Category: United States Law and Policy

1642’s Five Members vs 2026’s Six Members

12th February 2026

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Comparing Charles I and President Trump in their attempts to arrest and charge legislators

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On Mandelson’s emails – how to think about disclosed documentary evidence

3rd February 2026

You probably have seen the disclosures of the emails purportedly from Lord Mandelson from when he was business secretary.

On the face of it, these emails raise serious questions which warrant further enquiry and investigation.

(And if you want speculation about legal liability this really is not the blog for you.)

There are also questions we can ask of this documentary evidence, and observations that we can perhaps make.

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First of all: no documentary evidence exists in a vacuum.

Every text has, well, a context.

(Think about the words text and context.)

The Epstein files are not a disinterested archive.

The documents were collected for a purpose and were stored for a purpose.

According to the relevant legislation, the disclosed documents comprise “all unclassified records, documents, communications, and investigative materials in DOJ’s possession that relate to the investigation and prosecution of Jeffrey Epstein”.

So one question that can be asked of the documents disclosed so far is: do they explain the prosecutorial decisions (and also the defense and any judicial decisions) in respect of the “the investigation and prosecution of Jeffrey Epstein”?

If there is a gap between what has been disclosed and what these documents need to explain, then one can get a sense of what documents have not (yet) been disclosed (whether for good reasons or bad).

Of each document one should ask: how does this document relate to “the investigation and prosecution of Jeffrey Epstein”?

For if the document does not relate to the that investigation and prosecution, then it should not have been collected, and it would not have been disclosed.

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From a cynical perspective, there is always corruption in and around government.

What seems to have been revealed with these United Kingdom disclosures emails is clumsiness and arrogance.

A less clumsy and less arrogant approach would have meant such emails never existing.

Westminster and Whitehall is full of leaks: off the record briefings and so on.

There is complex and thriving entire unofficial information economy in SW1.

The sort of state information seemingly forwarded by Mandelson to Epstein is similar to documents which are routinely forwarded or briefed to journalists and advisers and lobbyists and researchers and think tanks.

“Sources close to….”

“Friends of…”

“Whitehall insiders say…”

Such unauthorised communications and disclosure are rife in Westminster and Whitehall.

What Lord Mandelson appears to have done is an especially significant breach involving highly market sensitive information.

But if so, its significance is really of scale, and not of type.

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There appears to be many documents covered by the Epstein files disclosure legislation that, contrary to the terms of the statute, have not been disclosed.

No government discloses adverse information easily or voluntarily, or indeed often at all.

Especially if, as with the Trump administration, there is a generally casual and indeed defiant attitude towards mandatory legislation and court orders.

Maybe there will inadvertent disclosure of documents that will seriously damage the Trump presidency, if such documents actually exist.

But it is difficult to believe that the (current) federal government would knowingly disclose such documents, regardless of what the courts and Congress say.

Little or nothing, however, can stop a government disclosing documents that adversely affect others.

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Every document has a context, and every disclosure also has a context.

And so the questions to always ask are:

– what does the document relate to, and what does it not relate to?

and

– why was this document disclosed – now and by whom and for what purpose?

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Thinking about what has happened in Minnesota

27th January 2026

For the last few weeks those of us outside of Minnesota have had glimpses via social media of the street violence and other thuggery of federal government agents.

As this blog has said before, it is as if we are Christopher Isherwood observing the violence and other thuggery in the streets of early 1930s Berlin. There is what we could see – but there was also what that indicated about what we could not see, and about what may happen next.

As it happens, two gross incidents were actually caught on camera and footage quickly circulated on social media: the summary executions of Renée Good and Alex Pretti.

The shared footage showed both killings to be murders, notwithstanding the lies immediately asserted by federal government figures and their supporters.

Federal government figures and their supporters wanted people to disbelieve what they could see, and to believe what they were told instead.

It was a sheer test of reality: you had to choose between the horrific obvious truth or the comforting official untruth.

And it was not obvious that many would pass this test.

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The lies told by federal government figures and their supporters about the murders of Good and Pretti had certain features.

One feature was the confidence that the lies would be adopted by others, even if not believed – that the lies would be sufficient for subservient mainstream media outlets to “both sides” the issue.

To its disgrace, the British Broadcasting Corporation even led with “analysis” slop about “sharply contradicted narratives”.

(Source)

The federal government figures and their supporters promoting these lies had every reason to believe this tactic would work, for it has worked so many times before.

But this time the lies did not work

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One reason the lies did not work was because of another feature of those lies.

The lies come from a certain type of superficial politics.

For example, federal government figures and their supporters talk about “free speech” whilst using the law in various ways to silence and punish unwanted speech; they talk about “non-intervention” but clap and cheer at casual use of lethal force abroad; they talk about “free trade” and “free enterprise” while nodding along with erratic tariff setting; and so on.

Fine-sounding words and phrases which appear to be about first principles are in fact meaningless slogans.

These people simply do not think-through what they are saying – or they don’t care about what they are saying, which is much the same.

And this is where they here came a cropper, to use a British term.

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One immediate impulse of federal government figures and their supporters in respect of the killing of Alex Pretti was to blame the fact he had a legally possessed gun.

How they must have been so happy at coming up with this line, to combat the concerns of those horrified at the murder.

But so eager were they to “own the libs” they forgot about those who own the guns.

Their snap response was a contradiction of the rights which many in the United States believe to be protected by the second amendment – often small-c conservatives and Republican party supporters.

The witless federal government figures and their supporters did not realise the import of what they were saying in the rush to defend the federal agents who murdered Alex Pretti.

Often federal government figures and their supporters get away with a superficial approach to political principles – but here they tripped up very badly in the eyes of their natural supporters.

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The lies could not hold.

News reports began to mount of Republican politicians who would not be satisfied with what they were being told to believe.

The camera footage was plain; the lies made no sense.

Something seemed to snap.

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One theme of this blog and my posts elsewhere is that policing a large population is not easy.

I was brought up in the 1970s and 1980s Birmingham of the notorious West Midlands Serious Crime Squad:

And also during the Troubles, where the Royal Ulster Constabulary and other organs of the British state had little or no legitimacy or support with a significant portion of the people of the north of Ireland/Northern Ireland.

Policing and law enforcement generally requires the consent or at least the forbearance/acquiescence of the community.

Even the hateful and cruel Gestapo and the Stasi derived part of their power from the support – even enthusiasm – of many in their respective communities.

But one thing police or law enforcement agents should avoid is actively alienating the policed.

Casual and provocative brutality at scale is not a sustainable model for any police force or law enforcement agency.

It prompts counter networks of opposition and a loss of legitimacy among neutrals and the usually deferent.

And as in the north of Ireland/Northern Ireland, policing simply breaks down for significant portions of the local population.

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There now seems to be de-escalation in Minnesota.

The local head of the border force has been demoted and moved elsewhere.

The president’s spokesperson is making conciliatory noises.

The tide seems to have turned, leaving various fools and knaves exposed on the beach.

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If there is de-escalation then that will be a significant set back for the president and his adviser Stephen Miller in seeking to contrive a pretext for invoking the Insurrection Act.

As I set out here this is their obvious objective – but they also need to have a sound enough basis to survive legal challenge.

It would seem that they thought that fomenting disorder by heavy-handed use of the National Guard and now ICE/Border Patrol would create the circumstances where they could plausibly invoke the Insurrection Act.

But the thing about disorder is that it is, well, disorderly.

By definition, disorder does not go to plan.

And the disorder fomented in Minnesota has resulted in it being now harder for Miller and others to invoke the Insurrection Act: dishonesty has been exposed, natural supporters upset.

The cause of disorder is seen widely as the government itself, and not supposed “insurrectionists”.

Wise politicians avoid instability, as it rarely works out as instigators of instability intend.

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Just as this eventful month of January has seen something seemingly snap in international affairs, with how Trump was forced to climb down over Greenland and the prime minister of Canada setting out a coherent alternative vision to being bullied by the United States, something seems to have snapped internally in the United States too.

Ruptures inside, and out.

Of course, federal government figures and their supporters are still there, and they can find new ways to misuse and abuse power.

They will still seek to swagger and to intimidate.

Indeed, things may even get worse.

But both at home and abroad there has been a loss of deference to their aggression and dishonesty.

And that deference will be difficult for federal government figures and their supporters to regain easily.

Federal government figures and their supporters should remember that hubris is often followed by some nemesis or other.

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“…neither rhyme nor reason” – how we are currently in a situation where precedents and norms and laws and rules and theories offer no assistance.

20th January 2026

 

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“…neither rhyme nor reason.”

– Comedy of Errors, William Shakespeare

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What, if anything, is Trumpism?

There is not really any rhyme: there is no consistency or predictability in what he does. His actions in situation [A] will tell you little or nothing about what he may do in situation [B].

There are, at a general level, certain themes: he is indifferent to norms, he is cunning, he likes leverage, he will renege on deals, he has a sense for ratings, he will often back down. But these are tactics and improvisations: they say little or nothing about which subjects he will engage with next.

And nor is there is much reason: little or nothing he does makes sense, at least for the reasons he gives – or for the reasons his partisan supporters come up with to justify his actions and inactions.

It would be fair to say there is neither rhyme nor reason.

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From time to time, some opponents come up with a grand theory.

“Watch the money!” and “his billionaire pals!” for example – but often Trump and the super-wealthy would financially benefit more from other courses of action. His erratic antics with tariffs make no sense from the perspective of capitalistic self interest.

“Distraction from the Epstein Files!” is now falling flat while Trump and his circle are confident that they can simply ignore explicit legislation. Those documents are not easily going to be released against the will of Trump, whatever the huffing and puffing.

Perhaps his desire to keep out of courts and prison may be his primal motivating factor, but when he was out of office between his presidencies he was deftly able to avoid any incarceration even when he was found criminally liable.

The only thing really which he wants is that most basic of all political objects: power.

But other than that fundamental political desire, there is no underlying theory, still less an ideology.

As Anne Applebaum wrote yesterday (broken up into smaller paragraphs):

For the past year, American allies around the world have tried very hard to find a theory that explains Trump’s behavior.

Isolationism, neo-imperialism, and patrimonialism are all words that have been thrown around.

But in the end, the president himself defeats all attempts to describe a “Trump doctrine.”

He is locked into a world of his own, determined to “win” every encounter, whether in an imaginary competition for the Nobel Peace Prize or a protest from the mother of small children objecting to his masked, armed paramilitary in Minneapolis.

These contests matter more to him than any long-term strategy.

And of course, the need to appear victorious matters much more than Americans’ prosperity and well-being.

We maybe need to look elsewhere than political theory to understand what is going on here: perhaps psychology or anthropology, perhaps proverbs and fables, perhaps cautionary fairy tales.

We maybe need to look at the various ways our species have dealt with understanding those situations where a ruler is mad and bad.

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“There are more things in Heaven and Earth, Horatio, than are dreamt of in your philosophy.”

– Hamlet, William Shakespeare

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Law and constitutionalism has little chance in the face of this ongoing irrationalism.

Pointing to the articles of the constitution of the United States, or of the charter of the United Nations, is nothing more other than quaint.

One may as well hold up a blank piece of paper and announce that this will stop him.

There is no formal solution to this problem: no text, codified or otherwise.

This will only stop if – if – those individuals who have any residual power step in and impose their wills against his.

And that still seems unlikely.

Those around him appear to be in a trance that has affected the whole of his “court” – a spell as deadly as any devised by any fairy tale witch upon any group of courtiers.

A spell which seems to be absolutely unbreakable.

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And now Trump has destroyed – or at least seems to have destroyed – Atlanticism and the NATO alliance.

Perhaps both will recover: that this is only some severe but not permanent jolt.

But when overnight Trump posts things like the following:

Or sends official diplomatic letters such as:

…we are not in situation from which we can speedily recover.

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“We are indeed drifting into the arena of the unwell.

Making an enemy of our own future.”

– Withnail and I

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One day, perhaps, all this will be in the past.

One day we may know how this story ends.

Indeed, what happens next will be deemed by a certain type of historian as somehow inevitable – even though nobody at this moment can predict it with any certainty.

But as it stands: we are currently in a situation where there is neither rhyme nor reason – where precedents and norms and laws and rules and theories offer no assistance.

We are trapped in a story where there is nothing to tell us how this story ends.

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“I have supped full with horrors.”

– Macbeth, William Shakespeare.

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Notes on gangster states: why legitimacy matters when the state has a monopoly on coercive and lethal force.

12th January 2026

One priority for a modern state – perhaps the highest priority – is for it to keep its citizens safe from harm.

And within that priority is the need for the state to to keep its citizens safe from harm inflicted by the state itself.

A modern state has – or should have – a monopoly on legitimate coercive and indeed lethal force.

By “legitimate” is meant that the force used will have a lawful basis, will be used in accordance with legal rules, is sanctioned ultimately by someone capable of being publicly accountable, and is capable of review by an independent court.

So what happens when this breaks down?

What happens when the it is the state that is inflicting injury and death on its own citizens – or on people in its care?

And what happens when that coercive and lethal force does not appear to have a legal basis and/or is not in accordance with legal rules and/or is sanctioned by those with no accountability and/or is not capable of independent judicial review?

That is: what happens, for any or all these reasons, the use of coercive and lethal use of force does not seem to have any legitimacy?

What happens when the only justification for the use of coercive and lethal use of force – or excuse or pretext – is that might is right?

Well, among other things, you have a fundamental failure in the functioning of a modern state.

For the key word here is “legitimacy”.

Anybody can (seek to) use coercive and lethal force – and many will get away with it.

And if that is possible, then you have a gangster state, an outlaw state, a pirate state – where anything goes by those who can use coercive and lethal force and be protected from any legal or political consequences.

Some may like the idea of such a state – some may read science fiction or fantasy fiction where there are cities or entire societies where might is right.

Or when may look at various places – now and throughout history – where any sense of a legitimate central order has broken down. And what one will often see are massacres and gangsterism.

That is why there is a quid pro quo – the state gets to have a monopoly on the use of coercive and lethal force, in return for that coercive and lethal force being used legitimately.

That is that the force used will have a lawful basis, will be used in accordance with legal rules, is sanctioned ultimately by someone capable of being publicly accountable, and is capable of review by an independent court.

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Now looking at the United States, there appears to be the free use of coercive and lethal force by the federal agency ICE (Immigration and Customs Enforcement).

Last week Renee Nicole Good was killed by ICE in circumstances that seem to have been murder: a state execution of an innocent person on the streets for no good reason.

At the start of that day three children had a mother and at the end of that day they did not, just because an ICE agent decided to shoot their mother three times in the face.

I have written about this over at Prospect in an article entitled Death in Minnesota – please click here to read it.

Fatalities happen, police shootings of innocent people happen – but what was especially striking about this killing was the response of the federal government and its supporters.

For want of a better word: they celebrated the killing.

The woman somehow deserved it because she was dubbed “domestic terrorist”.

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Now turning back to the general issue of legitimacy, we can see that this use of lethal (and not only coercive) force appears from from any of those elements which can (in limited circumstances) render it legitimate.

The extra-judicial execution of Renee Nicole Good seems not to have a legal basis, it was not in accordance with legal rules, was sanctioned (even implicitly) by those who seek to evade accountability, and it may not be capable of review by an independent court.

The federal state is resisting working with the local police.

It looks as if the state is confident it can get away with it.

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But.

The cost of the state getting away with it will be further diminution of the legitimacy of the state having a monopoly of coercive and legal power.

Yes, as a matter of realpolitik, the state can seemingly do as it wishes.

Yet in the medium term, legitimacy matters.

A society is not easy to govern unless there is at least acceptance of the powers of the police and the military: sheer repression is expensive and often unsustainable.

That is why the wise tyrant hides behind a veneer of legalism and constitutionality.

And that is also why gangster states rarely last very long.

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We are Christopher Isherwood, watching the scenes in the Berlin street below from our apartment window above.

8th January 2026

Watching from afar further shifts in a worsening polity

The Berlin novels and notebooks of Christopher Isherwood from the early 1930s contain fascinating characters – even though the apparent real-life inspirations for the likes of Sally Bowles (Jean Ross) and Arthur Norris (Gerald Hamilton) were somewhat different from their fictional counterparts.

But the most fascinating – and complex – creations in those works were the narrators – sometimes “Christopher Isherwood” (in inverted commas), sometimes William Bradshaw.

Do not be taken in by the deft misdirections of the narrator:

“I am a camera with its shutter open, quite passive, recording, not thinking.”

The narrator is not any passive camera, though he wants you to think so.

(For, as always, Isherwood is very charming.)

He is instead skilfully writing about difficult subjects – including the visible slide to Nazism and barbarity all around him – while making you feel you are working these things out for yourself from the details he provides.

He says he is recording, not thinking – but he is very much making you think.

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Like Isherwood – or “Isherwood” – walking the Berlin streets or looking down from his apartment window, we all – via social media and mobile phone footage – can now have glimpses of an ever-worsening situation in the United States (and also elsewhere).

And again like those reading his narrative, we can put two and two together and realise what is going on in what we don’t glimpse – which is not reported on social (or mainstream) media or recorded on mobile devices.

What happened yesterday to a woman in Minnesota was horrific – and yet we know that it cannot be unique. One can tell that the distinctive quality of this incident is that it was caught on camera when many others are not. There is no reason to believe it was a one-off.

As such anyone watching can tell what is happening off-camera – but, as with Isherwood and others in the early 1930s, there is very little which we can do (especially from the other side of the Atlantic).

(And, which is a fair point, the well-documented record of the United Kingdom state in killing and torturing people in Northern Ireland, Kenya, Iraq and Afghanistan confers on us no moral superiority.)

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No slide towards barbarity and Fascism is inevitable: even in the 1930s some countries were able to steer their polities in a different direction. Little or nothing is bound to happen in human affairs. Things can change for better, and sometimes do.

But nonetheless the sense of dread and doom that must have been a feature of the early 1930s is sometimes inescapable.

The evidence from our virtual apartment window does not point in an encouraging direction.

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But what about international law?

6th January 2026

What happens to an international legal order when a superpower goes rogue

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The notion of international law prompts strong opinions.

(Here is meant what lawyers call “public international law” – in general, the law which governs nation states and international organisations. There is also “private international law” which is generally dull and uncontroversial – cross-border contracts and what-not.)

Some even doubt international law exists.

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I once heard a very distinguished legal academic – whose name is on the spines of volumes in every law library throughout the land – aver the following:

“In court, the laws of England and Wales are a matter of law. You just have to show the relevant legal authority or instrument and the court should accept that as what the law is.

“Foreign law – say the law of France – is different. This is a matter of evidence – expert evidence. You get an expert in that foreign law and their evidence is put before the court.

And international law, well. (Pause.)

International law is a matter of fiction.”

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There is perhaps no other branch of law which is the subject of such scepticism, if not outright denial, among even lawyers themselves.

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From one perspective, this rejection is perhaps understandable.

A great deal of what is called (public) international law will never be determined or enforced by a court of competent jurisdiction – it will never be litigated, and the nation state (and head of state) breaching that law will feel confident there will not be any consequences.

As one famous jurist once put it: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

And if there ain’t a court that will “do” international law then it is little or nothing more than a polite political fiction – a set of normative assertions with no positive existence.

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But.

There is more to law than its determination or enforcement by a court.

Even domestically, the vast majority of statutory provisions – and indeed many statutes – have never been litigated and will probably never be litigated. Yet they are still the law.

And this is because – in very general terms – they are recognised to be the law and parties regulate themselves accordingly.

As the greatest of all contract law academics G. H. Treitel put it in his classic definition of a contract (emphasis added):

“A contract is an agreement giving rise to obligations which are enforced or recognised by law.”

Enforcement – and thereby the possibility of enforcement – is not the only test of whether a thing is a law or not.

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In (public) international law, many of the obligations are created and agreed by nation states themselves. These are usually in the form of treaties.

There can be treaties between states for particular purposes – and there can be treaties of general of general application. Sometimes the latter are called conventions, as in the Geneva convention. And there can be charters to which member states subscribe – sometimes to create international organisations. There are many ways in which obligations in public international law can be created and agreed.

And then there is what is called customary international law – the international laws which are said to govern nation states regardless of whether the nation state agrees to those laws.

Taken together all these laws constitute (public) international law.

The problem is, however, very little of that law can or will ever be litigated.

But it is treated generally- that is, recognised – by many nation states as law nonetheless.

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One may have sympathy with the view, to adapt the famous aphorism attributed to Gandhi about western civilisation, that international law would be a good idea.

And generally, when nation states recognise it and regulate their conduct accordingly, it is a good thing as well as a good idea.

But what happens when a nation state – a superpower no less – goes rogue?

Where just because it can – like a dog licking itself – it breaches international law again and again, with barely a shrug?

One response is to say that such (mis)conduct discredits the notion of international law entirely – that the polite fiction of international law has been undermined by the (to say the least) impolite.

It is certainly the case that the current administration of that superpower – the United States – do not seem to care less about international law when it would restrain them.

(No doubt they would plead international law against another country if it suited them.)

But the notion of being in breach of international law is not the same as international law not existing.

International law is still there – it is just not being complied with.

International law is still there – it is just not capable of being enforced in these instances (at least not yet).

Other nations will recognise and abide by those laws even if the United States will not.

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An eminent professor may say international law is a matter of fiction, but unfortunately the many breaches of international law by the United States are a not a matter of fiction.

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The United States is a gangster state at home and a rogue state abroad

 

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How the BBC censored the line that Trump is “the most openly corrupt president in American history”

30th November 2025

 

 

The British Broadcasting Corporation’s Reith Lectures are prestigious things, a highlight of the broadcasting year.

The 2025 lecturer is Rutger Bregman.

The first of this year’s lectures is available to listen here and there is a BBC transcript of that lecture here.

But there is something missing from the broadcast lecture and the transcript.

The broadcast lecture and the published transcript are not a complete and accurate record of what was actually said.

What is missing – edited out by the BBC – is a single line.

The line is that Donald Trump is “the most openly corrupt president in American history”.

As a special treat for those who are kind enough to pay for subscriptions for this blog, I have done a close look at those “legal reasons” from an English media law perspective.

You can read it on Substack here and on Patreon here.

If you financially support this blog by other means (eg PayPal), leave a comment below (which will not be published) and I can either add you as a complementary subscriber or send the post to your email address.

Trump v the BBC cont’d: an odd and desperate letter from the US media regulator

22nd November 2025

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