Under Trump, the Law Is Just a Speed Bump
The president’s spurning of the War Powers Act is just his latest claim that he can wield deadly force outside the law.
We thought about giving Bill kudos this morning for correctly predicting that Yoshinobu Yamamoto would be the World Series MVP. But Bill also predicted that the Dodgers would win in six games. Can’t get credit when you are only shooting 50 percent.
Meanwhile, it’s a big week at the Supreme Court, where on Wednesday the justices will hear arguments about the legality of Trump’s sweeping assertions of tariff power. The president is watching closely: The case, he said on Truth Social yesterday, “is one of the most important in the History of the Country.”
“If we win, we will be the Richest, Most Secure Country anywhere in the World, BY FAR,” Trump wrote. “If we lose, our Country could be reduced to almost Third World status.” So no pressure. Happy Monday.
Anyone, Anywhere, for Any Reason at All
by William Kristol
In the 1948 classic The Treasure of the Sierra Madre, a gang of local bandits confronts American adventurers south of the border. Both groups are in pursuit of the gold treasure of the movie’s title. The criminals demand the cooperation of the Americans, implausibly claiming to be “federales—you know, the mounted police.” One of the Americans (Humphrey Bogart) asks, “If you’re the police, where are your badges?” To which the gang leader ‘Gold Hat’ famously and indignantly responds: “Badges? We ain’t got no badges. We don’t need no badges! I don’t have to show you any stinkin’ badges!”
This exchange is supposed to exemplify the regime of lawlessness that allegedly prevailed south of our border. In the United States, by contrast, it was assumed that the authorities act with the sanction of law. Around here, we carry badges.
That was then. The Trump administration is now. Masked ICE agents seize law-abiding individuals on our cities’ streets. The U.S. military sinks defenseless boats on the high seas. At home and abroad, the administration has ever more brazenly embraced the proposition that they need no law to authorize their actions. The Trump administration believes it doesn’t need no badges.
And so the Washington Post reported Saturday that the Trump Justice Department has told Congress that the administration will continue its lethal strikes against boats with alleged drug traffickers aboard while ignoring the law requiring Congressional approval for ongoing hostilities.
Under the 1973 War Powers Resolution, the president needs congressional approval for any military action that lasts more than sixty days. The attacks on the alleged drug boats began on September 2. On September 4, the administration seemed to acknowledge that the act had triggered the 1973 law, informing Congress that it had conducted the strike and stating an alleged rationale. Since then, there have been over a dozen such strikes and many dozens of people have been killed.
The ongoing military action has now passed the sixty-day mark for congressional approval as specified in the law. But the administration has decided the strikes don’t meet the definition of “hostilities” under the law. And so it doesn’t intend to seek congressional approval of the ongoing action. In other words, it intends to ignore the law.
A senior administration official—who spoke on the condition that he not be named—told the Post that because U.S. troops don’t appear to be in direct danger in the ongoing attacks, which are being conducted at a distance on targets that can’t shoot back, the law does not apply. While the War Powers Resolution has a long and complicated history, the administration’s argument doesn’t stand up to serious legal analysis, as these articles at the website Just Security demonstrate, and as NYU Law’s Ryan Goodman carefully explained yesterday on The Bulwark on Sunday.
But all you have to do is consider the implications of the administration’s argument. The Trump administration is basically claiming the right to kill anyone anywhere, with bombs or missiles or drones, for any reason or for no reason, with no evidence provided and no accountability to Congress or the American people. As Brian Finucane, the War Powers Resolution lawyer at the State Department in the first Trump administration, told the Post, this is “a wild claim of executive authority.”
Even congressional Republicans are getting restive. On Friday, Sen. Roger Wicker (R.-MS), chair of the Senate Armed Services Committee, made public two letters he’d sent to the administration along with his Democratic counterpart, Sen. Jack Reed, challenging the administration’s failure to provide legal justifications and other information they’re obliged by law to provide.
But the Trump administration doesn’t take this or other legal obligations seriously. On October 23, Trump was asked about seeking congressional approval for these acts of war. “We may go to the Senate, we may go to the Congress and tell them about it. But I can’t imagine they’d have any problem with it,” he said. He went on to boast, “I think we’re just gonna kill people that are bringing drugs into our country. Okay, we’re going to kill them. You know, they’re going to be, like, dead.”
You know what are, like, dead: The guardrails that protect the rule of law. The Trump administration won’t abide by congressional constraints on the use of military force abroad. It has been demolishing the internal guardrails in the executive branch against presidential lawlessness. And when you put all this together with the use of the military not just abroad but at home, we are well down the road to becoming—to use a term popular in the era of The Treasure of the Sierra Madre—a banana republic.
The Treasure of the Sierra Madre doesn’t end well. Lots of Americans and Mexicans are dead, and the treasure is nowhere to be found.
One hopes that generations of Americans will have the pleasure of watching The Treasure of the Sierra Madre. But one wonders if they’ll be mystified by Humphrey Bogart’s assumption that we’re entitled to expect government officials to act under legal authority. Because we’re the ones who now say that we don’t need no stinking badges.
That won’t end well either.
AROUND THE BULWARK
Trump’s Next Defense Strategy Risks Leaving the U.S. Underprepared… and the world a less stable, more dangerous place, argue JANE HARMAN and ERIC EDELMAN.
They Dread Trump But Can’t Stop Fighting Each Other: Meet the Democrats… Will this week’s election results bring clarity or just add to the confusion? In The Opposition, LAUREN EGAN has this dispatch.
Trump Rejects All Oversight on Venezuela War. What’s Next? On The Bulwark on Sunday, BILL KRISTOL talks with legal scholar RYAN GOODMAN about how the Trump administration has rejected all congressional oversight over planned military strikes in Venezuela.
America Can’t Go It Alone… On Shield of the Republic, ERIC EDELMAN and ELIOT COHEN discuss the GOP’s ongoing Nazi problem, rising antisemitism on the right, Trump’s false nuclear claims, and the broader fallout of his foreign policy—from strained alliances with Canada, the U.K., and France to lawlessness at sea and defiance of congressional oversight in Venezuela.
Tom Emmer Is the GOP’s Smear Machine… The number-three House Republican combines a mean streak with disregard for the truth, writes WILL SALETAN.
Drug Courts Save Lives. That May Not Save Them From Trump… An Alabama man’s recovery story shows what the program can do—and what could be lost. JONATHAN COHN reports in The Breakdown.
Quick Hits
I DON’T KNOW THE GUY: Donald Trump sat down for a lengthy 60 Minutes interview with CBS News’s Norah O’Donnell over the weekend, during which he insisted that U.S. immigration raids so far “haven’t gone far enough,” argued that the ceasefire he brokered between Israel and Gaza is “not fragile,” and praised Bari Weiss as “a great new leader” at CBS. But perhaps the strangest moment came when the president was asked about his pardon of crypto baron Changpeng Zhao last month. Here was the exchange, which is worth quoting at length:
O’DONNELL: The Trump family is now perhaps more associated with cryptocurrency than real estate. You and your sons, Don Jr. and Eric, have formed World Liberty Financial with the Witkoff family, helping to make your family millions of dollars. It’s in that context that I do wanna ask you about crypto’s richest man, a billionaire known as C.Z. He pled guilty in 2023 to violating anti-money laundering laws. Looked at this, the government at the time said that C.Z. had caused “significant harm to U.S. national security,” essentially by allowing terrorist groups like Hamas to move millions of dollars around. Why did you pardon him?
TRUMP: Okay, are you ready? I don’t know who he is. I know he got a four-month sentence or something like that. And I heard it was a Biden witch hunt . . . I don’t think I ever met him. I have no idea who he is. I was told that he was a victim, just like I was and just like many other people, of a vicious, horrible group of people in the Biden administration.
O’DONNELL: The government had accused him of “significant harm to U.S. national security”—
TRUMP: That’s the Biden government.
O’DONNELL: He pled guilty to anti-money laundering laws. That was in 2023. Then in 2025 his crypto exchange, Binance, helped facilitate a $2 billion purchase of World Liberty Financial’s stablecoin. And then you pardoned C.Z. How do you address the appearance of pay for play?
TRUMP: Well, here’s the thing, I know nothing about it, because I’m too busy doing the other . . . I know nothing about the guy, other than I hear he was a victim of weaponization by government.
Trump may well have been keeping his distance from Zhao here for strategic reasons, since Zhao really is tied closely to World Liberty Financial and really has funneled large sums of crypto cash to the Trump family. But even if it were true that Trump was in the dark about all this, how is that defensible? In fact, the argument is insane on its own merits: In his own telling, he pardoned a crypto billionaire about whom he knows nothing based only on vague assurances from people he knows that Zhao had been treated unfairly by the Biden administration? All this as his administration gears up to take the unprecedented act of revoking pardons issued by Joe Biden on the grounds that Biden was too old and infirm to know who he was pardoning. Someone check on James Comer to see if he’s still alive.
SETTING RECORDS: The government shutdown drags on. If it continues until the 35-day mark Thursday, it will be the longest funding lapse in history, breaking a record set during Donald Trump’s first term. And as Politico notes, Congress is all but guaranteed to clear that ignominious milestone:
Bipartisan talks among rank-and-file senators are underway, which could thaw the weekslong freeze between the two parties. Lawmakers over the weekend were confronted with the grim reality that millions of Americans could lose SNAP food aid — as well as more closures of early education centers, shortages of air traffic controllers and first glimpses of higher health care premiums as Obamacare subsidies are set to expire.
But there’s little chance members of Congress will be able to cobble together a deal to reopen the government before their partisan stalemate clears a new milestone. Even if an agreement quickly materializes in the Senate, lawmakers aren’t scheduled to return to the Capitol until Monday night, and Speaker Mike Johnson has told House members they will get 48 hours notice before they need to be back in Washington to vote on any bill.
2018’s record-long shutdown, which was sparked by Trump’s last-minute detonation of a spending deal because it didn’t fund his border wall, ended without compromise or capitulation from the Democrats. But Trump managed to find a way to save face, too. Sick of waiting but unwilling to drop his demand, he abruptly announced he would go around Congress to build the wall with military funds instead.
Trump called last week for Republicans to also find a way to short-circuit the shutdown—invoking the “nuclear option” and eliminating the sixty-vote threshold to pass most legislation in the Senate, which would allow them to reopen the government with no Democratic votes. But Senate Republican leadership quickly moved to quash the idea—spokespersons for Senate Majority Leader John Thune and Majority Whip John Barrasso both said Friday that their positions on the filibuster remained unchanged, and Politico reported leadership doesn’t think it would have the votes to eliminate the filibuster even if they tried.
ON SECOND THOUGHT: Kevin Roberts is walking it back. As we wrote Friday, the Heritage Foundation’s president dragged the conservative think tank into the furor over Tucker Carlson’s interview with Nick Fuentes last week, scolding conservatives who objected to Carlson’s platforming of a vile and open white supremacist as a “venomous coalition” who were “sowing division” by “canceling our own people.”
Roberts’ statement was met with outrage on much of the professional right and from many within Heritage itself, and he quickly seemed to realize he had miscalculated. On Friday, Roberts abruptly demoted his chief of staff—a move seemingly intended to signal a change of direction to disgruntled staff within Heritage. He also released a follow-up statement condemning Fuentes and his antisemitic, racist, and Hitler-loving rhetoric at length: “Nick Fuentes’s antisemitism is not complicated, ironic, or misunderstood. It is explicit, dangerous, and demands our unified opposition as conservatives,” Roberts wrote. “Fuentes knows exactly what he is doing. He is fomenting Jew hatred, and his incitements are not only immoral and un-Christian, they risk violence.”
The territory Roberts is trying to carve out remains basically untenable. He wants to draw a bright line of acceptable conservative opinion that somehow falls between Carlson and Fuentes, with Tucker on the side of the angels and the groypers on the other. Still, it’s somewhat remarkable that Roberts was compelled to scramble and reassess at all. For now, at least, “no enemies to the right” still comes with an asterisk, even in MAGA.
Cheap Shots
Bill: "But the Trump administration doesn’t take this or other legal obligations seriously."
No, no, no fucking no. The correct way to describe what's happening is the Trump administration does not believe in the rule of law. It believes in the Rule of Trump, and the Rule of Trump operates on the premise that Trump can do whatever he wants whenever he wants. Bill has to start using less anodyne language to describe what's really happening.
We also have to remember that 52 weeks ago, a plurality of voters affirmatively chose the Rule of Trump.
Trump writes that "our Country could be reduced to almost Third World status." Would that be a country where masked secret police arrest citizens, the leader commands that his oversized face be displayed on public buildings, and historic public property is ordered demolished?