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Within hours of taking office on Monday, Donald Trump released a raft of executive orders addressing targets he’d gone after throughout his campaign, such as immigration, government spending, and DEI. He issued full pardons for 1,500 January 6 rioters, and signed the first eight executive orders—of dozens so far—in front of a cheering crowd in a sports arena. But amid the deluge of actions, Trump also signed an executive order that takes aim at his own federal bureaucracy—and allows his perceived enemies within the government to be investigated and punished.

The executive order, titled “Ending the Weaponization of the Federal Government,” opens by stating as fact that the Biden administration and its allies used the government to take action against political opponents. Democrats, it says, “engaged in an unprecedented, third-world weaponization of prosecutorial power to upend the democratic process.” Its stated purpose, to establish “a process to ensure accountability for the previous administration’s weaponization of the Federal Government against the American people,” reads like a threat. The order calls out particular targets, including the Department of Justice and the Federal Trade Commission—agencies that Trump and his supporters allege betrayed them under President Joe Biden. Trump’s team, led by whoever is appointed attorney general and director of national intelligence, will be sniffing out what it determines to be signs of political bias. These officials will be responsible for preparing reports to be submitted to the president, with recommendations for “appropriate remedial actions.”

What exactly those remedial actions would look like is not clear. The vagueness of the order could result in a “long-running, desultory ‘investigation,’” Quinta Jurecic, a fellow in governance studies at the Brookings Institution and a contributing writer to The Atlantic, told me in an email.

But the information gathered in such investigations could lead to some federal employees being publicly criticized or otherwise punished by Trump. And beyond theatrics, this order could open the door to the “prosecutions that Trump has threatened against his political opponents,” Jurecic noted. Put another way: In an executive order suggesting that Biden’s administration weaponized the government, Trump is laying out how his administration could do the same.

Trump’s Cabinet is still taking shape, and whoever ends up in the top legal and intelligence roles will influence how this order is executed. Pam Bondi, Trump’s attorney-general pick, is an established loyalist with long-standing ties to Trump (he reportedly considered her for the role in his first term, but worried that her past scandals would impede her confirmation). Bondi, in her first Senate confirmation hearing last week, attempted to downplay Trump’s persistent rhetoric on retribution, and avoided directly answering questions about how she, as head of the Justice Department, would engage with his plans to punish enemies. She said that she wouldn’t entertain hypotheticals about the president, though she did claim that “there will never be an enemies list within the Department of Justice.” Tulsi Gabbard, Trump’s nominee for director of national intelligence, has a history of political shape-shifting, though she has lately shown fealty to MAGA world.

Well before Trump took office, his allies were signaling their interest in turning federal bureaucracy, which they deride as “the deep state,” into a system driven by unquestioning loyalty to the president. As my colleague Russell Berman wrote in 2023, some conservatives have argued, without even cloaking “their aims in euphemisms about making government more effective and efficient,” that bureaucrats should be loyal to Trump. Russ Vought, the nominee for director of the Office of Management and Budget (an unflashy but powerful federal position), who today appeared before Congress for the second time, has previously written that the executive branch should use “boldness to bend or break the bureaucracy to the presidential will.”

The executive order on weaponizing the federal government is consistent with the goals of retribution that Trump expressed on the campaign trail. And accusing rivals of using the government for personal ends has been a favored Republican tactic in recent years. Still, this order confirms that, now that he is back in office, Trump will have no qualms toggling the levers of executive power to follow through on his promises of revenge. Many of Trump’s executive actions this week are sending a clear message: If you are loyal, you are protected. If not, you may be under attack.

Related:

Trump’s pardons are sending a crystal-clear message. Why 2025 is different from 2017

Here are three new stories from The Atlantic:

Trump’s second term might have already peaked. The attack on birthright citizenship is a big test for the Constitution. You’re being alienated from your own attention, Chris Hayes writes.

Today’s News

A shooter killed at least one student and injured another before killing himself at Antioch High School in Nashville. Donald Trump said last night that by February 1, he would place a 10 percent tariff on Chinese products. He has also pledged to put a 25 percent tariff on products from Canada and Mexico by the same date. An Israeli military assault in the occupied West Bank began yesterday, killing at least 10 people and injuring 40 others, according to the Palestinian Health Ministry.

Evening Read

Illustration by Akshita Chandra / The Atlantic. Source: Getty

Be Like Sisyphus

By Gal Beckerman

This anxious century has not given people much to feel optimistic about—yet most of us resist pessimism. Things must improve. They will get better. They have to. But when it comes to the big goals—global stability, a fair economy, a solution for the climate crisis—it can feel as if you’ve been pushing a boulder up a hill only to see it come rolling back down, over and over: all that distance lost, all that huffing and puffing wasted. The return trek to the bottom of the hill is long, and the boulder just sits there, daring you to start all over—if you’re not too tired.

Read the full article.

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Culture Break

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Watch. I’m Still Here (out now in select theaters) tempts viewers into a comforting lull before pulling the rug out from under them, David Sims writes.

Examine. In an age of ideological conformity and technological brain-suck, the world needs more disobedient artists and thinkers, Jacob Howland writes.

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The nation is bracing itself for what President-Elect Donald Trump has promised will be the largest deportation effort in American history. Trump has vowed to use the military to assist with deportations, relying on emergency and wartime powers such as the Insurrection Act, the National Emergencies Act, and the Alien Enemies Act. In addition to worrying about the impact on immigrant families, wider communities, and the economy, many Americans are wondering—is this legal?

The deportation of undocumented individuals who are ineligible for asylum or other legal protection is, of course, well within the government’s authority under current immigration law. (As a policy matter, President Joe Biden has chosen to focus on those who have committed serious crimes—a policy that Trump is set to undo, presumably to facilitate broader deportation efforts.) But deploying the military raises an entirely different set of legal questions. Even under the potent authorities Trump has cited, the actions he proposes to take would be, at a minimum, an abuse of power, and they might well be illegal to boot.

Some degree of military involvement in immigration enforcement is already permitted—and has occurred under multiple administrations—without recourse to emergency powers. This may be surprising to many Americans. Anglo-American law has a long tradition of military noninterference in civilian affairs, for the simple reason that an army turned inward can quickly become an instrument of tyranny. In the United States, this tradition finds expression in an 1878 statute, the Posse Comitatus Act, that prohibits federal armed forces from participating in law-enforcement activities unless expressly authorized by law. Although not every American is familiar with the act, the principle it enshrines is deeply embedded in the public consciousness.  

[Quinta Jurecic: Yes, the law can still constrain Trump]

Less well known is the fact that the Posse Comitatus Act is riddled with exceptions and loopholes. For one thing, courts have construed the law to bar only direct participation in core law-enforcement activities, such as arrests or seizures. Federal forces may still provide indirect support to law-enforcement agencies in a number of ways, including conducting reconnaissance, sharing intelligence, and furnishing and operating equipment. In the 1980s, Congress passed several laws authorizing active-duty armed forces to provide these types of assistance.

In addition, the act applies only to federal armed forces. It does not apply to the National Guard—military units within the states that usually operate under state authority—unless the president has called Guard forces into federal service, at which point they become part of the federal military. Congress has passed a law authorizing Guard forces to perform federal missions at the request of the president or secretary of defense even when they haven’t been called into federal service. (Governors have the right to refuse such missions.) The Posse Comitatus Act does not apply to these operations, because the Guard forces remain, at least nominally, under state command and control.

These gaps in the act’s coverage have enabled military involvement in the enforcement of immigration and customs laws at the U.S.-Mexico border for decades, beginning in the 1980s and ramping up after 9/11. Presidents George W. Bush, Barack Obama, and Trump sent thousands of National Guard forces to the border, where they provided support to the Department of Homeland Security in the form of surveillance, transportation, equipment, and the erection of barriers. Trump also deployed active-duty armed forces, as did President Biden. In the summer of 2023, 2,500 National Guard forces and 1,500 active-duty armed forces were stationed at the border.

The seemingly permanent militarization of the U.S.-Mexico border may not violate the Posse Comitatus Act, but it has led to a variety of harms. When thousands of soldiers are routinely arrayed at the border, Americans receive the message that migrants are a threat to national security and public safety—a baseless notion that underlies and fuels support for Trump’s anti-immigration platform. Prolonged deployments at the border are also bad for the military, as they undermine service members’ morale and divert resources and personnel from core military functions.

Trump now reportedly seeks to double down on the militarization of immigration enforcement by invoking a trio of emergency authorities, beginning with the Insurrection Act of 1807—the primary statutory exception to the Posse Comitatus Act. The Insurrection Act gives the president broad powers to deploy federal armed forces (including the federalized National Guard) to quell civil unrest or enforce the law. The criteria for deployment are written in vague, archaic terms that provide few clear constraints. To make matters worse, the Supreme Court held in 1827 that the president is the sole judge of whether the criteria for deployment have been met. In other words, courts generally cannot review a president’s decision to invoke the law.

Although a top aide has said that Trump will invoke the Insurrection Act, the Trump team has provided scant detail on how he plans to use federal forces once deployed. Given that nonemergency authorities already authorize substantial military support to civilian law enforcement, it’s conceivable that Trump’s purpose in invoking the Insurrection Act is purely symbolic—a performative act of “shock and awe.” (The very name of the law suggests that immigrants are attacking from within and must be defeated through force.) At least in theory, though, the law could allow federal forces to perform core law-enforcement functions, such as apprehending and detaining immigrants, in any state in the country and against any governor’s wishes.

Such a use of the Insurrection Act would go beyond a mere expansion of existing military activities. Soldiers rolling into American towns in armored vehicles, knocking on doors, and carting people off to military detention facilities would create risks and harms that current border operations do not. For one thing, direct interactions between military personnel and civilians in fraught circumstances carry a significant potential for violence. After all, soldiers are trained to fight; few receive training in how to peaceably enforce civilian laws while respecting civil liberties. Furthermore, the visible presence of soldiers deployed in the streets would be both alarming and chilling for many Americans. Some would undoubtedly feel less comfortable engaging in protests against Trump’s policies or other basic acts of personal expression.

Heavy involvement of the military in immigration enforcement would also require a massive infusion of resources, both financial and human. That’s where Trump’s plan to declare a national emergency might come in. Under the National Emergencies Act, presidential declarations of national emergency unlock enhanced powers contained in 150 provisions of law spanning almost every area of governance, including military deployment, commerce, transportation, communications, agriculture, and public health. These provisions can supply both additional authority and additional resources for presidential action in a crisis.

Trump has used these powers before. In 2019, Trump declared that unlawful migration at the southern border constituted a national emergency. He invoked an emergency power that frees up funding for “military construction” projects, which he used to secure funds Congress had refused to allocate for the border wall. He might well reprise this effort, and he could attempt to use the same provision to fund the construction of military bases that would serve as immigrant-detention facilities. He could also use emergency powers to call up reservists, amplifying the manpower available to detain and deport immigrants. Indeed, Biden did exactly that in 2023 to supplement forces at the southern border.

[David A. Graham: Why didn’t Jack Smith charge Trump with insurrection?]

Finally, Trump has pledged to invoke the Alien Enemies Act—the last remaining vestige of the notorious 1798 Alien and Sedition Acts. A president may invoke this law when Congress has declared war or when the president proclaims an “invasion” by a foreign government. It allows the president to detain and deport immigrants, including green-card holders and others lawfully in the country, who are not U.S. citizens and who were born in the enemy nation. Immigrants targeted under the act are not entitled to the hearings and other procedural protections afforded by immigration law.

The act was last used in World War II to implement the internment of more than 31,000 noncitizens of Japanese, German, and Italian descent. (U.S. citizens of Japanese descent were detained under a separate authority.) Congress and the U.S. government have since apologized for much of this shameful episode in our nation’s history.

According to reporting in Rolling Stone, Trump may claim that migration from Mexico and other countries south of the border constitutes an “invasion” perpetrated by drug cartels that are operating as de facto governments in those regions. The Alien Enemies Act does not itself authorize military deployment, but it could be combined with the Insurrection Act and other authorities to significantly expand the military’s remit. Most notably, if Trump were successful in invoking these laws, they could allow troops to detain and deport not just undocumented individuals but people who are lawfully present in the United States.

There is no question that the authorities Trump has cited grant the president sweeping powers. The Brennan Center, where I work, has called attention to the dangers posed by each of them. My colleagues and I have urged Congress to reform the laws in order to incorporate safeguards against presidential overreach (or, in the case of the Alien Enemies Act, to repeal it).

But there is also no question that Trump’s proposed actions, as he and his allies have framed them, would be a staggering abuse of these authorities—and quite possibly illegal. Despite the permissive language of the Insurrection Act, it was clearly intended for crises that could not be solved by civilian government actors. That is why it has been invoked only 30 times in the nation’s history and has lain dormant for the past 33 years. In keeping with tradition and constitutional principles, the Justice Department has interpreted the law narrowly, asserting that it should be used only as a “last resort”—specifically, when state and local authorities request military assistance, are obstructing federal law, or have “completely broken down.”

There are many ways to address unlawful immigration short of deploying federal troops. Last spring, for instance, the Senate voted twice on a bipartisan bill that would have dramatically tightened border security. Republicans blocked the measure—reportedly at Trump’s behest, so that he could continue to make the porous border a central focus of his campaign. Having actively obstructed an effort to ramp up civilian enforcement of immigration laws, Trump can hardly argue that military deployment is a “last resort.”  

His cynical behavior could open the door to a legal challenge. Although the Supreme Court has generally barred judicial review of Insurrection Act invocations, it has suggested on various occasions that there might be an exception for deployments undertaken in bad faith. That’s because all of the president’s actions, even those committed to his discretion under Article II of the Constitution, must be consistent with the express constitutional obligation to faithfully execute the law.

In addition, the Supreme Court has distinguished between a president’s decision to invoke the Insurrection Act (which is usually not subject to judicial review) and any actions taken by the military after deployment (which are squarely within the courts’ purview). Soldiers deployed under the act must comply with the Constitution and other applicable federal law. If people’s legal rights were violated under a Trump-ordered deployment—for instance, if military detention conditions failed to meet basic human needs—courts would be able to intervene.

Just as invoking the Insurrection Act would be inconsistent with the law’s intent, declaring a national emergency would be a misuse of emergency powers. To be sure, America’s broken immigration system has led to unprecedented numbers of unlawful border crossings. Emergency powers, however, are designed to address sudden, unexpected crises that can’t be handled by Congress through ordinary legislation. There is nothing sudden or unexpected about the problems at the southern border, and Congress can—and should—address those problems through reform of the immigration system.

[Quinta Jurecic: Trump secures his get-out-of-jail-free card]

As a legal matter, courts will be reluctant to second-guess Trump’s decision to declare an emergency. But they will be less deferential in reviewing whether his administration’s actions are authorized under the specific powers he invokes. Although Trump has not identified which powers he plans to use, none of the 150 provisions available during a national emergency is designed to facilitate deportation. Trump will likely be stretching some of these laws beyond their permissible limits. (During his first administration, some courts struck down his use of the military-construction authority to build the border wall.) Courts will also review whether the actions Trump takes pursuant to a national-emergency declaration comport with other federal laws and constitutional rights.

Perhaps the most glaring abuse would be invoking the Alien Enemies Act. The history and design of the law make clear that it is a wartime authority only. It was intended to address armed attacks by foreign nations, not people fleeing political persecution, drug- and gang-related violence, or economic hardship. Even if a significant portion of migrants were criminals—a myth contradicted by all available evidence—that would not render their border crossing an act of war.

Moreover, whether in wartime or peacetime, the Alien Enemies Act suffers from grave constitutional flaws. It permits the targeting of individuals based solely on their ancestry, rather than their conduct, and it allows those individuals to be detained and deported without a hearing. As a recent Brennan Center report argues, these powers are fundamentally inconsistent with modern understandings of constitutional equal-rights and due-process protections.

Whether the Supreme Court would uphold the actions Trump has threatened is impossible to say with any certainty. In recent years, the Supreme Court has occasionally taken positions previously thought inconceivable, and overturned numerous long-standing precedents. But regardless of how the Supreme Court may rule, these actions should rightly be understood as an abuse of power, an abuse of the public trust, and an abuse of the law. And as soon as there is an opportunity, Congress must reform the emergency authorities in question so that no president can ever commit such abuses in the future.

Special Counsel Jack Smith’s report into his investigation of Donald Trump’s 2020 election subversion is an atlas of roads not taken—one to a land where Trump never tried to overturn the election, another where the Justice Department moved more quickly to charge him, and another where the Supreme Court didn’t delay the case into obsolescence.

One of the most beguiling untrod paths is the one where Smith charged Trump with insurrection against the United States. The nation watched Trump try to overturn the election, first through spurious lawsuits and then by instigating a violent riot on January 6, 2021, in a vain attempt to prevent the certification of President Joe Biden’s victory. A conviction for insurrection would have prevented Trump from returning to office, but when Smith indicted Trump in August 2023, he didn’t charge him with insurrection.

Smith’s report, which was released early this morning, finally explains why. In doing so, it shows how the United States legal system is and was unprepared for a figure like Trump. The framers of the law simply didn’t contemplate a sitting president trying to use the vast powers of the federal government to reverse the outcome of an election.

[Read: The cases against Trump—a guide]

Most of the report, which runs to about 150 pages, focuses on the crimes that Smith did charge, the evidence behind them, and why he believes he would have convicted Trump if he’d had a chance to try them. Instead, Smith moved to dismiss the charges in November after Trump won reelection, citing Justice Department rules that bar the prosecution of a sitting president. Even if he had not done so, Trump had vowed to fire Smith and close the case immediately upon taking office. (Smith also dropped charges in another case related to Trump’s hoarding of classified documents at Mar-a-Lago. His report on that case was not released, because charges are still pending against Trump’s erstwhile co-defendants.)

Though the material included is damning, it’s also mostly known. News reports, the House January 6 committee, and Smith’s initial and superseding indictments had already laid out how Trump tried to steal an election that he knew he had lost—first by filing bogus lawsuits and pressuring state officials; then by attempting to corrupt the Justice Department; next by trying to convince Vice President Mike Pence to reject electoral votes; and finally by instigating his followers to attack the Capitol. The evidence is no less conclusive or horrifying for its familiarity.

The insurrection-charges discussion, however, is new. It shows that Smith did seriously consider whether the law applied but concluded he would struggle to convict Trump under it—not because what happened was not an insurrection, but because the laws were written too narrowly, such that although Trump appears to have violated the spirit of the law, he may not have broken its letter. (Smith writes that no one has been charged with violating the law in question for more than a century.)

[Quinta Jurecic: Trump secures his get-out-of-jail-free card]

A conviction of insurrection would have been far more consequential than convictions on the charges of conspiracy to defraud the United States, obstruction and conspiracy to obstruct, and conspiracy against rights, which Smith did bring. Felons are entitled to hold federal office—as Trump will prove on January 20—but the law stipulates that anyone convicted of insurrection or rebellion “shall be incapable of holding any office under the United States.”

But Smith saw several challenges to bringing charges under the law. First, he would have had to prove that what happened on January 6 was an insurrection. As he notes, multiple courts have described the events as an “insurrection.” Smith “recognized why courts described the attack on the Capitol as an ‘insurrection,’” but was still worried about establishing this fact under such an obscure and little-used law. He considered past cases, but they didn’t offer any guidance on what the legal standard for an insurrection is, or how it is different from a riot.

He also found that case law tended to treat insurrection as an attack against a sitting government, rather than an attempt to remain in power—an autogolpe, in political-science terms.

[Read: The paperwork coup]

“The Office [of Special Counsel] did not find any case in which a criminal defendant was charged with insurrection for acting within the government to maintain power, as opposed to overthrowing it or thwarting it from the outside,” Smith writes. “Applying Section 2383 in this way would have been a first, which further weighed against charging it, given the other available charges, even if there were reasonable arguments that it might apply.”

Smith faced yet another complication. Trump cleverly instigated his followers to attack the Capitol, and suggested that he was coming with them, but he instead returned to the White House and watched the chaos unfold on TV, rather than take part. (As The Atlantic’s editor in chief, Jeffrey Goldberg, has written, Trump often uses this mafia-boss tactic of encouraging his minions to act without ever explicitly implicating himself.)

What about inciting an insurrection? Smith saw reasonable arguments that Trump’s actions met even the high legal bar the Supreme Court has set for incitement—“the evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay”—but Smith didn’t have any direct evidence of Trump saying the full scope of violence was his goal, so he worried that bringing charges against Trump for inciting an insurrection would be risky.

[David A. Graham: Trump gets away with it]

Besides, Smith couldn’t find any examples of prosecutions where a defendant was charged who didn’t actively participate in the act. “There does not appear to have ever been a prosecution under the statute for inciting, assisting, or giving aid or comfort to rebellion or insurrection,” he wrote. “Thus, however strong the proof that he incited or gave aid and comfort to those who attacked the Capitol, application of those theories of liability would also have been a first.”

This led Smith to conclude that, given the other charges, “pursuing an incitement to insurrection charge was unnecessary.”

But necessity is in the eye of the beholder, and lawyers can only see so much. Smith’s decision is understandable but shows why criminal law was always an unreliable method for holding Trump to account. Smith’s remit was to hold Trump accountable to the law, a relatively narrow task. And although the Justice Department ought to have moved faster—Smith was appointed to take on the case only in November 2022 and then acted with speed—the more consequential error was the Senate’s failure to convict Trump at his impeachment trial in February 2021.

[Jeffrey Goldberg: Donald Trump’s Mafia mind-set]

As Smith writes in a different context in his report, impeachment has a different aim than prosecution. “When Congress decides whether a President should be impeached and convicted, that process does not depend on rigorously adjudicating facts and applying law, or on finding a criminal violation. Instead, the impeachment process is, by design, an inherently political remedy for the dangers to governance posed by an office holder who has committed ‘Treason, Bribery, or other high Crimes and Misdemeanors.’”

But some Republican senators, led by Minority Leader Mitch McConnell, believed that voters were so irate about the January 6 attacks that Trump was a spent force. As a result, these senators didn’t need to risk the ire of his supporters by voting to convict Trump. The Senate voted 57–43 to convict, short of the two-thirds majority required to convict Trump and then bar him from future office.

Two years later, some legal scholars tried to make the case that Trump had committed an insurrection and broken his oath of office under the Fourteenth Amendment. But courts ruled that only Congress could make such a determination, which was politically never going to happen. Only political processes—voters’ choices and impeachment—could have definitively prevented a second Trump presidency.