Your Guide to the Law in Lawless 2026
Welcome to Town!
Happy 2026. We’re a week in, and already our norms—or what’s left of them—are being challenged. When I help my clients navigate unpredictability, whether it’s a new type of transaction or potential litigation, there are always legal guideposts that can show the way. A good lawyer knows how to find those guideposts, read those guideposts, and advise accordingly.
The point of this newsletter (now two years old) is to try to find and read the guideposts of legal current events, no matter how lawless the world seems to be. Let’s do that with two recent stories that seem to show lawlessness by our government: the abduction of a foreign leader and the murder of an American citizen by federal agents.
The Law of Government Accountability
Like most Americans, I’m horrified by what appears to be the murder of an American citizen, Renee Good, by ICE agent Jonathan Ross in Minnesota. The video is pretty incriminating—if I were a finder of fact, I would certainly say that Ms. Good was trying to drive away when she was shot and killed by Agent Ross. Perhaps Agent Ross thought he was in danger and was shooting in self-defense. Actually, as a matter of law, explained below, the law gives Agent Ross the benefit of the doubt. Unless he was actually trying to kill Ms. Good, he is immune from prosecution. That being said, we know Agent Ross was allegedly dragged by a car in a separate incident. Perhaps he had a premeditated plan to kill the next driver he came in contact with on the job and intentionally killed Ms. Good, living out a weird revenge fantasy?
So how do we sort out who is right? In other words, how do you hold a federal agent who may, or may not, be doing their job liable for wrongful death (or any tort for that matter)?
Let’s start with the legal position taken by the Trump administration, which is, simply, that there is no reason to make any determinations because federal law enforcement officers have absolute immunity. As with most legal positions taken by the Trump administration, that is just wrong. Government officials don’t get absolute immunity (judges and prosecutors and, apparently, presidents sometimes do for specific “official” functions, but that’s a topic for another time). Most government officials get what is called “qualified immunity.” Qualified immunity is one of the most important concepts that any lawyer needs to know. No matter what type of law you deal with, if you come anywhere near any level of government, you and your lawyer need to know about the doctrine of qualified immunity.
There are a few principles to understand qualified immunity. First is sovereign immunity: you generally can’t sue the United States or a state for money damages unless the sovereign has expressly waived immunity. Why would a sovereign waive immunity? Well, it might be hard to do business if you can breach contracts with impunity. Actually, most states waive immunity because the federal Constitution requires them to—the Fourteenth Amendment specifically makes the Bill of Rights applicable to state action, and the Bill of Rights prohibits things like unreasonable search and seizure, cruel and unusual punishment, and all the other crazy things a state could do to deprive citizens of their rights. In 1871, during “Radical Reconstruction,” Congress passed the Civil Rights Laws. One of those laws, Section 1983, created a private right of action for citizens to sue state officers who deprive them of their constitutional rights under color of state law. And that was the end of absolute immunity for any state official because certain state officials—the racist ones—really wanted to deprive some of their citizens of their constitutional rights, especially the rights guaranteed by the Fourteenth Amendment.
Federal courts then developed a whole body of law about what types of actions by state officials violate the Constitution and other federal laws—in other words, the state official’s immunity is only qualified. They can do a lot of things, but they can’t violate clearly established law. Killing someone without cause is one of those clearly established rules that defeats qualified immunity
But an interesting thing about Section 1983 is that it only applies to the states, not the federal government. So even if Agent Ross violated Ms. Good’s federal constitutional rights by killing her, there needs to be a separate basis for Ms. Good or her family (or state authorities in Minnesota) to get recourse from Agent Ross because he is a federal agent.
The federal government won’t prosecute Agent Ross—they’re defending him without even conducting any investigation, which is the type of weird maximalist nonsense we’ve come to expect from Trump’s people. Ms. Good’s family can sue the federal government in federal court under the Federal Tort Claims Act (FTCA) (usually only after first filing an administrative claim with the relevant agency). But an FTCA claim would be against the federal government, not Agent Ross. Separately, they may try to sue Agent Ross for money damages under what is called a “Bivens claim”—an implied, judge-made constitutional remedy that functions as the federal analogue to Section 1983 (which applies only to state and local officials) for the constitutional wrong. But, not surprisingly, the Supreme Court has severely limited Bivens claims, most recently in June 2025 with Goldey v. Fields. The logic is that the Court is generally not in the business of creating new damages remedies against federal officials; outside a few narrow contexts, it has said that job belongs to Congress—and Congress has not created a Section 1983-style statute for federal agents.
But there’s another civil path people overlook, and it’s right at the forefront of the law: state-law damages remedies in state court. The basic idea is that states can enact—or use broadly written existing—civil-rights statutes (a “converse § 1983”) that allow damages suits against any person, including a federal officer, for violating federal constitutional rights. That doesn’t “expand Bivens.” It’s a state-created cause of action to enforce the same federal Constitution where Congress refuses to act. In New York, a version of this has been introduced as S8500/A9076 (the “New York Civil Rights Act”), but it has not been enacted into law.
Would it get tested? Absolutely. Federal officers would predictably argue immunity and preemption, and they would very likely try to remove the case to federal court. But that’s not a reason to shrug; it’s the point of the project. This is exactly the kind of creative lawyering states need to lean into as the federal government and its agents become increasingly lawless: if Washington won’t police itself, the states have to build the tools to do it.
And if Congress tried to wipe out those state remedies across the board, that wouldn’t be a neutral “technical fix.” It would be an aggressive political choice—one that openly asks the country to accept a world where federal officers can violate constitutional rights and the states are forbidden from providing a damages remedy to their own citizens. That’s not just a legal argument. It’s a sovereignty argument. And it’s exactly why states should be building these tools now.
The Law of Abducting Foreign Leaders
As a lawyer who generally handles business issues, I don’t typically weigh in on foreign affairs. But when my government starts to abduct foreign leaders (like Nicolás Maduro) and threatens to “take” large islands from NATO allies, it’s important to understand the legal framework for all of this.
As a working lawyer, when dealing with non-U.S. clients and adversaries, most of the time is spent trying to figure out which law applies and where disputes can be resolved. We never look to some body of international law (it actually exists, but both parties need to agree to be bound by it in advance and, in my practice at least, they rarely do). More likely, you’re agreeing to arbitrate in a certain place under the laws of a certain country, which will be enforced via the New York Convention.
Outside of the commercial context, the international organizations we have don’t work very well except as forums for great powers to jockey for influence. They rarely, if ever, resolve a dispute. We’re a world of sovereign nation-states, and it’s very apparent—with the U.S.’s renewed militaristic posture toward the whole world—that there is no real forum to resolve these global disputes except the battlefield: the military equivalent of trying to act with legal impunity.
The battlefield is risky. In law and life, I’ve seen the powerful humbled because of their hubris. Vietnam? Iraq? Afghanistan? Perhaps there will be an “end of history” where there is a benevolent superpower that cedes its interests for the benefit of the whole to avoid conflict. I’m not holding my breath.
So the most interesting thing about “international law” is not what is legal and illegal, but the legitimacy of international law itself. Although there is no place to enforce international law, countries themselves can agree to make their international commitments that they freely entered into the law of their countries. That is essentially how the European Union works – members of the Union agree to make their domestic laws in sync with the EU laws. Here in the United States, treaties are the supreme law of the land (Article VI of the Constitution) which means, in theory, if the U.S. is a party to a treaty that prohibits it from pulling a foreign leader (and his wife) out of bed and transporting them to the United States, then someone broke U.S. law when they did exactly that to Mr. and Mrs Maduro. International law professors will probably point out that the U.N. Charter prohibits such aggression for non-defensive purposes. Ditto with Trump’s current threats against our NATO allies, which the NATO treaty presumably prohibits. So fidelity to international law comes not from some outside body forcing us to accept the law, but from our voluntary commitments.
Putting the illegality aside, I actually like the idea of the U.S. swooping in and arresting autocratic leaders. The issue here is that there is no consistency, no doctrine, no policy, and no law. In one breath, someone in the Trump Administration will claim that this is a law enforcement action, and in the next they will claim it’s a military operation to neutralize a threat to America. Combine this with the recent pardoning of the former president of Honduras, who was actually convicted of drug trafficking, and they are not only legally inept, but inconsistent and foolish.
Why do we exert time and break our laws to extract one allegedly drug-dealing head of state, while pardoning another head of state who is convicted of drug dealing? There is no rhyme or reason. The point is that while Trump and his sycophants may think that this type of robust interventionist activity makes Americans look stronger, it actually makes them look legally inept and invites other countries to act the same way.
Predictability and consistency are a universal good because they allow for planning and execution. Even a really bad lawyer knows that if you act inconsistently and irrationally, you’re going to lose whatever argument you’re trying to make. Trump is heading in that direction.
Keep thinking, keep building.
Jesse
Hi, and welcome to my newsletter! I’m Jesse Strauss, Your Fractional General Counsel. I’m a lawyer with a private practice based in New York City, helping clients in the United States and globally with their U.S. legal needs. My expertise spans various areas, including raising funding rounds, employment issues, negotiating master service agreements, intellectual property, compliance, legal process management, and dispute resolution. My focus is on founding and nurturing great companies from seed to exit. Discover more at Your Fractional GC and book a complimentary 30-minute consultation. You can also follow me on Threads @lawyerjesse1977, on BlueSky @lawyerjesse.bsky.social, subscribe to my Substack here (follow me on notes), and follow me on LinkedIn here.