The late senator would surely applaud the ‘mens rea’ executive order

Sen. Arlen Specter was no conservative, but he was a good friend who cared about the criminal justice system. In 2005, shortly after the Pennsylvania Republican rose to the chairmanship of the Senate Judiciary Committee, I suggested he meet with conservative criminal justice reform advocates at The Heritage Foundation to explore areas of potential collaboration. To his credit, he asked me to put together a meeting with Reagan administration Attorney General Edwin Meese and others.

Specter was concerned with the proliferation of federal criminal penalties that could be imposed on citizens who didn’t have any notice that the law they were breaking even existed. At the time, Heritage analysts were cataloging laws and regulations that carried criminal penalties but lacked the requirement that those charged with violating them had to have had what lawyers call “mens rea.” “Mens rea” is Latin and means that one who breaks a law must have “a guilty mind” or an intent to break it. It was estimated that more than 4,000 such laws and regulations existed at the time. In a recent testimony before Congress, George Washington University law professor Jonathan Turley put the number at more than 5,000.

Traditionally, the courts required an act and proof of the lawbreaker’s intent to impose criminal penalties. If the lawbreaker doesn’t know the law exists, it is difficult to find intent or anything approaching “a guilty mind.” Our lawmakers got around that traditional requirement by eliminating the finding of “mens rea” to convict those accused of violating thousands of laws and regulations.

Why we need thousands of criminal strictures on our citizens is a different topic, but as Specter noted at the Heritage meeting, many and perhaps most of the sloppily written criminal sanctions never went through the Judiciary Committee. They were tacked on in other legislative committees and became law without much thought about whether a “mens rea” requirement should have been attached to them.

A partial solution, he said, would be for his committee to demand that legislation containing criminal sanctions coming out of, say, the commerce committee be sequentially referred to the judiciary for examination. Specter was willing to demand this, but his committee became bogged down in fights to confirm controversial judges during the George W. Bush era.

Specter wasn’t the only senator alarmed by the exponential growth of such laws and regulations. In 2018, six years after the Pennsylvanian’s death, Republican Sens. Orrin Hatch of Utah and Chuck Grassley of Iowa introduced legislation to require a “mens rea” requirement for most existing and future federal laws and regulations. The Mens Rea Reform Act of 2018 would have accomplished much of what Specter had sought more than a decade earlier. The bill drew bipartisan support but failed because emerging Democratic liberals thought it would make it harder to convict people they didn’t like and wanted behind bars.

Since then, things have worsened. However, President Trump surprised the criminal justice reform world on May 9 with an executive order accomplishing what Specter and Hatch had sought. The order requires transparency and imposes reasonable “mens rea” requirements on future laws and regulations. It also orders federal government agencies to catalog and reform the laws and regulations already in existence.

Mr. Trump’s order was clear: “The purpose of this order is to ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists.”

Henceforth, the government policy will be that the “prosecution of criminal regulatory offenses is most appropriate for persons who know or can be presumed to know what is prohibited or required by the regulation and willingly choose not to comply, thereby causing or risking substantial public harm. Prosecutions of criminal regulatory offenses should focus on matters where a putative defendant is alleged to have known his conduct was unlawful.”

Bingo. Mr. Trump has managed, via executive order, to require common sense from bureaucrats, prosecutors and perhaps even legislators, something senators such as Hatch, Grassley and Specter fought for more than 20 years to accomplish, and he did it with the stroke of a pen.

Not a bad day’s work.

By David Keene for Washington Times – https://www.washingtontimes.com/news/2025/may/21/trump-finishes-arlen-specter-started/

We’ve all seen the recent footage of protests, some of which amounts to subsidized interference, that have led to arrests, blockades, clashes with law enforcement, and isolated incidents of violence.

Where do we draw the line?

Sen. Chris Murphy (D-Conn.) was once viewed as a pragmatic legislator capable of crossing the aisle. He played key roles in bipartisan efforts, but that reputation has evolved sharply since President Donald Trump’s return to the White House.

Murphy has turned his leadership PAC, from a conventional vehicle for his campaign, into the American Mobilization Project, a vehicle for aggressive opposition.

Federal Election Commission records confirm that in December 2025, Murphy’s PAC directed $100,000 directly to the Indivisible Project. This $100,000 payment was part of nearly $1 million in total that the PAC had distributed to various progressive groups. The money was split between Indivisible’s political and non-contribution accounts.

It was specifically allocated to build “durable mass mobilization capacity” through staff training, volunteer recruitment, materials, permits, and logistics. Murphy has called this “on-the-ground organizing,” directing these funds into mobilization to rail against Republican policies on immigration, health care, and more.

The senator and his team describe these partnerships as efforts to strengthen democratic defense and community organizing. Many argue this creates loopholes for indirect electioneering or operational support that effectively aids partisan disruption.

Indivisible is a national progressive grassroots network launched in late 2016 to early 2017 shortly after Trump’s first election by former congressional staffers Ezra Levin and Leah Greenberg. Modeled after Tea Party tactics but from a left-leaning perspective, it began as a practical guide for local advocacy against the Trump agenda and has since grown into a nationwide movement with chapters in all 50 states.

Indivisible describes itself as resisting “authoritarian threats” and has led or partnered in major campaigns such as the “No Kings” protests and “ICE Out for Good,” which target immigration enforcement, detention centers, and related funding bills. Indivisible has organized and/or supported actions in states like Minnesota, New Jersey, and California.

These actions often involve strategic coordinated planning and direct confrontations with federal agents. The group provides activists with scripts, toolkits, call scripts for lawmakers, phone banks, and protest planning resources. This reinforces the view that many protests follow centralized templates rather than arising purely spontaneously.

Murphy has framed the current moment as an existential threat to democracy. He has said: “We may not have another election, at least a free and fair election, if we don’t stop this slide away from free speech and democracy quickly. And what we know from history is that the only way to stop a would-be tyrant from cratering, from destroying a democracy is mass mobilization.”

Many in government see a different picture. Republican lawmakers, including Sen. Josh Hawley of Missouri, have called for DOJ scrutiny of protest funding networks. They cite potential coordination, foreign influence concerns via networks like those linked to Roy Singham, and interference with federal law enforcement.

The People’s Forum has faced subpoenas and congressional demands for not registering as a foreign agent under FARA. Reports note ties to broader left-wing alliances, including Democratic Socialists of America. Transparency advocates argue such PAC-to-nonprofit flows blur lines between advocacy and disruption.

These protests are not organic; they often evolve with scripts. For example, Indivisible has designed toolkits and call scripts for paid or trained activists to contact lawmakers, coordinate rallies, and sustain pressure.

Legal experts note that these contributions comply with U.S. campaign finance rules. PACs can legally fund aligned 501(c)(4) nonprofits like Indivisible for issue advocacy, mobilization, and protests, as long as the money is not used for direct candidate contributions or illegal coordination.

These transactions will continue to fuel debates over whether elected officials should be legally allowed to finance people to act in crowds for protests.

Many of these protests are not truly spontaneous. They often rely on paid actors and organized performers to push an agenda of challenging federal operations amid intense immigration enforcement and mass deportation priorities. Some escalate to excessive force against law enforcement, clear evidence that they have become illegal and can no longer be considered peaceful protests.

Clearly there are deepening partisan rifts on immigration. Yet the organized assembly of crowds to project progressive voices reveals a manufactured approach that undermines what would otherwise appear as peaceful protests.

These orchestrated performances and funding will continue to undermine the narrative by revealing a negative view of actions that progressives consider essential resistance to perceived overreach and humanitarian failures.

As probes into protest networks continue, calls for stricter disclosure of dark money and mobilization funding grow louder.

Murphy’s shift toward activism reflects broader realignments in Washington, where former deal-makers now prioritize confrontation over compromise. 

The Senator himself has acknowledged the change, stating: “This may look a little schizophrenic, having gone from spending two years writing big bipartisan deals on guns or on immigration to now being out front in trying to fight for the survival of the democracy…”

This funding and coordination, while legal at the moment, does not strengthen accountability. Instead, it reveals how elements of the opposition have transformed elected officials into funders of sustained disruption, turning legislative offices into pipelines for coordinated challenges to federal authority.

In America’s deeply divided landscape, the last thing the country needs is more engineered agitation funded by elected officials. This obfuscates critical lines between representation and mobilization, raising very serious questions about the legitimacy of these protests.

The rule of law and core constitutional safeguards are being tested. As immigration enforcement intensifies and scrutiny of these funding networks deepens, the debate over where protest ends and subsidized interference begins will only grow more urgent.

I confess that I am a political junkie. Not the kind who watches election returns every four years and suddenly becomes an expert because he once retweeted a poll. I have spent more than half a century immersed in campaigns, elections, voter behavior, political history, and the perpetual chess match that determines who governs America. I have studied elections the way medieval monks studied scripture. I have watched candidates rise and fall, parties reinvent themselves, and political fortunes disappear faster than a free lunch at a congressional hearing. Yet even after all these years, I remain amazed by how many Americans believe the most important political battle occurs on Election Day. It does not.

Americans are taught that elections are decided by candidates, ideas, debates, advertising, and turnout. That is a charming fairy tale suitable for a middle school civics textbook. The reality is that one of the most consequential political struggles in America occurs in the obscure and often incomprehensible world of redistricting. Before candidates campaign, before television commercials air, before yard signs appear, and before voters cast ballots, politicians, lawyers, consultants, activists, and judges are engaged in a ferocious war over maps. These maps determine who votes where, which communities are grouped together, which neighborhoods are separated, and ultimately who has the advantage before the campaign even begins.

Imagine sitting down to play a football game only to discover that the field has already been tilted twenty degrees in one direction. One team will be running downhill while the other is climbing uphill. Both teams still have to play. Both teams still have to score points. Yet anyone with common sense understands that one side has been handed a significant advantage before the opening whistle. That is modern redistricting.

The process itself is not new. Politicians have been manipulating district lines since the early days of the Republic. The term “gerrymander” dates back to 1812 when Massachusetts Governor Elbridge Gerry approved a district so bizarrely shaped that critics said it resembled a salamander. More than two centuries later, technology has transformed that salamander into a genetically engineered political monstrosity. What once required crude maps and educated guesses now involves sophisticated software capable of analyzing voting history, demographics, census data, consumer behavior, and virtually every other measurable characteristic of the electorate.

The modern redistricting consultant is less like a cartographer and more like a mad scientist operating in a political laboratory. With enough data, they can dissect communities block by block and street by street. They can tell you where Republicans shop, where Democrats attend church, where independents drink coffee, and which side of a neighborhood tends to vote more consistently. It would make the census takers of ancient Rome weep with envy.

The public is repeatedly told that redistricting battles are noble crusades for fairness. Forgive my skepticism. Whenever politicians begin speaking passionately about fairness, I instinctively check to see where my wallet is. Every redistricting fight is advertised as a heroic effort to protect democracy. Curiously, the proposed maps always seem to benefit the people making that argument. This remarkable coincidence occurs so frequently that one suspects divine intervention has been replaced by political consultants billing six hundred dollars an hour.

Both political parties participate in this ritual. Democrats do it. Republicans do it. Anyone who tells you otherwise is either dishonest or preparing to ask for campaign contributions. The difference is not whether gerrymandering exists. The difference is who benefits from it at any given moment. Washington resembles two pickpockets arguing over ethics while standing in the same crowd. What has changed dramatically in recent years is the role of the judiciary. Increasingly, elections are not decided by voters but by judges reviewing maps. Every census is followed by years of litigation. Every district line becomes grounds for a lawsuit. Every lawsuit generates appeals. Every appeal attracts activists, advocacy groups, consultants, and enough lawyers to populate a small European nation. By the time the process concludes, voters often discover that their congressional district has changed multiple times without anyone ever asking their opinion.

The Founding Fathers would find this spectacle bewildering. They designed a constitutional republic in which elected representatives would be accountable to the people. They did not envision a future in which armies of attorneys would spend years fighting over digital maps while judges effectively determine the political landscape of entire states. James Madison probably anticipated many dangers to the Republic. I doubt he foresaw a future where elections would hinge on software algorithms and expert witnesses carrying PowerPoint presentations into federal courtrooms.

History offers some useful perspective. The great military campaigns of the ancient world were often decided before the battle itself. Alexander the Great carefully selected terrain before engaging his enemies. Hannibal manipulated geography to trap larger Roman armies. Napoleon understood that positioning frequently determined victory before the first cannon fired. Modern redistricting operates on the same principle. Control the terrain and you dramatically improve your chances of winning the battle. That is why these disputes matter so much. In today’s America, control of the House of Representatives can hinge on a handful of seats. A few districts in a few states can determine which party controls committees, legislation, investigations, spending priorities, and oversight powers. The consequences are enormous. Yet most voters pay little attention because the process unfolds in courtrooms rather than campaign rallies.

There is also an entire industry built around this perpetual warfare. Redistricting has become a lucrative enterprise for consultants, law firms, advocacy organizations, and political operatives. Every controversy produces fundraising appeals. Every lawsuit generates billable hours. Every court decision creates new opportunities for more litigation. Gold prospectors once rushed to California. Modern political entrepreneurs rush to federal court. The irony is delicious. We are constantly told that our democracy is under threat. The same people making this proclamation often spend years trying to influence who votes where, which voters are grouped together, and which districts are more favorable to their preferred candidates. They speak reverently about the will of the people while simultaneously litigating the composition of the people whose will they claim to respect. It is rather like an umpire redesigning the baseball field between innings while insisting he has no preference regarding the final score.

Americans should understand that there are now effectively three elections. The first occurs when politicians and legislatures draw the maps. The second occurs when lawyers and judges challenge and revise those maps. The third occurs when voters finally cast their ballots. By the time Election Day arrives, much of the battlefield has already been established. The campaign itself is merely the final act in a drama that began long before most citizens were paying attention. This is not an argument for cynicism. It is an argument for awareness. Citizens who care about self government should pay close attention to the mechanisms that shape political outcomes. The struggle over redistricting may lack the excitement of a presidential debate or a campaign rally, but its consequences are often far greater. The most important political battles are not always the most visible.

As the nation approaches another midterm election cycle, Americans should remember a simple truth. The loudest arguments occur on television. The most important speeches occur on campaign stages. The most expensive advertisements flood social media and cable news. Yet the battle that may determine who governs the country often takes place quietly, in conference rooms, legislative chambers, and courtrooms where maps are drawn, challenged, and redrawn. The politicians call it redistricting. The consultants call it strategy. The lawyers call it litigation. The rest of us should call it what it has become: the election before the election.