Welcome back, Deadline: Legal Newsletter readers. The second Donald Trump administration kept breaking legal ground in its second week, which began with firing prosecutors who worked on criminal cases against him. The new government was busy firing (or trying to fire) disfavored workers across the board in moves that could spark challenges that may end up at the Supreme Court. The purge is just part of the administration’s barrage that could trigger high court showdowns, another being the bid to freeze federal aid.
These actions were foreshadowed in Project 2025, the blueprint that Trump tried to distance himself from during the campaign but is embracing in office.
Firing agency members calls into question precedent going back a century. The high court’s 1935 ruling in a case called Humphrey’s Executor curbed the president’s power to fire independent agency members without cause. While the Roberts Court has expanded presidential power since then, Gwynne Wilcox said she may challenge her removal as a member of the National Labor Relations Board. Whether through any case she brings or the inevitable others to contest protected firings, the court could face a test of how far it will go to boost this line of presidential authority.
The bid to freeze federal aid could also hit the high court. The government withdrew a memo purporting to do so after a judge halted it, but the administration still seems intent on challenging the Impoundment Control Act of 1974. The Watergate-era reform is supposed to stop presidents from hoarding money authorized by Congress (the thing that Trump was impeached for in his first term regarding Ukraine aid). Project 2025 leader Russ Vought, Trump’s pick to head the Office of Management and Budget, said he thinks the impoundment law is unconstitutional.
And don’t forget about birthright citizenship. The president’s attempt to curb the long-standing constitutional protection is still blocked, but it’s due for a trial court hearing next week. That one could be headed for the justices, too.
In the latest Jan. 6 fallout, Trump’s top prosecutor in Washington, D.C., wants to “get to the bottom” of the DOJ’s use of an obstruction charge against Jan. 6 defendants. Interim U.S. Attorney Ed Martin, who previously advocated for Jan. 6 defendants, called the use of the charge a “great failure,” citing the Supreme Court ruling last year narrowing its use. Before that ruling — a divided one, to be sure, with Trump appointee Amy Coney Barrett dissenting in the DOJ’s favor — most judges who reviewed the charge had approved it. But in the context of the president’s mass pardons and the firing of prosecutors who worked against Trump, Martin could be attempting to lay the groundwork for further rewriting Jan. 6 history and retaliating against people who sought to hold his boss and political supporters to account.
Along those lines is Kash Patel, Trump’s pick to lead the FBI. In his confirmation hearing this week, Democratic senators pressed him on his support for Jan. 6 defendants and him taking the Fifth before the grand jury in the Trump classified documents case. Some Republicans have also expressed concerns, including Trump’s former Attorney General William Barr, who previously wrote that Patel “had virtually no experience that would qualify him to serve at the highest level of the world’s preeminent law enforcement agency.” Senate Republicans at the hearing, however, didn’t seem concerned with the nominee, who wouldn’t state directly that Trump lost the 2020 election. Notably, Patel declined to fully embrace Trump’s blanket Jan. 6 clemency, testifying that he disagreed “with the commutation of any sentence of any individual who committed violence against law enforcement.” And who said bipartisanship is dead? While New York City’s indicted Democratic Mayor Eric Adams’ lawyers reportedly met with the DOJ about dropping his case, former Sen. Bob Menendez is pushing for clemency from Trump. After being sentenced to 11 years Wednesday in his corruption case, the long-serving New Jersey Democrat said, “President Trump was right. This process is political, and it’s corrupted to the core. I hope President Trump cleans up the cesspool and restores the integrity to the system.” To the extent that cleanup coincides with upending the 71-year-old’s conviction and stiff prison term, Menendez will also seek relief through more traditional paths in the courts, up through the Supreme Court that has routinely sided with defendants in political corruption cases. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
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.
Latest Post
Recommended
