Tag: supreme court
Leonard Leo

It's Just His Nature: Scorpion Trump Stings Frog Leo In Lawless Rage

Leonard Leo, the bête noire of liberals who curated Trump’s first-term judicial appointments, including his three Supreme Court justices, has gone from Trump's shortlist to his shit list. As is his wont, Trump turned on his loyal servant with particular savagery, calling him a “sleazebag” who had rendered bad advice on a series of judicial nominations.

Leo responded with comparative good grace, along with a pointed, if diplomatic, defense of his influential work: "I'm very grateful for President Trump transforming the Federal Courts…[T]he Federal Judiciary is better than it's ever been in modern history, and that will be President Trump's most important legacy."

The genesis of the fallout speaks volumes about Trump's view of the role of the federal judiciary, and of his own inner circle.

Trump's ire was sparked by the Court of International Trade’s recent opinion striking down his broad tariffs because they unlawfully usurped Congress’s powers and relied on supposed “emergency” powers under the International Emergency Economic Powers Act (IEEPA) that the Act does not provide.

This legal failing is a cross-cutting theme of Trump's indiscriminate power grabs. Similar to a number of modern would-be authoritarians, Trump has repeatedly tried to steamroll basic legislative authority by characterizing everyday political issues as emergencies requiring a strongman’s intervention.

The opinion was a unanimous per curiam (i.e., no single author was identified) by three members of the Court of International Trade: a Reagan appointee, an Obama appointee, and a first-term Trump appointee. Moreover, the Trump appointee, Timothy Reif, is—as Trump appointees go—unusually well qualified, having previously served as general counsel in the Office of the U.S. Trade Representative (USTR) in the Executive Office of the President and then senior counsellor to the U.S. Trade Representative.

The panel, including Reif, held that the IEEPA—the text of which doesn't even contain the word emergency—could not support Trump’s outlandish and all-too-familiar claims that the sky is falling. At the same time, the court noted the possibility of statutory sources of authority other than the one Trump invoked.

In response to the administration’s predictable motion for emergency relief, the Federal Circuit—the Court of Appeals for the specialized Court of International Trade—has imposed an administrative stay that tells us nothing about whether it will affirm the lower court on the merits.

Trump's temper tantrum is ironic, if not absurd, given Leonard Leo’s record as the administration’s judicial nominee whisperer. By any measure—on the left or the right, and whether provoking aversion or elation—Leo has compiled a phenomenally successful record in the service of Trump and the conservative judicial movement in general.

He follows in the footsteps of advisors to other Republican administrations since Reagan, who have adopted a single-minded focus on judicial appointees and have dramatically transformed the makeup of the federal judiciary. In Leo’s case, that includes Trump's three Supreme Court nominees: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Conservative Trump supporters have generally taken those appointees—which have established an über-majority conservative Court likely to last for a generation or more—as back-to-back-to-back home runs.

Just for starters, all three of them voted to overrule Roe v. Wade, probably the number one goal of judicial conservatives for a generation, and a (dubious) achievement that for many years looked impossible. In terms of the personal bounty for Trump, all joined the outlandish 2024 immunity opinion that continues to provide him comfort on a regular basis—for example, just last week, with the pardon for Paul Walczak in the wake of a $1 million solicited donation by Walczak’s mother that fits the criminal elements of bribery to a T.

The larger lesson in Trump's excoriation of Leo is what it shows about Trump’s expectations of the purpose of screening his nominees.

Leo has served up a long series of candidates who talk the talk about conservative jurisprudence, including the newfangled articles of faith like robust Second Amendment interpretation, solicitude for religious-based intolerance, and the Supreme Court’s less-than-fully-coherent history-and-tradition test.

That doesn't cut it for Trump. One important opinion against him—plainly on the basis of well-established legal principles that any judicial conservative should embrace—and Leo gets moved to the other list, with a heavy dose of Trump’s obloquy for good measure. For Trump, there's only one test of judicial qualifications: ruling for Trump, whatever the law provides. Leo failed in his presumed duty to find absolute Trump toadies, or to quietly inculcate the potential toadies he did find.

Leo joins a very long list of former insiders whom Trump has abruptly cast out and vilified. Central advisers such as Mike Pence, Chris Christie, Anthony Scaramucci, Kayleigh McEnany, Mick Mulvaney, John Bolton, and many others have all tasted Trump’s poison, some for reasons that are minor or even mysterious. The fact is, there's no rhyme or reason to Trump's spurning of former close associates. It rather just seems to be a way of demonstrating domination and superiority to any advisor, however valuable.

Trump is like the scorpion in the fable of the scorpion and the frog. Not able to swim to cross the river, the scorpion asks a frog for a ride on his back. Knowing the scorpion’s dangerous sting, the frog hesitates: “How do I know you won’t sting me?” The scorpion replies, “Because if I sting you, we’ll both drown.” So, the frog agrees to ferry the scorpion across the river. Halfway there, the scorpion stings the frog, who with his dying words asks, “Why did you do that? Now we’re both going to die.”

“I couldn’t help it,” the scorpion replies. “It’s in my nature.”

Trump is a legal ignoramus indifferent to the Constitution and the role of law. His only interest is domination. He turns on those who served him faithfully because it’s in his nature.

The general agenda of Trump 2.0—outlined by the long blueprint of Project 2025—is to put in place a series of measures that grossly, and unconstitutionally, aggrandize Trump's personal power, rejecting any vestiges of restraint and lawfulness that stymied him the first time around.

Transposed to the federal judiciary, that means a careful search for judges like Aileen Cannon or Matt Kacsmaryk who—not to put too fine a point on it—are utterly in the tank for the president who appointed them and who could yet elevate them to higher judicial service.

So far, the Trump 2.0 judicial nomination process has little to show for itself; the Senate has confirmed none of his 11 federal court nominees this year.

Leo’s casting out thus portends a series of nominees carefully chosen to cross fingers behind their backs when they swear, as the law requires, to “administer justice without respect to persons.” Call it the attempted Cannonization of the federal judiciary—and, to the extent Trump can secure Senate confirmations, one more sharp departure from the rule of law.

Harry Litman is a former United States Attorney and the executive producer and host of the Talking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing to Talking Feds on Substack.

Reprinted with permission from Substack.

 January 6 insurrectionists

Presidential Immunity Plus Pardon Power Equals Absolute Despotism

Donald Trump’s pardons of January 6 insurrectionists on his first day as president in January of this year were an admission that he instigated the assault on the Capitol, and that he approved of the way the assault was carried out, including violent attacks on police officers resulting in at least one death and leaving others with career-ending injuries.

Looked at in a different way, Trump thus pardoned himself, even though such an action was not necessary due to the incredible law-busting fact that the Supreme Court, in United States v. Trump had given him blanket immunity for virtually anything he does or did that could be defined as an “official act.”

Trump has been using the toxic combination of immunity and the pardon power in a crescendo of lawlessness that was unforeseen by the founding fathers at the time they wrote the Constitution. It’s the biggest fuck you to our democracy since its founding. In his disassembly of whole departments of government that were established in laws written by the Congress, Trump is saying to the other two branches of government, “If you don’t like it, come and get me.”

The Republican Congress, at this point a wholly owned subsidiary of Donald Trump and the Trump Organization, has sat on its hands, and individual Republican members of Congress, including the speaker of the House, have endorsed Trump’s rape of the government. Congressional Republicans, as well as conservative members of the judiciary, adhere to a royalist theory of presidential power called the unitary executive, which holds that Trump, as president, has sole authority over the executive branch, including the right to fire all appointees and executive branch officers, with or without cause.

Since taking office for a second time, Trump has tested the limits of his executive power repeatedly, eliminating entire divisions of the government such as the United States Agency for International Development (USAID) and firing directors of Congressionally created agencies that had previously been considered independent of the Executive.

Last week, the Supreme Court adopted Trump’s position on his powers by issuing an order allowing him to fire board members of the National Labor Relations Board and the Merits Systems Protection Board. The top court paused lower court orders that had allowed the two board officials to continue to serve while a lawsuit they filed makes its way through the courts. The lower courts observed that under the congressional statute establishing the boards, its members could be fired only for “good cause,” and the administration had not provided such cause.

Trump’s unilateral moves in firing government employees and disestablishing government departments have been stymied by the courts multiple times. A report by Adam Bonica on his Substack, “On Data and Democracy,” found that during the month of May, “federal district courts ruled against the Trump administration in 26 of 27 cases—a stunning 96% loss rate.” Trump lost 76 percent of the cases against him in April, and 74 percent in March.

Yesterday, Trump added to his court losses when he suffered a stinging rebuke by a federal judge who found that his moves to punish the WilmerHale law firm were unconstitutional. Other judges have struck down Trump’s similar moves against Jenner & Block and Perkins Coie. Trump had issued orders against the law firms blocking their access to federal buildings and representing clients in lawsuits involving contracts with the federal government. Trump asserted his “right” to punish these law firms and several others because of his absolute control over the federal government.

What Donald Trump has done with his 140-plus executive orders and his attempts to punish law firms and other independent businesses such as CBS and entertainment companies has been to assert authoritarian control not only over the government, but over companies that do business with the government or are subject to government regulation. This is an unprecedented assertion of presidential power. So far, the only check on Trump has been lawsuits filed one after the other by individuals, businesses, and universities affected by Trump’s orders.

Courts have rejected the great majority of Trump’s attempts at absolute control, but as the lawsuits make their way through the courts, they all have one ultimate destination: the Supreme Court. Trump appointed three arch-conservative justices to a court already dominated by Republican-appointed justices. The Supreme Court has gone back and forth with its recent orders on its “emergency docket,” ordering that migrants have rights under the due process clause of the 14th Amendment and ordering the return of at least one migrant who was wrongfully deported by Trump’s Department of Homeland Security.

But the court has so far failed to enforce its own order to return the mistakenly deported migrant KIlmar Abrego Garcia from El Salvador. So far, no court has found the Trump administration in contempt of court, but legal experts predict that such an order is inevitable in multiple cases because of the Trump administration’s refusal or inability to provide legal justification for many of the moves they have made.

If and when such a contempt order is issued against one or more of Trump’s departments, we have been told that the United States will be in the first real constitutional crisis of its history. In the past, as in the Pentagon Papers case, and in the Watergate case in which Nixon was ordered by a federal judge to produce the White House tapes, the president then in power capitulated to the court orders and a crisis was avoided.

But this time, the president in office enjoys something Nixon and other presidents never had: absolute immunity from prosecution from his acts as president. Trump also enjoys the power given him under the Constitution to pardon anyone for committing any crime. Last Friday, Trump issued a full and unconditional pardon to a man who had been convicted of several tax crimes that charged him with using his unpaid taxes to finance a lavish lifestyle and buy luxury goods, including a $2 million yacht.

The pardon was issued after the man’s mother attended a $1 million-a-head Mar a Lago fund raiser at which she spoke to Trump personally. She had been a major Republican fund raiser in the past and had contributed to Trump’s election effort in 2024, co-hosting at least three fund-raisers for Trump. In a very real sense, the mother of this tax-cheat bought a pardon for her son by paying Donald Trump directly.

Yesterday, Trump pardoned a Virginia sheriff who had been convicted on multiple counts of bribery for accepting “cash-stuffed envelopes” from wealthy people he provided with badges. appointing them as bogus “auxiliary sheriffs,” that allowed them to break the law. Along with other sheriffs, he had formed a “Protect America Now PAC” to support Trump. The sheriff was sentenced to 10 years in federal prison for his crimes. The pardon was overseen by Ed Martin, newly appointed as Trump’s “pardon attorney” in the Department of Justice in addition to being put in charge of the DOJ office of “weaponization,” intended to undo actions by the Biden administration the DOJ sees as unfairly punishing MAGA supporters of Trump.

Pardoning random MAGA supporters and people Trump wants to reward for giving him money is the least of it. The real problem is Trump’s ability to pardon anyone he orders to commit a crime in his name. For example, if a judge ends up finding an assistant U.S. Attorney in contempt of court and orders him or her fined, Trump can issue a pardon and negate the contempt finding. This will allow the Trump DOJ to go into court and lie to judges with impunity, knowing that they will suffer no consequences as long as the lies they tell are in support of Trump’s illegal actions being challenged in court.

The same would go for anyone working for Trump in his administration. If Trump orders one of his cabinet secretaries to defy a court order, or to execute an illegal act such as administratively fining a government employee for some imagined crime such as signing a document refusing to carry out an illegal order, he can simply order Pam Bondi and his DOJ not to prosecute whoever is involved. At the end of his administration, Trump can issue blanket pardons that will prevent a new administration from prosecuting crimes carried out under Trump’s orders today.

Trump’s pardons are being called “get out of jail free” cards, but they’re worse than that. By preemptively ordering that certain people not be prosecuted, they will never be charged, much less come to trial and be convicted. As he has shown with his two most recent pardons, Trump can nullify prosecutions which predated his return to office, turning the Department of Justice into an office of revenge and retribution unseen before in American history and certainly not contemplated by the signers of the Declaration of Independence, who asserted in the name of the 13 colonies and their citizens that the corruption of royal rule was being thrown off in contemplation of something better.

Speaking of the rights of “the people,” the signers declared that “When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

We have entered into a new age of “absolute Despotism.” Whether we will throw off those who would impose upon us such “abuses and usurpations” as we have endured for the last four months remains to be seen.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. He writes every day at luciantruscott.substack.com and you can follow him on Bluesky @lktiv.bsky.social and on Facebook at Lucian K. Truscott IV. Please consider subscribing to his Substack.

Reprinted with permission from Lucian Truscott Newsletter.

Patriotism Has No Gender: Top Court Shouldn't Enable Trump's Bigotry

Patriotism Has No Gender: Top Court Shouldn't Enable Trump's Bigotry

Prior to President Harry Truman’s 1948 executive order that racially integrated the nation’s armed services, one of the major arguments for keeping the military segregated was the idea that Black soldiers should not be allowed to sleep next to or use the same bathroom facilities as white soldiers. There were other arguments as well. One was that integration would somehow damage “unit cohesion, esprit de corps, and discipline” necessary for a fighting force, and that would negatively affect the combat readiness of the military. Another was the false and racist allegation, expressed in these exact words, that “Blacks can’t fight.”

Listen to this claptrap from Trump’s January 27 executive order banning transgender people from service in our military:

“The Armed Forces have been afflicted with radical gender ideology to appease activists unconcerned with the requirements of military service like physical and mental health, selflessness, and unit cohesion.”

“A gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle.”

“Absent extraordinary operational necessity, the Armed Forces shall neither allow males to use or share sleeping, changing, or bathing facilities designated for females, nor allow females to use or share sleeping, changing, or bathing facilities designated for males.”

They can’t even come up with new words with which to express their prejudice. Substitute “Black” or “Negro” or “African American” for “gender identity” or “gender ideology” or “male” and “female” in the above statement, and what do you get? Flat out bigotry unadorned by anything even pretending to reason, because prejudice has no rationality.

The Supreme Court yesterday ruled in an order of less than a page that the Trump administration can continue to remove transgender members of the military from their service to this country and ban the service of transgender Americans who volunteer to serve while lawsuits seeking to overturn Trump’s executive order continue to make their way through the courts.

This means that in the future, even if the Supreme Court were to rule in favor of service by people who are transgender, those who have been discharged would have to reapply for admission to their previous ranks and positions in the military. They would have lost the intervening time they would have served, been denied time in service leading to retirement benefits, and in cases where service members reside in military housing, they would be ordered to vacate the places where they live.

How the Supreme Court could not read the plain language of Trump’s pathetic excuse for an executive order and see the prejudice dripping from its every syllable is yet another disgrace with which this country must contend. What about patriotism? Are we to read Trump’s executive order and the Supreme Court’s upholding of it, even if it turns out to be only temporary, as denying to people who are transgender the right to be patriotic and act upon it by serving their country in uniform?

Trump’s other executive order that there are “only two genders, male and female” denies the right of Americans to live openly as who they are. The order smacks of the time of segregation, when Black people were denied the right to live full lives, including in many states, the right to marry people of a different race from their own.

They always start somewhere. Today, it is transgender Americans. And tomorrow? Are we to return to a time of Americans being compelled to live half-lives? If transgender people can be denied the right to serve openly in the military, how long until they will be denied the right to be hired for a job in civilian life because of their gender identity? Will banks be allowed to “red-line” loans to transgender people, or even deny them bank accounts and credit cards because they are transgender?

Will transgender people be denied drivers’ licenses unless they reflect the name and gender on their birth certificates? What about the right to vote? Will registering to vote be denied to people who have changed their names and the sex on their drivers’ licenses?

What Trump’s transgender executive orders do is to subtract a group of people from citizenship guaranteed by the Constitution. Are we to have a future which mirrors our past, when Black people, because of the color of their skin, did not have the equal protection of our laws, including the right to vote, the right to attend schools of their choice, the right to employment, the right to eat at a restaurant or to check into a hotel or motel for the night? Will these rights be stripped from people because of their gender identity? If being transgender is effectively made to be illegal, how long before being gay or lesbian or bisexual is illegal?

It's not just patriotism that has no gender. It is citizenship. It is humanity. There isn’t liberal blood and conservative blood, or Republican blood and Democratic blood, or gay blood or trans blood and straight blood, or Black blood and white blood, or male blood and female blood. Cut us, and we all bleed red.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. He writes every day at luciantruscott.substack.com and you can follow him on Bluesky @lktiv.bsky.social and on Facebook at Lucian K. Truscott IV. Please consider subscribing to his Substack.

Reprinted with permission from Lucian Truscott Newsletter.

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