Get Ready With Me: Robert F. Kennedy Jr.

Plus, why the first week of Trump II feels like five years.

Good Evening:

Why does it feel as though the first week of Trump II: The Agony has taken so much longer than a mere week?

Maybe it’s because the sheer volume of presidential action in the first week—much of it mere noise—is so vast. I asked EJ Wittes to look into when it became such a thing for presidents to cram as much as they could into their first week in office. The answer is striking.

According to EJ’s data, the trend of presidents issue a whole lot of executive orders in the first few days in a office is a recent one. Among post-war presidents, here’s the data on executive orders issued within a week of taking office:

Harry Truman: 4 
Dwight Eisenhower: 1 
John F. Kennedy Jr: 3 
Lyndon Johnson: 2 
Richard Nixon: 2 
Gerald Ford: 1 
Jimmy Carter: 0 
Ronald Reagan: 0 
George HW Bush: 1 
Bill Clinton: 2 
George W. Bush: 0 
Barack Obama: 5 
Donald Trump I: 4 
Joe Biden: 22 
Donald Trump II: 33 

Presidents have always hit the ground running. They had ambitious legislative agendas. They had nominations to get through the Senate. They made policy changes quickly. But the cult of issuing executive orders “on Day 1” turns out to be a creature of the last decade, and the idea of issuing a whole lot of them in a “shock and awe” fashion is even more recent than that—an effort by Joe Biden to undo Trumpism on his first day in office, and then an effort by Trump to double down on it.

So if it feels exhausting and different, that’s because, well, it is actually different. Presidents didn’t used to come into office like this.

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Today on #DogShirtTV, the estimable Holly Berkley Fletcher and I welcomed the estimable NPR reporter Sarah McCammon to discuss her new book, The Exvangelicals. Wanna guess what it’s about?

The conversation was unfortunately abbreviated by some technical problems but it was terrific for the 35 minutes we had McCammon on:

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The Situation: Horsepeople of the Trumpocalypse

In my column today, I discuss the upcoming confirmation hearings for Tulsi Gabbard, Robert F. Kennedy Jr., and Kash Patel and the troubling way in which each nominee believes absolute bullshit about important stuff:

The three nominees present different problems. Patel’s nomination represents the open and proud politicization of law enforcement. Gabbard’s represents the Trumpian embrace of dictators, credulity before foreign propaganda, and suspicion of inconvenient intelligence; her inability to account for her meetings with Bashar Assad is genuinely peculiar. Kennedy, for his part, represents the rejection of mainstream health sciences and the suspicion of modern medicine and its progress against infectious disease.

But there is an important common thread linking these nominees: All three of the remaining horse-people believe important things that simply are not true—or refuse to believe important things that are.

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Today On Lawfare

Trump Fired 17 Inspectors General—Was It Legal?

Jack Goldsmith explains why President Donald Trump’s late night purge of 17 inspectors general is likely legal despite the requirement that he notify Congress in advance. Goldsmith notes that Congress does have authority to limit the president’s choice of replacement, but ne suggests that Congress is unlikely to do so:

The point I want to make for now is that Congress’s narrowing of the president’s options for acting IGs is much more likely to stick in court because Congress has greater authority over acting replacements for a fired IG than it does over the president’s authority to fire an IG in the first place. The reason, in a nutshell, is that “the power to remove attends the power to appoint,” and the Appointments Clause is not the source of authority for the president to appoint acting officials. The president’s constitutional removal power is thus likely not in play with respect to congressional regulation of actings.

Can the 9/11 Plea Withstand the Appointments Clause?

Peter Margulies evaluates the merits of Biden Defense Secretary Lloyd Austin’s effort to block the government’s plea agreement with alleged 9/11 mastermind Khalid Shaikh Mohammad and two other defendants. Margulies suggests that the U.S. Court of Appeals for the D.C. Circuit—which hears oral arguments in this case on Jan. 28—should uphold the agreement because Secretary Austin provided reasonably specific and concrete guidance and the negotiations resulted in reciprocal material concessions:

The guidance from the secretary to the convening authority here was implied, but—as elsewhere in the law of agency—the surrounding context rendered that guidance as specific and concrete as express guidance might have been. When the secretary appointed Escallier as convening authority in August 2023, serious negotiations had been proceeding for over a year. Those negotiations stemmed from factors with special resonance for the secretary and the defendants, respectively. The secretary wanted to avoid years of litigation in the case, particularly on motions to dismiss the capital charges due to the government’s torture of the defendants. The defendants had an incentive that was even more straightforward: They wished to avoid the death penalty.

Divided by Hate: Confronting Antisemitism and Islamophobia in the Netherlands

In the latest installment of Lawfare’s Foreign Policy Essay series, Tanya Mehra explains how efforts to combat antisemitism and Islamophobia, such as classifying perpetrators as terrorists, risk increasing polarization and infringing on civil liberties:

As antisemitic and Islamophobic incidents spike, human rights are being caught in the cross fire. The right to freedom of expression, whether online or offline, and the right to peaceful assembly are under pressure. Adopting only hard security measures is not helpful. Instead, authorities must carefully assess and strengthen existing criminal measures where appropriate and invest in preventive measures.

When political parties capitalize on violent incidents to push their anti-immigration agenda, they only create more polarization in society. In the short term, efforts should be directed at restoring public order and promoting dialogue, as well as bringing the perpetrators to justice. In the long term, it is crucial to invest in social cohesion that addresses antisemitism and Islamophobia equally.

Podcasts

On Lawfare Daily, I speak to Scott Anderson, Anna Bower, Quinta Jurecic, Alan Rozenshtein, and Amelia Wilson about Trump’s first batch of executive orders. We discuss orders suspending enforcement of the TikTok ban, and ending birthright citizenship, as well as the legal challenges some of these orders are facing:

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Today’s #BeastOfTheDay is the guinea pig, a group of which are seen here dealing admirably with existential horror:

Video Source

Think about it. If you were hanging out with a bunch of your friends, and then a giant human appeared and sat down next to you, would you handle it as well as these guinea pigs? No. You’d lose your shit. These guinea pigs are a model of calm composure in the face of Lovecraftian horror. Be like the guinea pig. Do not fear the Other. The Other is probably just here to hang out and maybe have a cuddle.