time for everyone who values the rule of law. Almost everyone who fits that description wants to do the right thing, but it is difficult to know precisely what the most effective strategies are. And, most importantly, Democrats need to stick together. We are not the problem. Trump is the problem.

But the leaders of the Democratic Party—present and past—have failed to grasp the gravity of the moment. Rank-and-file Democrats and other concerned citizens are figuratively shaking their leaders by the shoulders and shouting, “Wake up! Don’t you get it?”

Although some leaders have made slow progress, others are still missing the moment. Incredibly, Senate Minority Leader Chuck Schumer sent a “Dear Colleagues” letter saying that Democrats are willing to work toward a “bipartisan funding bill.” What is he thinking?

Schumer needs to look beyond the Senate to the decimation occurring in the executive branch in violation of Article I of the Constitution. Better yet, Democrats need to replace Schumer with someone willing to fight and someone who doesn’t hurt the Democratic brand every time he steps up to the microphone. Giving away bargaining positions in advance is a weak move during a time that demands strength.

While it is true that Democrats are in the minority in Congress, the next Democrat who invokes that excuse should resign now. We know it is tough. That’s why we elected you. We don’t need to be reminded that it is tough. Take all the time you are devoting to self-pity and rationalizations and spend it on a local radio show or in a town hall or in front of cable news cameras. Stop with the excuses. Fight. Lead. Act like you understand we are in an emergency.

In a truly disturbing report that may not tell the whole story, Axios is reporting that members of the House Democratic caucus whined to Minority Leader Jeffries that grassroots organizations like Indivisible and MoveOn are encouraging their followers to flood phone lines of Democratic lawmakers with calls. See Axios, Democrats "pissed" at MoveOn, Indivisible over Trump approach.

Per the Axios article,

"People are pissed," a senior House Democrat who was at the meeting said of lawmakers' reaction to the calls.

The Democrat said Jeffries himself is "very frustrated" at the groups, who are trying to stir up a more confrontational opposition to Trump.

A Jeffries spokesperson disputed that characterization and noted to Axios that their office regularly engages with dozens of stakeholder groups, including MoveOn and Indivisible, including as recently as Monday.

I don’t know where the truth lies in the above story, but (frankly), it feels like the Axios reporting is true. The reluctance of Democrats in the House to be more aggressive and outspoken suggests that they want to “go along to get along” and wake up when the coup is over.

Bless Indivisible, MoveOn, SwingLeft, and other grassroots organizations for trying to rouse Democratic members of Congress during a crisis.

So, let’s be plain about what we need from congressional Democrats:

Leadership.

Not “leadership on a committee,” or “leadership in the caucus,” or “leadership on the House floor,” but leadership outside of the Capitol—where the coup is unfolding. The people who elected you are bewildered by the yawning silence coming from 95% of the Democrats in Congress. If you are not up to the task, let us know. We can fix that.

In the meantime, do not continue to disappoint us or resent our demands that you step outside your comfort zone. We are in a crisis. We are all being called to step outside our comfort zones. Your phone lines would not be melting if you were in front of the cameras, in town hall meetings, on social media, and in the street with your constituents. We are calling because we want you to lead us, not because we think you are the problem.

But the problem extends beyond Democrats in Congress. Leigh McGowan, a.k.a. Politics Girl, has posted a video that demands to know “Where Are Our Leaders”—referring to former Democratic and Republican leaders like Barack Obama, Hillary Clinton, Bill Clinton, Kamala Harris, George Bush, General Milley, General Austin, Leon Panetta . . . . and more. See Politics Girl, Where Are Our Leaders? (Warning: Leigh drops the “F” bomb early and often.)

To the extent that anyone suggests that the “coup” is over because Trump claimed he would abide by court rulings on Tuesday, you are sorely mistaken. Despite dozens of losses in court, Musk and Trump announced $600 million in cuts to the Department of Education—a grotesque violation of Article I and the Impoundment Control Act. And let’s not forget that Musk is infecting our government’s computer system with spyware, backdoors, unauthorized servers, and code changes—all to assume control of the central nervous systems of the government. You are deeply mistaken if you think that is not a coup because it doesn’t involve tanks rolling down Pennsylvania Avenue.

So, elected Democrats—current and former—step up! Your country needs you. We need you. We want you to lead us. Are we mad at you? Yep! But we will get over it as soon as you show that you are willing to stand by our side in the fight to save democracy.

Or you could bitch about us in closed-door meetings and then leak your complaints to the press. Your choice.

Talk to you tomorrow!

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