Trump talks of ending gov't weaponization, as he acts to target foes and the vulnerable

Newly returned to power, Donald Trump lashed out in a series of day-one orders. And: About those "acting" department heads.

In one of President Donald Trump’s first acts back in office, he signed an executive order on Monday purporting to end the weaponization of the federal government — while doing the opposite within the order itself.

The two contradictory acts are emblematic of many of the newly-returned-to-power president’s day-one actions, preaching “unity” at multiple points in his inaugural address while also unleashing a stream of executive actions throughout the day attacking his political opponents, using the levers of government to help his allies, and making life more difficult and dangerous for those already facing discrimination and hate. The attacks on immigrants and transgender people were particularly vicious, and the environmental and energy orders are particularly disturbing.

The orders I’ll be highlighting this morning are not all that came on Monday, and none of these descriptions comprehensively detail the orders covered. In other words, more to come — particularly as implementation begins or as lawsuits are filed. But, for now, this is a look into both how aggressively Trump lashed out on Monday and how much else needs to happen before we know what some — though not all — of these orders, memoranda, and more actually mean for the country and world.

In possibly Trump’s most clearly unconstitutional act on Monday, he set forth his effort to restrict birthright citizenship. It’s an appalling affront to the Fourteenth Amendment, but maybe Trump’s success at getting the U.S. Supreme Court to ignore part of the Fourteenth Amendment once already makes him think he can get them to do it again.

Under the order, Trump claimed:

The ACLU has already announced it will challenge the order, and they will not likely be alone.

In Trump’s order “ending the weaponization of the federal government,” Trump set into effect a plan to weaponize the federal government to investigate the prior administration’s actions and take “appropriate remedial actions” — including setting forth very particular, and convenient, areas to review:

The Securities and Exchange Commission recently filed a complaint against Elon Musk relating to his acquisition of Twitter shares, alleging that he “failed to timely file a beneficial ownership report” as he increased his holdings.

In one of Trump’s most brazen acts in his first day back in office, he pardoned nearly every person convicted for their actions relating to January 6, 2021.

According to the clemency action, Trump pardoned all but 14 of the people convicted of Jan. 6-related offenses. For those 14 — including Stewart Rhodes and Kelly Meggs of the Oath Keepers, both convicted of seditious conspiracy — he commuted their sentences. Notably, Enrique Tarrio, a former leader of the Proud Boys who was serving a 22-year sentence after being convicted of seditious conspiracy, was given a full pardon.

Further, and in a stark infringement of the Justice Department’s traditional independence, Trump — on day one of his second term in office — directed the attorney general to seek dismissal of all pending indictments related to January 6.

Despite the attacks on law enforcement that day, all of those who were in prison because of those attacks have been or will be released in short order.

And yet, moments later, Trump signed an order directing that the attorney general “shall” pursue the death penalty in certain circumstances that involve “the murder of a law-enforcement officer.”

This chameleon-like change in concern for law enforcement came in another order purporting to direct other Justice Department litigation decisions — these relating to when and how DOJ “shall” pursue the death penalty:

Now, although the order uses “shall,” which generally means it is not discretionary, note that discretion is built into (a) when it states “of a severity demanding its use” and that discretion could be read into (b), for example, when it states “where consistent with applicable law,” given all of the rules surrounding the federal death penalty.

The order also contained some outrageous language about how people now serving life sentences without the possibility of parole after having their death sentences commuted by former president Joe Biden should be treated.

Trump’s first-day orders also went far and wide to go after ideas with which he disagrees — “illegal and immoral“ diversity, equity, and inclusion programs in one order and defining “men” and “women” and attacking “gender ideology” in another — even while issuing another order purportedly “restoring freedom of speech and ending federal censorship.”

In the anti-transgender order, Trump put out a wide range of directives to agencies and departments, some of which he lacks direct control over like the Equal Employment Opportunity Commission. Throughout the order, it takes aggressive anti-trans swings — but then puts off action because other departments, agencies, and officials are directed to actually implement steps that often conflict with existing law and precedent. For example:

Given the interplay here with Bostock v. Clayton County, in which the U.S. Supreme Court in 2020 ruled 6-3 that the definition of “sex” discrimination in Title VII of the Civil Rights Act of 1964 included discrimination on the basis of sexual orientation and gender identity, and given that the EEOC had reached that position eight years earlier, any application of this section is almost certain to end up in court. To that end, Trump simply (not so simply) called for an exceptionally narrow interpretation of Bostock in another portion of the order.

There is much more in the order, including directives across the federal government, but they will take time to implement — and will likely face challenges in at least some instances before they go into effect. In any event, I’ll be returning to this order soon.

It was a long day Monday, and it’s clear that the coming months will bring potentially even more chaos and harm than the first months of the first Trump administration brought. But, people like me will be here covering the ins and outs of it — and I am glad that people like you are here reading it, and using it in your own lives and to inform your own work.

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Who’s running the government?

The federal laws setting who can serve as acting heads of departments, while not very restrictive, do present some guardrails on who is, in effect, running the federal government today.

Shortly after the White House web site turned over to the Trump administration, one of the first items posted was President Donald Trump’s list of acting cabinet and cabinet-level leaders.

Under the restrictions set forth in the Federal Vacancies Reform Act of 1998, Trump was able to select from, in some departments, among thousands of individuals to be the acting head of a department. Specifically, Section 3345(a)(3) lays out:

That fits a good number of people at, for example, the Justice Department, with its many lawyer employees. There, Trump selected a longtime immigration lawyer, James McHenry, to be acting attorney general.

In the coming days and weeks, depending on how long confirmations take, I will see whether any of these acting officials merit additional scrutiny. But, for now, that’s some insight into why they’re there.