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Tag: district judge

  • The Supreme Court broadly expanded Trump’s power in 2025, with key exceptions

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    WASHINGTON — The Supreme Court, led by Chief Justice John G. Roberts Jr., ended the first year of President Trump’s second term with a record of rulings that gave him much broader power to control the federal government.

    In a series of fast-track decisions, the justices granted emergency appeals and set aside rulings from district judges who blocked Trump’s orders from taking effect.

    With the court’s approval, the administration dismissed thousands of federal employees, cut funding for education and health research grants, dismantled the agency that funds foreign aid and cleared the way for the U.S. military to reject transgender troops.

    But the court also put two important checks on the president’s power.

    In April, the court twice ruled — including in a post-midnight order — that the Trump administration could not secretly whisk immigrants out of the country without giving them a hearing before a judge.

    Upon taking office, Trump claimed migrants who were alleged to belong to “foreign terrorist” gangs could be arrested as “enemy aliens” and flown secretly to a prison in El Salvador.

    Roberts and the court blocked such secret deportations and said the 5th Amendment entitles immigrants, like citizens, a right to “due process of law.” Many of the arrested men had no criminal records and said they never belonged to a criminal gang.
    Those who face deportation “are entitled to notice and opportunity to challenge their removal,” the justices said in Trump vs. J.G.G.

    They also required the government to “facilitate” the release of Kilmar Abrego Garcia, who had been wrongly deported to El Salvador. He is now back in Maryland with his wife, but may face further criminal charges or efforts to deport him.

    And last week, Roberts and the court barred Trump from deploying the National Guard in Chicago to enforce the immigration laws.

    Trump had claimed he had the power to defy state governors and deploy the Guard troops in Los Angeles, Portland, Ore., Chicago and other Democratic-led states and cities.

    The Supreme Court disagreed over dissents from conservative Justices Samuel A. Alito, Clarence Thomas and Neil M. Gorsuch.

    For much of the year, however, Roberts and the five other conservatives were in the majority ruling for Trump. In dissent, the three liberal justices said the court should stand aside for now and defer to district judges.

    In May, the court agreed that Trump could end the Biden administration’s special temporary protections extended to more than 350,000 Venezuelans as well as an additional 530,000 migrants who arrived legally from Cuba, Haiti, Nicaragua or Venezuela.

    It was easier to explain why the new administration’s policies were cruel and disruptive rather than why they were illegal.

    Trump’s lawyers argued that the law gave the president’s top immigration officials the sole power to decide on these temporary protections and that “no judicial review” was authorized.

    Nonetheless, a federal judge in San Francisco twice blocked the administration’s repeal of the temporary protected status for Venezuelans, and a federal judge in Boston blocked the repeal of the entry-level parole granted to migrants under Biden.

    The court is also poised to uphold the president’s power to fire officials who have been appointed for fixed terms at independent agencies.

    Since 1887, when Congress created the Interstate Commerce Commission to regulate railroad rates, the government has had semi-independent boards and commissions led by a mix of Republicans and Democrats.

    But Roberts and the court’s conservatives believe that because these agencies enforce the law, they come under the president’s “executive power.”

    That ruling may come with an exception for the Federal Reserve Board, an independent agency whose nonpartisan stability is valued by business leaders.

    Georgetown Law Professor David Cole, the former legal director at the American Civil Liberties Union, said the court has sent mixed signals.

    “On the emergency docket, it has ruled consistently for the president, with some notable exceptions,” he said. “I do think it significant that it put a halt to the National Guard deployments and to the Alien Enemies Act deportations, at least for the time being. And I think by this time next year, it’s possible that the court will have overturned two of Trump’s signature initiatives — the birthright citizenship executive order and the tariffs.”

    For much of 2025, the court was criticized for handing down temporary unsigned orders with little or no explanation.

    That practice arose in 2017 in response to Trump’s use of executive orders to make abrupt, far-reaching changes in the law. In response, Democratic state attorneys and lawyers for progressive groups sued in friendly forums such as Seattle, San Francisco and Boston and won rulings from district judges who put Trump’s policies on hold.

    The 2017 “travel ban” announced in Trump’s first week in the White House set the pattern. It suspended the entry of visitors and migrants from Venezuela and seven mostly-Muslim countries on the grounds that those countries had weak vetting procedures.

    Judges blocked it from taking effect, and the U.S. 9th Circuit Court of Appeals agreed, saying the order discriminated based on nationality.

    A year later, the Supreme Court agreed to hear the case and upheld Trump’s order in a 5-4 ruling. Roberts pointed out that Congress in the immigration laws clearly gave this power to the president. If he “finds that the entry of … any class of aliens … would be detrimental,” it says, he may “suspend the entry” of all such migrants for as long as “he shall deem necessary.”

    Since then, Roberts and the court’s conservatives have been less willing to stand aside while federal judges hand down nationwide rulings.

    Democrats saw the same problem when Biden was president.

    In April 2023, a federal judge in west Texas ruled for anti-abortion advocates and decreed that the Food and Drug Administration had wrongly approved abortion pills that can end an early pregnancy. He ordered that they be removed from the market before any appeals could be heard and decided.

    The Biden administration filed an emergency appeal. Two weeks later, the Supreme Court set aside the judge’s order, over dissents from Thomas and Alito.

    The next year, the court heard arguments and then threw out the entire lawsuit on the grounds that abortion foes did not have standing to sue.

    Since Trump returned to the White House, the court’s conservative majority has not deferred to district judges. Instead, it has repeatedly lifted injunctions that blocked Trump’s policies from taking effect.

    Although these are not final rulings, they are strong signs that the administration will prevail.

    But Trump’s early wins do not mean he will win on some of his most disputed policies.

    In November, the justices sounded skeptical of Trump’s claim that a 1977 trade law, which did not mention tariffs, gave him the power to set these import taxes on products coming from around the world.

    In the spring, the court will hear Trump’s claim that he can change the principle of birthright citizenship set in the 14th Amendment and deny citizenship it to newborns whose parents are here illegally or entered as visitors.

    Rulings on both cases will be handed down by late June.

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    David G. Savage

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  • Supreme Court says Trump may cancel DEI-related health research grants

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    WASHINGTON — A divided Supreme Court said Thursday the Trump administration may cancel hundreds of health research grants that involve diversity, equity and inclusion or gender identity.

    The justices granted an emergency appeal from President Trump’s lawyers and set aside a Boston’s judge order that blocked the canceling of $783 million in research grants.

    The justices split 5-4. Chief Justice John G. Roberts Jr. joined the court’s three liberals in dissent and said the district judge had not overstepped his authority.

    The court’s conservative majority has repeatedly sided with the administration and against federal judges in disputes over spending and staffing at federal agencies.

    In the latest case, the majority agreed that Trump and his appointees may decide on how to spend health research funds allocated by Congress.

    Upon taking office in January, Trump issued an executive order “ending radical and wasteful government DEI programs and preferencing.”

    A few weeks later, the acting director of the National Institutes of Health said the agency would no longer fund “low-value and off-mission research programs, including but not limited to studies based on diversity, equity, and inclusion (DEI) and gender identity.”

    More than 1,700 grants were canceled.

    Trump’s lawyers told the court the NIH had terminated grants to study “Buddhism and HIV stigma in Thailand”; “intersectional, multilevel and multidimensional structural racism for English- and Spanish-speaking populations”; and “anti-racist healing in nature to protect telomeres of transitional age BIPOC [Black, Indigenous, and People of Color] for health equity.”

    California Atty. Gen. Rob Bonta and his counterparts from 15 Democrat-led states had sued to halt what they called an “unprecedented disruption to ongoing research.” They were joined by groups of researchers and public health advocates.

    The state attorneys said their public universities were using grant money for “projects investigating heart disease, HIV/AIDS, Alzheimer’s disease, alcohol and substance abuse, mental-health issues, and countless other health conditions.”

    They said the NIH had terminated a grant for a University of California study examining how inflammation, insulin resistance and physical activity affect Alzheimer’s disease in Black women, a group with higher rates and a more aggressive profile of the disease.

    Also terminated, they said, was a University of Hawaii study that aimed to identify genetic and biological risk factors for colorectal cancer among Native Hawaiians, a population with increased incidence and mortality rates of that disease.

    In June, the Democratic state attorneys won a ruling from U.S. District Judge William G. Young, a Reagan appointee. He said the sudden halt to research grants violated a federal procedural law because it was “arbitrary” and poorly explained.

    He said Trump had required agencies “to focus on eradicating anything that it labels as Diversity, Equity and Inclusion (“DEI”), an undefined enemy.” He said he had tried and failed to get a clear definition of DEI and what it entailed.

    When the 1st Circuit Court refused to lift the judge’s order, Trump’s Solicitor Gen. D. John Sauer appealed to the Supreme Court in late July.

    He noted the justices in April had set aside a similar decision from a Boston-based judge who blocked the new administration’s canceling of education grants.

    The solicitor general argued that Trump’s order rescinded an executive order from President Biden in 2021 that mandated “an ambitious whole-of-government equity agenda” and instructed federal agencies to “allocate resources to address the historic failure to invest sufficiently, justly, and equally in underserved communities.”

    He said the new administration decided these DEI-related grants “do nothing to expand our knowledge of living systems, provide low returns on investment, and ultimately do not enhance health, lengthen life, or reduce illness.”

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    David G. Savage

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  • The Supreme Court Is Shaming Itself

    The Supreme Court Is Shaming Itself

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    Produced by ElevenLabs and News Over Audio (NOA) using AI narration.

    Donald Trump is determined to avoid accountability before the general election, and, so far, the U.S. Supreme Court is helping him.

    Trump has no legal ground whatsoever to delay a ruling in his plea for presidential immunity. The reason Trump has nevertheless sought to slow down the immunity appeals process is obvious: to postpone the trial date, hopefully pushing it into a time when, as president, he would control the Department of Justice and thus could quash the prosecution altogether. The Supreme Court has shamed itself by being a party to this, when the sole issue before the Court is presidential immunity. By contrast, Special Counsel Jack Smith has both law and policy on his side in seeking a prompt determination on immunity and a speedy trial soon thereafter. Yet the Court has ignored all that.

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

    The Supreme Court’s lollygagging is reflected in its scheduling the immunity case for a leisurely April 25 hearing. It’s too late to do anything about that now, but the Court has an opportunity to correct course following oral argument. The justices should press Trump’s counsel on what possible legitimate reason he has to oppose a speedy resolution of the appeal. And then they should rule with dispatch because there is still time, albeit barely, to vindicate the public’s right to a speedy trial.

    Let’s recap how we arrived at the present moment. After Judge Tanya Chutkan ruled against Trump’s claim of presidential immunity on December 1 and Trump appealed that ruling to the D.C. Circuit, Smith asked the Supreme Court to hear the appeal immediately, leapfrogging the delay of the circuit-level argument and decision. Trump opposed that, and the Supreme Court declined Smith’s invitation. The circuit court expedited its appeal and on February 6 issued its decision, again rejecting Trump’s immunity argument in toto. Trump then sought a stay in the Supreme Court, and advocated various measures to slow the Court’s hearing of the case. The Supreme Court then deliberated for a couple of weeks before accepting the case for review, and not scheduling the argument until two months later—on the very last day of oral arguments for this session.

    Were he not seeking to avoid any trial in advance of the general election so he could maximize the chances of becoming the next president of the United States, Trump would have an interest in a speedy resolution of the immunity question, in contrast to the foot-dragging positions he has advocated throughout the litigation of this issue. Anyone with a legitimate claim of immunity has every interest in not suffering a single day more under the opprobrium of multiple criminal charges, not to mention being under pretrial bail conditions and a gag order. (Trump’s lawyers have argued against his existing gag order, saying it sweeps so broadly as to undermine their client’s ability to campaign for the presidency.)

    The law itself recognizes the need for speed on this issue. With questions of immunity, courts permit an appeal in advance of a trial and forgo the usual rule that appeals are permitted only after a verdict is reached. The hope, in allowing for this, is to relieve someone from the opprobrium and burden of a trial, if the defendant is indeed immune. For the Court to set such a prolonged schedule—antithetical to the appropriate time frame for the only issue actually before the justices—speaks volumes about the role the Court has chosen to play in advancing the interests of the former president over the rule of law.

    The government has its own interests in seeking a prompt resolution of the immunity issue and a speedy criminal trial (and it has the same interest as a defendant in not subjecting someone to criminal charges who is immune from prosecution). But before delving into the government’s interests, let’s first dispense with a red herring: Special Counsel Smith is not disputing that Trump should be accorded sufficient time to prepare for trial. An inviolable constitutional safeguard is that all criminal defendants must be able to exercise their procedural rights to prepare. Judge Chutkan already weighed the parties’ competing claims. Her decision on a trial date fell well within the mark for similar cases, and that ruling is not on appeal (despite the Supreme Court’s behaving as if it were).

    The district judge’s selected timeline (seven months from the August 1 indictment), in a case whose facts and substantial evidence were already available to the defendant, was longer than deadlines set all around the country. By way of comparison, next door in the more conservative Virginia district, defendants routinely go to trial at great speed, without conservative commentators going to the barricades over alleged violations of the rights of the accused. That Trump is a rich, white, and politically powerful man does not mean he should be accorded more (or fewer) rights than others. And Chutkan has said that when the case returns to her, she will give Trump more time to prepare.

    David A. Graham: Judge Chutkan’s impossible choice

    With Trump’s rights intact, then, Smith has several legitimate grounds for the immunity appeal to be decided expeditiously and a trial to start as promptly as possible. DOJ internal policy prohibits taking action in a case for “the purpose of” choosing sides in or affecting the outcome of an election. That is unquestionable and not in dispute here. Rather, the point is that well-established neutral criminal-justice principles support a speedy trial. This trial’s outcome, of course, is not known in advance, and it may lead some voters to think better or worse of the defendant and the current presidential administration depending on the evidence and the outcome.

    Moreover, the public has a profound interest in a fair and speedy trial. As Justice Samuel Alito wrote for a unanimous Supreme Court, the Speedy Trial Act “was designed not just to benefit defendants but also to serve the public interest.” The refrain that “justice too long delayed is justice denied” has unmistakable resonance in this criminal context. The special counsel’s briefs in the D.C. case are replete with references to this well-settled case law. This means that even when the accused is seeking to delay his day in court, that “does not alter the prosecutor’s obligation to see to it that the case is brought on for trial,” as the Supreme Court has well articulated. Many defendants seek to avoid the day of reckoning—hence Edward Bennett Williams’s famous quip that for the defense, an adjournment is equivalent to an acquittal. The law provides that the public, the prosecution, and most emphatically the courts need not oblige that stratagem.

    What’s more, when a defendant seeks to postpone a trial until a point at which he can no longer be prosecuted, the Justice Department may request the trial be held before that deadline. The DOJ’s interest in deterrence and accountability warrants this action. If Trump should win the election, he will become immune as president from criminal trial for at least four years (and perhaps forever by seeking dismissal of the federal case with prejudice or testing the efficacy of granting himself a pardon). The Justice Department can accordingly uphold the public interest in deterrence and accountability by seeking the prompt conviction of the leader of an insurrection. This DOJ need not advance the goals of a future administration led by that very “oathbreaking insurrectionist.”

    Another objective of criminal punishment is “specific deterrence,” ensuring the defendant herself does not commit offenses in the future. Given the grand jury’s determination that Trump committed felonies to try to interfere with the 2020 election, there are strong law-enforcement reasons to obtain a conviction to specifically deter Trump. Indeed, in proposing a trial date to Judge Chutkan, Smith quoted Justice Alito, on behalf of the whole Court, that speedy trials “serve the public interest by … preventing extended pretrial delay from impairing the deterrent effect of punishment.”

    Trump’s public denigration of the legal system—the incessant claims that the criminal case is a witch hunt—also gives a nation committed to the rule of law a vital interest in holding a public trial where a jury can assess Trump’s actions. Trials can thus serve to restore faith in the justice system.

    It is worth noting that when the government seeks its day in court, it simultaneously affords the defendant his day in court—providing him more process, not less. Indeed, the Department of Justice’s so-called 60-day rule—which generally forbids it from taking overt actions in non-public cases with respect to political candidates and closely related people right before an election—is there to avoid a federal prosecutor hurling untested new allegations against a political candidate precisely because he would not have time to clear his reputation before the election. Here, the government is seeking to provide just that forum for Trump to clear his name before the election—to test the criminal allegations against the highest legal standard we have for adjudicating facts—and yet right-wing critics attack Smith. Trump of course wants to avoid that test, but that is an interest the courts should abjure.

    The justices still have time to get back on track. Trump’s claim that presidents have absolute immunity should be an easy issue to resolve given these criminal charges. Whether a president should have criminal immunity in some specific circumstances is an abstract question for another day, because efforts to stay in office and use the levers of the presidency are certainly not those specific circumstances. The appeals have delayed matters long enough at the expense of the right of the American people to a fair and speedy trial. Let them not stand in the way of ever having a trial at all.

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    Andrew Weissmann

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  • How Trump Gets Away With It

    How Trump Gets Away With It

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    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

    Check out more from this issue and find your next story to read.

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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.”

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    Barton Gellman

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