How can we understand the first 100 days of Donald Trump’s second term through a legal lens?
Sure, judges appointed by Republicans and Democrats alike have rebuked his policies, such as his unconstitutional attempts to punish law firms.
Yet the president’s relationship to the law is best understood not only through his transgressions but also through his lawful, yet equally corrupt, exercises of power and the grey area in between.
Let’s review three early moves that fall along those three lines — the legal, the half-legal and the illegal — all of which speak to his degradation of the system writ large.
The Legal: Jan. 6 Pardons
Presidents have broad clemency power. Trump used it to pardon nearly everyone convicted for offenses related to the events of Jan. 6, 2021, and to commute the sentences of several others. He also presaged his second-term control over the Justice Department by telling prosecutors to dismiss pending charges against Jan. 6 defendants.
Trump doled out this mass forgiveness to people who were not only his political supporters but were something closer to co-defendants. His federal election interference case stemmed from his bid to hold power despite losing the 2020 election, which culminated in that violent day at the Capitol. After he won in 2024, the DOJ moved to dismiss the case because it has a policy of not prosecuting sitting presidents.
But even though he escaped the federal election interference case, the president felt the need to help people who committed crimes on his behalf. And because of his direct tie to those cases, it wasn’t enough to get them off; he had to propound an official narrative from the Oval Office that they should never have been prosecuted to begin with. Thus, his pardon proclamation said it “ends a grave national injustice that has been perpetrated upon the American people over the last four years and begins a process of national reconciliation.”
Of course, it did nothing of the sort. Rather, it was an attempt to rewrite the violent history of that day, casting the perpetrators as victims and, in turn, the chief perpetrator as the chief victim.
The work of Ed Martin, the former Jan. 6 defense lawyer whom Trump tapped for the top prosecutor post in the nation’s capital, is part of this revisionist effort, as well. Martin has spent some of his strange time as interim U.S. attorney trashing the Jan. 6 charges brought by the office he wants to lead full-time, likening the approach it took against Jan. 6 defendants to Japanese internment during World War II.
The Half-legal: the Eric Adams case
Trump wanted the pending Jan. 6 cases dismissed with prejudice — meaning permanently. But his DOJ took a different tack in the Adams case, fighting to dismiss it without prejudice.
Everyone could see it was a corrupt bargain: Such an arrangement would’ve left potential charges hanging over New York City’s Democratic mayor, which the Republican administration could’ve revived at any time if it became displeased with Adams’ cooperation on immigration enforcement.
But judges have been a bulwark. And so it was that U.S. District Judge Dale Ho refused the rotten ask pushed by Emil Bove, one of Trump’s personal lawyers who are now running the Trump DOJ.
Technically, Ho’s refusal was partial. Bove’s ask was legal, insofar as the Biden-appointed judge couldn’t force prosecutors to continue with the case. But that didn’t get the Trump DOJ what it really wanted. When it came to the crucial aspect of how Bove wanted the case tossed — temporarily — Ho held the line and dismissed it permanently. “Everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions,” the judge wrote in the case that caused several career prosecutors to resign rather than do the DOJ’s dirty work. Immigration lurked in the Adams case but it’s at the center of some of the most brazen Trump 2.0 moves. On the same day he pardoned his Jan. 6 confederates, the president purported to curb longstanding constitutional protections for birthright citizenship, which makes people born here citizens. Judges blocked the attempt on a bipartisan, nationwide basis. A Reagan-appointed judge said he couldn’t recall “another case where the question presented is as clear as this one,” calling the move “blatantly unconstitutional.” That was only the start of immigration-related lawlessness this term. The administration went on to summarily take alleged (but unproven) gang members out of the U.S. without due process and deposit them in a notorious Salvadoran prison. Despite court orders, Trump officials have resisted returning Kilmar Abrego Garcia from that country. In another case, a Trump-appointed judge in Louisiana just ordered a hearing “[i]n the interest of dispelling our strong suspicion that the Government just deported a U.S. citizen with no meaningful process” — the U.S. citizen in that case is a toddler, by the way. The list goes on. Meanwhile, the Supreme Court set a rare hearing for May 15 on the president’s challenge to birthright citizenship. But it’s not about the underlying legality of Trump’s move — that would be a harder sell for the administration. Rather, the government is challenging the national scope of the judges’ orders that have halted the policy, calling its request to narrow the nationwide injunctions a “modest” one. Indeed, the government casts the judges who blocked Trump’s unconstitutional policy as the transgressors. The DOJ is represented at the Supreme Court by Solicitor General John Sauer, who represented Trump in his criminal immunity appeal in the federal election interference case, where Chief Justice John Roberts’ majority opinion in Trump’s favor cited “our constitutional structure of separated powers.” In a brief to the justices earlier this month, Sauer said the court’s intervention on birthright citizenship “is urgently needed to restore the constitutional balance of separated powers.” Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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The Illegal: curbing birthright citizenship
