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Tiktok’s Final Appeal to the Supreme Court Didn’t Go Too Well
Photo: Intelligencer; Photo: Getty Images
The looming TikTok ban is barely a week away and the company is running out of time to do anything about it. On Friday, the Supreme Court heard last-minute arguments about the ban, with TikTok angling for an intervention or, at least, a temporary ruling to buy it a bit more time. They didn’t go especially well for TikTok — even justices who sounded sympathetic to the company’s arguments about free speech seemed satisfied by the government’s core national security argument.
As a matter of law, in other words, it’s looking like the ban is going to happen, and probably right before Donald Trump once again takes office. This is a completely unprecedented event — a massively popular app with a major cultural and economic footprint in the United States might just get switched off — but also something that the incoming president, who effectively originated the ban in the form of an executive order in 2020 but has since become aware that some people on the app actually like him and has also raised a bunch of money from one of its biggest American investors, now says he doesn’t want to happen.
The court was concerned, mostly, with the substance of the law, which requires that TikTok either be sold to an American company or banned entirely, but the justices did briefly touch on the urgent question of what might practically happen next, in the real world. Congress passed a law. Trump can say he doesn’t support it, but it’s still on the books, and it passed with substantial bipartisan support. If he really wants to stop it he’ll have to do something about it, and the available options are all pretty messy.
According to the law he could, as President, temporarily pause the ban if the company demonstrates its intent to imminently sell, but TikTok parent company ByteDance has strongly suggested that this isn’t possible, not least because of tightening Chinese export controls around algorithms and AI. Should ByteDance agree to offload an algorithmically stripped-out version of TikTok — something at least one credible buyer has nonetheless expressed interest in — Trump, who would also be able to unpause the ban, would have a great deal of influence over the terms of the deal. But the app would almost certainly experience an interruption in service and return, eventually, as something fundamentally different.
Near the end of the hearing, though, Justice Kavanaugh floated the possibility that’s most aligned with how Trump is talking about this at the moment: “Could the president say we are not going to enforce this law?” Indeed, this is an approach he’s been implying, it certainly matches his mental model of how government should work — TikTok is unbanned if I say so — and it seems like something that he might at least attempt.
Kavanaugh helped answer his own question: Trump could do this, he noted, but it would create serious practical problems. One way the ban is intended to work is by making it illegal to provide “services to distribute, maintain, or update such foreign adversary controlled application,” meaning that Apple and Google, which between them maintain the app stores on virtually all of America’s smartphones, would be legally required to delist the app. A promise by Trump not to enforce a TikTok ban, or to unilaterally and/or counterfactually declare TikTok in compliance with the law, would leave Apple and Google in a risky position. They could relist an app that’s still technically illegal but which the President says is actually fine in support of a company to which they have no particular reason to help and which is in fact, in Google’s case, a direct competitor.
Or they could just say: Hey, hosting a service that has been declared a “FOREIGN ADVERSARY CONTROLLED APPLICATION” by lawmakers isn’t worth the trouble even if the President says he’s personally totally cool with it. This would be prudent unless, of course, such an action would be interpreted as a slight against the President, and wielded against them publicly or privately, in which case two of American’s largest companies, each facing ongoing antitrust cases, might just have to hire a few dozen more lobbyists and OFAC attorneys and figure out how to make things work. Welcome to the new tech industry.
News
Border Patrol Agent Is Killed in Vermont Shootin
A U.S. Border Patrol agent was shot and killed on Monday afternoon on Interstate 91 in northern Vermont, about 12 miles from the Canadian border.
The shooting, in which another person was also killed and a third was wounded, was being investigated by the Albany office of the F.B.I. as an assault on a federal officer, the agency said in a statement.
The wounded person was taken into custody, the statement said, but the F.B.I. did not immediately announce charges and provided no additional details.
Officials said the shooting occurred about 3:15 p.m. in the town of Coventry. Interstate 91 was initially shut down in both directions, though the northbound lanes later reopened. The southbound lanes were expected to remain closed for “a long duration closure,” the Vermont State Police said in a news release.
The F.B.I. said in its statement that it needed time to “gather evidence and process the scene,” adding: “While there is no threat to the public, Interstate 91 will remain closed due to investigative activity.”
Agents on the Northern border have seen a growing number of attempted illegal crossings in recent years, making more than 23,000 arrests during the fiscal year that ended in September, according to U.S. Customs and Border Protection. That number is more than twice that of the previous year.
Most of the arrests were made in the Swanton Sector, a vast rural stretch of border roughly 300 miles long between Quebec, New York and northern New England, which includes Vermont. The agent killed on Monday was assigned to the Swanton Sector, officials said.
Vermont’s lawmakers in Washington expressed condolences for the border agent’s family in a joint statement, and urged greater support for the patrol on the Northern border. “Together, we must do everything possible to prevent future tragedies like what happened today,” said Senator Bernie Sanders, an independent, and Senator Peter Welch and Representative Becca Balint, both Democrats.
Canadian officials have attributed much of the increase in border arrests to immigrants from India who arrive in Canada on temporary visas and then cross the border into the United States.
Border officials have also seen an increase in encounters with migrants from Mexico who fly to Canada and cross into the United States. Most show up at ports of entry to request asylum, but others try to enter the country illegally.
Despite the increase, the number of attempted illegal crossings from Canada remains much smaller than the number occurring at the Southern border with Mexico.
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Inauguration live: Trump says US could slap 25% tariffs on Mexican and Canadian imports from February 1
Nobody ever accused Donald Trump of consistency. Shortly after being sworn in, he promised to bring peace to the world, reoccupy the Panama Canal and expand America’s territory. The latter sounded very much like a declaration of war — a first in the history of US inaugural addresses. The trick, as ever with Trump, is to figure out what he means from the merely rhetorical.
His imagery of a new golden age was very different to 2017 when he spoke of “American carnage”. But his speech this time round carried far more specific actions, including territorial aggression on America’s neighbours, US troops on the Mexican border, the start of mass deportations of illegal immigrants, an end to electric vehicle subsidies and a new age of “drill baby, drill”. These should be taken seriously.
The vibes in the Capitol Rotunda also spoke volumes. It would be an understatement to say Trump’s second inauguration was unprecedented. Surrounded by the world’s richest men, with north of a trillion dollars of wealth in the room, topped by Elon Musk ($434bn), Jeff Bezos ($240bn) and Mark Zuckerberg ($212bn), Trump’s return was blessed by what outgoing president Joe Biden called the new oligarchy.
Never before has such wealth rubbed inaugural shoulders with a president who is also a billionaire.
Read more here
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Trump offers long-promised pardons to some 1,500 January 6 rioters
President Trump issued pardons for some 1,500 defendants who participated in the siege on the U.S. Capitol four years ago, including the leader of a far-right group, fulfilling a campaign promise to exercise executive clemency on behalf of people he’s called “patriots” and “hostages.”
“We hope they come out tonight,” he said in a signing ceremony at the Oval Office on Monday evening.
The order would grant “a full, complete and unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” That means a pardon for Enrique Tarrio, the former Proud Boys chairman, who had been sentenced to 22 years in the federal penitentiary.
The proclamation posted on the White House website also included commutations for 14 people, including Stewart Rhodes, the founder of the far-right Oath Keepers group. The move paves the way for the release of Rhodes and Tarrio, who were both convicted of the rarely used charge of seditious conspiracy, along with the release of more than a thousand others.
Trump also directed the Justice Department to dismiss scores of pending cases that stem from the attack on the Capitol.
Rhodes had been sentenced to spend 18 years in prison after a judge said he presented “an ongoing threat and peril to this country … and to the very fabric of our democracy.”
Trump also issued sweeping pardons for rioters convicted of violence against police and issued sweeping pardons for scores of other defendants who participated in the siege on the U.S. Capitol four years ago, a day that upended the peaceful transfer of power to newly-elected President Joe Biden.
The hours-long assault on the Capitol on Jan. 6, 2021, injured more than 140 police officers, in one of the largest-ever mass attacks on law enforcement officers in the United States. U.S. Capitol and Washington, D.C., police persisted in defending the building, in the face of getting sprayed with harsh chemicals or beaten with flagpoles.
During the trial, the Justice Department presented the jury with thousands of messages from Rhodes and other Oath Keepers before, during and after the events of Jan. 6, including Rhodes’ comments that “we aren’t getting through this without a civil war” and “the final defense is us and our rifles.”
Tarrio was not present at the Capitol that day. But prosecutors said he encouraged the violence from afar by posting on social media: “Proud of my boys and my country” and “Don’t f****** leave.” The following day, Jan. 7, Tarrio told some of his members that he was “proud” of them.
Undoing DOJ investigation
The pardons and commutations largely undo the results of one of the most complicated investigations in the history of the Justice Department. Prosecutors and FBI agents there spent years probing the actions of people at or near the Capitol on Jan. 6, using photos, video and telephone location data to help identify potential suspects.
Federal judges in Washington, where the courthouse cafeteria boasts a view of the Capitol dome and the scene of the crime, generally imposed lighter punishments than the DOJ had requested in hundreds of Jan. 6 cases. But they also pushed back hard in their courtrooms against efforts to rewrite the history of that day, amid claims from Trump and his allies that the rioters had been unfairly targeted for prosecution.
One D.C. district court judge appointed by Trump, Carl Nichols, recently said in court that blanket pardons for the Capitol defendants would be “beyond frustrating and disappointing.”
The investigation became a priority for former Attorney General Merrick Garland, who told NPR a year after the attack on the Capitol that “every FBI office, almost every U.S. attorney’s office in the country is working on this matter. We’ve issued thousands of subpoenas, seized and examined thousands of electronic devices, examined terabytes of data, thousands of hours of videos.”
But the Justice Department’s case against Trump, for allegedly conspiring to cling to power and deprive millions of Americans of the right to have their votes count in 2020, ended with a whimper.
Special counsel Jack Smith secured a four-count felony indictment of Trump but said he was forced to abandon the case after Trump won the 2024 election, based on a longstanding DOJ view that a sitting president cannot be charged or face trial.
Smith said in court papers that the government “stands fully behind” the case it developed.
—NPR’s Tom Dreisbach contributed to this report.
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