WILL THE CENTER HOLD?

The rubber will hit the road when the multitude of district and circuit court injunctions blocking Trump/Musk orders reach the Supreme Court. Chief Justice Roberts, in his State of the Judiciary speech for 2024, had made plain the importance of obedience to court orders: 

"An independent judiciary must uphold the constitution against the shifting tides of public opinion... officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions ... must be soundly rejected."

But Trump's minions have been vague about whether the Executive Department will comply with court orders that reject Trump/Musk decrees.

A judge can find a government official who refuses to obey a court order in criminal contempt, and order him to jailed, but Trump can "trump" that order via commuting the sentence or pardoning the defendant. 

 It might not even get that far: court orders are enforced by federal marshals who are employees of the Department of Justice, which today is absolutely obedient to the wishes of Trump. Civil contempt (go to jail and do not pass Go until you comply with my order) is also an effectively toothless remedy because the Bureau of Prisons is also a DOJ responsibility. And civil fines would likely be ignored or countered by executive decree.

The scary hypothesis is that the only way the court can maintain it's stature in the face of a recalcitrant anti-Trump defendant, is to make sure there is no cause for executive agita, i.e. render all decisions in Trump's favor, and thereby avoid the problem of non-compliance with judicial orders that offend King Donald. 

Up to now, the district and circuit courts have been true to their pledge to obey the Constitution and have blocked many Trump/Musk orders. But Justice Alito, even though there was no case before him, publicly complained about district judges who issued decrees that affect the entire nation, even though that has become the only practical way to deal with many of these matters. 

If the center folds, if Roberts gives in to the Alito-Thomas wing of the court, and the Supremes reverse or limit the numerous lower court decisions that stay illicit Trump directives, the Constitution is effectively dissolved.

The easiest one is already there. Trump has (foolishly, I think) already brought to the Supreme Court his loss of the birthright citizenship matter in three district court cases that resulted in nation-wide temporary restraining orders. He has asked the Supreme Court to limit those 14th-Amendment rulings to the particular litigants who brought the cases, an "Alito" result that would create national confusion and limit the application of the Amendment to particular individuals or states,-- a horrendous conclusion.

 We'll see. If the Supremes bend the knee on this one, pack your bags and move to Canada (if Canada will have you!)

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WAR ON LAWYERS

I have written before about Trump's predilection for attacking opposing lawyers as opposed to the merits of the issues involved in  Trumpian litigations. As I noted in my previous blog, I have encountered this directly in a pre-presidential Trump litigation, and have commented about it in the earliest days of his presidency. 

On some subjects, he is consistent. Recently, he has stood the profession on its ear by taking outrageous steps to punish lawyers for their advocacy. He has stripped security clearances of the firm of Perkins Coie because of its representation of 2016 election adversaries. Pursuant to Trump's executive order, government employees may not meet with the firm's lawyers and they are barred from all federal buildings. Whether this means they cannot enter federal courthouses, I am not sure, but the order is outrageous and if it's not unconstitutional, then it should be. A federal judge has already stayed challenged parts of the Trump order.  The judge has called it "retaliatory animus" and noted she expected the "legal profession was watching in horror."

In addition, Trump has stripped security clearances from Covington and Burling lawyers who represent Jack Smith, the prosecutor who pursued Trump (unsuccessfully) for pre-presidential felonies. The only announced rationale for that action is Trump's repeated charge that prosecutor Jack Smith was "deranged."

This is not just a hypothetical constitutional discussion. The Perkins firm reports that it has lost major clients as a result. And it is not unreasonable to expect that the firm will suffer adverse effects in the process of enlisting new clients as well.

The other side of the coin is the public and professional criticism of the law firm Sullivan and Cromwell for its agreement to represent Trump on the appeal of his 32-count New York felony conviction. Trump was found guilty of making fraudulent book entries to hide hush money payments related to his adulterous relationship with Stormy Daniels during his wife’s pregnancy. The criticism has opened an old sore: reports of a horrendous “bending of the knee” by the Sullivan firm— the revelation that for several years in the early 30s, Sullivan and Cromwell's Berlin office signed “Heil Hitler" on all office correspondence. 

Is Trump sending a message? 

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