THE TIPPING POINT?

 

The tipping point, finally? December 1, 2025 Robert B. Hubbell Dec 1     The reaction to reports that the US military killed survivors of a shipwreck feels like a tipping point in the effort to end Trump’s lawless reign. For everyone already reaching for their keyboard to send an email or post a Comment saying that dozens of other Trump depravities have been wrongly declared to be “tipping points,” I say, “You’re right.”   We have been here before and been wrong in our assessment. If the January 6 insurrection, 34 felony convictions, 4 criminal indictments on 91 counts, and two impeachments aren’t “tipping points,” it is hard to see how anything can be. But Trump is in mental decline, hemorrhaging support in the polls, facing meaningful pushback from some of his most steadfast supporters, and is so toxic that he rarely makes personal campaign appearances for struggling MAGA candidates. If killing defenseless civilians is a tipping point, it will be because two things are true: Killing survivors of a shipwreck is universally regarded as criminal behavior, and Trump is perceived to be vulnerable by Republicans looking for an opening to distance themselves from Trump. Here is a brief summary of how we got here: 1.       The Washington Post reported last week that two people with direct knowledge claim that Secretary of Defense Pete Hegseth gave a verbal order to “kill everyone” on a boat allegedly smuggling drugs. A member of the US Special Operations Command (SOCOM) implemented that order by firing a second missile strike against two survivors clinging to the wreckage of the drug boat that was destroyed by the first missile strike. See WaPo, Hegseth order on first Caribbean boat strike, officials say: Kill them all. 2.      According to the Post, “The two men were blown apart in the water.” 3.      Members of both parties said that the conduct—if true—would constitute a war crime and/or murder. See Politico, Lawmakers warn Hegseth may have committed war crimes following second-strike report. 4.      Trump offered a weak defense of Hegseth, saying that he (Trump) “wouldn’t have wanted a second strike,” but Hegseth denies giving such an order, which is the end of the story so far as Trump is concerned. See WaPo, Trump says Hegseth told him he didn’t order killing of alleged drug boat’s crew. 5.      Hegseth followed Trump’s statement on Sunday with a truly heinous and presumably alcohol-induced social media post. The post featured a popular children’s book character, Franklin the Turtle, “wearing combat gear and firing a bazooka from a helicopter on boats in the water below, titled, “Franklin Targets Narco Terrorists.” See Raw Story, Hegseth slammed as ‘unserious’ for meme post about ‘war crimes’ allegations. (The ghoulish meme featuring Franklin the Turtle is included in the Raw Story article. I have chosen not to reprint it in my newsletter.)   Against the above backdrop, members of House and Senate committees with oversight jurisdiction over the military have demanded an explanation from Hegseth and military leaders. See The Hill, Kelly says Senate will ‘put people under oath’ over reported follow-up strikes in Caribbean.   Per The Hill, Senator Kelly told Kristen Welker on Meet the Press,   We’re going to have an investigation. We’re going to have a public hearing. We’re going to put these folks under oath. And we’re going to find out what happened. And then, there needs to be accountability. So, Senator Kelly will be examining Pete Hegseth under oath, while Hegseth orders the Pentagon to consider recalling Kelly to active duty to court-martial him. Senator Kelly will win that contest of wills, hands down. Indeed, chances are good that Pete Hegseth will be the former Secretary of Defense when he appears before the Senate Armed Services Committee and will invoke his Fifth Amendment Right against self-incrimination in response to Senator Kelly’s questions.   The illegality of the attacks on non-combatant civilians suspected of being drug smugglers is not a close question, despite the Pentagon’s circular reasoning memo claiming, “It’s legal because Trump says it’s legal.”   But even if the Pentagon uses absurd logic to justify the initial attacks on the boats, the second strike to kill survivors has no defense. A group of former members of the military Judge Advocate General’s Corp has published a memo analyzing the actions against the alleged drug smugglers. The memo is here: Statement of the “Former JAGs Working Group” on Media Reports of Pentagon “No Quarter” Orders in Caribbean Boat Strikes As explained in the memo, If the US is involved in an “armed conflict” (as Trump claims),   [O]rders to “kill everybody,” which can reasonably be regarded as an order to give “no quarter,” and to “double-tap” a target in order to kill survivors, are clearly illegal under international law. In short, they are war crimes.   If the US is not involved in an armed conflict (as most experts agree), [T]hese orders to kill helpless civilians clinging to the wreckage of a vessel our military destroyed would subject everyone from [the Secretary of Defense] down to the individual who pulled the trigger to prosecution under U.S. law for murder.   So, there is a credible case that Hegseth—and everyone in the chain of command involved in the attack—is guilty of war crimes or murder. Trump’s tepid defense—“Pete told me he didn’t give the order”—doesn’t address the underlying criminality of the conduct.   And does anyone really believe Hegseth’s denial? His mockery of the allegations of war crimes shows that he does not possess the intelligence or the morality to understand why his actions are war crimes or murder. [I am not suggesting that a defense of “I am too stupid or depraved” to commit a war crime is meritorious. Pete Hegseth will be held to the standard of a reasonable person.]   Indeed, Hegseth’s “investigation” of Senator Kelly shows that he has no clue about the law governing the use of military force. As many commentators on social media noted over the weekend, the military’s legal guidance directly supports Senator Kelly’s statement and refutes Hegseth's position. See Dept. of Defense Law Of War Manual (June-2015) Updated July 2023   The Law of War Manual says the following regarding the duty to refuse illegal orders: 18.3.2 Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations. Members of the armed forces must refuse to comply with clearly illegal orders to commit law of war violations. In addition, orders should not be construed to authorize implicitly violations of law of war.   And, in a passage that should have Hegseth and those in the chain of command staring at the ceiling as they try to sleep at night, the Law of War Manual addresses the tactic of targeting survivors of shipwreck: 18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal.   Pete Hegseth will spend much of the rest of his life justifying his illegal orders to kill non-combatant civilians in international waters and his order to “kill everyone on board,” a command that implicitly ordered a violation of the law of war to target survivors. While justice may be slow in catching up with Pete Hegseth and the military commanders who violated their oath, it will happen. It is just a matter of time. And we can hasten the day when accountability arrives by taking back Congress in 2026 and the presidency in 2028. Concluding Thoughts We have watched for three months as the US military has killed civilians in violation of its internal guidance, military law, and international law. Congress has been complacent in failing to challenge Trump and Hegseth to prevent them from abusing the military and perverting its mission. Their actions damage the military, the American public, and the rule of law. Over the weekend, it appears that the tipping point was finally reached. However horrific the facts appear now, they will likely prove to be even more horrendous than imagined when congressional committees take testimony. And the appearance of whistleblowers and anonymous leakers will increase as those in the chain of command realize they have become unwitting accomplices in war crimes and murder. Slowly but surely, the wheels are coming off the flaming dumpster of the Trump administration. When the critical threshold is exceeded—and it appears that has happened—events will unfold quickly. We must be prepared to take advantage of the internal recriminations, chaos, and desertions that will overwhelm the Trump administration. When that happens, we must not be distracted from our primary goal—taking back control of the Congress in 2026 and the presidency in 2028. Only then can we truly begin to reestablish the rule of law and codify reforms that will prevent any president from repeating the abuses of Donald Trump.

 

HEATHER - WSJ

 

November 30, 2025 Heather Cox Richardson Dec 1 On Friday evening, the Wall Street Journal published an article about the Trump administration’s negotiations with Russia over Ukraine that illuminated the administration’s approach to the world at home, as well as overseas. Authors Drew Hinshaw, Benoit Faucon, Rebecca Ballhaus, Thomas Grove, and Joe Parkinson explained that the administration’s plan for peace was a Russian-led blueprint for joint U.S.-Russia economic cooperation that would funnel contracts for rebuilding Ukraine, extracting the valuable minerals in the Arctic, and even space exploration to a few favored U.S. and Russian businessmen. Many of those business leaders have close ties to the White House. “Russia has so many vast resources, vast expanses of land,” Trump envoy Steve Witkoff told the journalists. “If we do all that, and everybody’s prospering and they’re all a part of it, and there’s upside for everybody, that’s going to naturally be a bulwark against future conflicts there. Because everybody’s thriving.” On ABC’s This Week this morning, Representative Don Bacon (R-NE), who sits on the House Armed Services Committee, said to host Jonathan Karl: “Putin’s the invader, he’s the dictator, he’s murdered all his opponents. But I just don’t see that moral clarity coming from the White House. We saw that Wall Street Journal article yesterday that many people around the president are hoping to make billions of dollars—these are all billionaires in their own right—from…Russia, if they get a favorable agreement with Ukraine. That alarms me tremendously. I want to see America being the leader of the free world, standing up for what’s right, not for who can make a buck…. I don’t want to see a foreign policy based on greed. I want to see it based on doing the right thing.” There is far more at stake here than morality, although that is clearly on the table. The Trump administration is replacing American democracy with a kleptocracy, a system of corruption in which a network of ruling elites use the institutions of government to steal public assets for their own private gain. It permits virtually unlimited theft while the head of state provides cover for his cronies through pardons and the uneven application of the law. It is the system Russia’s president Vladimir Putin exploits in Russia, and President Donald J. Trump is working to establish it in the United States of America. In the New York Times today, Cecilia Kang, Tripp Mickle, Ryan Mac, David Yaffe-Bellany, and Theodore Schleifer explored the story of David Sacks, an early technology entrepreneur with Peter Thiel and Elon Musk who now advises the White House on AI and cryptocurrency policy while investing in the companies that benefit from those policies. Sacks has brought Silicon Valley leaders, including the chief executive of Nvidia, into contact with White House officials. Shortly after, the government got rid of restrictions on Nvidia’s chip sales to foreign countries, a change that could net Nvidia as much as $200 billion. Tom Burgis of The Guardian explained today how the Trump family is using its position in the federal government to advance its personal interests and enrich itself. Trump’s sons Don Jr. and Eric have thrown themselves into cryptocurrency, broken ground on new golf courses, and rushed through permissions for new buildings in foreign countries at the same time U.S. government policies over tariffs, cryptocurrency, and pardons, for example, seem to advance those interests. “The Trumps’ most natural allies,” Burgis wrote, “first in business, now also in politics—have long been the rulers of the Gulf’s petro-monarchies, who see no distinction between their states’ interests and their families’.” When New York Times reporters Ken Bensinger and David Fahrenthold published an article about Trump disclosing the donors who funded his transition to his second term a full year after promising to do so, they noted that the 46 individuals on the released list included billionaires and others who were later appointed to office. White House spokesperson Danielle Alvarez said: “President Trump greatly appreciates his supporters and donors; however, unlike politicians of the past, he is not bought by anyone and does what’s in the best interest of the country. Any suggestion otherwise is simply false.” As wealth and power flow through the executive branch, Trump is overriding the rule of law that is designed to protect the rest of us from self-dealing by unscrupulous individuals. On Wednesday he commuted the sentence of private equity executive David Gentile, convicted in August 2024 of defrauding 10,000 investors in a $1.6 billion scheme that included securities and wire fraud. According to Kenneth P. Vogel of the New York Times, prosecutors said the victims were small business owners, teachers, nurses, farmers, and veterans: “hardworking, everyday people.” “I lost my whole life savings,” one victim wrote about his losses. “I am living from check to check.” A judge sentenced Gentile to seven years in prison. He reported to authorities on November 14, was incarcerated, and was released less than two weeks later after Trump commuted his sentence. There is a growing sense that an elite group of wealthy people is running the world without accountability to the law, and that the Trump administration is protecting and even advancing the people in that group. That sense is key to popular anger at the administration’s refusal to release the FBI files about its investigation into sex offender Jeffrey Epstein. The documents from the Epstein estate released by the House Oversight Committee on November 12 showed a chummy friendship between Epstein and political, academic, and economic leaders eager to retain access to Epstein’s money, information, and connections even after he pleaded guilty to procuring a minor for prostitution. MAGA voters backed Trump in the belief that he would hold such people to account, but it is now clear he is protecting them instead. Indeed, as Mona Charon of The Bulwark noted today, Trump’s ally Steve Bannon, whom Charon describes as “Trump’s consigliere, strategist, propagandist, and former senior counselor at the White House,” was on such friendly terms with Epstein that it was to him Epstein turned to scrub his public image after his initial guilty plea. The realization that Trump is bolstering and protecting an entitled elite rather than defending everyday Americans victimized by them has dovetailed with this administration’s undermining of the economy, firing of civil servants, attacks on public health, and destruction of the nation’s social safety net to create angry references to “the Epstein class.” Representative Ro Khanna (D-CA) explained to NPR’s Scott Detrow earlier this month: “[T]he Epstein class is a group of people with extreme wealth who have donated to politicians and been part of a system where they think the rules don’t apply to them, and they have created a system that has shafted a lot of forgotten Americans. That’s why Donald Trump ran and was central to his campaign. And many people, like Marjorie Taylor Greene and others, believe he’s become part of the swamp that he said he would drain. He’s forgotten the forgotten Americans he said he would stand up for.” Unlike the robber barons of the late nineteenth century, today’s power elite is, as Anand Giridharadas of The Ink wrote on November 23 in the New York Times, a borderless network of people connected not to nations or their fellow citizens but to each other. They exchange nonpublic information and capital to enable the members of that group to control events, disregarding the effects of their decisions on those outside their network. Josh Marshall of Talking Points Memo suggested Friday that the deep unpopularity of AI comes in part from the fact that it has become a symbol “of a society in which all the big decisions get made by the tech lords, for their own benefit and for a future society that doesn’t really seem to have a place for most of the rest of us.” Popular anger at this “Epstein class” is sparking a political realignment. Democratic leaders have been hammering on how Republican policies benefit the wealthy at the same time that Trump’s tariffs send household costs upward and the Republicans’ budget reconciliation bill of July—the one Republicans call the “One Big Beautiful Bill Act”—slashes the social safety net and drives up the cost of health care premiums. The extraordinary demand for energy caused by the massive data centers AI requires has sent energy costs skyrocketing. In November, voters turned away from the Republicans and toward the Democrats, expressing concerns about the economy and “affordability.” Chris Stein of The Guardian explained today how 33-year-old John McAuliff flipped a Republican seat in the Virginia House of Delegates in those elections. McAuliff attracted Republican voters by going door to door, talking with voters about data centers and the infrastructure they require and noting voters’ own rising electricity costs. McAuliff told Stein that the rising prices are “essentially an artificial tax on everyday Virginians to benefit Amazon, Google, some of the companies with the biggest market [capitalizations] in human history. Which is not to say they don’t provide benefits to those communities, but we need to do a much, much better job of extracting those benefits, because the companies can afford them.” Voters’ anger at the administration’s support for the Epstein class is now so palpable it has inspired some MAGA leaders to try to cast themselves as populist leaders standing against the wealthy who control the government, a stand that puts them at odds with the White House. “I’ve always represented the common American man and woman as a member of the House of Representatives which is why I’ve always been despised in Washington DC and never fit in,” Representative Marjorie Taylor Greene (R-GA) began her resignation letter. In 1932, in a similar time of political realignment, New York governor Franklin Delano Roosevelt attracted voters across the political spectrum when he promised “a new deal for the American people,” with “more equitable opportunity to share in the distribution of national wealth.” “Let us…constitute ourselves prophets of a new order of competence and of courage,” he told the delegates to the Democratic National Convention when he accepted its nomination for president. “This is more than a political campaign; it is a call to arms. Give me your help, not to win votes alone, but to win in this crusade to restore America to its own people.” —

The upcoming SCOTUS cases over Trump's firing powers could change America

 

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The upcoming SCOTUS cases over Trump's firing powers could change America

This latest iteration of a 250-year old debate goes much further than earlier generations would have thought possible — or advisable. And, for paid, subscribers: Closing my tabs.

Chris Geidner Dec 1 ∙ Preview

 

 

The U.S. Supreme Court justices are coming back on Monday for a two-week sitting of oral arguments. Along with the arguments scheduled for January, those two sittings will include arguments in two cases addressing a key question of this moment: Does Congress really matter any longer?

 

This has been a big shadow docket question all year — and Congress has generally been pushed to the side — but upcoming arguments could lead to a ruling that would significantly increase the executive’s power in a way that seems to me to be fundamentally at odds with any historic understanding of how the three branches of the federal government are supposed to work.

 

The cases — one set for December 8 and the other for January 21 — are over President Donald Trump’s effort to fire federal officials where Congress specifically included language that became law under a past president restricting the removal of officials in an effort to ensure that the entity involved has some independence.

This is not a new fight. In fact, the questions go back to “the heat of a Philadelphia summer,” as Justice Clark McReynolds described the constitutional convention of 1787 in a case about the president’s removal powers that was before the justices 100 years ago. It was an issue that swept up the first Congress as it decided how to establish the role of the person now called “Secretary of State.”

Ninety years ago, the fight was over the Federal Trade Commission.

Franklin Delano Roosevelt was president and sought to remove William Humphrey as a member of the FTC as of October 7, 1933. Humphrey resisted, and a lawsuit — that continued after his death — ensued. The two questions before the court were whether the FTC statute restricted Roosevelt’s removal authority and, if so, whether that restriction was constitutional.

 

“The commission is to be non-partisan; and it must, from the very nature of its duties, act with entire impartiality,” Justice George Sutherland wrote for the court in Humphrey’s Executor, noting, “It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts ‘appointed by law and informed by experience.’“

 

The entire purpose for the FTC, Sutherland wrote, was the create “body which shall be independent of executive authority, except in its selection.“ To that end, he continued:

 

[I]t is clear that Congress was of opinion that length and certainty of tenure would vitally contribute. And to hold that, nevertheless, the members of the commission continue in office at the mere will of the President, might be to thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office.

As such, the statute restricted Roosevelt’s authority. Is that allowed? To answer that, Sutherland had to look at what the FTC is:

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control.

 

Noting that the Roosevelt administration’s argument would affect the Interstate Commerce Commission and the Court of Claims, Sutherland concluded, “We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named.“

Congress’s removal restriction was constitutional, and FDR lost. The court was unanimous.

In so deciding, the court acknowledged that “[w]hether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power … will depend upon the character of the office“ and that “there shall remain a field of doubt“ as to roles neither “purely executive“ like the Secretary of State and the FTC member at issue.

In recent years, the Roberts court has pulled on that “filed of doubt,” striking down certain removal restrictions, while leaving the bipartisan, multi-member independent agencies created by Congress to function as they have since 1935.

Until the second Trump administration. Trump has made an effort to end all restrictions. Beginning in May, the Supreme Court has — on the shadow docket — allowed Trump’s efforts to fire members of bipartisan multi-member commissions to take effect during litigation, starting with members of the National Labor Relations Board and Merit Systems Protection Board. This continued over the summer, with members of the Consumer Product Safety Commission. On September 22, the Supreme Court did so with Trump’s attempt to fire Rebecca Kelly Slaughter.

 

Bringing us to next week. The oral argument will be over Slaughter’s firing … as a member of the Federal Trade Commission.

Yes, the unanimous 1935 decision could be tossed out by the justices, and the majority has all but said that they plan to do so — if for no other reason than by way of their effort to suggest that, for some reason, the members of the Federal Reserve Board might be treated differently than everyone else. That’s the January argument — over Trump’s effort to fire Lisa Cook as a governor of the Federal Reserve Board.

And yet, despite it all, the silver lining here is that — while they could have taken up one of those other cases — the Supreme Court, by taking Slaughter’s case, will be making perfectly clear to everyone whether a majority of the court is seeking to alter the balance of powers between the branches.

To understand just how dramatic a change this is, I want to go back to a case from a decade before Humphrey’s Executor, the case before the justices 100 years ago.

In that case, Woodrow Wilson was president and fired a postmaster, Frank Myers. The question in that case — which also continued after his death — was whether the Senate’s restriction on removal of Myers without Senate approval was constitutional.

The decision by Chief Justice William Howard Taft — the former president — sided with the presidency, with Taft concluding that “the unrestricted power of removal of first class postmasters [being] denied to the President … is in violation of the Constitution.”

In dissenting, three justices — Justices Oliver Wendell Holmes, McReynolds, and Louis Brandeis — wrote, and their words show just how far this discussion has moved toward an expansion of executive power.

Holmes put it simply:

We have to deal with an office that owes its existence to Congress and that Congress may abolish tomorrow. … The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.

McReynolds — the justice who wrote of the summer heat in Philadelphia — wrote an extensive dissent. He detailed the powers of the legislative branch and the extensive limits on the executive branch.

It is an informative read, but I think two selections help clarify the shift that was at issue then — and the substantially further shift toward executive supremacy that overruling Humphrey’s Executor would represent.

 

“Concerning the insistence that power to remove is a necessary incident of the President’s duty to enforce the laws,” McReynolds wrote, “it is enough now to say: The general duty to enforce all laws cannot justify infraction of some of them.”

In other words, the president can’t “faithfully execute” laws by breaking them.

As to removal specifically, McReynolds quoted Joseph Story, one of the early justices of the Supreme Court, from his constitutional treatise.

“Indeed, it is utterly impossible not to feel,” Story wrote, “that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition and feeble principles, an instrument of the worst oppression and most vindictive vengeance.”

Sound familiar?

The question before the Roberts court in Slaughter and Cook’s cases will not be whether they want to open America up to that possibility, given that Trump has essentially said that is his purpose.

The question before the Roberts court will be if that is what they want.