Trump vs. The Courts (w/ Nathaniel Zelinsky) | Bulwark on Sunday
YouTube · 8aLU3mypYZM
Quick Read
Summary
Takeaways
- ❖A federal judge ruled against the Trump-appointed Kennedy Center board's decision to rename the institution after Trump and close it for 'renovations,' affirming Congress's naming authority and enjoining the shutdown.
- ❖The Kennedy Center closure was seen as an attempt to hide embarrassment from declining attendance and donor support after Trump's takeover.
- ❖The administration's 'slush fund' involved a $10 billion settlement from a meritless IRS lawsuit, with funds directed to Trump supporters, including January 6th insurrectionists.
- ❖The Justice Department under Trump asserted an extreme 'Article 2' theory, claiming the president can fire any federal employee for any reason or no reason, even for discriminatory reasons, challenging long-standing civil service protections.
- ❖The erosion of internal legal constraints within the executive branch, where lawyers previously advised against unlawful actions, has created an 'honor system' that is failing.
- ❖While courts are providing pushback, their actions are often delayed, and the ultimate solution to authoritarian threats lies with voters and congressional action.
Insights
1Judicial Victory Against Kennedy Center Renaming and Shutdown
A federal judge, Judge Cooper, issued a 90-plus page decision ruling that the Trump-appointed Kennedy Center board acted unlawfully in renaming the center after Trump and shutting it down for two years. The judge affirmed that only Congress can change the name of the institution, which was established as a memorial to John F. Kennedy. The ruling orders the removal of Trump's name within 14 days and enjoins the shutdown, which was perceived as an attempt to hide declining patronage.
The board voted to rename the center after Trump and put his name up the next day. Congressman Joyce Beatty sued, challenging the renaming and the subsequent shutdown for 'renovations' that were typically phased. The judge found that Congress named the center and only Congress can change its name, and the shutdown lacked proper justification.
2Scrutiny of the 'Slush Fund' from a Meritless IRS Lawsuit
The Trump administration created a 'slush fund' by settling a $10 billion damages claim from a meritless IRS lawsuit filed by Trump himself, ostensibly for the leaking of his tax returns. This settlement allowed the administration to distribute funds to supporters, including January 6th insurrectionists. A judge in Florida is now entertaining a motion to reopen the case and investigate potential misconduct, while another judge has temporarily paused fund disbursements.
Trump claimed $10 billion in damages for leaked IRS documents. The IRS had strong defenses (e.g., statute of limitations) that were not used. The settlement created a fund distributed by a board appointed by the Attorney General, operating as a 'black box.' A brief from former judges asked the Florida judge to investigate misconduct, and the government was ordered to reply.
3Extreme 'Article 2' Theory Challenging Civil Service Protections
The Trump Justice Department has advanced an expansive 'Article 2' theory, arguing that the president has the right to fire any federal employee for any reason or no reason at all, even if it's for discriminatory reasons or violates civil service protections. This theory is being litigated in multiple cases involving career prosecutors and immigration judges who were allegedly fired arbitrarily.
In cases like Maureen Comey's and Jackler, the government's position is that the president can fire anyone, regardless of protections from the Civil Service Reform Act, Title VII (anti-discrimination), or the Constitution. This theory is considered baseless, even rejected by Justice Antonin Scalia in his Morrison dissent.
4Erosion of Internal Executive Branch Constraints
A significant problem identified is the disappearance of internal legal constraints within the executive branch. Traditionally, executive branch lawyers would advise against unlawful actions, but under the Trump administration, these checks are gone, leading to 'motivated reasoning' from offices like the Office of Legal Counsel. This creates an 'honor system' that fails when those in power lack honor.
Examples include banners with Trump's face violating appropriations riders, and the OLC issuing opinions directing independent agencies to rule in the president's favor. This contrasts with previous administrations where internal advice guided discretion within legal boundaries.
Key Concepts
Unitary Executive Theory (Extreme Interpretation)
The idea that the President has absolute, unconstrained authority over the executive branch, able to fire anyone for any reason, spend money as desired, and ignore laws, effectively acting as an 'absolute monarch.' This interpretation is seen as deeply antithetical to the Constitution's separation of powers.
Internal Constraints on Executive Power
The traditional system where executive branch lawyers and non-lawyers provide internal checks, advising against unlawful actions and ensuring adherence to administrative procedures and appropriations riders. The podcast highlights the breakdown of this system under the Trump administration, leading to 'shoddy lawyering' and motivated reasoning.
Lessons
- Support organizations and legal efforts that defend the rule of law against executive overreach, as judicial victories can provide crucial pushback and embolden other branches of government.
- Educate yourself and others on the specific legal challenges and the underlying theories (e.g., extreme unitary executive) that threaten democratic institutions, recognizing that these are not just abstract legal debates but have tangible impacts.
- Engage in the democratic process by voting and advocating for congressional oversight, as courts are a trailing solution, and legislative action (especially on 'must-pass' bills) and voter mobilization are essential for long-term systemic health.
Notable Moments
The hosts discuss the Kennedy Center's history of phased renovations, contrasting it with Trump's sudden, complete shutdown, which experts testified was not standard practice for performing arts centers.
This highlights the arbitrary nature of the administration's decision, suggesting political motivation (hiding embarrassment) rather than genuine operational need, and underscores the disregard for established best practices.
The discussion touches on the risk individual district court judges face when ruling against the administration, noting that they can become targets.
This points to the chilling effect and intimidation tactics that can undermine judicial independence, making the judges' decisions even more courageous and critical for the rule of law.
Zelinsky reflects on his 'personal growth' regarding presidential power, recalling his initial lack of concern over President Obama's drone use against American citizens, and now recognizing the danger of unchecked executive authority.
This illustrates how the Trump administration has forced a re-evaluation of executive power across the political spectrum, revealing that what might seem acceptable under one president can be catastrophically abused by another.
Quotes
"Congress named the Kennedy Center for John F. Kennedy, and only Congress can change the name. So, President Trump can't wave a magic wand and rename this institution."
"These are very visible instances of authoritarianism, right? If you treat these things that are in our national trust with such disdain, you're going to treat all the other elements of the office, the presidency, that you hold in trust for the American people with a similar disdain."
"Donald Trump said, I have an Article Two and it lets me do whatever I want. And I think he really believes that, right? He really believes that there are no constraints. And and the positions they're making in court are effectively that there are no constraints that Congress, the courts, the Constitution can impose on the presidency. It's sort of the the idea of the presidency as a sort of absolute monarch."
"We have, you know, functionally almost an honor system where the person who's running it and then all of the underlings don't have any honor. And so, you can't run on an honor system anymore."
"What happens when there is a court order they decide they don't want to follow and they've kind of played footsie with that line... I worry what happens when they just say, well, you know, it's it's Mr. Roberts's court, let him enforce it."
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