There’s a classic story often used to define the Yiddish word “chutzpah”: A boy is accused of murdering his parents, only to turn around and beg for mercy because he’s (now) an orphan. But future generations may instead use a (real) story of Texas, and a friend of the court brief produced by the state’s Attorney General Ken Paxton last week.
Ostensibly filed in support of former President Donald Trump’s idiosyncratic challenge to the August 8 search of his Mar-a-Lago property, the brief had nothing at all to say about the legal issues raised.
Ostensibly filed in support of former President Donald Trump’s idiosyncratic challenge to the Aug. 8 search of his Mar-a-Lago property, the brief, which was joined by 10 other red states (Florida, Indiana, Kentucky, Mississippi, Missouri, Montana, Louisiana, South Carolina, Utah and West Virginia), had nothing at all to say about the legal issues raised in Trump’s case. Instead, over 10 pages of what might be called “argument,” the brief offered a laundry list of political complaints about the Biden administration — all of which, Texas argued, should lead courts to doubt federal government claims. As a rant masquerading as a legal filing, it was unbecoming of any lawyer. As a brief signed by the attorneys general of nearly a dozen U.S. states, it was indefensible.
The actual issue before the 11th Circuit last week was whether the federal government was entitled to a partial stay of an injunction entered by Judge Aileen Cannon — which had blocked the Justice Department’s access to documents seized during the Aug. 8 search as part of an ongoing criminal investigation. The government responded that it only needed access to roughly 100 documents with classified markings on them, and in a thorough (and analytically devastating) 29-page opinion, the three court of appeals judges (two of whom were appointed by Trump) unanimously sided with the federal government.
Against that backdrop, the Texas brief is almost hard to even describe. The brief doesn’t acknowledge the underlying dispute; it offers no argument in defense of the merits of Judge Cannon’s decision (or of Trump’s conduct); indeed, the word “classified” doesn’t appear once in the entire filing. In the “interest of amici curiae” section, which is where the brief is supposed to explain the connection between the friends of the court and the underlying dispute, Texas went full Fox News and framed the purpose of the brief as highlighting “how the Administration’s conduct in connection with this case is of a piece with the gamesmanship and other questionable conduct that have become the hallmarks of its litigating, policy-making, and public-relations efforts. At a minimum, this Court should view the Administration’s assertions of good-faith, neutrality, and objectivity through jaundiced eyes.”
Aside from confusing “jaundiced” with “jaded,” there are only three problems with this argument. First, it’s nonsense. The “questionable conduct” to which Texas spends the rest of the brief objecting is ordinary litigation and regulatory behavior by the executive branch with which Texas just happens to disagree. Indeed, the very first example the brief invokes involves a case in which the Supreme Court ruled for the Biden administration (and against Texas).
The second example — the Biden administration’s efforts to roll back a controversial Trump-era immigration policy — is, again, something every administration does. Texas is just mad that it succeeded. And so on. The entire brief is basically a laundry list of policy disputes between Texas and the federal government, not evidence that the Biden administration has done anything unlawful or illegitimate. If these kinds of policy disputes are reason enough for a group of states to challenge the legitimacy of any representations by the executive branch going forward, we might as well give up on ever allowing the executive branch to do anything again.
Second, this argument is irrelevant. Even taken at face value, none of Texas’ critiques of the Biden administration’s behavior has anything to do with the federal agency actually involved in the Mar-a-Lago case — the FBI. Consider the paragraph on page 9 that goes off on whether the federal government funded any of the research at the lab in Wuhan from which Covid-19 apparently originated. Never mind that any such funding would have long pre-dated the Biden administration; the brief doesn’t even try to connect those Covid claims to whether FBI agents acted appropriately at Mar-a-Lago. And for good reason.
Third, this argument is the apex of hypocrisy. In the first 18 months of Biden’s presidency, Texas alone has filed 28 lawsuits against his administration. And of the 20 filed in Texas district courts, state officials have shamelessly manipulated a quirk in Texas procedural rules that allows them to hand-pick most of the judges hearing the disputes. By filing in cities like Amarillo, Lubbock and Victoria (instead of Austin, Dallas or Houston), Texas has a 95% or better chance of drawing specific, Trump-appointed district judges. Worse still, in the rare cases where the state receives an unlucky judicial draw, it has tried to belatedly identify reasons why the case should be transferred to one of the same Trump-appointed judges. I’ve written before about why this behavior must not be rewarded by the courts — and why such transparent judge-shopping (as opposed to the forum-shopping engaged in by all sides) seriously undermines the integrity of the judicial process. The hypocrisy of Texas calling out anyone else for engaging in litigation “gamesmanship” is farcical. Those who live in the glassiest of houses ought to have a bit more humility about throwing stones. In the end, Texas’s brief didn’t matter. The 11th Circuit emphatically sided with the federal government — and against Trump and Judge Cannon. Its opinion never specifically acknowledges that the chief law enforcement officers of 11 different states had the temerity to file such a brief. But while the brief didn’t impact the outcome of the appeal, it should not be ignored. The lawyers who signed this brief aren’t just partisan political officials; they are officers of the court and should’ve known better. Apparently not, though. Just two days later, Texas was at it again — filing an amicus brief on behalf of 10 red states arguing that the 11th Circuit should protect South Carolina Sen. Lindsey Graham from having to testify before a Georgia grand jury investigating interference in the 2020 election. Increasingly, it seems that any legal dispute with partisan political implications anywhere in the country is one in which Texas believes it has an interest. Talk about chutzpah.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
