"Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action..."

"... or that is an action amounting to 'fighting words' is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989). My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.... The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment...."

From President Trump's executive order, "Prosecuting Burning of the American Flag."

Does that violate the First Amendment even though it explicitly limits itself to what is "consistent with the First Amendment"?

Here's Texas v. Johnson. 

I feel like rereading the dissent:

"The fact that they're holding Costa Rica as a carrot and using Uganda as a stick to try to coerce him to plead guilty to a crime..."

"... is such clear evidence that they're weaponizing the immigration system in a matter that is completely unconstitutional, and specifically weaponizing the decision of which country they send him to."

Said Simon Sandoval-Moshenberg, one of the lawyers for Kilmar Abrego Garcia, quoted in "Kilmar Abrego Garcia taken into ICE custody at immigration appointment/Abrego, who was just released from federal custody on Friday, now faces deportation to Uganda" (NBC News).

"For 10 years, I’ve been hearing that we needed to fight fire with fire, to oppose Trump by becoming him, to protect our supposedly sacred liberal institutions by taking some shortcut..."

"... that carved a destructive path straight through them: cracking down on speech, abandoning the norms of journalistic objectivity, making unprecedented use of prosecutorial power. These were bad ideas in their own right, and they did absolutely nothing to stop Trump."

Writes Megan McArdle, in "When the rule of law becomes rule of lawfare/Friday’s Bolton raid and the rebuke of Trump’s $500M fine show what happens when justice is not impartial" (WaPo).

Bad ideas... and they did absolutely nothing to stop Trump. But what if they had stopped Trump? That was the biggest of the ideas, and it might have worked. McArdle asserts that now — now that Trump is back with a vengeance — now we should see that neutral principles are best. If only the lawfare hadn't backfired, it would have been delightful to go on ignoring them.

Delightful for whom? Who are we talking about? Not McArdle herself. She's reporting on what she'd "been hearing" for 10 years. She also says "it was depressing watching so many people on the left thrill to this abusive lawfare." Well, "so many people on the left" think a lot of awful things, including that the so-called "rule of law" is a con.

Did the ordinary liberals of America buy into the fight-fire-with-fire approach? Let them take responsibility, not merely gesture at the "many people on the left." But it's not as though admitting you were wrong now will carry any weight. You played a game of tit for tat and now you're sad that the game continues.

ADDED: Trump plays openly, on Truth Social, just yesterday:

"People in Mississippi can no longer use the social media platform Bluesky."

"The company announced Friday that it will be blocking all IP addresses within Mississippi for the foreseeable future in response to a recent US Supreme Court decision that allows the state to enforce strict age verification for social media platforms.... The company says that compliance with Mississippi’s law—which would require identifying and tracking all users under 18, in addition to asking every user for sensitive personal information to verify their age—is not possible with the team’s current resources and infrastructure...."

From "Bluesky Goes Dark in Mississippi Over Age Verification Law/Bluesky has chosen to block access in the state rather than risk potential fines of up to $10,000 per violation" (Wired).

"Divided Court Eliminates Trump’s Half-Billion-Dollar Fine in Fraud Case/New York appeals judges said that the judgment was excessive, but agreed to uphold the case so the appeal could continue."

The NYT reports (gift link).

“While harm certainly occurred, it was not the cataclysmic harm that can justify a nearly half billion-dollar award to the state,” wrote Peter Moulton, one of the appeals judges whose lengthy and convoluted ruling reflected significant disagreement among the five-judge panel.

This is the intermediate appellate court. 

The president’s appeal will now most likely move to New York’s highest court, providing him another opportunity to challenge the finding that he was a fraudster....

The finding that he was a fraudster! They only write like that for Trump. For anyone else, I suspect, they'd name the crime — "that he committed fraud" — and not portray the verdict as labeling the person as a member of category of people who commit this sort of crime. Especially with the jocose "-ster" ending — "fraudster." 

"It’s never been about whether or not I’m going to lose my tax-exempt status. It’s whether I’m going to lose my prophetic status."

"Let’s not be wussy about this. When we see sin, then name it. But I think it limits me, if somebody believes that I am tied to a candidate or political party."

So said Bonnie A. Perry, an Episcopal Bishop, quoted in a NYT article that's mostly about a Lutheran pastor,  Jonathan Barker, who resigned from Grace Lutheran (in Kenosha, Wisconsin) rather than give up on his plan to deliver a sermon about Alexandria Ocasio-Cortez, endorsing her as a Democratic Party candidate for President in the 2028 election.

The article is "He Tried to Endorse From the Pulpit. He Wound Up Without a Church. The I.R.S. says churches can now support candidates during services, but many denominations still forbid it. A Wisconsin pastor learned the hard way."

So is this about religion or tax exemptions? Bishop Perry refers to "my tax-exempt status," but it's about the ability of all the donors to her church to claim a tax exemption.

It used to be clear that endorsing a political candidate would disqualify a church from its tax-exempt status, but there was a lawsuit challenging that and the Trump administration settled the lawsuit and said that churches could endorse candidates "to their own congregations, in connection with a worship service."

That doesn't mean they should. They may, like Perry, wisely refrain from losing their clout, their fervor, their credibility. Who would go to church to be harangued about voting for the latest Democrat? And then on top of that, you have to worry that you might lose their tax deduction if your church strays beyond the limited concession made in settling that lawsuit.

The churches have good reason to maintain a wall of separation between "the garden of the church" and "the wilderness of the world," even if there's a loophole in the tax law.

"It means that the Justice Department is prepared to go out and use its criminal powers, the power of subpoena, the power to compel witnesses to testify, the ability to go to a judge and try and get a search warrant.... the federal government's most powerful tools...."

Words intoned unironically on today's episode of the NYT "Daily" podcast, which is titled "The Sprawling Government Effort to Prosecute Barack Obama."

Transcript and audio at Podscribe, here.

I was out on my sunrise walk, listening with earbuds, and when I heard "get a search warrant," I had to restrain myself from voicing my sarcasm: Who could have thought that a former U.S. President would have a search warrant executed against him? Is there a plan to invade his home in the early morning hours? To root through the underpants and bras of the former First Lady? Inconceivable — wasn't it? — before this tyrant fought his way back into the White House.

"D.C. mayor meets police takeover with reluctant compliance" according to the teaser on the front page of The Washington Post.

At the article, the headline is "D.C. Mayor Bowser sticks with cautious approach amid Trump’s takeover/Bowser continued with the cautious approach she has taken over the past several months and said there is little D.C. could do to prevent Trump’s unprecedented actions."

Why isn't Bowser getting impassioned and denouncing Trump? Why the restraint? What is the long game?

"How the Hell To Teach Constitutional Law in 2025: Twenty Questions and No Answers."

Written by Eric Segall, at Dorf on Law.

I don't teach anymore, so I don't need to answer question like this, but I'd actually love the opportunity to work this out, and I'll bet there are a lot of younger law school graduates who have the energy and dedication and brains to figure out how to teach conlaw these days. Maybe those of you who are worn out should consider retiring. Oddly enough, when I decided to retire, it was the fall of 2016, and I was sure that Hillary Clinton was about win the election and that after she appoints the successor to Justice Scalia, with 5 strong liberals on the Supreme Court, constitutional law was going to become very boring.

Much of the bulk of Segall's 20 questions is a longstanding problem in conlaw: There's too much material to cover everything or even to cover anything with enough depth. But the argument that we've got a special problem right now is summed up in the first 2 questions:

"President Trump has secretly signed a directive to the Pentagon to begin using military force against certain Latin American drug cartels...."

"The decision to bring the American military into the fight is the most aggressive step so far in the administration’s escalating campaign against the cartels.... The order provides an official basis for the possibility of direct military operations at sea and on foreign soil against cartels.... [D]irecting the military to crack down on the illicit trade also raises legal issues, including whether it would count as 'murder' if U.S. forces acting outside of a congressionally authorized armed conflict were to kill civilians — even criminal suspects — who pose no imminent threat...."

The NYT reports.

"President Trump said on Thursday that he had ordered the Commerce Department to begin work on a new census that excludes undocumented immigrants."

"A new census would be a significant departure for a process stipulated by the Constitution to occur every 10 years. Historically, the census has counted all U.S. residents regardless of their immigration status, a process that helps determine both the allotment of congressional seats and billions of dollars in federal money sent to states. 'People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS,' Mr. Trump wrote in a post on social media.... Mr. Trump tried a similar move in 2020 to keep undocumented immigrants out of the census, but a federal court rejected that attempt, and the Supreme Court declined to intervene...."

The NYT reports.

How ugly was he?

That's from my son Chris, who, as I told you before, is in the midst of a project of reading a biography of every American President. He reads his books in book form, so he texts photos of paragraphs when he's got something to share.

The paragraph above comes from Ron Chernow's "Grant" (commission earned).

How ugly was General Benjamin Butler? Pictures, here, at Wikipedia. He looks bad, but not as bad as those words make him sound. As Chris put it: "You have to really hate someone to describe them that way."

Here's Butler's General Order No. 28 (with rhetorical flourishes that may remind of a certain modern-day President):

Chris and I independently thought that seemed like a Trump tweet! The capitalization is so evocative. And that willingness to use strong interpretations of law to intimidate those who are affronting you....

Maybe Trump is tapping into a deep vein of American rhetoric.

"In truth, Republicans may have more cards to play in an all-out redistricting war in 2026 than Democrats do."

The NYT concedes in "California Democrats Look to Redraw House Map to Counter Texas G.O.P./As a Texas senator summoned the F.B.I. to round up Democrats, the redistricting war that began in Texas was spreading, with California aiming at five Republican House seats."

... House maps and redistricting laws in Democratic states present significant hurdles. Illinois, for instance, is already so skewed to Democrats that flipping even one of the three Republican seats left would be extremely difficult for mapmakers.

That's a funny use of the passive voice: "is already so skewed." In other words, Democrats have already done what they could to advantage themselves in Illinois. They've already used the practice they now want to condemn as nefarious.

Illinois governor JB Pritzker is quoted saying: "If they’re going to cheat, then all of us have to take a hard look at what the effect of that cheating is on democracy. That means we all have to stand up and do the right thing. So, as far as I’m concerned, everything is on the table."

"If they’re going to cheat..." — as if the Republicans started it. You've just accused your own party of cheating. What is the "right thing" — cancelling the other side's cheating? You are essentially crediting your adversaries with doing the "right thing."

Meanwhile, in California, Gavin Newsom is also talking about the "right thing":

Unlike in Texas, where politicians control the process, California’s congressional districts have been set by an independent commission that is not allowed to consider partisanship in drawing the lines. Mr. Newsom has proposed putting that system on hold for the next three elections to help Democrats counter the Republican plan in Texas. He wants the California plan to contain a provision saying that it goes into effect only if Texas approves new maps mid-decade.

“It’s triggered on the basis of what occurs or doesn’t occur in Texas,” Mr. Newsom told reporters on Monday. “I hope they do the right thing, and if they do the right thing, then there’ll be no cause for us to have to move forward.”'

But if they don't do "the right thing," then Newsom is ready to do the wrong thing. But can he? The system he is talking about putting on hold is a matter of state constitutional law. To amend it, he would be asking the people to vote on a ballot initiative to undo the reform they voted for in 2008 and 2010. 

Imagine the campaign against that reform, so recently touted as the right thing to do in California: We're doing it right, but if Texas is doing it wrong, we've got to seize the power to do it wrong like the way we did in the bad old days.

"[Governor Greg] Abbott could not remove [the quorum-avoidant Democratic] lawmakers on his own and would need the courts to go along with his plan..."

"... according to University of Notre Dame law professor Derek Muller. While Abbott and other Republicans could argue that the Democrats had abandoned their duties, those lawmakers would have a chance to make the case that they were representing their constituents by denying the majority the quorum it needs to operate, he added.... 'Even if you go to a court, you’re going to have to make a showing that I think it’s going be tough to make.' Samuel Issacharoff, a professor at New York University School of Law who has observed Texas redistricting battles for more than 30 years, said the governor’s authority to order legislators to be arrested or to remove them from office, 'is at best, unclear.'"

From "Texas House Republicans vote to issue civil arrest warrants for fleeing Democrats/The Texas state House reconvened Monday without dozens of Democrats who left the state to try to stop the GOP from moving ahead with enacting a new congressional map that would give them five more safe seats" (WaPo)(free-access link).

57 of the Texas Democrats have absconded to Chicago, Boston, or Albany. It takes 51 to deny the Republicans a quorum. When is interfering with democracy characterizable as a form of democracy? Whenever the constituents you were elected to represent oppose what they majority elected to the legislature is trying to do?

ADDED: “Schwarzenegger ready to fight Newsom on redistricting/The Republican who helped pass California’s independent line-drawing commission wants to defend his legacy” (Politico).

"Ms. Maxwell cannot risk further criminal exposure in a politically charged environment without formal immunity."

"Nor is a prison setting conducive to eliciting truthful and complete testimony. Of course, in the alternative, if Ms. Maxwell were to receive clemency, she would be willing — and eager — to testify openly and honestly, in public, before Congress in Washington, D.C. She welcomes the opportunity to share the truth and to dispel the many misconceptions and misstatements that have plagued this case from the beginning."

Said David Oscar Markus, Ghislaine Maxwell’s attorney,  quoted in "Ghislaine Maxwell quietly moved from Florida to Texas prison as lawyers seek Trump pardon" (Independent).

And there's this from Trump: "Well, I’m allowed to give her a pardon, but nobody’s approached me with it. Nobody’s asked me about it."

"We banned assault weapons, but our laws only go so far when an AR-15 can be obtained in a state with weak gun laws and brought into New York to commit mass murder."

Said New York Governor Kathy Hochul, quoted in "Even New York’s Strict Gun Laws Couldn’t Prevent the Midtown Shooting" (NYT).

"A Texas man whose girlfriend used abortion pills to end her pregnancy is suing a California doctor who allegedly mailed her the medication..."

"... in what appears to be a first-of-its-kind wrongful-death lawsuit — and a fresh test of federal and state abortion laws. The complaint, filed in a Texas federal court, accuses the doctor of violating state law that prohibits performing or facilitating an abortion, including by distributing pills. But California, where the physician is based, has a 'shield' law explicitly protecting providers who mail abortion pills, including to states where the procedure is banned. The case appears to be the first time an interstate wrongful-death claim over an abortion has been filed in federal court. It is also the latest legal challenge against a provider as antiabortion activists attempt to curb the flow of abortion pills, which are being mailed into all 50 states under shield laws passed after the Supreme Court overturned Roe v. Wade...."

From "Man sues over girlfriend’s abortion in a first-of-its-kind lawsuit/he first-of-its-kind wrongful-death lawsuit tests the laws blue states passed to protect abortion access after the Supreme Court overturned Roe v. Wade" (WaPo).

"We commit federal felonies by the day, by the hundreds if not the thousands. But there’s no real ability for the federal government to shut it down. So the cat’s out of the bag."

Said Aaron Morris, co-founder of the company that manufactures the Wyld brand of cannabis-infused gummies, quoted in "Mummies on cannabis gummies: meet the mothers getting high at home/Frazzled American parents are swapping a nightly glass of chardonnay for chewable THC gummies. But are they ignoring the health risks?" (London Times)

Meanwhile: "Stacy Allen lives in a white wooden house with a perfect lawn and a labradoodle in a suburb of Birmingham, Alabama.... About once a week, after her two children have gone to bed, she’ll take a bite of what looks and tastes like an ordinary [gummy].... 'I feel like it’s just a way to unwind.... Just like having a glass of wine.... I was even at lunch recently with someone I felt was a very conservative mom, and then she and her husband started opening up about doing gummies — and they have teenagers too.... More women do it than you realise. It’s just like anything — talking about it removes the shame. Then other people will be, like, "Oh, I do them too." It’s not a big deal.'"

"At all times, the teacher-student relationship between Mrs. Macron and President Macron remained within the bounds of the law. "

"But, when President Macron’s parents became aware of his strong feelings for his teacher, they decided to transfer him to Lycée Henri-IV in Paris. Mrs. Macron encouraged him to leave and was confident he would fall in love with a peer. Yet, before his departure, he told her, 'Whatever you do, I will marry you.'"

That's paragraph 27 of the lawsuit filed by Emmanuel and Brigitte Macron against Candace Owens — filed today in state court in Delaware.

For an article about the lawsuit, here's "French president sues Candace Owens over claims his wife is a man" (CNN).

That paragraph struck me because it put the relationship between the Macrons in a much more positive light than I'd ever seen. 

"It sounds like the police are just really angry at him for messing up their cars."

Said Ron Kuby, a lawyer for Jakhi McCray, quoted in "Brooklyn Activist Charged With Arson in Torching of 10 Police Vehicles/Jakhi McCray, 21, faces federal arson charges in connection with the burning of police vehicles in a parking lot last month" (NYT).

McCray is, according to the Times, a "pro-Palestinian activist" accused of burning 10 police cars. In the packed courtroom were "his mother and more than two dozen supporters in the courtroom, most of whom donned kaffiyehs, a symbol of Palestinian resistance."

"After the court proceeding, an expletive directed at the police was found scrawled on a bench in Judge Kovner’s courtroom."

Speaking of vandalism... did you see this: "AOC's campaign office vandalized with red paint in NYC" (CBS)? Note the sign: "AOC funds genocide in Gaza."