We have several pending items, not the least of which is the one about what figures Americans would like to see on currency. However, teaching responsibilities are intense right now, leaving much less time than needed to do those pending items properly. Given the choice between quick and on time, and late but done properly, we choose the latter. Thanks for being patient.

Tesla Down, Musk Will (Likely) Soon Be Out

It is not a secret that Tesla stock is not doing well right now. There are the issues that would have manifested eventually, regardless of what happened in the world of politics—questions about safety and reliability (especially with Cybertrucks), a stock price not supported by the company's fundamentals, competition that is catching up (or has already caught up), etc. And then, Elon Musk effectively abandoned Tesla, depriving it of its alleged wunderkind, and took a Himmler-like turn. That is, to say the least, a bad fit for the demographic that buys Teslas. And finally, the trade war with China threatens to completely up-end production of Tesla cars, most obviously by cutting off or reducing the supply or dramatically increasing the cost of rare earths.

These things being the case, Tesla is taking a beating (and so is TSLA). The company's earnings report was released yesterday, and not only did it miss its target for Q1 by about 10%, its revenue compared to Q1 last year is down 20%. Although the share price didn't change much yesterday, the year 2025 as a whole has seen a decline of 41%. And we're still only in April.

In response to all of this bad news, Musk announced yesterday that his commitment to DOGE will soon "drop significantly," so he can go back to work at his day job. He said that he'd drop to a day or two of government work per week in May, and then might leave government work entirely in the months thereafter. Since Musk and Trump are both inveterate liars, you can't know if the South African will actually follow through on this promise. And if he does, you can't know if it's really because Tesla is having trouble, or if that's just a convenient "out." All of this said, we think it's considerably more likely than not that Musk is going to fade mostly into the background by the time summer rolls around.

Whatever he does, however, Musk is NOT going to fade in Democratic rhetoric or advertising. The Party thinks it has a winner in running against him and the "work" he's done, and they are going to ride that for all it's worth. A new piece from Politico reports that while Democratic bigwigs don't like to comment on their messaging plans this far in advance, there is an expectation that Musk will be appearing in a lot of blue-team ads in 2026. Those readers who live in purple states and districts, and who are already heartily sick of Musk's mug... sorry. (Z)

An Update on the Deportation Cases

As we await the D.C. Court of Appeals' decision regarding whether contempt proceedings can be held in Judge James Boasberg's courtroom for violations of the temporary restraining order prohibiting the removal of over 200 men to CECOT, we thought it would be useful to review the distinctions between civil and criminal contempt. Criminal contempt is used to punish past conduct; civil contempt is used to ensure compliance with a court order. A contempt sanction is considered civil if it is remedial, or for the benefit of the complainant.

By contrast, it is criminal if the sanction is punitive and meant to vindicate the Court's authority. Contempt sanctions can be criminal in nature even if they arise in the context of civil proceedings. So, in this case, Boasberg's contempt proceedings are criminal in nature because the goal is to punish the government for ignoring the Court's order prohibiting the deportations. He can find the government in criminal contempt of his civil injunction if he finds that the violations were willful or deliberate.

The standard for civil contempt is clear and convincing evidence (more than just a preponderance of the evidence), while the standard of proof for criminal contempt is beyond a reasonable doubt. Significantly, criminal contempt judgments are valid even if, as in this case, the order is ultimately set aside or vacated. Civil contempt, by contrast, may be canceled if the underlying injunction is invalidated. This makes sense, since parties should assume Court orders are valid and comply with them, absent a decision from a higher court.

Finally, the penalties for both criminal and civil contempt include, potentially, fines and prison time. In criminal contempt, the fines and prison time are, consistent with what we write above, punishments. So, that means that criminal contempt sanctions in a federal court can be pardoned, even preemptively, by the sitting president (though the optics of that could be very bad). Because civil contempt sanctions are coercive, and are targeted at compelling some sort of future action, they cannot be pardoned. As you might imagine, a judge who finds themselves pardon-blocked on a criminal contempt charge could try to find a basis for a civil contempt charge.

In the D.C. case, the Trump administration blatantly, almost sneeringly, violated Boasberg's order to keep the planes on the ground and turn any planes already in the air around to return to the U.S. Trump ignored both of those commands. Boasberg found probable cause for contempt and had scheduled contempt proceedings. Those contempt proceedings are currently on hold while the D.C. Circuit Court of Appeals considers Trump's appeal.

As a reminder and as reader M.H. in Te Horo Beach pointed out yesterday, the contempt proceedings in Boasberg's court are different from the Texas cases that prompted the Supreme Court's late Saturday night emergency stay, though those cases also arose out of that original case. The Court's stay prohibited the government not just from deporting the named plaintiffs but also from "remov[ing] any member of the putative class of detainees from the United States until further order of this Court." The Court also ordered the solicitor general to file a responsive brief "as soon as possible" following the Fifth Circuit's ruling denying the plaintiff's request for a stay. Presumably that response will be filed this week.

The cases were brought in Texas because the Supreme Court, in its April 7 order vacating Boasberg's temporary restraining order that prohibited the removal of anyone under the Alien Enemies Act, held that any cases challenging removal under the Act have to be brought in the courts where detainees are being held. That set off a mad scramble by the ACLU to find detainees and bring cases in several district courts in Texas to prevent more disappearances. And sure enough, the evidence shows that Trump had loaded these men onto buses to send them to the same notorious hellhole as the other 200 men. It bears pointing out that the Supreme Court could have avoided all of this by simply adhering to well-settled precedent regarding habeas claims and affirming Boasberg's TRO. It also bears pointing out that its own stay applies to a putative class and appears to contradict its April 7 ruling that each case must be brought individually as a habeas petition. Maybe SCOTUS realized it screwed up?

Finally, in Judge Paula Xinis' courtroom (District of Maryland), she is still trying to ascertain whether the government has done anything in response to her order, which the Supreme Court affirmed, to facilitate the return of Kilmar Abrego Garcia. She ordered expedited discovery, which was affirmed by a very pointed ruling from the Fourth Circuit Court of Appeals (we wrote about this last week). But—surprise, surprise!—the DOJ has obstructed all efforts to get that discovery. On Tuesday, Xinis slammed the government for "specious" assertions of privilege and other bogus claims to deny plaintiffs relevant information. "Given that this Court expressly warned Defendants and their counsel to adhere strictly to their discovery obligations... their boilerplate, non-particularized objections are presumptively invalid and reflect a willful refusal to comply with this Court's Discovery Order and governing rules," she wrote. "Defendants have known, at least since last week, that this Court requires specific legal and factual showings to support any claim of privilege. Yet they have continued to rely on boilerplate assertion. That ends now."

While all eyes are on the Texas cases, those men are still in the country. It's the Abrego Garcia case where the rubber really meets the road. The government continues to maintain that it can't do anything to facilitate Garcia's return—that he is beyond their control. Presumably that also applies to the 200 men currently languishing at CECOT—how are they supposed to secure the process that everyone agrees they are due?

How will the Supreme Court handle this rather glaring loophole in its order? Will it say that it just has to take the government's word for it that Garcia (and the others) are beyond its reach? Or will it look at the facts, determine that the government does have the ability to bring him back, and order the administration to do so? If the Supreme Court capitulates, throws up its hands and says, "well, he's out of the country, there's nothing anyone can do," it's game over. The Court has already ruled that a district court cannot certify a class of people that would be protected from deportation under the Alien Enemies Act. Therefore, anyone, whether a U.S. citizen or a tourist on vacation, can be snatched up and sent to CECOT or some other foreign prison before anything can be done to stop it. And while there are lots of attorneys in this country, there aren't enough to play whack-a-mole to find everyone who will be caught up in this dragnet.

The best way out of this is if the Supreme Court finds that Trump's use of the Alien Enemies Act is unconstitutional. But that still won't help the 200 people, including Garcia, who were illegally handed over to a dictator and who may never see the light of day again. (L)

It's The Crimson vs. The Clown Show

The gauntlet has officially been thrown down, as Harvard University has sued the Trump administration for freezing $2 billion in funding, despite the fact that the money had already been awarded, with contracts signed. Note that this suit is separate from one filed by a group representing part of the Harvard faculty and staff.

Harvard is, of course, a formidable foe. The university can draw on its faculty, its alumni, or both in putting together a legal "dream team." It also has resources that are, in effect, unlimited. There's not only $2 billion in existing funding on the line here, there's also the damage that yanking the funding will do, there's future funding, there's the potential costs of the administration yanking Harvard's tax-exempt status, and the potential costs of the administration interfering with the matriculation of foreign students. It would not be crazy to put the total potential price tag here at $10 billion (or more). Under such circumstances, Harvard could pay its attorneys $100,000/hour for 10,000 hours of legal work, plus give them suites at the Ritz Carlton, plus buy them each a Gulfstream G500 to fly around in, plus serve them daily meals of Maine lobster, Beluga caviar, Cristal Champagne, and authentic Kobe beef steaks dusted with saffron and white truffles, and it would still make complete economic sense.

Of course, the federal government is also a formidable foe... at least, normally. But at this point, allow us to quote something we wrote back when this Harvard story first broke:

Forgive us for using this concept so frequently today, but the 5-page, single-spaced letter [of demands being made of Harvard] reads like a fascist wet dream. You get the impression that various members of the Trump administration sat in a room, came up with every possible demand they could think of, and then put it ALL in, regardless of how plausible, how reasonable, or how legal the demand might be... It is unbelievable that any government official would make such demands verbally, as all of these things are clearly illegal. It is even more unbelievable that any government official would actually WRITE THE DEMANDS DOWN, memorializing them for all to see.

We did not actually expect this but, as it turns out, we were dangerously close to the truth. According to reporting from The New York Times, that letter was not supposed to be sent out. It was the result, for lack of a better term, of some sort of brainstorming session. The notion was that it would be revised, and then a decision would be made as to whether or not to move forward. However, someone (and nobody is saying who) sent it out, apparently of their own volition. At that point, the administration was committed (which is appropriate, since many of its members should BE committed). One unnamed White House spokesman, who spoke to the Times, even had the temerity to claim this was all Harvard's fault, and that the university should have realized the letter was an opening bid, and should have picked up the phone and started negotiating.

As Sam Stein points out in a piece for The Bulwark, the fears that Trump v2.0 would be just as Trumpy, but way more competent, were clearly overblown. He writes:

This is not a smooth-running operation. Indeed, the extent to which Trump's first three months back in office have been characterized by mistakes—from bumbling embarrassments to calamitous errors endangering national security—is frankly breathtaking.

Weeks before the White House's antisemitism task force sent an "unauthorized" letter to Harvard making demands so onerous (such as federal oversight of admissions) that university leaders felt compelled to publicly fight it, Trump officials acknowledged they mistakenly deported Kilmar Abrego Garcia to El Salvador.

Weeks before that, the White House conceded that top national security officials had erroneously added the editor of the Atlantic to a Signal chat where they discussed war plans.

In the middle of all that, economists at the American Enterprise Institute noted that the tariff formula the president was applying to dozens of countries had a massive mathematical flaw in plain sight, while penguins in the Indian Ocean were dismayed to learn that the tariffs were targeting them.

[And] those were [just] the main-course screwups.

So, it's just as much of a clown show as last time around. A very dangerous clown show, but a clown show nonetheless. And so, our money is on Harvard, and also on most or all of the folks who will eventually get their days in court. (Z)

Ed Martin Is out of Control

Ed Martin is the Acting U.S. Attorney for the District of Columbia (note the italics, because they are going to matter later). Ever since he's gotten his mitts on the reins of power, he's indulged in a wide array of uber-Trumpy stunts. A rundown of some of the more egregious:

• He fired 30 federal prosecutors because they had worked on 1/6-related cases.
• He accused the office he now leads of engaging in obstruction in relation to the 1/6 cases (this before he assumed the acting U.S. attorneyship, of course).
• He dismissed 1/6-related charges against Joseph Padilla, a former client.
• He threatened legal action against anyone who dared push back at, or even to criticize, Elon Musk and DOGE.
• He referred to himself, and all U.S. attorneys, as "President Trump's lawyers."
• He ordered Georgetown to cease all DEI efforts, and said his office would not hire any Georgetown grads as long as any such programs were in place.

This week, Martin is in the news yet again. He sent letters to at least three medical journals demanding to know how the journals protect the public from misinformation, whether they take care to present competing viewpoints, and whether their content is influenced by advertisers.

Although we leave room for the possibility that Martin is an ignoramus who has no idea how the scholarly process works, we tend to assume he knows full well that his letters are absolute nonsense. First of all "protecting the public from misinformation" and "presenting competing viewpoints" are, in this context, largely contradictory. If Chest (the official journal of the American College of Chest Physicians, which received the first Martin letter) publishes a study that found that, for example, washing one's hands with an alcohol-based solution before surgery cuts down on the incidence of infection by 20%, what's the "competing viewpoint"? That washing your hands before surgery isn't actually helpful? That sounds a lot like... misinformation to us.

Beyond that, nothing published in a journal like this claims to be the unvarnished and eternal truth, for all time. A person or group does a study, submits it, and it gets peer-reviewed. If the study design, the handling of data, the analysis, and the conclusions pass muster (often with changes made at the suggestion of the anonymous referees), then it's published. Other professionals can use that to guide their own research or their own practice, or might choose to try to replicate the findings. Never does anyone read a journal article and say "Well, now that's settled." And, of course, any journal that had the faintest whiff of kowtowing to advertisers would be instantly dead in the water.

We don't know exactly what Martin's specific agenda is here, but we assume it has something to do with stifling articles about masking, vaccination, or both. He's a conspiracist and a hard-core Trumper, so this would make sense. Needless to say, the editors of these journals do not give a damn about his inquiries, or whatever threat is implied by his letters. Beyond the fact that there is a little thing called the First Amendment, Chest, for example, is based in the Chicago area. Last we checked, Chicago is not in Washington, DC (of course, our map still says "Gulf of Mexico," so it may be outdated).

We also don't exactly understand Martin's broader agenda, either. Here is what we mean. His main audience is Donald Trump, and undoubtedly Trump is thrilled with many of these stunts. However, the Dear Leader has already given his blessing to Martin by nominating him to be U.S. Attorney. At this point, it would seem to us that the more important audience, assuming Martin wants that "acting" to be removed from his title, is the 53 Republicans in the U.S. Senate. And all of these fascist-adjacent actions are not helping him with the Lisa Murkowskis (AK) and John Curtises (UT) of the world.

Again, it is possible that Martin is a moron, and does not know how the game is played. It is also possible that he's a True Believer™, and that he either cannot wait to get to work on his theocratic fantasies, or that he cannot imagine that anyone thinks differently than he does.

However, our best guess is that Martin has decided that the audience of one is still the one that matters. It could be that, with the various dirty deeds in his past (e.g., appearing on Russian propaganda outlets hundreds of times, and then "forgetting" to mention that in his Senate confirmation paperwork), Martin knows he won't be confirmed, and so wants Trump to keep him on in an acting capacity for as long as is possible. Or it could be that Martin believes Trump can muscle the nomination across the finish line with a few phone calls, and he wants to give the President every motivation to make those phone calls. Whatever is going on here, it will be very interesting when Martin finally comes up for confirmation. (Z)

A Tale of Two Presidential Candidates

There is absolutely no question that Gov. Gavin Newsom (D-CA) plans to run for president in 2028. He's been laying the groundwork for years, from steering anti-Trumpy legislation through the California legislature, to debating Gov. Ron DeSantis (R-FL), to supporting Kamala Harris in 2024 with visibly limited enthusiasm.

Recently, Newsom has tacked very hard toward the center. Most readers will know, by this point, that he's not only started a podcast, but that his guests for the first three episodes were Charlie Kirk, Steve Bannon and Michael Savage. In the first of those, Newsom raised more than a few eyebrows when he told Kirk that he largely agrees with MAGA world about trans athletes participating in girls'/women's sports. "I think it's an issue of fairness," said the governor. "I completely agree with you on that. It is an issue of fairness. It's deeply unfair."

We will concede that we were once very impressed with Newsom as a candidate. This was not a judgment of his stance on the issues, mind you, but one of his apparent tactical skill, and his ability to get his name in the headlines. However, we will now concede that we are no longer impressed. A fellow with a slicked-back haircut like that, who dines at the French Laundry ($500-$1,000/person) during a pandemic, whose hobby is collecting wine, already begins with two strikes against him when it comes to people suspecting that he's a phony. At the moment, it simply could not be more apparent that he has information (probably from polls, but common sense would do it as well) that he's perceived as a San Francisco namby-pamby pinko commie liberal, and so he's triangulating so as to re-invent his image. It's not going to work, and all it does is heighten the sense that he's a fake who has little in the way of actual principles.

This subject comes up, in particular, because Newsom sat for an interview with The Hill earlier this week, and spent much time carping about the Democratic Party's lack of identity. "I don't know what the party is," he proclaimed. "I'm still struggling with that." He wants there to be an autopsy so that the blue team can get to the root of what ails it. Newsom also took the opportunity to emphasize his ostensible blue-collar bona fides. He talked about how California isn't just urban elites, and that it has lots of agriculture, forestry, fishing, hunting, etc. Then, apparently with a straight face, he decreed:

So, you know, talk about flyover states. My state of mind is deeply entrenched in this rural mindset as I go back over and over and over again in the Central Valley. It's not helped me electorally, but it certainly helped me sort of create a sort of consciousness around that.

Feel free to hum John Denver's "Thank God I'm a Country Boy" as you read that.

We have many responses to this, which we are going to present in list form so we can actually get through them all:

• Nobody in California, and presumably nobody in the whole country, believes that Newsom is predominantly a champion of rural voters, and that he's held firm on that despite all the electoral harm it's done him.
  
  
• If a person wants to connect with voters in Nebraska, or Kansas, or Iowa, it's not wise to use the phrase "flyover states," no matter what your intent.
  
  
• It is not the DNC, or some autopsy written by a bunch of wonks, that decides what the Democratic Party is about. It's the voters, particularly those who vote in the primaries. The notion that some blue-ribbon panel will be able to solve what ails the Democrats (or the Republicans) is a notion that only politicians have. And to hammer on that makes Newsom seem out of touch.
  
  
• If Newsom believes the Party's platform is unfocused, or requires more effective messaging, you know whose job that REALLY is? The politicians. Can you imagine Franklin D. Roosevelt ever whining, "I just don't know what the Democratic Party stands for?" Of course not. He would roll up his sleeves, and put into words his vision of what it stands for, and then get out there and sell it.
  
  
• There is nothing here that serves to dispel our feeling that Newsom is a phony.

In short, in case you can't tell, we are not impressed.

Meanwhile, on the other side of the coin, Nate Silver has made his prediction as to the identity of the Democrats' 2028 nominee, and it's... Rep. Alexandria Ocasio-Cortez (D-NY). There isn't that much data at this point, so this prediction is based a little bit on data (AOC has very high favorables, especially compared to other Democrats... like Newsom), and a lot on gut feel.

Our insta-response was that it's kinda crazy to think AOC will get the nomination. After all, the Democrats just suffered a devastating loss with a woman of color who comes from an urban area in a very blue state. The presumption in December of 2024, including from us, was that the blue team would go with someone very safe, very bland, very centrist and very... pale, if you will.

However, on a bit more reflection... AOC '28 is not crazy. We will eventually get to her in our candidates series, but—spoiler alert!—it's not going to be for a while (teaser: she's going to show up between Gov. Wes Moore, D-MD, and Sen. Adam Schiff, D-CA). So, we're going to lay out some of the factors that either would, or could, be in her favor in 2028:

• Having learned from Sen. Bernie Sanders (I-VT), AOC is the queen of earned media. Her rallies draw throngs, and nearly everything she says or does makes the news. This was key to the rise of Donald Trump, and may be the only thing she has in common with him.
  
  
• As we have written many times, this appears to be a "throw the bums out" era. If 4 years of Donald Trump leaves voters with the sense that they want someone as different from him as is possible, well, it would be hard to think of a leading Democrat more different than the young, not white, not male, not rich, not corrupt, very liberal AOC.
  
  
• From a game theory perspective, if AOC jumps in, that almost certainly clears out the lefty lane for her to have all by herself. Meanwhile, there is going to be an absolute deluge of moderate candidates. Remember that, unlike the Republicans, the Democrats award delegates proportionally. So, if she collects a steady 30% of the primary vote, that could be enough, if the other 70% is splintered.

We're not ready to join Silver and say AOC is the favorite in 2028. But we are saying she's very viable. More so, in our view, than Gavin Newsom.

On the other hand, AOC has a very fine-tuned political ear. She is a very good politician. She surely knows that getting elected as president in 2028 would require all the stars to align and then some. On the other hand, challenging Sen. Chuck Schumer (D-NY) in a primary and winning a Senate seat would be easy-peasy compared to being elected president. It is much easier to be elected president as a senator than as a representative. She will be 38 in 2028 and has plenty of time for a run after a term or two in the Senate. So we think there is a pretty good chance she will go for the Senate in 2028 and leave the presidential run for the future. (Z & V)

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