Dem
47
GOP
53
Almost all the guardrails are gone. The Democratic Party has no power. Republican senators are hiding under their desks, hoping for "out of sight, out of mind," the media is cowed and paying "protection money," universities are running scared. The only guardrail left is the judiciary, and Donald Trump is actively working as hard as he can to crush it, as well.
Decisions that Trump doesn't like are happening almost daily. On Tuesday, U.S. District Judge Tanya Chutkan issued a temporary restraining order blocking the EPA from canceling $20 billion in climate grants that were part of the Inflation Reduction Act. The money was parked at Citibank, which froze the funds. EPA administrator Lee Zeldin claimed there was waste, fraud, and abuse somewhere in the numerous contracts the government had already signed with various recipients, but he offered no evidence of it. In any event, once the government has signed a contract with an organization to do something, simply not paying is breach of contract even if the organization was inefficient in some way. The time for that discussion is prior to signing the contract, not afterwards. Trump is also planning to slash the EPA's budget by over 65% because he regards doing research about climate change and investigating violations of environmental laws as waste. But, as usual, once Congress has appropriated money for some project, he is required to spend it as Congress directed.
On another front, Trump ordered the arrest of Mahmoud Khalil, a Palestinian activist who has a green card, even though he is not charged with any crime. Khalil appealed his detention. Yesterday, U.S. District Judge Jesse Furman in New York denied the DoJ's motion to dismiss Khalil's appeal. Furman also rejected the DoJ's request to move the case to Louisiana, where Khalil is being held in prison. The attempt to move the jurisdiction from where Khalil lived to Louisiana was a stunt to get a more conservative judge. In addition, the judge ruled that the administration may not deport Khalil while the case is ongoing. Some sources believe that Trump's goal here is to get the Supreme Court to rule 6-3 that green card holders who have not committed any crime can nevertheless be deported merely for using their First Amendment rights in a way the president does not like. This would be a radical break with all past jurisprudence that says the legal residents of the U.S. cannot be deported unless they have been formally charged with a crime by a grand jury.
There are numerous other cases already where a judge has told Trump, no, he can't do what he wants because it is illegal. Trump's standpoint seems to be that he is not required to obey court rulings because he is like a king and kings don't obey court rulings. Or something. To give credit where it is due, someone in his administration is picking the fights very carefully. Khalil is strongly pro-Palestine, so Trump can claim to be fighting terrorism, which many voters will applaud. The case where Trump has come closest to out-and-out defying a judge is the order from U.S. District Judge James Boasberg to halt deporting alleged Venezuelan gang members until the courts have ruled on their cases. To many people, this looks like the courts are defending gang members, when in fact they are just defending everyone's right to due process when the government has a beef with them. Trump also called for Boasberg to be impeached, which prompted Chief Justice John Roberts to pipe up that, no, judges cannot be impeached simply because the president does not like their rulings.
Other members of the administration make no bones about ignoring the law. Border Czar Tom Homan went on Fox earlier this week and said: "We're not stopping. I don't care what the judges think. I don't care what the left thinks. We're coming." This is an assertion that the president is exempt from obeying the law and the only function of the law is to allow the president to persecute his enemies with it. Virtually all legal scholars believe that the courts, in particular, the Supreme Court, very much have the power to review presidential decisions and potentially rule them to be in violation of the Constitution and that this has been a bedrock principle of American law for well over 200 years. In July 2019, during his first term, Trump said: "I have an Article II, where I have the right to do whatever I want as president." Now he is testing that to the hilt and is producing a constitutional crisis in the process.
All this "L'État, c'est moi" stuff is causing a huge headache for Republican members of Congress. They know very well that Trump is actively trying to destroy democracy and establish himself as king for life. They also know he could change the balance of power between the Executive Branch and the Legislative Branch and that could reverberate far into the future, especially if the next Democratic president also decides he is a king. But they are scared witless of saying this out loud for fear of Trump endorsing a primary challenger and having Elon Musk give the challenger $50 million to hit the ground running. They have cover as long as Trump attacks people that the voters hate, like pro-Hamas activists and Venezuelan gang members. But once the principle of "the president is above the law" is established, Trump can start applying it to his enemies who are not so hated. By then it will be too late.
Some Republican House members are preemptively trying to get in Trump's good graces. Rep. Brandon Gill (R-TX) has introduced a resolution to impeach Boasberg. Senate Judiciary Committee Chairman Chuck Grassley (R-IA), who definitely knows better, accused Boasberg of "unilaterally deciding policy for the whole country." We don't recall his saying that when some random judge in North Texas decided to ban abortion pills for the whole country. There is a legitimate issue here of whether district (or even appellate) judges can make rulings that are binding outside their jurisdictions, but that is not Grassley's point here. He is just cozying up to Trump out of fear.
The issue of impeaching judges is a problem for Speaker Mike Johnson (R-LA). He knows there is no chance of getting 67 votes in the Senate to convict a judge unless the judge has committed a very serious felony, and even then it is tough. But once impeachment proceedings have started, they consume time and resources. Johnson does not need that while trying to cobble together a giant bill with all of Trump's priorities and trying to pass it with his tiny margin. It's a huge distraction. The problem is that Trump wants Boasberg impeached and if he really pushes that, Johnson will have to set the circus in motion. His hope is that he can convince Trump that starting impeachment proceedings will derail the tax-immigration-education-Medicaid-energy-kitchen-sink bill.
Senators are even less enthusiastic about an impeachment proceeding. Sen. John Kennedy (R-LA) called it "idiotic." Sen. John Cornyn (R-TX) said: "You don't impeach judges who make decisions you disagree with, because that happens all the time."
Republicans who are not currently in office and can't be bullied so easily see the danger here. Former New Hampshire Republican senator Judd Gregg said: "When you arbitrarily try to cancel the rule of law, which is what Trump is trying to do, and live by the edict of an individual, whether he is president or not, you're creating almost a banana republic-type of event." He also condemned Gill's attempt to impeach Boasberg as inexcusable.
Sometimes Trump thinks long-term as well as short term. Of course, with him, long-term is anything more than an entire day. In particular, with all these rulings by judges against him, he wants to stack the federal judiciary with judges whose primary loyalty is to him personally, rather than to the law. During his first term, Trump appointed over 200 judges, using the candidates handed to him by the Federalist Society. These judges were all conservative, but not necessarily Trumpist. Most believed in the rule of law and when he violated it, they called him on it.
Trump now realizes that was a mistake and wants to correct it this time by making loyalty to himself the main criterion. Mike Davis, who was the Senate Judiciary Committee's chief counsel in Trump v1.0, said: "They're going to be looking for even more bold and fearless judges." In other words, judges who will do Trump's bidding, the law be damned. Davis has compiled his own list of potential Supreme Court nominees in case there is a vacancy soon. It is widely expected there will be one or more in the next 2 years, with either or both of Justices Samuel Alito and Clarence Thomas retiring. High on Davis' list is Florida "judge" Aileen Cannon. Another name is Kathryn Kimball Mizelle, a Florida Trump district court judge who clerked for Thomas. She struck down the federal mask mandate for travel by plane during the pandemic. She is also married to Chad Mizelle, chief of staff for AG Pam Bondi.
Senate Judiciary Committee member Richard Blumenthal (D-CT) said: "I think they will be more ideologically extreme, on the fringe of what used to be the Republican Party. They will be MAGAs, basically. Given the trend of the end of the last Trump term, we're heading over a cliff in terms of fringe right-wing views. They will have a litmus test on steroids." Blumenthal also said the only way to stop Trump was to capture control of the Senate.
Two rule changes could speed up confirmation of judges. First, in 2019, Republicans limited floor time for confirmation debates for district court judges. Second, Grassley could abolish the "blue-slip" rule, which gives the senators from the state where an appellate judge will work a de facto veto over a nominee. With this speeded-up procedure, it will not require someone with the tactical skills of former majority leader Mitch McConnell (R-KY) to create an assembly line that pumps out a new judge every minute.
Trump not only hates the law, but also lawyers. This is causing a major problem for big law firms. Should they keep their heads down and hope to avoid trouble? If asked, should they agree to defend people who have been falsely accused by Trump of some crime which the lawyers instantly see as being fake? Trump appears to be hell-bent on destroying law firms with which he has some grievance, sometimes going back a decade. One senior lawyer at a big firm said: "The administration is viewed as very punitive and retributive." Another one said: "There's a lot of fear in Big Law right now." A third said: "If you want to put a head on a spike in the city square in order to deter people from crossing the ruler, it really doesn't matter if the person's head is of someone innocent or guilty."
A group of young associates at big law firms wrote an open letter condemning Trump for breaking laws left and right and punishing law firms for doing what they are supposed to do, namely, defend their clients. Over 300 associates have signed (anonymously) so far. How long will it be before Trump tries to subpoena the list of their names and then orders them arrested? добро пожаловать в россию. (V)