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Tag: appellate court

  • Trump administration suggests it may ‘raid school lunch money’ to cover SNAP benefits

    The Trump administration spent Friday fighting to avoid restoring $4 billion in food assistance in jeopardy due to the government shutdown, suggesting it might need to “raid school-lunch money” in order to comply with court orders.

    The claim was part of a break-neck appeal in the 1st Circuit Court of Appeals on Friday, where the government hoped to duck a court order that would force it to pay out for food stamps — formally called the Supplemental Nutrition Assistance Program, or SNAP — through November.

    “There is no lawful basis for an order that directs USDA to somehow find $4 billion in the metaphorical couch cushions,” Assistant Atty. Gen. Brett A. Shumate wrote in the appeal.

    The administration’s only option would be to “to starve Peter to feed Paul” by cutting school lunch programs, Shumate wrote.

    On Friday afternoon, the appellate court declined to immediately block the lower court’s order, and said it would quickly rule on the merits of the funding decree.

    SNAP benefits are a key fight in the ongoing government shutdown. California is one of several states suing the administration to restore the safety net program while negotiations continue to end the stalemate.

    Millions of Americans have struggled to afford groceries since benefits lapsed Nov. 1, inspiring many Republican lawmakers to join Democrats in demanding an emergency stopgap.

    The Trump administration was previously ordered to release contingency funding for the program that it said would cover benefits for about half of November.

    But the process has been “confusing and chaotic” and “rife with errors,” according to a brief filed by 25 states and the District of Columbia.

    Some states, including California, have started disbursing SNAP benefits for the month. Others say the partial funding is a functional lockout.

    “Many states’ existing systems require complete reprogramming to accomplish this task, and given the sudden — and suddenly changing — nature of USDA’s guidance, that task is impossible to complete quickly,” the brief said.

    “Recalculations required by [the government’s] plan will delay November benefits for [state] residents for weeks or months.”

    On Thursday, U.S. District Judge John McConnell Jr. of Rhode Island ordered the full food stamp payout by the end of the week. He accused the administration of withholding the benefit for political gain.

    “Faced with a choice between advancing relief and entrenching delay, [the administration] chose the latter — an outcome that predictably magnifies harm and undermines the very purpose of the program it administers,” he wrote.

    “This Court is not naïve to the administration’s true motivations,” McConnell wrote. “Far from being concerned with Child Nutrition funding, these statements make clear that the administration is withholding full SNAP benefits for political purposes.”

    The appeal could extend that deadline by as little as a few hours, or nullify it entirely.

    But the latter may be unlikely, especially following the appellate court’s decision late Friday. The 1st Circuit is currently the country’s most liberal, with five active judges, all of whom were named to the bench by Democratic presidents.

    While the court deliberates, both sides are left sparring over how many children will go hungry if the other prevails.

    More than 16 million children rely on SNAP benefits. Close to 30 million are fed through the National School Lunch Program, which the government now says it must gut to meet the court’s order.

    But the same pool of cash has already been tapped to extend Women, Infants and Children, which is a federal program that pays for baby formula and other basics for some poor families.

    “This clearly undermines the Defendants’ point, as WIC is an entirely separate program from the Child Nutrition Programs,” McConnell wrote.

    In its Friday order, the 1st Circuit panel said it would issue a full ruling “as quickly as possible.”

    Sonja Sharp

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  • Trump has power to command National Guard troops in Oregon, 9th Circuit rules

    The 9th Circuit Court of Appeals handed command of Oregon National Guard troops to the president Monday, further raising the stakes in the ongoing multifront judicial battle over military deployments to cities across the U.S.

    A three-judge appellate panel — including two members appointed by Trump during his first term — found that the law “does not limit the facts and circumstances that the President may consider” when deciding whether to dispatch soldiers domestically.

    The judges found that when ordering a deployment, “The President has the authority to identify and weigh the relevant facts.”

    The ruling was a stark contrast to a lower-court judge’s finding earlier this month.

    U.S. District Judge Karin Immergut of Portland previously called the president’s justification for federalizing Oregon troops “simply untethered to the facts” in her Oct. 4 temporary restraining order.

    The appellate judges said they were guided by a precedent set in the 9th Circuit this summer, when California tried and failed to wrest back control of federalized soldiers in and around Los Angeles.

    Another proceeding in California’s case is scheduled before the appellate court this week and the court’s earlier decision could be reversed. At the same time, an almost identical deployment in Illinois is under review by the Supreme Court.

    For now, exactly which troops can deploy in Portland remains bitterly contested in U.S. District court, where Immergut blocked the administration from flooding Portland with Guardsmen from California.

    The issue is likely to be decided by Supreme Court later this fall.

    The judges who heard the Oregon case outlined the dueling legal theories in their opinions. The two members of the bench who backed Trump’s authority over the troops argued the law is straightforward.

    “The President’s decision in this area is absolute,” wrote Judge Ryan D. Nelson, a Trump appointee, in a concurrence arguing that the court had overstepped its bounds in taking the case at all.

    “Reasonable minds will disagree about the propriety of the President’s National Guard deployment in Portland,” Nelson wrote. “But federal courts are not the panacea to cure that disagreement—the political process is (at least under current Supreme Court precedent).”

    Susan P. Graber, a Clinton appointee, said the appellate court had veered into parody.

    “Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd,” she wrote in her stinging dissent.

    But the stakes of sending armed soldiers to American cities based on little more than “propaganda” are far higher, she wrote.

    “I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur,” Graber wrote. “Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.”

    Sonja Sharp

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  • Trump keeps name-checking the Insurrection Act. It could give him extraordinary powers

    There are few laws President Trump name-checks more frequently than the Insurrection Act.

    A 200-year-old constellation of statutes, the act grants emergency powers to thrust active-duty soldiers into civilian police duty, something otherwise barred by federal law.

    Trump and his team have threatened to invoke it almost daily for weeks — most recently on Monday, after a reporter pressed the president about his escalating efforts to dispatch federalized troops to Democrat-led cities.

    “Insurrection Act — yeah, I mean, I could do that,” Trump said. “Many presidents have.”

    Roughly a third of U.S. presidents have called on the statutes at some point — but history also shows the law has been used only in moments of extraordinary crisis and political upheaval.

    The Insurrection Act was Abraham Lincoln’s sword against secessionists and Dwight D. Eisenhower’s shield around the Little Rock Nine, the young Black students who were the first to desegregate schools in Arkansas.

    Ulysses S. Grant invoked it more than half a dozen times to thwart statehouse coups, stem race massacres and smother the Ku Klux Klan in its South Carolina cradle.

    But it has just as often been wielded to crush labor strikes and strangle protest movements. The last time it was invoked, Defense Secretary Pete Hegseth was in elementary school and most U.S. soldiers had not yet been born.

    Now, many fear Trump could call on the law to quell opposition to his agenda.

    “The Democrats were fools not to amend the Insurrection Act in 2021,” said Kevin Carroll, former senior counsel in the Department of Homeland Security during Trump’s first term. “It gives the president almost untrammeled power.”

    It also precludes most judicial review.

    “It can’t even be challenged,” Trump boasted Monday. “I don’t have to go there yet, because I’m winning on appeal.”

    If that winning streak cools, as legal experts say it soon could, some fear the Insurrection Act would be the administration’s next move.

    “The Insurrection Act is very broadly worded, but there is a history of even the executive branch interpreting it narrowly,” said John C. Dehn, an associate professor at Loyola University Chicago School of Law.

    The president first floated using the Insurrection Act against protesters in the summer of 2020. But members of his Cabinet and military advisors blocked the move, as they did efforts to use the National Guard for immigration enforcement and the military to patrol the border.

    “They have this real fixation on using the military domestically,” Carroll said. “It’s sinister.”

    In his second term, Trump has instead relied on an obscure subsection of the U.S. code to surge federalized soldiers into blue cities, claiming it confers many of the same powers as the Insurrection Act.

    Federal judges disagreed. Challenges to deployments in Los Angeles, Portland, Ore., and Chicago have since clogged the appellate courts, with three West Coast cases before the U.S. 9th Circuit Court of Appeals and one pending in the 7th Circuit, which has jurisdiction over Illinois.

    The result is a growing knot of litigation that experts say will fall to the Supreme Court to unwind.

    As of Wednesday, troops in Oregon and Illinois are activated but can’t be deployed. The Oregon case is further complicated by precedent from California, where federalized soldiers have patrolled the streets since June with the 9th Circuit’s blessing. That ruling is set to be reheard by the circuit on Oct. 22 and could be reversed.

    Meanwhile, what California soldiers are legally allowed to do while they’re federalized is also under review, meaning even if Trump retains the authority to call up troops, he might not be able to use them.

    Scholars are split over how the Supreme Court might rule on any of those issues.

    “At this point, no court … has expressed any sympathy to these arguments, because they’re so weak,” said Harold Hongju Koh, a professor at Yale Law School.

    Koh listed the high court’s most conservative members, Clarence Thomas and Samuel A. Alito Jr., as unlikely to push back against the president’s authority to invoke the Insurrection Act, but said even some of Trump’s appointees — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — might be skeptical, along with Chief Justice John G. Roberts Jr.

    “I don’t think Thomas and Alito are going to stand up to Trump, but I’m not sure that Gorsuch, Kavanaugh, Barrett and Roberts can read this statute to give him [those] powers.”

    The Insurrection Act sidesteps those fights almost entirely.

    It “would change not only the legal state of play, but fundamentally change the facts we have on the ground, because what the military would be authorized to do would be so much broader,” said Christopher Mirasola, an assistant professor at the University of Houston Law Center.

    Congress created the Insurrection Act as a fail-safe in response to armed mobs attacking their neighbors and organized militias seeking to overthrow elected officials. But experts caution that the military is not trained to keep law and order, and that the country has a strong tradition against domestic deployments dating to the Revolutionary War.

    “The uniformed military leadership in general does not like getting involved in the domestic law enforcement issue at all,” Carroll said. “The only similarities between police and military is that they have uniforms and guns.”

    Today, the commander in chief can invoke the law in response to a call for help from state leaders, as George H.W. Bush did to quell the 1992 Rodney King uprising in L.A.

    The statute can also be used to make an end-run around elected officials who refuse to enforce the law, or mobs who make it impossible — something Eisenhower and John F. Kennedy Jr. did in defense of school integration.

    Still, modern presidents have generally shied from using the Insurrection Act even in circumstances with strong legal justification. George W. Bush weighed invoking the law after Hurricane Katrina created chaos in New Orleans but ultimately declined over fears it would intensify the already bitter power struggle between the state and federal government.

    “There are any number of Justice Department internal opinions where attorneys general like Robert Kennedy or Nicholas Katzenbach said, ‘We cannot invoke the Insurrection Act because the courts are open,’” Koh said.

    Despite its extraordinary power, Koh and other experts said the law has guardrails that may make it more difficult for the president to invoke it in the face of naked bicyclists or protesters in inflatable frog suits, whom federal forces have faced down recently in Portland.

    “There are still statutory requirements that have to be met,” said Dehn, the Loyola professor. “The problem the Trump administration would have in invoking [the law] is that very practically, they are able to arrest people who break the law and prosecute people who break the law.”

    That may be why Trump and his administration have yet to invoke the act.

    “It reminds me of the run-up to Jan. 6,” Carroll said. “It’s a similar feeling that people have, a sense that an illegal or immoral and unwise order is about to be given.”

    He and others say an invocation of the Insurrection Act would shift widespread concern about military policing of American streets into existential territory.

    “If there’s a bad faith invocation of the Insurrection Act to send federal troops to go beat up anti-ICE protesters, there should be a general strike in the United States,” Carroll said. “It’s a real break-the-glass moment.”

    At that point, the best defense may come from the military.

    “If a really unwise and immoral order comes out … 17-year generals need to say no,” Carroll said. “They have to have the guts to put their stars on the table.”

    Sonja Sharp

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  • President Donald Trump’s DOJ argues against gun ban signed by Gov. JB Pritzker after Highland Park shooting

    President Donald Trump’s Department of Justice weighed in Monday against the ban on high-powered firearms that Illinois and Gov. JB Pritzker passed after the Highland Park Fourth of July mass shooting in 2022 but found itself on the defensive as an appellate court justice grilled an assistant attorney general about whether “facts matter” as she tried to justify the administration’s position.

    In arguing before the U.S. 7th Circuit Court of Appeals, Harmeet Dhillon, the U.S. Justice Department’s assistant attorney general for civil rights, said the nation has a “strong interest” in ensuring that the Second Amendment’s right to bear arms is “not relegated to a second-class right” and criticized claims from state officials that certain guns covered by the ban are suited more for military operations than routine self-defense.

    But Judge Frank Easterbrook interrupted Dhillon early during the five minutes the court allowed her to speak even though the federal government is not a party to the case. Easterbrook noted the legal challenge from state officials resulted from a ruling by a district court in southern Illinois that determined the ban was unconstitutional, while a court in northern Illinois previously ruled a similar ban was legally sound.

    “Suppose the (southern Illinois) district court had found every contested issue of fact in favor of the state. Would that affect your review of the statute’s constitutionality?” asked Easterbrook, who was appointed to the bench in the 1980s by Republican President Ronald Reagan.

    As Dhillon began answering by saying, “It would not, your honor,” Easterbrook fired back, “So you don’t think the facts matter?”

    Dhillon, who has been a regular on Fox News, responded by saying she thinks the 7th Circuit Court of Appeals’ previous arguments that have kept Illinois’ gun ban in place are “inaccurate,” while acknowledging the adverse court decisions on similar cases are tough for the courts to navigate.

    “It is a challenge courts of appeals have to face, and harmonizing disparate factual findings is always a challenge, and ultimately, courts of appeals will have to do that,” she said. “The United States position is that AR-15s and similar weapons are clearly ‘arms’ that are protected by the Second Amendment. They are not militaristic. The militaristic analysis is not even a correct rule to apply. It is not found in Supreme Court precedent. It is not appropriate historically. And it is not appropriate in the context of today.”

    While it’s unusual for a top-ranking Justice Department official to request — and be granted — time to speak in such a case that it is not party to, Dhillon’s involvement is an indication of just how far the Trump administration is willing to go to fight Illinois’ gun ban. Pritzker, the two-term Democratic governor who has been a consistent Trump foe, has repeatedly defended the law as constitutional, reasonable and necessary.

    If the appellate court overturns the law in Illinois’ favor, gun rights groups are expected to push for the case to go before the U.S. Supreme Court. In July 2024, the 6-3 conservative-majority high court decided against taking up the case because the legal challenges to the gun ban were in their early stages. But Justice Clarence Thomas wrote at the time that the Illinois ban is “highly suspect” and that the high court should accept the full case if it comes back for review.

    Pritzker signed the ban on so-called assault weapons in January 2023 in response to the Highland Park shooting that claimed seven lives and left dozens injured. The law prohibits more than 100 semiautomatic rifles, handguns and shotguns, high-capacity magazines and other accessories, and requires gun owners who possessed these weapons prior to the ban to register them with the Illinois State Police.

    A central issue in the case has been whether the gun ban passes muster under a new constitutional test requiring gun laws to be “historically” consistent with laws on the books in the 18th century or earlier. That’s derived from the landmark 2022 U.S. Supreme Court case of New York State Rifle & Pistol Association v. Bruen, in which the 6-3 majority ruled citizens have a right to carry a handgun in public for self-defense. Bruen also holds that the Second Amendment protects firearms that are in “common use” in everyday society.

    Gun rights groups, including the National Shooting Sports Foundation, have cited the Bruen case to argue Illinois’ ban on many semiautomatic guns — requiring the trigger to be pulled once per round — is too broad because it doesn’t protect guns that are commonly used by law-abiding citizens, including AR-15- and AK-47-type guns that are subject to the Illinois ban.

    But Illinois Attorney General Kwame Raoul’s office argued the prohibited weapons are not considered “arms” under the Second Amendment and that they possess the same qualities as military weapons that are not commonly used for self-defense.

    Illinois Deputy Solicitor General Sarah Hunger said the prohibited guns, particularly AR-15s, should not be typical for civilian use and that if the courts say it’s constitutional for the courts to ban automatic weapons, the same principle applies to semiautomatic weapons.

    “It’s much more frequent that it’s happening recently,” Hunger said of mass shootings. “Mass shootings are a very specific type of event and this law was enacted to prevent this type of shooting.”

    Originally Published:

    Jeremy Gorner

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  • Appeals court gives Missouri AG pathway to Transgender Center patient records

    The Missouri Attorney General’s Office is seeking records from the Washington University Transgender Center at St. Louis Children’s Hospital. An appellate court decision Tuesday is making a path for those records (Rebecca Rivas/Missouri Independent).

    The Missouri Attorney General’s Office is allowed to access patient health information as part of its investigation into the Washington University Transgender Center, an appeals court ruled Tuesday.

    The Missouri Eastern District Court of Appeals decision, written by Judge Phillip Hess, reverses a ruling last year by a St. Louis judge that allowed the health center to withhold patient information protected by the Health Information Portability and Accountability Act, or HIPAA. 

    But Tuesday’s ruling does not end the fight for these otherwise confidential records nor will it open the floodgates for the attorney general to have untethered access to records. Instead, the circuit court must step in to tailor the requests and minimize the amount of protected health information that is ultimately shared.

    Among the records requested in a February 2023 civil investigative demand was a desire for “all electronic health records of (the center’s) clients” and a list of all the Transgender Center’s patients.

    “This court is very mindful of the breadth and depth of the attorney general’s requests to examine 1,165 minor patients’ most personal medical information,” Hess wrote. “Thus, the circuit court is empowered to modify the (civil investigative demands) as it deems appropriate under state and federal law.”

    The decision touches on a notion that private information may already be in the attorney general’s hands. When the center received the initial requests for information, it provided “remote, read-only access to its electronic medical records system” alongside lists of patient information, prescriptions and billing data.

    “The center abruptly changed its position, which prompted the attorney general to insist on receiving unredacted medical records with their metadata included,” Hess wrote.

    The case is one of a handful of legal fights stemming from former Attorney General Andrew Bailey’s use of the state’s consumer protection law to probe into adolescent gender-affirming care through the state’s consumer protection law. Bailey began looking into the prescription of cross-sex hormones and puberty blockers to minors in early 2023, after a former case worker for the Transgender Center claimed in an affidavit that children were rushed into care.

    Catherine Hanaway talks to reporters on Aug. 19 after being announced as the state’s next attorney general (Jason Hancock/Missouri Independent).

    Attorney General Catherine Hanaway took Bailey’s place Sept. 8, when he stepped down to become the co-deputy director of the FBI. Hanaway told The Independent that her leadership of the office is “going to be a different style,” but it is unclear if she will continue pursuing the investigations of gender-affirming-care providers.

    The attorney general’s office did not immediately respond to a request for comment. 

    A mainstay of gender-affirming-care providers’ arguments against the civil investigative demands is that the attorney general is attempting to look into medical malpractice, which is outside the office’s jurisdiction. This point is left unanswered in Tuesday’s ruling, with Hess writing that it could be adjudicated in future legal battles if the attorney general files a claim against the center.

    The court’s decision, Hess wrote, only applies to pre-claim investigative authority. And although the ruling did not shut down the probe for patient records, some of the attorney general’s claims asserting broad authority were rejected.

    The office claimed in its appeal, written by former Solicitor General Josh Divine, that the attorney general’s office counts as a “health oversight agency,” in which HIPAA allows providers to share protected health information.

    But because the investigation is looking into consumer fraud through the Missouri Merchandising Practices Act, it is not a matter of health oversight, the court determined.

    Divine also wrote that civil investigative demands should be considered “orders” from an “administrative tribunal,” which is another occasion in which HIPAA allows disclosure. But these demands are not “independently enforceable orders,” Hess wrote.

    The battle will return to St. Louis Circuit Court, where a judge must sort out whether de-identified records will suffice for the investigation.

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  • How Trump Gets Away With It

    How Trump Gets Away With It

    If Donald Trump regains the presidency, he will once again become the chief law-enforcement officer of the United States. There may be no American leader less suited to “take Care that the Laws be faithfully executed,” as the Constitution directs the president. But that authority comes with the office, including command of the Justice Department and the FBI.

    We know what Trump would like to do with that power, because he’s said so out loud. He is driven by self-interest and revenge, in that order. He wants to squelch the criminal charges now pending against him, and he wants to redeploy federal prosecutors against his enemies, beginning with President Joe Biden. The important question is how much of that agenda he could actually carry out in a second term.

    Explore the January/February 2024 Issue

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    Trump tried and failed to cross many lines during his time in the White House. He proposed, for example, that the IRS conduct punitive audits of his political antagonists and that Border Patrol officers shoot migrants in the legs. Subordinates talked the former president out of many such schemes or passively resisted them by running out the clock. The whole second volume of Special Counsel Robert Mueller’s report, which documented 10 occasions on which Trump tried to obstruct justice, can be read as a compilation of thwarted directives.

    From the November 2023 issue: How General Mark Milley protected the Constitution from Donald Trump

    The institutional resistance Trump faced has reinforced his determination to place loyalists in key jobs should he win reelection. One example is Jeffrey Clark, who tried to help Trump overturn the 2020 election. Trump sought to appoint Clark as acting attorney general in early January 2021, but backed off after a mass-resignation threat at the DOJ. People who know him well suggest that he would not let that threat deter him a second time. Trump will also want to fire Christopher Wray, the FBI director, and replace him with someone more pliable. Only tradition, not binding law, prevents the president and his political appointees from issuing orders to the FBI about its investigations.

    The top jobs at the DOJ require Senate confirmation, and even a Republican Senate might not confirm an indicted conspirator to overturn an election like Clark for attorney general. Under the Vacancies Reform Act, which regulates temporary appointments, Trump can appoint any currently serving Senate-confirmed official from anywhere in the executive branch as acting attorney general. Of course, all of the officials serving at the beginning of his new term would be holdovers from the Biden administration.

    Trump’s allies are searching for loyalists among the Republicans currently serving on several dozen independent boards and commissions, such as the Federal Trade Commission, that have “party balancing” requirements for their appointees. Alternatively, Trump could choose any senior career official in the Justice Department who has served for at least 90 days in a position ranked GS-15 or higher on the federal pay scale—a cohort that includes, for example, senior trial attorneys, division counsels, and section chiefs. As Anne Joseph O’Connell, a Stanford law professor and an expert on the Vacancies Reform Act, reminded me, “This is how we got Matthew Whitaker,” the former attorney general’s chief of staff, as acting attorney general. (Whitaker was widely criticized as unqualified.)

    Would some career officials, somewhere among the department’s 115,000 employees, do Trump’s bidding in exchange for an acting appointment? Trump’s team is looking.

    Once Trump has installed loyalists in crucial posts, his first priority—an urgent one for a man facing 91 felony charges in four jurisdictions—would be to save himself from conviction and imprisonment.

    Of the four indictments against him, two are federal: the Florida case, with charges of unlawful retention of classified documents and obstruction of justice, and the Washington case, which charges Trump with unlawful efforts to overturn the 2020 election. Those will be the easiest for him to dispose of.

    To begin with, there is little to stop Trump from firing Special Counsel Jack Smith, who is overseeing both of the federal investigations. Justice Department regulations confer a measure of protection on a special counsel against arbitrary dismissal, but he may be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” That last clause is a catchall that Trump could readily invoke.

    David A. Graham: The cases against Trump: A guide

    The regulations state that a special counsel may be fired “only by the personal action of the Attorney General,” but that would not stop Trump either. In the unlikely event that his handpicked attorney general were reluctant, he could fire the attorney general and keep on firing successors until he found one to do his bidding, as Richard Nixon did to get rid of Archibald Cox. Alternatively, Trump could claim—and probably prevail, if it came to a lawsuit—that the president is not bound by Justice Department regulations and can fire the special counsel himself.

    Smith’s departure would still leave Trump’s federal criminal charges intact, but no law would prevent Trump from ordering that they be dropped. He could do so even with a trial in progress, right up to the moment before a jury returned a verdict. No legal expert I talked with expressed any doubt that he could get away with this.

    Dismissing the charges would require the trial judges’ consent. But even if the judges were to object, Trump would almost certainly win on appeal: The Supreme Court is not likely to let a district judge decide whether or not the Justice Department has to prosecute a case.

    Trump will be able to avoid going to prison even if he has already been convicted of federal charges before he is sworn in. Here again, a trial judge is unlikely to order Trump imprisoned, even after sentencing, before he exhausts his appeals. And there is no plausible scenario in which that happens before Inauguration Day.

    At any time while Trump’s appeals are pending, his Justice Department may notify the appellate court that the prosecution no longer wishes to support his conviction. This is known as a confession of error on the government’s part; the effect, if the court grants the request, is to vacate a conviction. Under Attorney General Bill Barr, the Trump administration did something to similar effect in a false-statements case against former National Security Adviser Michael Flynn, moving to dismiss the charges after Flynn had pleaded guilty but before his sentencing. (Trump later pardoned Flynn.) According to the relevant rule of criminal procedure, dismissal during prosecution—including on appeal from a conviction—requires “leave of the court,” but it’s highly unlikely that an appellate court would refuse to grant such a motion to dismiss.

    Trump might also invoke the pardon power on his own behalf. He has already asserted, as far back as 2018, that “I have the absolute right to PARDON myself.” No president has ever tried this, and whether he can is a contested question among legal scholars. Experts who agree with Trump say the Constitution frames the pardon power as total but for one exception, implicitly blessing all other uses. (The exception is that the president may not pardon an impeachment.) Those who disagree include the Justice Department itself, through its Office of Legal Counsel, which concluded in 1974 that a self-pardon would be invalid under “the fundamental rule that no one may be a judge in his own case.”

    But the debate over self-pardons wouldn’t matter much to Trump in practice. If he pardoned himself of all criminal charges, there would be no one with standing to challenge the pardon in court—other than, perhaps, the Justice Department, which would be under Trump’s control.

    Unlike the federal charges, Trump’s state criminal cases—for alleged racketeering and election interference in Georgia and hush-money payments to a porn star in New York—would not fall under his authority as president. Even so, the presidency would very likely protect him for at least the duration of his second term.

    The Office of Legal Counsel, which makes authoritative interpretations of the law for the executive branch, has twice opined, in 1973 and again in 2000, that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” That conclusion is binding for federal prosecutors, but state prosecutors are not obliged to follow it.

    No one knows what would happen if Fani Willis, the district attorney in Fulton County, Georgia, or Alvin Bragg, the DA in New York, decided to press ahead with their cases against Trump should he regain the presidency. Like so many outlandish questions pertaining to Trump, this one has no judicial precedent, because no sitting president has ever been charged with felony crimes. But legal scholars told me that Trump would have strong arguments, at least, to defer state criminal proceedings against him until he left the White House in 2029. By then, new prosecutors, with new priorities, may have replaced Willis and Bragg.

    Trump has named a long list of people as deserving of criminal charges, or execution. Among them are Joe Biden, Mark Milley, James Comey, Andrew McCabe, John Brennan, James Clapper, and Arthur Engoron, the judge in his New York civil fraud case.

    If he returns to office, Trump may not even have to order their prosecutions himself. He will be surrounded by allies who know what he wants. One likely DOJ appointee is Mike Davis, a Republican who has substantial government credentials: He was a law clerk for Supreme Court Justice Neil Gorsuch and chief counsel for nominations to Senator Charles Grassley when Grassley chaired the Judiciary Committee.

    If Davis were acting attorney general, he said on a right-wing YouTube show, he would “rain hell on Washington.” First, “we’re gonna fire a lot of people in the executive branch, in the deep state.” He would also “indict Joe Biden and Hunter Biden and James Biden and every other scumball, sleazeball Biden.” And “every January 6 defendant is gonna get a pardon.” Trump could not immediately appoint an outsider like Davis attorney general. But he could make him a Justice Department section chief, and then appoint him as acting attorney general after 90 days.

    Trump could also appoint—or direct his attorney general to appoint—any lawyer, at any time, as special counsel to the Justice Department, with the authority to bring charges and prosecute a case. Trump might not be able to convict his political enemies of spurious charges, but he could immiserate them with years of investigations and require them to run up millions of dollars in legal fees.

    Likewise, if he managed to place sufficiently zealous allies in the Office of Legal Counsel, Trump could obtain legal authority for any number of otherwise lawless transgressions. Vice President Dick Cheney did that in the George W. Bush administration, inducing the OLC to issue opinions that authorized torture and warrantless domestic surveillance. Those opinions were later repudiated, but they guided policy for years. Trump’s history suggests that he might seek comparable legal blessing for the use of lethal force at the southern border, deployment of federal troops against political demonstrators, federal seizure of state voting machines, or deferral of the next election in order to stay in power. He would be limited only by the willingness of Congress, the Supreme Court, and the career civil service to say no.

    It occurred to me, as I interviewed government veterans and legal scholars, that they might be blinkered by their own expertise when they try to anticipate what Trump would do. All of the abuses they foresee are based on the ostensibly lawful powers of the president, even if they amount to gross ruptures of legal norms and boundaries. What transgressions could he commit, that is, within the law?

    But Trump himself isn’t thinking that way. On Truth Social, in December 2022, he posted that righting a wrong of sufficient “magnitude” (in this case, his fictitious claim of election fraud) “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”

    The “take Care” clause of the Constitution calls for the president to see that laws are carried out faithfully. But what if a court rules against Trump and he simply refuses to comply? It’s not obvious who would—or could—enforce the ruling.

    This article appears in the January/February 2024 print edition with the headline “Trump Will Get Away With It.”

    Barton Gellman

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