Welcome back, Deadline: Legal Newsletter readers. When we left off last week, we were awaiting a Supreme Court ruling on President Donald Trump’s bid to deploy the National Guard in Chicago. We learned this week why that ruling hasn’t come yet and likely won’t come until late November. In the meantime, the administration’s authoritarian tactics came into focus on multiple legal fronts.
In the Guard litigation, the justices issued an order Wednesday that didn’t decide the case but instead asked for more briefing. The upshot is that a lower court order blocking deployment in Illinois is still intact, and the fact that the high court didn’t immediately lift it could be a good sign for Illinois. But we’ll have to see what the justices do after the new briefing is completed Nov. 17. The administration argues that the president has unreviewable discretion to deploy troops.
Turning away from SCOTUS for now, lower court developments underscored the administration’s autocratic approach. One example came in the case of Taylor Taranto, whose Jan. 6 charges were dismissed by Trump’s Day 1 clemency order, but he still faced sentencing for other charges stemming from his actions two years later. Two Justice Department prosecutors were suspended after they filed a sentencing memo stating the plain facts that “a mob of rioters attacked the U.S. Capitol” on Jan. 6, 2021, and that Trump factored into the lead-up to Taranto’s 2023 crimes.
Trump is relevant to the 2023 case because in June of that year, he shared online a purported street address for former President Barack Obama’s home in Washington, after which Taranto reposted the address and was arrested nearby. He was convicted of firearms and ammunition charges, as well as spreading a false bomb threat hoax. On top of putting the two prosecutors on leave, the DOJ withdrew the memo from the court docket and said it was “entered in error.” Then two new prosecutors came in and filed a new memo without the Jan. 6 or Trump references.
Of course, the attempt to erase history backfires, because it necessarily leads us to reassert that Trump lost the 2020 election to Joe Biden and then sicced a mob on the Capitol, where Congress was certifying the results of the election he lost. Apparently, the Trump DOJ’s policy is to avoid mentioning that day entirely, and to otherwise airbrush any embarrassing facts about the president from its legal filings. The judge presiding over Taranto’s case, Trump appointee Carl Nichols, told the government to file a memo explaining why it thinks the initial one should be sealed. We’ll see what the new prosecutors say.
Elsewhere on the autocratic front, scholars of global authoritarianism weighed in on James Comey’s indictment by Trump-installed prosecutor Lindsey Halligan. They aren’t the usual suspects to appear on a criminal court docket. But they wrote to the judge overseeing the former FBI director’s case to warn that it “mirrors many of the features of politicized prosecutions” in the countries they study — namely Hungary, Turkey and Venezuela. Urging dismissal of the indictment, they argued that it’s essential to view the case “in the larger context of how politicized prosecutions are used in autocracies and backsliding democracies and the risks that even one such prosecution poses.” Meanwhile, the president still has his own criminal litigation, which we were reminded of this week with his appeal in the hush money case. It’s the only one of his four prosecutions that went to trial before he won the 2024 election. (His two federal cases vanished because of the DOJ’s policy against prosecuting sitting presidents, and the Georgia state case is in limbo.) In their brief to New York’s intermediate state court, Trump’s lawyers argued that prosecutors wrongly convicted him using evidence of his official presidential acts, in violation of the Supreme Court’s immunity ruling. The justices could have the final word on whether their immunity decision upends the hush money verdict, but it could take a while for the case to get to them. It’s just a few days until the Trump tariffs case gets a high court hearing Wednesday, when the justices will yet again confront the scope of the president’s power. He said he might attend the hearing himself at the court, which remains closed to the public because of the government shutdown. Have any questions or comments for me? Please submit them through this form for a chance to be featured in the Deadline: Legal Blog and 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.
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