update - Immigration Dept pushes unconstitutional policy of automatic bail denial in immigration proceedings
- Thread starter mandrill
- Start date
For the second time in less than a month, the Justice Department on Wednesday abruptly dropped charges against a client represented by Brad Bondi, the brother of U.S. Attorney General Pam Bondi.
Federal prosecutors in Missouri this week agreed to voluntarily dismiss an indictment against Sid Chakraverty, a property developer who faced felony wire fraud charges. Prosecutors under the Biden administration accused Chakraverty in 2024 of lying about hiring women- and minority-owned subcontractors on a housing development in order to allegedly secure favorable tax incentives.
As recently as three weeks ago, career prosecutors held that Chakraverty should face criminal penalties for his alleged scheme.
MORE: A woman accused of fraud hired the AG's brother as her lawyer. Months later, DOJ dropped charges
But on Wednesday, the newly installed U.S. attorney for the Eastern District of Missouri, Thomas Albus, a Trump appointee, filed court papers informing the judge overseeing the case that the "defendants have agreed to make restitution of the taxes" and that it is therefore "prudent for the government to end this criminal prosecution."
In his letter to the judge, Albus explained that the decision to drop charges was part of a department-wide directive to no longer prosecute cases against those accused of violating "race- and sex-based presumptions like the [disadvantaged business enterprise] program" in St. Louis.
The development comes just weeks after federal prosecutors in Florida agreed to drop charges against Carolina Amesty, another client of Brad Bondi, who faced two counts of theft of government property related to alleged COVID relief fraud.
Amesty had hired Brad Bondi in December 2024, shortly after his sister, Pam Bondi, was tapped by President Donald Trump to serve as attorney general.
Attorney General Pam Bondi speaks with reporters during a briefing with President Donald Trump in the James Brady Press Briefing Room at the White House, Aug. 11, 2025, in Washington.
Mark Schiefelbein/AP
Brad Bondi officially joined on as Chakraverty's attorney in July 2025, according to the court docket. But James McCarthy, a spokesperson for Chakraverty and his alleged co-conspirator, Victor Alston, said Brad Bondi had been working on the case since prior to the 2024 election.
"[Sid and Vic] credit the wisdom and integrity of their counsel, especially Brad Bondi, Renato Mariotti, and Jeff Jensen, who righteously and compellingly made clear that this case should never have been brought and that it could not withstand the scrutiny of either a jury of St. Louisans or the jurists of the federal courts," McCarthy said in a statement to ABC News. "That was clear when, just two days after the team filed its motion to dismiss, the City of St. Louis suspended the untenable and unconstitutional policy that formed the entire basis of the unjust charges against Sid and Vic."
A spokesperson for Bondi did not immediately respond to a request for comment.
Brad Bondi's recent success in defending clients from charges brought by the Justice Department has raised the concern for some that his proximity to the attorney general may present the appearance of a conflict of interest.
A Justice Department spokesperson asserted that Pam Bondi's relationship with her brother had no bearing on the outcome of these cases, telling ABC News in a statement that "this decision was made through proper channels and the Attorney General had no role in it."
abcnews.go.com
Federal prosecutors in Missouri this week agreed to voluntarily dismiss an indictment against Sid Chakraverty, a property developer who faced felony wire fraud charges. Prosecutors under the Biden administration accused Chakraverty in 2024 of lying about hiring women- and minority-owned subcontractors on a housing development in order to allegedly secure favorable tax incentives.
As recently as three weeks ago, career prosecutors held that Chakraverty should face criminal penalties for his alleged scheme.
MORE: A woman accused of fraud hired the AG's brother as her lawyer. Months later, DOJ dropped charges
But on Wednesday, the newly installed U.S. attorney for the Eastern District of Missouri, Thomas Albus, a Trump appointee, filed court papers informing the judge overseeing the case that the "defendants have agreed to make restitution of the taxes" and that it is therefore "prudent for the government to end this criminal prosecution."
In his letter to the judge, Albus explained that the decision to drop charges was part of a department-wide directive to no longer prosecute cases against those accused of violating "race- and sex-based presumptions like the [disadvantaged business enterprise] program" in St. Louis.
The development comes just weeks after federal prosecutors in Florida agreed to drop charges against Carolina Amesty, another client of Brad Bondi, who faced two counts of theft of government property related to alleged COVID relief fraud.
Amesty had hired Brad Bondi in December 2024, shortly after his sister, Pam Bondi, was tapped by President Donald Trump to serve as attorney general.
Attorney General Pam Bondi speaks with reporters during a briefing with President Donald Trump in the James Brady Press Briefing Room at the White House, Aug. 11, 2025, in Washington.
Mark Schiefelbein/AP
Brad Bondi officially joined on as Chakraverty's attorney in July 2025, according to the court docket. But James McCarthy, a spokesperson for Chakraverty and his alleged co-conspirator, Victor Alston, said Brad Bondi had been working on the case since prior to the 2024 election.
"[Sid and Vic] credit the wisdom and integrity of their counsel, especially Brad Bondi, Renato Mariotti, and Jeff Jensen, who righteously and compellingly made clear that this case should never have been brought and that it could not withstand the scrutiny of either a jury of St. Louisans or the jurists of the federal courts," McCarthy said in a statement to ABC News. "That was clear when, just two days after the team filed its motion to dismiss, the City of St. Louis suspended the untenable and unconstitutional policy that formed the entire basis of the unjust charges against Sid and Vic."
A spokesperson for Bondi did not immediately respond to a request for comment.
Brad Bondi's recent success in defending clients from charges brought by the Justice Department has raised the concern for some that his proximity to the attorney general may present the appearance of a conflict of interest.
A Justice Department spokesperson asserted that Pam Bondi's relationship with her brother had no bearing on the outcome of these cases, telling ABC News in a statement that "this decision was made through proper channels and the Attorney General had no role in it."
DOJ drops charges against another client of AG Pam Bondi's brother Brad
For the second time in less than a month, the DOJ has dropped charges against a client represented by Brad Bondi, the brother of U.S. Attorney General Pam Bondi.
abcnews.go.com
Because more people like authoritarianism than you would like, I think.
For people like rich, it appears to be of a piece with his views on rape.
As long as you don't call it that, and you can get away with it, then it is fine.
It does seem she fucked up here.
Her speech seems to have been about how they don't need the national guard or ICE there and the effects of military occupying the city are bad.
But she did try some sugar in the mix, saying the federal officers are helpful.
And that's the only thing being reported now.
She forgot the media is wired to slant to Trump.
I don't understand why you're so hung up on Trump...and you get mad at people who support his policies
Policies:
-lower crime
-bring back companies to the US
-secure border
-ban men on women's sports and bathrooms
-deport illegal immigrants
-broker peace talks
Why are his policies bad again? the wind in my face is just the bonus...
For the second time in less than a month, the Justice Department on Wednesday abruptly dropped charges against a client represented by Brad Bondi, the brother of U.S. Attorney General Pam Bondi.
Federal prosecutors in Missouri this week agreed to voluntarily dismiss an indictment against Sid Chakraverty, a property developer who faced felony wire fraud charges. Prosecutors under the Biden administration accused Chakraverty in 2024 of lying about hiring women- and minority-owned subcontractors on a housing development in order to allegedly secure favorable tax incentives.
As recently as three weeks ago, career prosecutors held that Chakraverty should face criminal penalties for his alleged scheme.
MORE: A woman accused of fraud hired the AG's brother as her lawyer. Months later, DOJ dropped charges
But on Wednesday, the newly installed U.S. attorney for the Eastern District of Missouri, Thomas Albus, a Trump appointee, filed court papers informing the judge overseeing the case that the "defendants have agreed to make restitution of the taxes" and that it is therefore "prudent for the government to end this criminal prosecution."
In his letter to the judge, Albus explained that the decision to drop charges was part of a department-wide directive to no longer prosecute cases against those accused of violating "race- and sex-based presumptions like the [disadvantaged business enterprise] program" in St. Louis.
The development comes just weeks after federal prosecutors in Florida agreed to drop charges against Carolina Amesty, another client of Brad Bondi, who faced two counts of theft of government property related to alleged COVID relief fraud.
Amesty had hired Brad Bondi in December 2024, shortly after his sister, Pam Bondi, was tapped by President Donald Trump to serve as attorney general.
Attorney General Pam Bondi speaks with reporters during a briefing with President Donald Trump in the James Brady Press Briefing Room at the White House, Aug. 11, 2025, in Washington.
Mark Schiefelbein/AP
Brad Bondi officially joined on as Chakraverty's attorney in July 2025, according to the court docket. But James McCarthy, a spokesperson for Chakraverty and his alleged co-conspirator, Victor Alston, said Brad Bondi had been working on the case since prior to the 2024 election.
"[Sid and Vic] credit the wisdom and integrity of their counsel, especially Brad Bondi, Renato Mariotti, and Jeff Jensen, who righteously and compellingly made clear that this case should never have been brought and that it could not withstand the scrutiny of either a jury of St. Louisans or the jurists of the federal courts," McCarthy said in a statement to ABC News. "That was clear when, just two days after the team filed its motion to dismiss, the City of St. Louis suspended the untenable and unconstitutional policy that formed the entire basis of the unjust charges against Sid and Vic."
A spokesperson for Bondi did not immediately respond to a request for comment.
Brad Bondi's recent success in defending clients from charges brought by the Justice Department has raised the concern for some that his proximity to the attorney general may present the appearance of a conflict of interest.
A Justice Department spokesperson asserted that Pam Bondi's relationship with her brother had no bearing on the outcome of these cases, telling ABC News in a statement that "this decision was made through proper channels and the Attorney General had no role in it."
DOJ drops charges against another client of AG Pam Bondi's brother Brad
For the second time in less than a month, the DOJ has dropped charges against a client represented by Brad Bondi, the brother of U.S. Attorney General Pam Bondi.
The dozen or so high-ranking Department of Justice attorneys who were reassigned to the DOJ's Sanctuary Cities Enforcement working group have all quit, the Washington Post is reporting on Saturday.
According to the report from Post’s Perry Stein, a the time of the reassignment they were told to either accept the move or resign and, as of this week, the last attorney who accepted the move has now quit.
The report notes that those who accepted the move soon realized it had no function other than to sideline them with the hope that they would give up and leave the DOJ.
As the Post’s Stein wrote, “Six months later, all of those attorneys have left DOJ for good, the last one packing up this week. And five people familiar with the working group say they got the impression that the task force was designed to do nothing but frustrate and eventually force out lawyers the administration felt it could replace with people more loyal to the president.”
The report notes that little legal work was being done with career attorneys assigned to “...do Google-type searches and other menial research on those [sanctuary] policies — and were told there was no need to communicate with the lawyers who were actually filing high-profile lawsuits against such jurisdictions as Los Angeles, New York and Denver.”
Bonnie Robin-Vergeer, the former chief of the Civil Rights Division’s appellate section quit after six weeks, telling the Post, “The assignment was a sham. We did very little.”
The report noes the move was made before Attorney General Pam Bondi took over allowing her to "skirt federal guidelines that require a 120-day moratorium on certain staff reassignments after new, Senate-confirmed agency leaders start their appointments."
According to Stacey Young, president and founder of Justice Connection, the move was also done in such a way as to avoid scrutiny and scandal.
“The administration identified seasoned and proven leaders they wanted out of the way — officials they probably believed would stymie their political goals, or simply insist on following the law and upholding institutional norms,” Young explained before elaborating, “Firing them outright likely would’ve resulted in lawsuits and fanfare they wanted to avoid. So they hatched a more devious plan: Send them to a rubber room where they’d resign immediately, or wither and then give up.”
You canread more here.
DOJ attorneys bolt after being forced to work on 'sham' anti-immigrant team: report
According to the report from Post’s Perry Stein, a the time of the reassignment they were told to either accept the move or resign and, as of this week, the last attorney who accepted the move has now quit.
The report notes that those who accepted the move soon realized it had no function other than to sideline them with the hope that they would give up and leave the DOJ.
As the Post’s Stein wrote, “Six months later, all of those attorneys have left DOJ for good, the last one packing up this week. And five people familiar with the working group say they got the impression that the task force was designed to do nothing but frustrate and eventually force out lawyers the administration felt it could replace with people more loyal to the president.”
The report notes that little legal work was being done with career attorneys assigned to “...do Google-type searches and other menial research on those [sanctuary] policies — and were told there was no need to communicate with the lawyers who were actually filing high-profile lawsuits against such jurisdictions as Los Angeles, New York and Denver.”
Bonnie Robin-Vergeer, the former chief of the Civil Rights Division’s appellate section quit after six weeks, telling the Post, “The assignment was a sham. We did very little.”
The report noes the move was made before Attorney General Pam Bondi took over allowing her to "skirt federal guidelines that require a 120-day moratorium on certain staff reassignments after new, Senate-confirmed agency leaders start their appointments."
According to Stacey Young, president and founder of Justice Connection, the move was also done in such a way as to avoid scrutiny and scandal.
“The administration identified seasoned and proven leaders they wanted out of the way — officials they probably believed would stymie their political goals, or simply insist on following the law and upholding institutional norms,” Young explained before elaborating, “Firing them outright likely would’ve resulted in lawsuits and fanfare they wanted to avoid. So they hatched a more devious plan: Send them to a rubber room where they’d resign immediately, or wither and then give up.”
You canread more here.
DOJ attorneys bolt after being forced to work on 'sham' anti-immigrant team: report
- President Donald Trump's effort to sack Federal Reserve Governor Lisa Cook is a maneuver that would mark a seismic shift for an institution that for ages had been considered above politics.
- Experts say Trump's moves not only threaten to make the Fed more political but also would undermine key pillars of the American financial system.
- For the administration's part, Trump's lieutenants largely say they believe in Fed independence but see the central bank as institution run amok that needs reigning in.
US President Donald Trump speaks during a meeting with Ukrainian President Volodymyr Zelenskyy and European leaders in the East Room of the White House in Washington, DC, on August 18, 2025.
President Donald Trump's effort to sack Federal Reserve Governor Lisa Cook is about more than firing someone: It's a maneuver that, if successful, would mark a seismic shift for an institution that for ages had been considered above politics.
Since taking office in January, Trump has placed the Fed directly in the crosshairs of executive power. He has berated central bankers for not lowering rates, threatened to remove Chair Jerome Powell, and now has taken the unprecedented step of actually attempting to unseat Cook.
From the president's perspective, he's looking to reform what has been an unpopular institution, often blamed for the runaway inflation that hit the U.S. following the Covid pandemic. Trump sees lower interest rates as a pathway to manage the swelling federal debt while boosting a housing market that has been a counterweight to an otherwise growing economy.
However, legal scholars as well as financial market experts and present and former Fed officials say Trump's moves not only threaten to make the Fed more political but also would undermine key pillars of the American financial system.
"We are on a road that is going to lead to the erosion of central bank independence," said Kathryn Judge, a professor at Columbia Law School. "It would be incredibly costly for the long-term health of the economy for the Fed to lose the credibility that it has spent decades trying to build."
Independence in the Fed's case is a term used to describe its freedom from outside political influence to determine monetary policy that is best for the U.S. economy. This is particularly the case if those decisions are unpopular, such as when the Federal Open Market Committee raises interest rates to bring down inflation.
But there's more at stake than simply the level of the three rates the Fed controls.
What the board controls, and what it doesn't
Should Trump get a majority of members on the board of governors to vote the way he wants — and the evidence right now, to be sure, is scant that he can ever achieve such a goal — it would give him access to key levers that control the economy as well as the nation's financial infrastructure.
The seven-member Board of Governors, for instance, has regulatory and enforcement power over banks.
Moreover, while the 12-member FOMC sets the key overnight funds interest rate, the governors alone establish the discount rate, used to find the present value of money, and the interest on reserve balances, which pays banks for storing their money at the Fed and also serves as a kind of guardrail for the funds rate.
Finally, the board has control over the reappointments of the 12 regional bank presidents, with a slew of names coming up in 2026.
Embedded within those responsibilities is the Fed's role in ensuring the integrity of the Treasury system and preserving a stable dollar.
In other words, this is about more than just getting a rate cut in September.
"The most serious danger, I think, to people's being able to have confidence in the Fed board is what Trump is himself doing," said Robert Hockett, a professor at Cornell Law School. "Because if Trump succeeds with this, then it suggests the Fed board is nothing but a rubber stamp. It just basically tells us that any nutjob who happens to get into the White House will be setting monetary policy henceforth."
The effect, Hockett added, is that "we can have the same kind of hyperinflations in the future that banana republics in Latin America have classically had when their dictators have set monetary policy, or that Turkey has experienced in recent years because its dictator has set monetary policy."
What Trump wants to achieve
For the administration's part, Trump's lieutenants largely say they believe in Fed independence but see the central bank as institution run amok that needs reigning in.
However, the president has conceded he will litmus test nominees for board vacancies on their willingness to lower rates, and he in the past has advocated getting a say in the Fed's rate decisions among other measures that might be considered intrusions into the central bank's space.
"I don't think it's an undermining of Fed independence. I just think it's the fact the system needs a wholesale reevaluation and President Trump just does things unconventionally," said Joseph LaVorgna, a senior economist during the first Trump term and now counselor to Treasury Secretary Scott Bessent. "There definitely has been mission creep on behalf of the Fed getting into climate change and issues of diversity and inclusion and things that certainly go well beyond their mandate."
In fact, the notion that the Fed needs an overhaul has support on Wall Street.
Mohamed El-Erian, the former Pimco executive and now chief economic advisor at Allianz, recently advocated that Powell step down as chair to avoid just the kind of battle over independence that is happening now. Moreover, he said the Fed's own policy mistakes helped precipitate the current battle.
And he's Allianz Chief Economic Advisor.
Mohamed El-Erian: Getting closer to losing the Fed's independence
"This is the exact world that I was worried about," El-Erian said Friday on CNBC. "The Fed is vulnerable on so many different fronts, and I fear now that we've started going down this road that I really dread."
Among the reforms El-Erian spoke of included taking after the Bank of England and allowing "external members" onto its policymaking group "that bring a difference perspective and that help reduce the risk of groupthink."
Also, he said the Fed should reconsider its 2% inflation target, something that Powell repeatedly has said is not on the table.
The end game
However, critics say that what Trump is talking about goes beyond mere structural reforms.
"This is really a story about trying to undo what had been 90 years of Fed independence," former Fed Vice Chair Roger Ferguson said on CNBC. "The whole goal was to give the Fed independence in doing this very important thing, which is setting monetary policy. And now, for the first time, we're seeing a direct effort to undermine that."
How successful Trump will be in doing so is another matter.
Our next guest is a former Fed vice chair.
Trump's making a direct effort to undermine the Fed's independence, says Roger Ferguson
Currently, he has two appointees, Christopher Waller and Michelle Bowman, on the board. Stephen Miran is awaiting Senate confirmation to fill the seat vacated by Adriana Kugler's resignation. Should Powell leave next May when his term as chair runs out, that would create another vacancy and give the president five seats.
However, counting on all those members as automatic votes is risky.
Both Waller and Bowman have shown strong independent streaks, taking both out-of-consensus hawkish and dovish positions depending on circumstances, and are unlikely to be "little apparatchiks for Trump," the Cornell professor Hockett said.
"It's unfair to the sitting governors to assume that they're willing to operate as partisan hacks," added Judge, the Columbia professor.
Also potentially standing in the way is a series of court tests that will focus on whether Trump has "cause" to remove Cook or anyone else.
If the president succeeds, it could have wide-ranging effects on the economy and markets, said Krishna Guha, head of global policy and central bank strategy at Evercore ISI.
"We think the baseline case at this point should be that there is very substantial Trumpification of the Fed through 2026 and – while this does not automatically correspond to a big lurch in policy and practice – we need to very seriously consider the likelihood that this leads to a rupture with past practice and a materially different reaction function with important implications for markets," Guha said in a recent note.
The stakes also are high for the Fed's future as an institution.
"There's never been as dire a threat to Fed independence in our entire history as a republic as there is right now thanks to what Trump is doing," Hockett said. "I do think that long term confidence in our central bank and hence in our currency will take yet another hit."
Here's what it really means for Trump to get control of the Federal Reserve board
“If you burn a flag, you get one year in jail. No early exits. No nothing.” This is what US president Donald Trump announced in the Oval Office in the last week in August. Ever the master media manipulator, America’s communicator-in-chief issued this as an executive order.
An executive order is issued by the president and doesn’t need to be passed by Congress. They are, however, expected to relate to existing law. Trump so far has signed 196. His latest directive, which aims to restore “respect, pride and sanctity” to the US flag, instructs the Department of Justice to investigate instances of burning the nation’s insignia under particular circumstances.
While the practice of flag burning as protest has a long history in the US, dating back to the US civil war, it is not a regular occurrence, and has been constitutionally permitted for decades.
The issue is already creating divisions among Republicans. There are three broad categories of GOP reaction. First, the Maga faithful are unlikely to complain. Unconditional support for their leader is a key trait of this group. And the executive order includes language with guaranteed appeal to those for whom terms such as “American patriots” and “foreign nationals” are predictable triggers. The president has long excelled at rallying his supporters on flag-related matters.
Beyond red-meat-for-the-base appeal, both the executive order and GOP support for it get a little more complex. Traditional conservatives, including Senate majority leader Mitch McConnell, are a group that may have strongly negative feelings about flag burning, but their adherence to the first amendment and associated freedom of expression would generally override this.
Those who hold constitutional principles in high regard are increasingly concerned about a president demonstrating his desire for expansive power. And, the US Supreme Court has clearly ruled on more than one occasion that the act, however distasteful, is constitutionally permitted.
Antonin Scalia, the late Supreme Court justice and noted constitutional textualist, famously stated that “if it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag”. But, he added: “I am not king.” Alongside the more centrist Anthony Kennedy, these justices upheld the right to burn the US flag in the 1989 landmark case of Texas v Johnson, despite Scalia’s personal distaste for the act. In his writings, Scalia differentiated between the form of expression that was flag burning, and an act of insurrection, which, he noted, was “something quite different”. The first amendment, as he understood it, allowed for symbolic political protests, regardless of how offensive such expressions might be to patriotic sensibilities.
Already, analysts have highlighted how the president’s efforts to sidestep the constitution are laden with problems. Executive orders cannot override a Supreme Court ruling. Even Donald Trump should know that.
Getting around current law
What the executive order does attempt to do is to get around the law that allows flag burning. To do so, it focuses on associated crime such as property destruction, open burning violations and disorderly conduct. The attorney general, Pam Bondi, was instructed to pursue cases against those who “incite violence or otherwise violate our laws while desecrating this symbol of our country”. So, when someone is (legally) burning a flag, they may be acting illegally at the same time by, for example, committing a hate crime. And this could trigger prosecution.
Open the Youtube video
Donald Trump signs an executive order on flag burning.
Furthermore, the executive order nods to a key flashpoint of the current climate by leveraging immigration law, and potentially facilitating the deportation of non-citizens who engage in flag-burning. Beyond the smoke-filled headlines, what this ruling does is circumvent the core ruling of Texas v Johnson by focusing on the circumstances surrounding any flag burning, rather than the act itself. A further aspect will involve the extent to which the courts could expand existing first amendment exceptions. This can only make for nervous constitutional conservatives.
The third group who mostly reside on the Trumpian side of the partisan fence are libertarians such as Republican senator Rand Paul. In a similar vein to their conservative counterparts, their worldview would sit uncomfortably with the president’s foray into testing constitutional principles, and not standing up for more wide-ranging free speech.
Flags and freedom
Libertarians tend to feel strongly about freedom of expression. And when their president picks a fight with the first amendment for no apparent reason beyond a mention he made of it on the campaign trail, he may end up aggravating more supporters than he pleases.
Writing on Reason.com, libertarian journalist Robby Soave argued that Trump is the “last person who should confuse protected speech with incitement to violence”. He added: “Any administration that purports to care about freedom of speech should easily reach the conclusion that criminalizing provocative yet nonviolent acts of political expression is a violation of this principle.”
For a president who deliberately and controversially appointed “Scalia-like” judges during his first term, his latest executive order seems at odds with this vision. Such inconsistency, for what may involve more Justice Department smoke than actual fire, may not serve the president well if many conservatives remain uncomfortable with the move.
To misquote a famous phrase attributed to Voltaire, the US Supreme Court has repeatedly ruled that whatever a majority of the justices think of those who actually want to burn the US flag, they will all but defend to the death your right to burn it.
The waters are further muddied now that a self-described combat veteran has set fire to the flag in response to the executive order. It is unlikely he is a “sandal-wearing weirdo”. Hence, the president’s patriotic script may end up somewhat singed around the edges.
Clodagh Harrington, Lecturer in American Politics, University College Cork
Republican civil war feared over new Trump order targeting 'scruffy-bearded' weirdos
An executive order is issued by the president and doesn’t need to be passed by Congress. They are, however, expected to relate to existing law. Trump so far has signed 196. His latest directive, which aims to restore “respect, pride and sanctity” to the US flag, instructs the Department of Justice to investigate instances of burning the nation’s insignia under particular circumstances.
While the practice of flag burning as protest has a long history in the US, dating back to the US civil war, it is not a regular occurrence, and has been constitutionally permitted for decades.
The issue is already creating divisions among Republicans. There are three broad categories of GOP reaction. First, the Maga faithful are unlikely to complain. Unconditional support for their leader is a key trait of this group. And the executive order includes language with guaranteed appeal to those for whom terms such as “American patriots” and “foreign nationals” are predictable triggers. The president has long excelled at rallying his supporters on flag-related matters.
Beyond red-meat-for-the-base appeal, both the executive order and GOP support for it get a little more complex. Traditional conservatives, including Senate majority leader Mitch McConnell, are a group that may have strongly negative feelings about flag burning, but their adherence to the first amendment and associated freedom of expression would generally override this.
Those who hold constitutional principles in high regard are increasingly concerned about a president demonstrating his desire for expansive power. And, the US Supreme Court has clearly ruled on more than one occasion that the act, however distasteful, is constitutionally permitted.
Antonin Scalia, the late Supreme Court justice and noted constitutional textualist, famously stated that “if it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag”. But, he added: “I am not king.” Alongside the more centrist Anthony Kennedy, these justices upheld the right to burn the US flag in the 1989 landmark case of Texas v Johnson, despite Scalia’s personal distaste for the act. In his writings, Scalia differentiated between the form of expression that was flag burning, and an act of insurrection, which, he noted, was “something quite different”. The first amendment, as he understood it, allowed for symbolic political protests, regardless of how offensive such expressions might be to patriotic sensibilities.
Already, analysts have highlighted how the president’s efforts to sidestep the constitution are laden with problems. Executive orders cannot override a Supreme Court ruling. Even Donald Trump should know that.
Getting around current law
What the executive order does attempt to do is to get around the law that allows flag burning. To do so, it focuses on associated crime such as property destruction, open burning violations and disorderly conduct. The attorney general, Pam Bondi, was instructed to pursue cases against those who “incite violence or otherwise violate our laws while desecrating this symbol of our country”. So, when someone is (legally) burning a flag, they may be acting illegally at the same time by, for example, committing a hate crime. And this could trigger prosecution.
Open the Youtube video
Donald Trump signs an executive order on flag burning.
Furthermore, the executive order nods to a key flashpoint of the current climate by leveraging immigration law, and potentially facilitating the deportation of non-citizens who engage in flag-burning. Beyond the smoke-filled headlines, what this ruling does is circumvent the core ruling of Texas v Johnson by focusing on the circumstances surrounding any flag burning, rather than the act itself. A further aspect will involve the extent to which the courts could expand existing first amendment exceptions. This can only make for nervous constitutional conservatives.
The third group who mostly reside on the Trumpian side of the partisan fence are libertarians such as Republican senator Rand Paul. In a similar vein to their conservative counterparts, their worldview would sit uncomfortably with the president’s foray into testing constitutional principles, and not standing up for more wide-ranging free speech.
Flags and freedom
Libertarians tend to feel strongly about freedom of expression. And when their president picks a fight with the first amendment for no apparent reason beyond a mention he made of it on the campaign trail, he may end up aggravating more supporters than he pleases.
Writing on Reason.com, libertarian journalist Robby Soave argued that Trump is the “last person who should confuse protected speech with incitement to violence”. He added: “Any administration that purports to care about freedom of speech should easily reach the conclusion that criminalizing provocative yet nonviolent acts of political expression is a violation of this principle.”
For a president who deliberately and controversially appointed “Scalia-like” judges during his first term, his latest executive order seems at odds with this vision. Such inconsistency, for what may involve more Justice Department smoke than actual fire, may not serve the president well if many conservatives remain uncomfortable with the move.
To misquote a famous phrase attributed to Voltaire, the US Supreme Court has repeatedly ruled that whatever a majority of the justices think of those who actually want to burn the US flag, they will all but defend to the death your right to burn it.
The waters are further muddied now that a self-described combat veteran has set fire to the flag in response to the executive order. It is unlikely he is a “sandal-wearing weirdo”. Hence, the president’s patriotic script may end up somewhat singed around the edges.
Clodagh Harrington, Lecturer in American Politics, University College Cork
Republican civil war feared over new Trump order targeting 'scruffy-bearded' weirdos
