Category Archives: The Scandals

Not (Quite) a Slam-Dunk?

Michael Stern argues that maybe the Trump Family suit against the Family firms’ accountants might not be a clear slam dunk. But then, in an update, he mostly walks that back.

Previously: Bad Claims is the New Trump Litigation Strategy and Other Views on Bad Claims.

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Other Views on Bad Claims

I asked why the Trump Family is making so many bad legal claims all of a sudden, and gave some guesses.  Other people have noticed the trend too, and have their own theories:

Digby says “Barr’s outrageous behavior and the White House attempts to stonewall all forms of oversight are pushing the Democrats toward impeachment, whether they want it or not.”

No word though on whether the strategy to trigger impeachment might be due to a political calculation that it would actually help Trump get re-elected.  I don’t actually buy that, but I can see why it would seem like a way out an increasingly tight political box.  Hey, it worked for President Clinton, didn’t it?

Paul Waldman says the goal is “Delay, delay, delay,” noting a suit I didn’t even mention, the subpoena-blocking lawsuit against his accountants.

I also forgot to mention Trump told all officials in the many departments to refuse to testify [beware video starts automatically]; presumably they’ll try to block the ensuing subpoenas too.  So this is clearly a centrally coordinated strategy, such as it is.

Some other online comment, Jonathan Chait, on the anti-subpoena strategy, “The first thing to understand about this legal theory is that it is not a legal theory. … Trump’s opposition to congressional oversight appears to be an extension of his business strategy of threatening counterparties with expensive, time-consuming lawsuits in order to shirk his obligations. … [T]he courts might take long enough processing the “arguments” that Trump can keep his scandals bottled up until after the election. []Trump’s extreme litigiousness is a natural extension of his general lack of shame.”

And Ian Millhouser at ThinkProgress, “Here’s a pro tip for lawyers: if you are going to ask a court to fundamentally alter the balance of power between the legislative branch and the judiciary, it’s a good idea to accurately describe any Supreme Court cases you rely upon. It’s a bad idea to tell the court that a case that absolutely eviscerates your legal argument is the best thing you have going for you.” That said, after a full-bore takedown of the Trump v. Deutsche Bank case, he ends with this warning, “There is always a risk, no matter how clear the law may be, that this Supreme Court will ignore it.”

Meanwhile, however, stuff like DHS Asserting Broad, Unconstitutional Authority to Search Travelers’ Phones and Laptops is, sadly, just business as usual.

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Bad Claims is the New Trump Litigation Strategy

Post-Mueller, the Trump Family1 has embarked on a novel litigation strategy: bringing really bad claims. Making terrible legal arguments is nothing new for the Trumps, but generally they’ve made those arguments as defendants, often while defending very amateurish and inept attempts to overturn Obama-era regulations. And almost universally, those lost.

Now, however, we see the Trump Family is moving on to offense2, and it’s not pretty: Treasury is setting up to argue it can ignore a quite clear statute requiring the IRS send Congress tax returns. Attorney General Barr, to his shame (if he has any), claims he can dictate to Congressional committees the terms of his appearances. Trump Family companies are suing Democratic House Oversight Committee Chairman Elijah Cummings to block a subpoenas on his finances and suing Deutsche Bank and Capital One to prevent them from complying with subpoenas.

What all these cases have in common is that the legal theories on which they are based are tenuous to non-existent.

What gives? These could simply be Hail Mary passes by the guilty: try this because you have nothing better.  Or they could be plays to delay bad news, maybe even run out the clock until the next election with appeals. Or, worst of all, they could be a cynical calculation that some or all of them might find favor before an increasingly stacked judiciary, and a very pro-Trump Supreme Court.  Or, why not, it could be all of the above.

All of these are bad answers.


  1. I have decided that from now on I will use the Mafia term while blogging, rather than call it an Administration. []
  2. In the legal sense; in every other sense they’ve been there for quite some time. []
Posted in Law: Administrative Law, Law: Constitutional Law, Law: Ethics, Law: Everything Else, Law: The Supremes, The Scandals | Leave a comment

Battle Stations!

Special Counsel Robert Mueller has delivered a report to the Justice Department

This is the report about possible crimes. What we don’t know is whether there will be a second report direct to Congress on the (arguably more important?) counter-intelligence project about foreign attempts to influence the election, and perhaps even more reports.

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Please Don’t Get Used to This

Martin Longman at the Washington Monthly makes an important point:

So, here we have two quotes from the president. They are both short and succinct and as uncomplicated as statements can be:

“I know Matt Whitaker.” –October 10, 2018
“I don’t know Matt Whitaker.” –November 9, 2018

Those two statements would not necessarily contradict each other if they came in reverse chronological order. After all, when you spend some time with someone you had not previously met, then it’s no longer true that you do not know them, but it remains true that you didn’t know them at an earlier period of time. But you can’t know someone in October and no longer know them in November.

[…]

There are a lot of people discussing the constitutionality of putting Whitaker in charge of the Department of Justice and speculating about why it was done and what it might mean. Those are all interesting angles on this story which should be discussed. But I just want to pause for one second to point at those two conflicting statements from the president of the United States.

“I know Matt Whitaker.”
“I don’t know Matt Whitaker.”

He has absolutely no conscience or shame, no pangs of guilt or any possibility of feeling remorse when he contradicts himself like this. Say what you want, but this isn’t normal.

It is far too easy to become inured. Bad things happen if we do.

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“Constitutionally, Matthew Whitaker is a Nobody”

If Neal K. Katyal and George T. Conway III write an op-ed together, you have to figure it’s going to be good.  And oh boy, is it good.

The two dissect the appointment of Matthew Whitaker as acting attorney general of the United States. And they stomp all over it.

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody.

Neal Katyal was an acting solicitor general under President Barack Obama and is a lawyer at Hogan Lovells in Washington. George T. Conway III is a litigator at Wachtell, Lipton, Rosen & Katz in New York. Conway is also a famous spouse and, incidentally, a Yale Law School classmate of mine.

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