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Coming this week:
Looks like the law firms win
Last week I flagged that oral argument was set in the D.C. Circuit for this past Thursday in the combined challenges filed by four law firms against Trump’s executive orders seeking to keep them from conducting much of their business. All four firms won in the lower courts. Based on the panel’s reception, they seem on track to do it again.
These cases are highly significant because they go to the heart of a major abuse of executive power: Trump’s insistence that he has the ability to put entities that oppose him out of business. Former Solicitor General for George W. Bush, Paul Clement, representing the firms, argued that Trump’s executive orders “run afoul of the better part of the Bill of Rights.” Not just one or two provisions, mind you, but “the better part.” He argued that they threaten the right to counsel, the separation of powers, and the rule of law.
Clement explained, “The executive orders here strike at the heart of the First Amendment and the ability of lawyers to zealously represent their clients. Lawyers cannot zealously represent their clients while walking on eggshells for fear of reprisals; thus, the executive orders strike at the heart of the rule of law and the zealous representation on which the judiciary and the adversary process depend.” That seems entirely clear. It could even be possible that firms might avoid representing certain clients—one of Trump’s early attacks was on Covington and Burling, a D.C. firm that gave advice to Jack Smith, the special counsel during the Biden administration who oversaw the two prosecutions of Donald Trump.
Clement also explained the headlock Trump had put firms in: “I either keep my security clearance, or I can sue the Trump administration, not both.” For many defense firms, the ability to obtain a security clearance is essential to doing certain types of work. Trump’s orders purported to remove those clearances for lawyers at firms that ran afoul of him. He also tried to suspend active government contracts and prevent attorneys who worked at the interdicted firms from entering government buildings, including federal courthouses. As we discussed here, it was always going to be a nonstarter because the orders, if permitted to go into effect, would allow a president to pick and choose which attorneys could continue to make a living and put ones he didn’t like out of business.
During argument, the panel seemed unpersuaded that the executive orders were discretionary national security decisions made by a president that aren’t subject to review by the courts. If the case makes its way to the Supreme Court, Trump will undoubtedly argue that the district judges who first considered the case were biased. Assuming Trump loses at the Court of Appeals, the Supreme Court could take the case on appeal, but is not obligated to. For instance, Judge Richard Leon, one of first district judges to consider a law firm executive order case, is also the judge who issued a preliminary injunction halting construction of Trump’s ballroom, finding that the president is the "steward" of the White House and not the "owner," and that Trump had no statutory authority to proceed, absent authorization from Congress. So prepare yourself for meritless arguments about judicial bias if Trump suffers a loss here. There is no way of predicting how long it will take the court to rule, and the administration is enjoined from putting the orders into effect while the cases are being litigated.
Closing the loop on mifepristone
With only two justices, predictably, Thomas and Alito, writing in dissent, the Supreme Court has prevented Louisiana’s law, which would make mifepristone unavailable via telehealth, from going into effect while the litigation moves forward.
It’s not skeptical to question whether this happened because the Court is well aware of the risk of agitating voters in advance of the midterm elections.
Trump is hyperfocused on trying to salvage the November election despite his sinking performance in the polls.
We always knew that, backed into a corner, Trump would become ever more willing to damage democracy to save himself. It’s on.
NOTUS is reporting that meetings are being held, out of the public eye, between the White House, DOJ, DHS, and the Postal Service to try and interfere with the election. The goal seems to be building a national voter database that can then be used to determine who can and can’t vote—which is up to the individual states—and implement Trump’s order that the Post Office should interfere with mailing ballots.
The report in NOTUS included comments from an unidentified White House staffer speaking on background, who declined to acknowledge that the conversations were taking place, but did say that “it is standard process for administration officials to coordinate on implementing President Trump’s executive orders. We do not comment on private meetings that may or may not have happened.” That’s as good as a yes.
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Trump’s executive order directing USPS to interfere in state-run elections is under challenge in court. At a hearing last week, DOJ argued that the court can’t act because the issue being raised is an “abstract legal question unless and until the Postal Service actually issues a rule that injures the plaintiffs and it does so only because it was directed to by the president — rather than, for example, as an exercise of the agency’s own independent judgment.” Judge Carl Nichols seemed inclined to buy that argument at one point in the hearing, asking how there could be irreparable injury, which he must find before he can enjoin the executive order, when no action has been taken as of yet. But at other points in the hearing, he pushed the government on the constitutionality of the president’s executive order.
We’ll watch carefully for a forthcoming ruling in this case, which will tell us a lot about whether the courts will entertain presidential interference in each state’s administration of its own election. But the White House is making its position clear.
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Stephen Miller, who it’s always worth noting is not a lawyer and doesn’t seem to appreciate what the Constitution says, seems to be continuing to look for a new way to militarize the country for reasons that don’t hold water in advance of the election. We’ll take up the issue of the illegality of sending federal troops or federal agents to the polls first breather we get.
Also …
On Wednesday, the state of Tennessee has a court date to defend itself against the NAACP’s allegations that it cannot, without violating state law, redraw its voting maps this late in the decade.
On Thursday, SCOTUS will be issuing more opinions.
By Friday, the Government has to produce discovery to the defendants in the Minnesota church protest case against Don Lemon and individual protestors who were indicted for violating the FACE Act. A judge ruled that heavily redacted discovery that prevents the defendants from identifying witnesses, including members of law enforcement, so they can prepare their cases violates the law. He has given the government until Friday to rectify its errors an