Welcome back, Deadline: Legal Newsletter readers. When we left off last week, we were waiting for the Supreme Court to weigh in on President Donald Trump’s foreign aid freeze. We were still waiting on Tuesday night, when Trump addressed Congress and then shook hands with the justices in attendance, ending the procession with Chief Justice John Roberts and telling the chief that he “won’t forget.”
Whatever the president meant by that, and whether or not the justices purposely waited until after the speech to rule on the freeze, they finally did so Wednesday morning. They split 5-4 against the administration in the most significant high court action yet in Trump’s second term. The majority — Roberts, Justice Amy Coney Barrett and the three Democratic appointees — declined to reverse a federal judge’s order that the government pay out certain congressionally approved funds, over dissent from four GOP appointees led by Justice Samuel Alito, who said he was “stunned” by the majority’s move.
What left Alito so dazed? Joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, he lamented his majority colleagues’ refusal to intervene against “a single district-court judge” making the government “pay out (and probably lose forever) 2 billion taxpayer dollars.”
To be clear, the money at issue was for already completed work — in other words, the government paying its bills. And recall that the judge whom Alito cast as being out of line, Joe Biden appointee Amir Ali, had declined to hold Trump officials in contempt despite their apparent noncompliance with his temporary restraining order against the blanket freeze. Litigation continues before Ali in the case that could return to the justices, though a majority of them have shown they aren’t eager to jump in and save the administration — not yet, anyway.
The justices seemingly won’t be weighing in again on the other Trump 2.0 case that previously reached them, regarding the president’s firing of independent watchdog agency head Hampton Dellinger. An appellate panel on Wednesday temporarily approved Trump’s bid to remove Dellinger from the Office of Special Counsel. But instead of further pressing his appeal, the Biden appointee said he’s dropping it. Though the appellate action against him was technically temporary, Dellinger said it meant the agency tasked with protecting whistleblowers “will be run by someone totally beholden” to Trump for months before the Supreme Court could resolve the appeal. He said he disagreed with the ruling but that he’d abide by it because “[t]hat’s what Americans do.”
Other legal challenges to Trump’s power are moving forward. Just this week, a trial judge ruled against the president in a big one that could also reach the high court. “An American President is not a king,” Barack Obama appointee Beryl Howell wrote Thursday, rejecting Trump’s bid to fire National Labor Relations Board member Gwynne Wilcox. The case’s fate could hinge on the vitality of a 1935 Supreme Court precedent called Humphrey’s Executor, which has upheld agency independence and is a Republican target that was deemed “ripe for revisiting” by Project 2025.
In the latest from the Trump DOJ, the president’s top prosecutor for the nation’s capital received a constitutional law refresher course. Interim U.S. attorney Ed Martin’s lesson came in a letter from Georgetown Law School Dean William Treanor, in response to Martin’s threat that his office won’t hire from the school unless it halts all diversity, equity and inclusion efforts. The problem with that, Treanor explained in a letter Thursday, is that the First Amendment “guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it.”
And in the ongoing Eric Adams saga, the government has a tough legal position to maintain. The Democratic mayor recently asked U.S. District Judge Dale Ho to dismiss his corruption indictment with prejudice — meaning forever — which is different from what Trump DOJ lawyer Emil Bove had been pushing for. With briefs due to Ho on Friday ahead of a possible hearing next week, how might Bove seek to preserve the apparent quid-pro-quo of a without-prejudice dismissal, which has already led to several DOJ prosecutors quitting instead of supporting what they seemingly saw as a corrupt move by the government? Adams got some notable support for dismissal with prejudice, from the top conservative lawyer Judge Ho appointed to advise him on the matter in light of the prior lack of an adversarial relationship between Adams and the Trump DOJ. Paul Clement, who served as solicitor general during George W. Bush’s administration, recommended the permanent dismissal. In his brief on Friday, Clement wrote that a without-prejudice dismissal “creates a palpable sense that the prosecution outlined in the indictment and approved by a grand jury could be renewed, a prospect that hangs like the proverbial Sword of Damocles over the accused.” Clement said that prospect “is particularly problematic when it comes to the sensitive task of prosecuting public officials.” Now we’ll see if Judge Ho wants to heed Clement’s advice. 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.
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