Today, Trump-Hegseth run out of time on War Powers Resolution and boat strikes. DOJ has come up with a theory why the law does not apply. It's wrong, and per this article, several GOP Senators and a Trump cabinet member flat rejected that theory when Obama tried it in 2011. 🧵 1/

District court in Oregon v Trump moves to preliminary injunction following trial. Blocks Hegseth's deploying members of the National Guard in Oregon. Will issue final order by Friday, Nov. 7. storage.courtlistener.com/recap/gov.us...

On Monday, U.S. military strikes on boats become congressionally prohibited under War Powers Resolution. A clip of my conversation with @billkristolbulwark.bsky.social @thebulwark.com below.⤵️ Explaining why Monday is a new frontier. Full video: www.youtube.com/live/lUeaFCu... youtu.be/VY4qvIVnYpA

At 12pm ET: I'll be discussing congressional oversight and U.S. military operations against drug cartels with @billkristolbulwark.bsky.social @thebulwark.com. Plus National Guard litigation across the country. Livestream: youtube.com/live/lUeaFCu...

(1) As Brian points out, the Trump administration is invoking the discredited Obama-era rationale for trying to avoid the War Powers Resolution in Libya. (2) Discredited by many across the aisle including this letter to Pres. Obama by Senators Mike Lee, Jon Cornyn, Ron Johnson, Rand Paul, etc⬇️

No way around this: On Monday, November 3, the Trump administration's lethal military operations against suspected drug cartels will be prohibited by Congress. Recommended reading: This new Expert Backgrounder which discusses the history and scope of the War Powers Resolution 60-Day Clock.

"Ms. Jacobs said Pentagon officials said they needed to prove only that the targeted people were connected to designated terrorist organizations, even if the connection is 'as much as THREE HOPS AWAY FROM A KNOWN MEMBER' of a designated terrorist organization." www.nytimes.com/2025/10/30/u...

A telling absence: "On the House side, the administration briefed both Republicans and Democrats on Thursday from the House Armed Services Committee, although lawyers were not on hand to discuss the legal rationale." abcnews.go.com/Politics/tru...

This literally makes no sense: "The administration says it is relying on the same legal authority used by the Bush administration when it declared a war on terrorism after the Sept. 11, 2001, attacks." And the reporting doesn't question it. www.washingtonpost.com/politics/202...

"Drug gang and regime infrastructure likely to be attacked if Trump decides to pursue military action" "There is no evidence Venezuela produces or traffics fentanyl, experts say." www.wsj.com/world/americ...

I teamed up to write how: The Trump administration has provided two - completely irreconcilable - determinations on status of Tren de Aragua and Venezuela regime. Makes it impossible for judges to defer to 'presidential determination' on Alien Enemies Act. Confounds law and policy.

🚨Oregon v Trump National Guard case. Ninth Circuit vacates panel decision. 11 judge-panel will now rehear the case. Judge Graber in dissent said last week: “Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.”

"It's disheartening to be forced to go against your community members and your neighbors." "It feels illegal. This is not what we signed up to do." - Staff Sgt. Demi Palecek 2 Illinois National Guard members speak out: "I won't turn against my neighbors"

Boat strikes put US service members in legal jeopardy: "Some junior officers have asked military lawyers, known as judge advocates general or JAGs, for written sign-off before taking part in strikes .... It does not appear that such memos were furnished, said one of the people."

A simple truth and a lot rides on it: "While the Constitution grants Article II authorities to the executive branch to defend against imminent threats, Congress alone is entrusted with decisions of war and peace." - Senator Todd Young (R-IN) Statement on Caribbean War Powers Resolution

Good to see. This shouldn't be a partisan issue. "A growing number of Republicans on Capitol Hill has raised concerns about President Trump’s expanding war against drug cartels carried out without consultation or authorization by Congress." www.nytimes.com/2025/10/24/u...

What's happening in the courts Judge McElroy (Trump appointee): “Blatant disregard” of court’s order Judge Gallagher (Trump): “No attempt to offer any justification for their blatant lack of effort to comply” Judge Lamberth (Reagan): “More than support a trial on civil contempt”

President Trump and Pete Hegseth now floated a new frame — claiming drug cartels are "ISIS of the Western Hemisphere." I unpacked why that's wrong and what they're trying to achieve with this new framing.

"In the most serious category, they've now found 20 cases where judges have questioned the government's compliance with their judicial orders." I'm grateful for this new discussion of our updated study in @60minutes.bsky.social Overtime. Link to @justsecurity.org study: youtu.be/VO_2nP1-e5c?...

I'm grateful to @60minutes.bsky.social featuring our study published @justsecurity.org. Link to the study (on the 'presumption of regularity'): www.justsecurity.org/120547/presu...

It’s important to understand why DOJ indictment of John Bolton seems very different than Letitia James and Jim Comey indictments. 1. Biden administration opened the criminal investigation of John Bolton in 2022. It's been detailed investigative work ever since. www.cnn.com/2025/10/17/p... 🧵

"SOUTHCOM was concerned about the operations not being lawful," per CNN reporting. Not surprised. I served in Pentagon assessing counterterrorism operations. I explain constitutional and international legal problems with these Caribbean strikes.⤵️ youtu.be/DHXz_y6Updg?...

Now updated: The 'Presumption of Regularity' study. 1. Noncompliance with judicial orders: 20 cases 2. Courts’ distrust of DOJ information: 43+ cases 3. Courts’ findings of “arbitrary and capricious” conduct: 58 cases www.justsecurity.org/120547/presu...

Judge William Smith (W. Bush appointee): The Government has done "precisely what the ... [court's] Order forbids." The case is Illinois v. FEMA On Wednesday, we'll publish an updated catalogue of such judicial decisions on noncompliance with court orders at @justsecurity.org at the link below:

On Letitia James indictment, this may help explain: "Senior DOJ leadership believes [DOJ] would be unable to prove any allegations beyond a reasonable doubt, in part because Fannie Mae guidelines on the issue are too vague" with "second home" versus "investment property."

Notable points in Judge Perry's remarks in Illinois v Trump National Guard case.⤵️ Judge: 1. Federalized deployment of National Guard not quelling civil unrest. Instead, it is "likely to lead to civil unrest." 2. State and local community policing not well geared for out of state Guards.

Comes down to a credibility determination. On National Guard in Chicago, and DHS loses that determination. An important aspect of a credibility determination is that it's a factual assessment by a district court judge, makes it more difficult for the losing party to overturn the decision on appeal.

CNN Reports: "Letitia James was indicted Thursday in Alexandria, Virginia" www.cnn.com/2025/10/09/p...

Oct 6: "Yusi, who oversees major criminal prosecutions in the Norfolk office...confided to coworkers that she sees no probable cause to believe James engaged in mortgage fraud" Oct 9: Interim US Attorney Halligan asks grand jury to approve criminal charges against James for mortgage fraud

Prosecution of Comey looks headed to a dead end. "Federal prosecutors ... determined that a central witness in their probe would ... likely prevent them from establishing their case to a jury." abcnews.go.com/US/central-w...

"At the Pentagon, some military lawyers, including international law experts within DoD’s Office of General Counsel, have raised concerns about the legality of the lethal strikes on suspected drug traffickers.... Multiple current and former JAGs ... told CNN that the strikes do not appear lawful."

Judge in Illinois case on National Guard: "If I were the government, I would strongly consider taking a pause on this until Thursday." The court "declined to quickly issue a temporary order ... while urging the government to delay the controversial plan until she rules."

On the left: Sept 2: Judge Breyer opinion (in CA case) showing DoD's own instructions of actions that violate Posse Comitatus Act (eg "crowd control"). On the right: Sept 26: DHS request to DoD for military forces in Chicago "in direct support of ... access control, and crowd control."

What was the real message at Quantico? Janine Davidson (former Undersecretary of the Navy and former Chair of Department of Defense Policy Board) discusses: The domestic paradigm shift in President Trump's addressing Active Duty military leaders with National Guard Adjunct Generals excluded.

From Chicago to Caracas I sat down with Bill Kristol (@billkristolbulwark.bsky.social) for conversation about crosscutting developments - overuse of military force at home and abroad - National Security Presidential Memorandum-7 and targeting of Americans' First Amendment activity

Judge Immergut in Oregon v Trump now: "I grant plaintiffs second motion for a TRO." Federalized Texas and California Guard to Portland is a "DIRECT CONTRAVENTION" of court's TRO from Saturday. Both on 12406 statute and Tenth Amendment grounds.

This represents a major escalation. President Trump effort to mobilize TEXAS National Guard for deployment in Portland and Chicago. Court filing just entered in Oregon v. Trump⬇️

I assume the judge will not be happy with this "After this Court issued a temporary restraining order...Army Northern Command communicated to the California Military Department Executive Leadership that they intended to send 200 of the federalized California National Guard personnel...to Portland.”

Just in: State of California joins Oregon and Portland in Amended Complaint in wake of President Trump's alleged effort to send federalized California National Guard troops to Portland - despite Judge's Saturday evening temporary restraining order. Key:⤵️ storage.courtlistener.com/recap/gov.us...

Many of us Americans are profoundly concerned about the staggering number of fentanyl deaths in U.S. That may affect how one thinks about these military strikes. Now ask the question: When Sec. Hegseth says "narcotics," why does he not say what type? Most likely answer: It's not fentanyl.

Mary McCord, former Acting Assistant AG for National Security, and I teamed up on Qs Senators should ask #Bondi at her Judiciary Committee hearing on Tuesday, on strikes that have killed 17 people to date. The implications are serious. Consider a few of the Qs: www.justsecurity.org/121862/ask-b...

On why Trump's determination that the U.S. is engaged in an armed conflict with drug cartels is (i) wrong; and (ii) insufficient, in any event, to make legal the strikes against vessels in the Caribbean. www.justsecurity.org/121844/trump...

“This is not stretching the envelope,” Geoffrey Corn said. “This is shredding it." On administration's confidential note to Congress Completely right. Drug cartels not = "armed conflict" The people killed are civilians Corn is retired judge advocate general, former Army law-of-war senior adviser

To explain importance of Ed Whelan's analysis: This could invalidate indictment of James Comey. Halligan was only USG attorney to sign the indictment. If her appointment was invalid, so may be that indictment. DOJ could've fixed, but the statute of limitations has now apparently expired.

Exquisite legal analysis by Mike Schmitt (@mikeschmitt.bsky.social) Legally Available Options in Response to Russia’s Penetrations of NATO Airspace Contains everything you need to know on how NATO member States and the Alliance can respond.

Oregon v Trump Complaint intro: "stated basis for federalizing members of Oregon’s National Guard is patently pretextual" "violates the Posse Comitatus Act" "violate[s] the Tenth Amendment’s guarantee that the police power ... resides with the states" www.justsecurity.org/wp-content/u...

1/ With President Trump's sending military to Portland. Even if one accepts a President has "protective power" (as the Office of Legal Counsel historically does), that power is to be used only if test of necessity is met (as the Office of Legal Counsel admits).

From Gene Fidell, a prominent specialist in American military law, some hard-headed advice for the Generals who've been summoned to Quantico. www.justsecurity.org/121421/hegse...

1/2 With ABC News reporting Count 1 in Comey Indictment is about Comey allegedly authorizing Daniel Richman (not McCabe) to be anonymous source to media. A problem for DOJ is Comey can claim Senator Cruz's poorly worded question conflated it with McCabe, so he thought was answering about McCabe:

Comey Indictment On the left: The 3rd charge that the jury rejected In the middle: The related Comey testimony Q&A with Senator Lindsey Graham. On the right: Durham Annex saying FBI already assessed Hillary Clinton "plan" re Russia in 2016 was not credible (likely Kremlin fabrication).