DON'T COUNT ON COURTS TO STOP MOST OF TRUMP'S WORST EXCESSES
The mantra of many fearing Donald Trump's disregard for the rule of law is the courts are doing their job and will rein in the worst excesses.
They may be, as a Harvard law professor writes, "the last bulwark." They clearly are trying to do their job facing almost 300 lawsuits that have been filed against Trump. Only a fraction of these have been decided usually with temporary restraining orders and the vast majority have gone against the President, including from judges he appointed.
Yet I doubt the courts will rein in Trump' worst excesses. He has big advantages speed, a disdain for the rule of law and process.
The Trump machine, in general, can move faster with lawless thunderbolts than the more deliberative courts can.
On issues ranging from terminating congressionally-approved agencies and personnel, impounding appropriated funds, to deporting migrants without due process, to assaults on private entities, law firms and Universities, there is little indication that Trump has been thwarted or even slowed.
Retired Federal Judge J. Michael Luttig, a conservative icon, wrote a powerful piece for the Atlantic on Trump's disdain for the rule of law. Several times he told me he had to add material when Trump did something else unconstitutional.
Moreover, even if/when the courts side with the plaintiffs, much of the damage is already done. His dismantling of agencies like USAID or all the National Institute of Health grants and scientists that have been dismissed will take years to recreate.
Take the law firms. The four firms that stood up to Trump's attempt to dictate their internal policies seem almost certain to win their challenges. A Republican judge this week ruled the order targeting Wilmer Hale -- which had employed special counsel Robert Mueller -- was unconstitutional, an infringement of the First Amendment. Two other of these firms won similar judgements.
I don't think Trump will appeal those court rulings all the way to the Supreme Court. He's already counting his victories.
Nine of the largest law firms have capitulated to Trump's demands and committed almost a billion dollars of work for his causes. Trump now owns them.
Other firms have told their lawyers not to speak out against the Administration's policies and are turning down the sort of pro bono work they used to do challenging Trump actions.
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With Universities, he also has won. Columbia caved in to his demands for changes in their policies to his satisfaction.
The big enchilada is Harvard, the most prestigious and richest University. After refusing to kowtow to a chilling set of demands, Trump is terminating federal research grants and outlawing international students there which comprise more than a quarter of the student body.
Trump figures if he can crush Harvard, no one will stand up. The University already has won one temporary restraining order and may well prevail overall. It will be at a steep price.
Top officials at two Universities who so far have escaped Administration scrutiny, say the word is keep your head down and minimize Trump criticism.
Ultimately the big legal questions will be decided by the Supreme Court. Two highly respected retired federal judges (Luttig is not one) assure me the politicalization of the High Court is exaggerated and ultimately it will get most of it right.
They are much more knowledgeable and smarter than I am. Their loyalty to the institution, I fear, clouds their judgement.
I think the Republican roots of a majority of these Justices matters. In a recent ruling allowing Trump to fire officials at supposedly independent agencies, Justice Elena Kagan noted the opinion of the Republican majority "favors the President over our precedent."
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Trump starts, in most cases, with four almost automatic votes: Justices Thomas, Alito, and Gorsuch. And Brett Kavanaugh's roots are as a Republican operative. Shortly after he was confirmed for the High Court, I somehow attended a right wing holiday party with the likes of Stephen Miller and Matt Schlapp. As I was in line to get a drink there was Kavanaugh.
Justice Barrett, a social conservative is less certain on the rule of law issues. The key is John Roberts .
The Chief Justice, sources who know him say, has contempt for Trump and his vicious attacks on judges who rule against him. But Roberts knows history will be unkind to a court seen as powerless. That may make him more reticent to seriously challenge the President, knowing that Trump may game, even stiff, any negative decisions; Vice President Vance has actively raised that possibility.
In early April, the Supreme Court ruled the Administration had to "facilitate" the return of Kilmar Garcia who was illegally deported to El Salvador. They were affirming lower court decisions including a powerful opinion by conservative Appeals Court Judge J. Harve Wilkinson accusing the Administration of ignoring even "the semblance of due process that is the foundation of our constitutional order."
More than seven weeks later Garcia still sits in one of El Salvador's notorious prisons.
