Month: March 2025

In the not-too-distant past, the federal government consisted of three reasonably functional branches. Each conducted its business in accordance with established norms and was composed of individuals who, for the most part, respected the rule of law and took seriously their oath of office. We seem to have reached the point, at least for now, when only one branch still functions as intended.

The legislative branch is in near-total meltdown. Congress, supposedly the primary source of federal policymaking, has abdicated most of its legislative authority to the executive branch and is barely able to accomplish its most basic task of appropriating funds to keep the government open. It has all but abandoned oversight other than political grandstanding. Both the House and Senate have devolved into hyper-partisan, polarized bodies whose members prioritize political survival over public service.

The executive branch is careening off the rails under President Trump, who clearly has no respect for democratic norms or the rule of law. Indeed, he delights in flaunting his contempt for our democratic institutions. He stocked his second term administration with yes-people whose only allegiance is to him. In just a few months, Trump and his surrogates (most notably Elon Musk) and subordinates have taken a wrecking ball to the federal government. Their actions create widespread chaos within and outside of government. Many raise serious legal issues.

Trump has no guardrails within the executive branch. It’s obvious that Congress won’t check his power. The Republican majorities in both houses of Congress apparently view their principal role as serving Trump rather than operating as an independent, co-equal branch of government. Democrats are powerless in Congress and too consumed by internal conflict to even produce coherent opposition messaging.

This leaves the judicial branch as the only serious constraint on Trump’s excesses. How effectively the courts counter him when he oversteps his authority will be a key test for our democracy.

Unsurprisingly, Trump’s blitzkrieg of legally controversial actions has already generated well over 100 lawsuits and counting.^[1]See here, here, and here. While most cases are in their early stages, there’s no indication so far that the courts are reluctant to rule against Trump. Indeed, the initial results provide two truly remarkable takeaways: Trump is on the losing end of over 80 percent of the preliminary rulings, and the adverse rulings are coming in almost equal proportion from judges across the ideological spectrum—84% liberal, 86% centrist, and 82% conservative. 

Still, many on the left fear–and many on the MAGA right hope–that once cases reach the Supreme Court, its 6-3 majority of conservative Republican appointees will fall into line behind Trump. The Trump Administration apparently shares this hope since it has staked out many very aggressive legal positions.

There is no objective reason to think that Supreme Court justices are biased toward Trump or that they would be susceptible to the intimidation and extortion he employs so successfully in so many contexts. The conservative majority is ideologically disposed toward a broad view of presidential authority.^[2]This probably explains their highly questionable decision last year on presidential immunity from criminal prosecution. They may therefore be receptive to several cases challenging statutory restraints on the president’s authority to remove certain executive branch officials based on the so-called “unitary executive theory.” Trump’s challenges to the controversial practice of nationwide injunctions may also resonate with the Court.

Apart from these possibilities, however, it’s doubtful that Trump will fare better at the Supreme Court than he has at lower levels. The most obvious reason is that many of his challenged actions are clearly illegal. His executive order attempting to redefine birthright citizenship is patently unconstitutional. It’s hard to imagine any self-respecting textualist/originalist justice upholding it. Indeed, there’s no good reason for the Court to take this case for review on the merits.^[3]Since the lower courts have uniformly ruled against Trump, there is no conflict to resolve. One possible complicating factor is that the Trump Administration is attempting to use this case as a … Continue reading Trump’s invocation of the Alien Enemies Act to deport alleged members of the Venezuelan gang Tren de Aragua with no due process looks like another loser for him if it reaches the Supreme Court on the merits. The Act seems inapplicable on its face.     

If the courts function as they should, how will Trump respond?

Trump and his minions are in full demagogue mode in the face of preliminary adverse court decisions. Trump ranted that the judge who initially ruled against him in the Tren de Aragua case was a “Radical Left Lunatic” who, along with other judges ruling against him, should be impeached.^[4]This drew a rebuke from Chief Justice Roberts. Musk made political donations to House members who echoed this nonsense and introduced impeachment resolutions. Attorney General Bondi accused the district judge of “support[ing] Tren de Aragua terrorists over the safety of Americans.”

While it’s easy to grow numb to Trump’s constant outrages, it’s still shocking that a president of the United States and an attorney general could engage in such absurd and disgusting behavior. It’s also distressing, if not surprising, that no prominent congressional Republican had the courage or integrity to condemn the ridiculous impeachment calls. Worse yet, House Speaker Johnson made veiled threats of his own against the judges.   

In addition to the extreme rhetoric, the Trump Administration is clearly playing fast and loose with the courts by stonewalling them and otherwise trying to keep them at bay. They may have violated court orders in the process. So far, however, they have stopped short of avowed defiance. Trump himself insists that he will not defy the courts.

It remains to be seen whether this changes when final judicial decisions go against Trump, as seems inevitable. However, openly defying the courts may be a bridge too far even for Trump. Trump is a con man and a bully; he operates by bluffs and intimidation, staking out extreme positions and pushing them as far as he can. But like any bully, he backs off in the face of stiff opposition.

There are reasons to believe he would encounter such resistance here. It has been accepted for centuries that, as Chief Justice John Marshall famously observed in Marbury v. Madison: “It is emphatically the province and duty of the Judicial Department to say what the law is.” Even prominent voices on the right reject the notion that Trump could disobey the courts.^[5]See here, here, and here. There would likely be a broad, bipartisan condemnation of defiance of the courts from academics, pundits, and most others outside MAGA world.

Furthermore, public opinion across party lines strongly opposes defiance of the courts. Overall, 84 percent of respondents (including 79 percent of Republicans) say Trump should abide by judicial decisions. Notably, most Americans (57 percent) already think Trump is exceeding his authority. Refusal to comply with final judicial decisions might even be the last straw for some otherwise spineless Republican politicians.

For now, all we can do is rally around the judiciary and hope that the rule of law prevails. The courts have come under cynical, spurious attack recently as both the left and the right sought to politicize them and undermine their credibility.^[6]See, e.g., here, here, and here. Now is the time to rise above partisanship to accord the federal judiciary the respect it deserves and that it will surely need in the months and years to come.

The chaotic start to the second Trump Administration includes a fiasco reminiscent of the infamous Watergate era “Saturday Night Massacre.” In a February 10 memo, Acting Deputy Attorney General Emil Bove ordered Danielle Sassoon, Acting U.S. Attorney for the Southern District of New York, to file a motion to dismiss “without prejudice” pending criminal corruption charges against New York Mayor Eric Adams. Sassoon declined, as did many other lawyers in the U.S. Attorney’s office and in Main Justice in Washington, leading to a series of resignations.

Bove’s memo stated that he was acting “without assessing the strength of the evidence or the legal theories on which the case is based.” He also stated that his directive “in no way” called into question the integrity and efforts of the line prosecutors or Sassoon’s leadership. He cited “two independent reasons” for dismissal: (1) the actions of the former U.S. Attorney threatened the integrity of the prosecution and improperly interfered with Adams’ reelection campaign; and (2) the prosecution unduly restricted Adams’ ability to fight crime and particularly to support federal efforts to combat illegal immigration.

Sassoon responded in an 8-page February 13 letter addressed to Attorney General Pamela Bondi that provided a detailed rebuttal to Bove’s directive and requested a meeting with Bondi to discuss the matter. She concluded by offering to resign if Bondi was unwilling to meet or reconsider Bove’s directive.

On the same day, Bove responded to Sassoon with his own 8-page letter rebutting hers. Bove’s letter accepted Sassoon’s resignation, placed two assistant U.S. attorneys who supported her on administrative leave, and stated that all three would be investigated.       

The two assistant U.S. attorneys from New York resigned along with Sassoon. One of them, Hagan Scotten, wrote his own scathing letter to Bove.^[1]He concluded with this widely-quoted zinger: “I expect you will eventually find someone who is enough of a fool, or enough of a coward to file your motion. But it was never going to be me.” All … Continue reading Bove then turned to the Public Integrity Section in Main Justice in search of someone willing to sign the dismissal motion. Five lawyers in that office, including its two leaders, refused and resigned.

Reportedly, Bove next called the remaining members of the Public Integrity Section together on Friday morning and gave them an hour to come up with two attorneys willing to sign the motion. One eventually came forward—apparently to protect the others–and he, along with a lawyer from the Criminal Division and Bove himself, signed the motion. Notably, Bove was the only lawyer who appeared on behalf of the United States at an initial hearing on the motion.^[2]More detailed background on all this can be found here, here, and here.

The actions of the Justice Department have been widely condemned,^[3]Ironically, the episode has also severely damaged its supposed beneficiary, Adams. with some of the harshest criticism coming from rock-solid conservative sources.^[4]See here, here, and here. The criticism is justified. Bove’s stated reasons for the dismissal are at best dubious and at times implausible and contradictory.

His first asserted rationale—misconduct by the prior U.S. Attorney that tainted the prosecution—is thoroughly contradicted by the facts detailed in Sassoon’s February 10 letter. And if this was an independent reason to end the prosecution why not dismiss it outright?

Bove’s second rationale—freeing Adams to concentrate on fighting crime—is also suspect on several grounds. Sassoon asserts that it constitutes, in effect, a quid pro quo to obtain Adams’ support for federal immigration enforcement efforts. Bove and Adams deny this, but Adams’ subsequent actions are consistent with her assertion. The proposed dismissal without prejudice, thereby retaining the threat of reinstatement, further supports her assertion. Another problem with this rationale is that its logic potentially extends to and undermines prosecutions of incumbent public officials in general. Obviously, a federal criminal prosecution would be a major distraction for any such official and seriously impact their performance.      

Other aspects of Bove’s conduct seem contrived and inconsistent. He may have coached Adams’ lawyers into embracing his rationales. The Adams lawyers said in a letter to the judge assigned to the case, Dale Ho, that Bove “invited us to a meeting at which he asked us to address how the case might be affecting Mayor Adams’s ability to do his job and whether there was evidence of politicization.”

Moreover, Bove’s February 13 letter to Sassoon seems to contradict his earlier statements that the dismissal was not based on the legal merits of the case or the conduct of prosecutors other than the former U.S. Attorney. In it he asserted: “The case turns on factual and legal theories that are, at best, extremely aggressive.” He also alluded for the first time to concerns over the conduct of Sassoon and the line prosecutors.  But if these were the real concerns, he surely would have invoked them initially.

Given the questionable stated grounds for dismissal and related inconsistencies, could there be another explanation for what happened here? At the risk of appearing cynical, my guess—and, of course, it’s purely a guess—is that Trump simply told Bove, directly or through an intermediary, to drop the prosecution and left it to him to make up a legal justification for doing so.

Trump denies instigating the dismissal. However, it’s hard to believe Justice officials would initiate it without his involvement, especially if one accepts their claim to have acted without regard to the merits of the case. Clearly, Adams had been currying favor with Trump for some time. Trump rewards those who kiss his ring and feed his massive ego just as he punishes his detractors. Indeed, Trump had publicly suggested that Adams was being treated unfairly and mused about pardoning him. It also figures that Trump would want the option of reviving the charges if Adams strayed from his good side.

Judge Ho declined to rubber stamp the dismissal motion and is now conducting an inquiry into whether it is contrary to the public interest.^[5]One specific point Judge Ho might rule on is the “without prejudice” aspect. He may be able to shed light on how this came about, perhaps by questioning Bove under oath concerning its genesis. Ultimately, however, the Adams prosecution will almost surely be abandoned. As a legal and as a practical matter, Judge Ho can’t force the Justice Department to prosecute the case.

Whatever its outcome, this episode raises a number of broader concerns. 

How politicized will the Trump Justice Department become? Trump and his allies railed against alleged political manipulation of the legal system by the Biden Justice Department. This case may signal that they are prepared to take such abusive practices to new levels, as Trump so often does.

Where was Attorney General Bondi? While Bove was the front man, creating havoc within the Justice Department, Bondi’s role is unclear. She kept her fingerprints off the documents and declined to meet with Sassoon or personally respond to her letter. Bondi appeared to be one of Trump’s more palatable cabinet choices, but this episode calls into question her leadership and integrity.

What does it say to current and prospective Justice Department lawyers? The disrespectful, ham-handed treatment accorded Sassoon and the others suggests that Justice leadership won’t hesitate to jettison high-quality lawyers who don’t reflexively accept its political objectives.^[6]Bove doubled down on this following the initial hearing on the dismissal motion, virtually inviting more resignations. He said that Justice attorneys who are “with me” will “do great things to … Continue reading If this is the message, expect more principled, highly competent attorneys to head for the exits. Other such attorneys considering employment at Justice will probably think twice as well. The Department will sorely need attorneys of their caliber to defend Trump’s many legally fraught actions.^[7]Contrary to most of the government, Justice is staffing up now for this purpose.

What does it signal to the courts about the Department’s credibility and bona fides? The willingness of the judiciary to assume good faith on the part of the executive branch and accord some degree of deference to its legal positions can be an important factor in litigating close cases. The questionable if not disingenuous conduct of Justice leadership here threatens to squander the Department’s credibility with the courts—something that may come back to bite them as the host of legal challenges to Trump’s actions move forward.

Where is the Congress? The silence on the part of Republicans in Congress is deafening. Many of them joined Trump in denouncing alleged abuses of the Justice Department under the prior administration, but they have nothing to say here. In this instance and others during just the first month of the Trump Administration, Republican majorities in Congress seem wholly disinclined to exercise their oversight responsibilities as a supposedly co-equal branch of government.