“l’histoire […] [est] après tout qu’un ramas de tracasseries qu’on fait aux morts.”
[“History […] [is] an annoying trick we play upon the dead.”]
~ Voltaire
(See here regarding the translation.)
*
A war or a revolution or a riot often makes little sense to contemporaries. There is a metaphorical fog, and there is confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.
It is only in the later clear prose of a good historian, or the elegant prose of a confident judge, that the events seem to take some form of order: that what was messy and complex becomes a neat linear narrative, with reasoned conclusions based on tested evidence.
But it is not like that for those at the time.
*
What is actually happening currently in the United States is unclear.
There is a metaphorical fog, and there is actual confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.
Not even those instigating the chaos know what is going on: they are too busy moving fast and breaking (and taking) things.
They may have some vague ideas about what they will do next, but one suspects what they will do next will come down to opportunism and cunning more than anything more concrete.
*
But in this fog there are certain things which can be made out.
For example, there are individuals who are insisting on being constitutionalist – despite the intense pressure and open threats to be otherwise.
There are the federal prosecutors who refused to apply for the prosecution of a politician to be dismissed:
There is the federal judge who appointed an independent lawyer to assist the court when nobbled prosecutors were found to apply for that dismissal:
There is the governor who said “see you in court” in the face of a president announcing that they were the federal law:
*
“See you in court” is a phrase that conveys the essence of the rule of law: that there is a forum where assertions of power can be tested for their legality.
*
And then there are things which are not being said.
Here is what seems to be the sound of constitutional silence:
Some are suggesting that the lawyers here are acting in bad faith, and that they do indeed know whether DOGE has an administrator.
Perhaps.
But what is more likely – and what would be far more significant – is that the lawyers do not actually know if DOGE has an administrator.
And here the word “know” is crucial – do they have knowledge?
They may have an understanding, a guess – or they may have heard somebody say something.
But if they do not know, they do not know.
And they are not going to mislead the court otherwise.
*
Indeed, whether DOGE actually exists is becoming more of a question for a theologian or a philosopher than for a mere legal commentator.
*
Perhaps soon all this will settle down, and the fog and confusion will clear, and we will see what has really happened.
The problem is that in fog and confusion a lot of things can happen which we cannot now know and maybe will never know.
It takes time to “see you in court” – and one does not know what one cannot see before one eventually gets to court.
By the time a court intervenes – and the adults stop the infantile antics – a lot of damage can be done – and certainly a lot of data and other material can be taken.
The law is sometimes not well placed to deal with what happens under the fog of war.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
And yet with all that going on over there right now, we have our own embarrassments. The Home Office issued a notice under the Investigatory Powers Act demanding that Apple provide encryption keys (that it doesn’t even possess) for one of its services, and so Apple have taken the unprecedented step of removing that service from UK customers (which may not even be sufficient).
It is a crime to report that one has received one of these notices or even that one of these notices has been sent, so we look like tyrants right now. With all this going on over there. What to do? The Investigatory Powers Act 2016 is oppressive and I believe it is not compatible with Article 10.
Senator Ron Wyden, whom I rate, has co-written a letter to the national intelligence director suggesting that the US suspend intelligence sharing with the UK. I repeat, with all that going on over there right now.
Please be careful not to derail: this comment has little directly to do with the head post. Any non-relevant replies will not be published.
I note your warning and thank you. I just think it’s a shame that our PM is going to be meeting with Trump in Washington and cannot easily take a position of moral authority on key issues of foreign policy. And I’m not sure who else could do it that he might be minded to listen to.
Never has “Justice delayed justice denied” been more appropriate. On the one hand constitutional law should be a ponderous beast slow to change tack for the sake of civil stability, in our current situation things need to be more agile.
The “nobbled” counsel are banking on a slow response to evade their responsibilities, maybe some Zuckerberg “move fast and break things” would be appropriate!
What is happening is unclear, because “DOGE” is not acting transparently or constitutionally. They obviously need to keep their actions secret as far as possible. Why it is happening is very clear. Trump is aiming for absolute power. He has learnt from his first term that the President’s actions are limited by the Constitution.
It’s somewhat ironic that the head of DOGE is the chief oligarch of the regime. Rather like the Doges of Venice, only they were elected not appointed.
Colleen Kollar Kotelly is a senior US Judge who was first granted judicial office by Reagan and later Clinton.
She is aged 81, Catholic, and born in America of Hungarian descent.
On 6 February 2025 she granted a temporary ruling preventing DOGE gaining access to Treasury Dept records of individuals notwithstanding the fact that she seemed to know very little about DOGE with the lawyers instructed by DOGE seemingly knowing very little about their own clients too.
Do American lawyers have client care and retainer protocols I wonder ?
In any event a temporary ruling on 6 February was adjourned until yesterday 24 February for a preliminary injunction to be considered and your quotes are taken from that hearing. The matters which led to silence yesterday should have been in everyone’s domain to be answered from the earlier hearing of 6February ! The Judge seems to have been surprisingly constrained.
Nothing of substance seems to have been decided yesterday save that there are now several applicant parties and there will be yet another hearing on 10 March . Do the Americans have a phrase for kicking the can down the road ?
Finally when there is fog on the river Tyne traditionally you cannot see very much. When the tide is going out though there is invariably something of a stench.
Can I just say how much I admire the notetaker who wrote “[Silence]”.
I’m being serious because sometimes you just have to draw attention to something that is implied.
And that is exactly the way to do it.
The law isn’t an absolute truth but a malleable construct interpreted by those in power. Having grown up in an authoritarian regime, I view legal systems with particular skepticism.
Every society creates laws it considers just, but interpretation changes with leadership. The current US administration, like all others, selectively applies laws that align with its agenda. This isn’t unique to America—it’s universal political behavior.
Historical examples like Roland Freisler and Carl Schmitt demonstrate how skilled legal minds can bend law to serve authoritarian purposes. Their interpretations were “legal” until regime change rendered them criminal after 1945.
Viewing any nation exclusively through its legal framework is futile—like trying to hit a target with a stick in fog. The law provides structure but remains subject to human interpretation and political reality. “The gateway to the law is open as it always is, and the doorkeeper has stepped to one side, so the man bends over to try and see in.”
Very droll that resignation letter.
My imagination went to a notion of Trump as Gulliver and the lawyers and opposers as the Lilliputians tying him down with a myriad fine threads. Interesting to see if the myriad threads materialise and hold or our not so nice Gulliver tears his bonds out by the roots. Or perhaps Mr Musk will conjure a robot rope cutter.
Swift wrote GT as a satire and I feel there is a good satire in here somewhere. Perhaps it will be written somewhere around 2029 – if satire is still allowed.
The president’s short-term memory may have gone missing? “What dictator?”
(A short play based on Spitting Image’s “The president’s brain is missing”)
“Opportunism and cunning”: very apt. Trump is not intelligent, but he has what my mother used to call “peasant cunning” the very opportunistic variety exemplified at the basest level (and who can deny Trump and his myrmidons are base) in movies such as “padre padrone” and “manon des sources”. The gains are almost always short term. Spite and revenge usually figure large. In comment to a previous DAG post, Trump is another narcissist who considers himself “world king”, (one Alexander Johnson) but who equally has little appreciation of the law except in their attempts to delay, undermine and subvert it. Pax Americana, the rule of law, the concept of an alliance of “western democracies” and even the USA in NATO is over. Dystopian novels can be prescient: a blend of 1984 and the Handmaid’s Tale. Project 2025 agenda is more real than we know. Apparently there is a surge for Irish citizenship from the US. I for one am not surprised.
There are Acts of DOGE, although these acts tend to involve destruction rather than creation and carelessness rather than intelligence. But I am ready to affirm my faith in the reality of DOGE, though I believe and tremble. However, I can understand why the legal status of DOGE is difficult to determine, and perhaps we might say that while DOGE is real, the law finds it hard to recognize DOGE. On this matter, I defer to my learned friend.
It is clear that Elon Musk is the de facto head of DOGE, but what is confusing is the identity of the de jure administrator of DOGE, or at least it was until an hour ago, when the White House revealed that it was Amy Gleason all along. I am now wondering for how long she herself knew of her official status. Perhaps being the administrator of DOGE is rather like speaking prose.
This is indeed the fog of war, but perhaps anyone caught up in the battle will at least acquire some clarity about their own core values.
I hadn’t really thought of this Trump administration as a heist vehicle for data and intellectual property. But now the mere suggestion has popped into my brain, it actually makes perfect sense.
“The problem is that in fog and confusion a lot of things can happen which we cannot now know and maybe will never know.”
It seems to me that anything unknowable is unimportant. We will always know the most significant direct effects of the things that happen. And those effects are what call for attention: Wrongs to be set right.
It’s very important to try to work out what may be happening so that we can react better to the observable effects. That is why we have intelligence services: to discover what we don’t know.
For example, analysing possible motivations for the way Trump and Vance are tearing up decades of cooperation with Europe, seemingly in favour of Russia, is very important to our reaction to it.