Executive Order, Addressing Risks from Susman Godfrey
The First Con
During Trump 1.0, because he thinks like a mob boss, Trump thought he was filling the federal judiciary with sycophants who would always rule his way, no matter about the facts, no matter about the law.
Federalist Society lawyers did a splendid job of conning Trump into thinking they were doing his bidding in their judicial selections.
Now, it has become apparent even to those of the meanest intelligence that most of the Federalist Society judges will not bend the knee to Trump, regardless of the facts, and regardless of the law.
Because Trump is a person of the meanest intelligence, he has now figured this out, and is busy this week throwing a hissy fit.
Specifically: where the law affords discretion to the President, it appears the Supreme Court will probably allow him to exercise that lawful discretion, even if he’s acting stupidly, in bad faith, with bad judgment, in ways that harm vast numbers of people.
BUT … BUT … BUT there is good reason to anticipate that the Supreme Court, along with the majority of the lower courts, will not endorse Trump’s actions when he or his agents
- unconstitutionally refuse to spend money appropriated by Congress,
- unconstitutionally dismantle federal agencies, without congressional authorization,
- unconstitutionally deprive persons present in the United States of life, liberty, or property without due process of law, or
- unconstitutionally use the powers they have—or claim powers they do not in fact possess—to punish people for the exercise of their civil rights, including free speech, freedom of the press, freedom of association, and freedom to petition for redress of grievances (and note that the latter freedom encompasses the freedom to file lawsuits).[1]
The Second Con
Throughout the four dreadful months of Trump 2.0, Team Trump has repeatedly—relying only on ipse dixit—asserted that it has legal powers that it does not actually have. It’s metaphysically possible that Trump has just acted without any legal advice at all. And it’s metaphysically possible that Trump has received legal advice, but decided to ignore it. That sort of thing does happen.
But I don’t think he actually acted without legal advice, or that he decided just to ignore the advice he received. It seems much more likely that he got legal advice, but that that advice was deeply flawed. If so, why? Are Trump’s legal counselors merely incompetent—or, on the other hand, are they intentionally maneuvering him into a place where the Supreme Court tells him to back down?
Take the Susman Godfrey executive order cited above. Who the hell drafted that thing? Who the hell told him it was a good idea? Who the hell told him that the courts would go along with him.
Read it. It might as well say, in all caps boldface type, at the top of the page, “THIS EXECUTIVE ORDER IS AN ATTEMPT TO PUNISH CITIZENS FOR EXERCISING THEIR CIVIL RIGHTS, AND TO DETER THEM FROM DOING SO, IN VIOLATION OF THE UNITED STATES CONSTITUTION.”
The current White House Counsel, David Warrington, is a Trump loyalist but has good credentials and has apparently never been subject to legal discipline.
Pam Bondi, the Attorney General, received her law degree from the number 98 ranked school in the country. Her lengthy Wikipedia biography reveals an astonishing number of regrettable circumstances in her legal career—notably, her exuberant embrace of the 2020 stolen election claim.
My thoughts: I don’t care that she’s the Attorney General. If you have the bad sense to ask Pam Bondi for legal advice, then you deserve what you get.
And then, of course, there is Vice President J.D. Vance—a Yale Law graduate who has come to believe Trump should just ignore Marbury v. Madison (decided in 1803, holding that “It is emphatically the province and duty of the judicial department to say what the law is”).
I don’t know whether anyone is duping Trump about the legal underpinnings of his various attempted usurpations—and, if anyone is doing so, who it is. As I implied above, maybe it’s just Trump gaslighting himself.
I do know that if any lawyer told Trump he was likely to prevail on, for example, the Susman Godfrey executive order, then that lawyer needs to be disbarred, and that right soon.
And I suspect that when the dust settles and we learn the truth, the chief culprits are going to be Bondi and Vance. And I think the evidence will show they conned Trump, intentionally misleading him about his chances with the Supreme Court–all with the goal of provoking a constitutional crisis.
[1] And then there are the tariffs. Trump purports to rely on a squinty-eyed interpretation of the International Emergency Economic Powers Act. As a matter of statutory interpretation and application, Team Trump has the legally weaker position, and his adversaries have the stronger position. But his legal case is not so ridiculous that his attorneys should be disbarred for asserting it.
Facing MAGA 