Trump 2.0: A Showdown With the Judiciary

0:28Hi, Molly. Okay, the court, yeah, the Supreme Court, the judicial branch, there is a lot going on there, too, right now. There is indeed. It's really heating up. Did you see this statement from the chief justice? I did see it. A pretty remarkable statement this week from the Supreme Court chief justice, John Roberts, who, you know, was nominated by a conservative president, generally votes with the conservatives on the court. But this statement essentially was calling out President Trump. Is there a showdown coming between the executive branch and the judiciary? I think it's already here. It's happening.

1:04And it feels it's consequential and it's intentional. This is something that the administration has put into motion on purpose in order to both advance their agenda and potentially change legal precedent.

1:23From the Journal, this is Trump 2.0. I'm Ryan Knudsen. And I'm Molly Ball. It's Friday, March 21st.

1:35Coming up, a breakdown of our March Madness brackets. Just kidding. We're going to talk about the Trump administration's friction with the courts. Go Ducks, though.

2:00All right, so we're going to talk about the highest court in the land, the Supreme Court, and the rest of the judicial system. And to help us understand what's going on, we're joined by our colleague Jess Braven, who covers the Supreme Court. Hey, Jess, thanks for being here. Great to be here. Hi, Jess. By the way, speaking of March Madness, I do have to point out that there actually is a basketball court in the Supreme Court building. You're kidding. Yes, there is over the Supreme Court room. And they call that the highest court in the land. Wait, over the Supreme Court chamber, like there's a basketball court up there?

2:32Yes, there is. Yes, there is. RBG famously frequented it, right? She was not really known for her shots, but she did do some workouts there. And Justice Sandra Day O 'Connor used to have a yoga class up there. But my guess is that they built it just because they wanted to be able to say highest court in the land. I think that that may be part of the reason. To really make it the highest court in the land, Supreme Court decisions have to be appealable to the basketball court, right? So if you don't like your decision from the Supreme Court, you can settle it in like what do you call a basketball score?

3:04Get a free throw and sort of you can overrule. I want to see Donald Trump play basketball one-on-one against John Roberts, the chief justice. and then we'll see who gets to decide. I mean, these separation of powers questions have no easy answers and that might be the way to settle them. All right, well, I could talk about basketball all day, but it's time to get serious. We started out by talking about this statement from Chief Justice John Roberts where he effectively rebuked President Trump after Trump on Truth Social called a judge a left-wing lunatic and said that he should be impeached for ruling against the administration's latest deportation efforts.

3:44Jess, can you just bring us up to speed here? What is the series of events that led us to the Chief Justice putting out this statement? Sure. Obviously, we know this administration has a very, very harsh view of illegal immigration and immigration rights in general. The ACLU got wind of the plan to invoke the Alien Enemies Act as a way to essentially short-circuit immigration procedures to use an emergency kind of wartime power to remove enemy aliens without going through immigration courts and the usual process. So they then filed an emergency motion in the federal district court in Washington, D.C., asking for an order to stop the government from doing this.

4:28And the judge said, all right, well, slow down. I'm going to issue an order to, you know, pause this for 14 days so I can consider these legal arguments. And this is district court judge James Bozberg, who is an Obama appointee, correct? He's the one who's been the main target of Trump and other conservatives' anger here? Yes, he is. That's right. He's an Obama appointee. He actually was a George W. Bush appointee to the local municipal court in Washington prior to that. But yes, Obama put him on the federal district court in 2011. So after the judge issued this order, what happened next? There is some opacity about exactly what happened next.

5:08the administration went forward with its removal of these Venezuelan migrants to a prison in El Salvador. And they say that they did not disobey the judge, although the judge verbally said, don't take off the plane, turn the plane around if it's in the air. The administration says they didn't disobey the judge, that his order was not final until it was reduced to writing. And the written version didn't say anything about turning around a plane. And so they complied with his order. So there's two things about this case that are significant. One is the fact that it ultimately led to the statement from the chief justice, but then also that the Trump administration seems like they may have ignored potentially a court order here.

5:49How significant is that second aspect of it? Well, it's very significant if they did, in fact, ignore a court order. Now, they're going to say, I mean, they are saying that there was not a valid court order in effect when they did what they did. But they also say that he, that this is, that this judge doesn't have the authority to do it. So they're sort of saying both things. One, he issued an illegal order, so therefore we wouldn't have to follow it anyway. But also, we didn't disobey his illegal order. I mean, that's essentially what they're saying. The judge has asked the government to clarify exactly what it did when, and the government is resisting saying that's national security information that they don't have to disclose to the judge.

6:28The judge says he was, you know, he was on the Foreign Intelligence Surveillance Court. He was, you know, he has a security clearance. He's frustrated. And so we don't know where that's going to end up. So after that little spat, Trump went on Truth Social and heavily criticized the judge, as we've been talking about. He said nobody voted for him. He said he was crooked. He said he was a troublemaker. And he said the judge should be impeached. And that's when Roberts issued this statement that said, and I will just read it out loud, for more than two centuries, it has been established that impeachment is not an inappropriate response to disagreement concerning a judicial decision.

7:03The normal appellate review process exists for that purpose. Jess, like reading between the lines here, what is Robert's thinking here? What is he trying to say with his statement? Well, he's trying to say that this is going to DEFCON 1 over the kind of legal dispute that is really quite routine. You know, judges issue preliminary orders in cases all the time. Those often do not reflect the final disposition of a case. Often the very same judge, when he gets into further deliberation and reviews all the arguments, will reach a different decision. So temporary orders at the outset of lawsuits are quite common.

7:39And the entire legal system is premised on the idea that there will be appeals. Everyone is entitled to an automatic appeal of a district court to a circuit court, and then the Supreme Court exists above that. So the idea that the judge issues an order that you disagree with, even if you think it is, you know, incredibly mistaken, impeachment is not the remedy. And we know that because there have only been 15 judges impeached since 1789, eight of which were ultimately convicted by the Senate and removed from office. And they were people who, you know, were, had also been convicted of crimes or other kinds of true misconduct, not simply making a decision that the president thinks is egregiously wrong.

8:23So that is what the chief justice is saying, that, you know, there is a process for resolving these things and immediately calling for the impeachment of a judge because you lost an early round in court strikes him as inappropriate. Molly, do you have any sense of whether or not there's an appetite in Congress for impeaching Judge Boasberg or any other judges? So several House Republicans have now introduced impeachments against different judges, actually. Generally, it doesn't seem like something that the Republicans in Congress have much of an appetite for. It is a quite high bar for impeachment.

9:00The House has to pass it and then two-thirds of the Senate has to approve it, similar to a presidential impeachment. And I would say the Republican leadership in the House believes that the votes aren't there for this to get through the House in their narrow majority. and also that it's a distraction from the other things they're trying to do. They have their hands full with their legislative agenda, and they don't view this as something they should be spending time on. I'll put this question to either of you, but do you think the Trump administration has a goal? Do you think there's something specific that the Trump administration wants to see?

9:36Like, only the Supreme Court can rule, or what's the thing that they want out of this question? Well, they want courts to stay out of their way. I mean, their messaging, we don't know what kind of subliminal or psychological effect, but this is a very, very combative administration. I mean, their rhetoric is not we respectfully disagree with the court and intend to appeal. Their rhetoric is this judge is a lunatic and should be impeached. So they are sending a message to the courts that stay out of our way, just as they've done to other opponents. They don't seem to have a concept of a loyal opposition.

10:17Any opposition is, by definition, disloyal, I think, in their view. So, yeah, there's that. Now, that's the general, I think, atmosphere that they want to promote. In terms of their legal objectives, they have a very, very strong view of executive power. They know that several members of the Supreme Court share that view, at least in theory, about how the separation of powers should be interpreted. and they are hoping that the cases that inevitably are arising from many of their very aggressive assertions will lead to new precedents that bless their approach to running the government. So yes, I think that's their legal objective and I think they're likely to win on some of their arguments.

11:00I can't say they're going to win on all of them, but some of them, I think they have a very good chance of prevailing. As a legal matter, there is a legitimate argument out there about national injunctions, right? That maybe a federal judge in Texas or San Francisco or wherever shouldn't be able to tell the federal government to stop doing something. There certainly is. And the Supreme Court itself has raised questions about the propriety of nationwide injunctions. It is a good question, and it is one that could be resolved in a couple of ways. One, the Supreme Court itself can set out new guidelines for when those kinds of injunctions are appropriate.

11:35And also Congress can. Congress can set the rules for federal courts, and I think there is some talk of doing that. There is a serious legal question about should a single judge, often picked because the parties who are filing the lawsuit think that judge will be sympathetic, be able to stymie an entire initiative of the government. Well, and this is the sort of ultimate confrontation that everyone seems to be sort of girding for, right? I mean, it's been really interesting to me that you've had people high up in the administration, including Vice President J.D. Vance, you know, quoting that apocryphal Andrew Jackson statement, the chief justice has made his ruling, let him enforce it.

12:14But when Trump is asked this question, he's repeatedly backed down. He'd say, oh, no, that's something you can't do. You can't just disregard something the court has said. How serious a possibility is that? And would that constitute a constitutional crisis? Well, I think the answer is, of course, it depends. I mean, is it a kind of soft noncompliance, which actually is not that unusual? I mean, you know, there are a lot of court orders that don't get fully carried out by the government, you know, all the time. And courts don't have a perfect way of assessing whether that goes on. Or is it just, you know, a flat-out defiance of a Supreme Court directive?

12:52As you said, the president has not gone that far at this point. Some of his nominees, though, left open the possibility that there were circumstances when they wouldn't have to comply with a court order. This came up at the Senate Judiciary Committee hearing when the nominee for Solicitor General and a nominee for Assistant Attorney General were asked flat out, you know, are there circumstances when you don't have to obey a court order? And they hedged. You know, they said, well, we don't want to talk about hypotheticals or, you know, there's a big debate about that. Or, you know, they kind of left it open.

13:24Bottom line, should an elected official be allowed to defy a federal court order? It would be too case-specific for me to make a blanket statement about that. And interestingly, there was even a Republican Senator, John Kennedy of Louisiana, who scolded them. don't ever, ever take the position that you're not going to follow the order of a federal court. Ever. Now, you can disagree with it. Within the bounds of legal ethics, you can criticize it. You can appeal it. or you can resign. So even a Republican senator pushed back on that. So I don't know if they have a decision about what they're going to do or how important it is.

14:21If they believe that there is a core national security power of the president that is at issue and that the safety of the country is at stake, would they think that are grounds to defy a court order? I don't know. Okay, we are going to take a quick timeout. and when we come back, we'll talk about how the Supreme Court's immunity ruling for the president last year is impacting things today and we'll also do a pulse check on the Democrats.

15:01The other thing that the Trump administration has been doing in the realm of the legal system is going after individual law firms. There was this order against Perkins Coie, another one against Paul Weiss that effectively made it impossible for those firms to interact with the federal government. What is the justification, Jess, for these actions? And what impact is it having on the legal system? That is definitely a novel policy of the Trump administration to target individual law firms in this way. The justification is that the president doesn't trust these law firms And he has cited their activities against him personally, like in an order that he issued against the law firm Paul Weiss.

15:44He named one of their lawyers and said, this person, you know, tried to like gin up a prosecution of me and he is a untrustworthy, crooked lawyer. And so it is the president's determination that these law firms are security threats and can't be trusted. Perkins has gone into court to get that order lifted and won a temporary order lifting portions of the president's order. But it is, again, a very strong message that the administration views people who file lawsuits against it or people who have taken legal action against the president as enemies. And they are not pulling punches in using their powers.

16:24These orders got blocked by a judge, at least for now. But is it having a chilling effect on the legal profession? or other law firms? Well, I mean, we don't know yet, but we're not seeing a very robust response from the bar. We're not seeing a kind of unified, defiant retort to the president saying how outrageous. You're seeing, you know, some individual statements, some, you know, bar associations and what have you. It's not gone unnoticed, but there's not the kind of outrage and tremendous resistance that one might have expected if this happened in Trump's first term. I mean, some of these law firms are not even fighting these orders in court.

17:04All right, now our favorite segment, we have a question from one of our listeners. Hi, guys. My name is Matthew, and I wanted to get your thoughts on how the Supreme Court's ruling last summer about presidential immunity is going to or is currently playing into the administration's decisions, if at all. Thanks, Matthew. Jess, thoughts? Well, that decision is playing into it all the time. And for one, the government is raising it in a lot of its legal briefs as evidence of the president's power to command subordinates to not have any kind of judicial review of what he does in his direction of the executive branch, how it's outside the realm of courts to examine.

17:45So they're definitely bringing it up in many cases as precedent that supports their view of executive authority. Also, of course, the president himself knows now that nothing he does while he is acting as president can ever lead to any kind of legal liability for him. So to the extent he wasn't fully emboldened before, he is now. So it's quite consequential. And of course, that decision may be the reason that Donald Trump is president again in the first place. I mean, you know, had the court ruled the other way, he might have been put on trial or perhaps history would have gone in a different direction.

18:19But that decision cleared the way for him to campaign through the end of 2024 and get elected and then now use – employ this very, very broad view of executive power. So I'd say it's really central to everything that the president is doing. I was just going to observe, you know, it's as if they took Richard Nixon's statement, if the president does it, it's not illegal, and made it into a legal theory. Or another way is that President Trump is also down the other way around, that if the president doesn't like it, it's illegal. Because if you listened to his speech at the Department of Justice last week, a very long speech, and he described many activities that normally are protected by the First Amendment as illegal.

19:05He described news reports as illegal because they were not flattering to him. Now, I don't know that any action is going to follow from that. That's something that's always an unknown with President Trump, right? I mean, how much of the rhetoric then becomes policy? This term, the rhetoric is becoming policy a lot more than it was in the first term. I mean, you know, think back in his first term when universities did things he didn't like. He said, you know, all their federal funding should be cut off. But that didn't happen. This term, that is happening. and universities are towing the line. So last question.

19:44This is really important. Do you have a March Madness favorite? Well, I cover the Supreme Court, so I've got to put them in my bracket. Yes, John Roberts. You're going to win it all. He's going to win. All right, great. Thanks so much for your time, Jess. Really appreciate it. You bet. All right, last question for you, Molly, before I let you go. We talked last week about the dilemma Democrats are in over a potential government shutdown. Ultimately, Chuck Schumer and a handful of other Senate Democrats decided to join Republicans and vote to keep the government open. There has been a ton of blowback from other Democrats who very, very strongly disagreed with that decision and felt like it was time to take off the gloves, fight hard, leave it all out on the court, to use another basketball metaphor.

20:31What's your take on what's happening here? So there's a couple of things happening here. First of all, because all but one House Democrat voted against this bill, they felt hung out to dry by the Senate. There was clearly a miscommunication between the House and Senate Democrats where House Democrats felt like they took a political risk here and then the Senate sold them out. So that's part of the anger. But the other part of the anger is really coming from the Democratic base. rank-and-file Democrats are livid and terrified and feel a sense of existential rage at what they believe is an apocalyptically terrible administration and what it is doing to the things that they hold dear.

21:17And they want Democrats to do something, do anything to try to stop it. And this was a very rare moment because remember Democrats have very limited structural power in this moment. They're in the minority in the House and the Senate. This was a very, very rare moment where Republicans actually needed the Democrats' votes. And so Democrats felt like they should get something from that. There should have been some kind of negotiation. And there was, again, not good communication from Chuck Schumer and the Senate Democrats. They seemed to threaten to withhold their votes one day, and then the next day they supplied the votes.

21:52So just a debacle. There are calls now for Chuck Schumer to lose his job over this. Do you think that might happen? I don't think that's going to happen. Chuck Schumer retains the nearly unanimous support of his members in the Senate Democratic Caucus. He himself is not up for election again for four more years, which is a lifetime in politics. Some House Democrats have called for Alexandria Ocasio-Cortez to primary Chuck Schumer. But again, that would be way, way down the road if indeed it were to happen at all. And she notably had a chance to do that two years ago and decided not to. So the political risks for Chuck Schumer are quite remote at this time, but he's still under a lot of pressure just because there's so much anger at him.

22:39Also from the grassroots, a lot of grassroots liberal groups vowing to put more pressure on Senate Democrats, bring primaries against other Senate Democrats. So Chuck Schumer has really been in the hot seat. So what's the next point of leverage that the Democrats have on the horizon, if any? It's hard to see where. You know, there are a few special elections coming up. The Trump administration, having tapped several House Republicans for cabinet posts, means that there's two vacancies in Florida. There will be a special election in just a couple weeks for those. Once Elise Stefanik is confirmed as U.N.

23:18ambassador, there will be another vacancy in upstate New York. But all of these are deep red districts. It's, you know, they voted for their Republican member by a big double-digit margin in 2024. So it would be a really steep climb for Democrats to win any of these seats. And that would be a purely symbolic victory. It would not give, even if they were to win these seats, Democrats would not have a majority in the House. So they would still be in this situation of being really sort of at a loss for what to do. You know, their base is up in arms and wants to see them do something. But structurally, there's just very, very, very little that they can do.

24:01And I've been doing some reporting on this and spending some time with grassroots Democrats. And there is a real feeling of powerlessness and of fear and of anger that they are so helpless in this moment. All right, Molly, the buzzer has sounded. The game is over. We have won and we're moving on to the next round. Wait, does that mean we won? We get to move up in the bracket? I hope everybody had us in their brackets because, dang it, we were the underdogs, but we did it. We have to win more games. Yeah, there's still several more games. Bring it on, Ryan. I'm ready for the final four. Let's go.

24:37Yeah, there we go. That's where we're headed. All right, thanks so much, Molly. Shooting threes all day. Thanks, Ryan. Thanks. Talk to you soon. Bye.

24:46Before we go, do you have any questions about what the Trump administration is doing? Email us and let us know. Please send a voice note to thejournal at wsj.com. That's thejournal at wsj.com. Trump 2.0 is part of The Journal, which is a co-production of Spotify and The Wall Street Journal. This episode was produced by Enrique Perez de la Rosa and edited by Catherine Whalen, with help from Tatiana Zamis. Molly Ball is The Wall Street Journal's senior political correspondent. I'm Ryan Knudsen. This episode was engineered by Peter Leonard Our theme music is by So Wiley and remixed by Peter Leonard Fact-checking by Kate Gallagher Artwork by James Walton Trump 2.0 will be back with a new episode next Friday morning Until then, good luck with your brackets and go Ducks!