Yesterday Neal Katyal, a former Acting Solicitor General, and Josh Geltzer, Executive Director of the Institute for Constitutional Advocacy and Protection, penned a piece for The Atlantic on why Trump keeps losing at a conservative Supreme Court. "The legal reasoning may look like it turns on obscure technicalities," they wrote, "but the administration’s cases are falling apart because of something much more deeply wrong... Trump keeps losing not because of something obscure, but because of something fundamental: his abuse of the executive branch. Much of his administration’s approach to governance rests on attempting executive actions that lack any meaningful justification rooted in expertise, or even rational thought."
Trump’s abuse of the executive branch is one of the most damaging aspects of his presidency, because it rejects a reasoned approach to making government policy. Trump has made clear-- most notably during the impeachment process-- that he disdains the civil servants who bring deep expertise and valuable experience to important policy questions. So it’s not surprising he blew off their advice that adding a citizenship question to the census would not help in any meaningful way and would harm the core enterprise of the census itself. Trump doesn’t care what they have to say, and his Cabinet members—like the commerce secretary-- seem not to care, either. Such disregard is not merely some technical violation-- it’s a body blow in Trump’s assault on civil servants.This is part of Trump’s bigger disregard for law and process. Trump has made clear time and again that he doesn’t really care what the law says... Trump doesn’t see law as a constraint, but something to be manipulated-- and that’s clearly a message his Cabinet seems to have received. Consequently, they play fast and loose with the law. The Court, in this decision and last year’s, is essentially saying that the law still matters.Ultimately, that’s precisely what’s at stake as long as Trump is president. If all that matters is a president’s policy preferences, then law-- including judicial review-- is basically a facade: Dress it up enough, and it’ll pass muster. But if law matters-- if building a record and considering facts and providing honest reasons matter-- then Trump is sure to keep losing.
Once Trump realized he couldn't manipulate U.S. Attorney Preet Bharara he fired him and quickly called in Geoffrey Berman-- a long time Republican campaign donor who had maxed out to Trump and who had worked as a volunteer on the Trump transition team-- for an interview. Satisfied that he could manipulate Berman, he had Attorney General Pete Sessions appoint him to head the Southern District of New York-- at the same time he appointed 16 others to head DOJ offices around the country on an interim basis until the Senate could confirm them; Trump never formally nominated any of them and the Chief Judge of the Southern District of New York, acing on behalf of a unanimous court, then appointed Berman U.S. Attorney until the Senate confirms someone nominated by the president.Berman soon started investigating Trump cronies and allies, including Trump fixer Michael Cohen, Rep. Chris Collins (R-NY), far right domestic terrorist Cesar Sayoc, Putin assets Natalia Veselnitskaya, Lev Parnas and Igor Fruman, Halkbank, the largest state-owned bank in Turkey-- causing Trump difficulties with Turkish autocrat and Trump briber Recep Tayyip Erdoğan-- and Trump procurer Jeffrey Epstein, whose case resulted in the firing of Trumpist Labor Secretary Alex Acosta. And... Giuliani.Trump wanted him gone and on Friday night he was preemptively fired by Trump hatchet man William Barr, who called it a "resignation." That sparked this popular meme to start trending on social media:Barr indicated that Trump intends to nominate the lapdog SEC chairman Jay Clayton to replace Berman-- who has exactly ZERO prosecutorial experience, exactly the kind of prosecutor that would be ideal for Trump's purposes. Meanwhile, Berman at first publicly refused to vacate the office and said that until a presidentially appointed nominee is confirmed by the Senate, the office’s "investigations will move forward without delay or interruption." Presumably, one of those investigations is of great concern to Señor Trumpanzee. By late yesterday, Berman, no doubt under immense pressure, had folded and agreed to step down. Interestingly, Trump claimed he had nothing to do with the firing and Barr claimed that he was ordered to fir Berman by Trump. Jim Himes is a senior member of the Intelligence Committee and chair of its Subcommittee on Strategic Technologies and Advanced Research. Saturday morning he told me that "The AG’s foolish attempt to forcibly 'resign' the US Attorney must be investigated by the Congress. Neither Barr nor anyone in the White House gets the benefit of the doubt anymore. If Barr’s action was designed to protect the President from investigation he should resign."I look forward to the day that Texas progressive congressional candidate and former Austin City Attorney Mike Siegel is serving on the House Judiciary Committee. I asked him how he reads this DOJ mess. He got right to the point-- and fast-- telling me that "Protecting our democracy can’t wait for the electoral cycle. AG Barr is undermining the rule of law, debasing the DOJ and turning federal prosecutors into Trump’s personal minions. The House should impeach Barr and until then, use every tool at their disposal to impede his corrupt abuses."Ted Lieu is co-chair of the Democratic Policy and Communications Committee, which helps the House Democrats formulate messaging. I hope his tweets this weekend are indicative of how the whole caucus feels about Trump and Barr firing Berman. Lieu, a prominent member of the House Judiciary Committee, sent his first tweet on the scandal almost immediately after the attempt by Barr to deceive the American people and make it look like Berman had resigned: "Wow, not only is US Attorney for SDNY Geoffrey Berman not resigning, he went out of his way to say that SDNY’s investigations and important cases will continue unimpeded. Was Bill Barr of the Justice Department trying to obstruct an investigation or case by attempting to fire him?"An hour later he addressed other Department of Justice employees directly, reminding them that "All of you took an oath. That oath was not to Donald Trump or Bill Barr. It was to the Constitution. If Trump or Barr gives you an order that conflicts with the Constitution or statutes, I urge you to follow the example of US Attorney Berman."Then in the wee hours of the morning he tweeted directly at those same employees again: "There is a 16 alarm fire due to the perversion of DOJ by Bill Barr. I urge you to file motions with the courts ASAP; use whistleblower statutes; report to IG; or contact the House Judiciary Committee. Do everything you can to ensure the rule of law is followed."After some sleep and, presumably further reflection, Lieu tweeted that "We are witnessing the most corrupt Administration in US history. Donald Trump and Bill Barr have repeatedly fired government officials to protect themselves or their friends. From the FBI Director to multiple Inspectors General to Jessie Liu to the attempted firing of Berman."Late Saturday, following a day of chaotic Trumpian melodrama, Lieu tweeted "Bill Barr will not investigate himself. But we on the House Judiciary Committee can and will investigate him. The spectacle he created in firing US Attorney Berman is part of a broader pattern of apparently corrupt behavior where Barr has intervened to protect Donald Trump and his friends."
