“There is one world in common for those who are awake, but when men are asleep each turns away into a world of his own”.
– Heraclitus, 2500 years ago
“We’re an empire, and when we act, we create our own reality, our own thing”.
– Unknown official in the George W. Bush administration, 20 years ago
19 March 2025 — It’s so simple, really. The rule of law – where the law applies equally and everyone is subject to it – becomes conflated with its antithesis, which is rule by law – where those in power can arbitrarily create and apply law as they choose, with no accountability. That where the U.S. is moving to. Just a few points this morning:
• On Saturday, U.S. District Judge James Boasberg ordered that the Trump administration stop deporting anyone from the United States under the authority of the 1798 Alien Enemies Act and that the planes carrying individuals to prison in El Salvador be turned around. Despite the order, the administration declined to bring the planes back, and administration officials mocked the order, with Secretary of State Marco Rubio reposting the message of Salvadoran president Nayib Bukele that read, “Oopsie… Too late,” along with a laughing emoji. JD Vance and Elon Musk equally mocked the court.
• On Sunday, lawyers from the Department of Justice suggested that the planes were outside the jurisdiction of the U.S. when Boasberg issued the order, or that the order didn’t take effect until it was entered into the electronic docket, although his verbal order that he said had to be “complied with immediately” came about 45 minutes earlier, before at least one of the planes landed.
• On Monday the Justice Department unsuccessfully asked a federal appeals court to remove Boasberg from the case. In a hearing, Boasberg asked the administration to clarify its actions after it appeared to defy the court by rushing the planes off the ground and to El Salvador. In response to the Justice Department’s claim that the judge’s orders had no authority over the flights once they left U.S. airspace, the judge noted that the power of the federal courts does not end at the end of U.S. airspace. Boasberg also appeared to reject the claim of the DOJ lawyers that there is no judicial order until it is published in a written filing. The DOJ also refused to tell Boasberg anything about the flights, saying that even their number was a question of national security, although the administration had talked extensively about them on public media.
• Boasberg scheduled another hearing yesterday to get the DOJ lawyers to answer the questions they had refused to address. The DOJ further frustrated Boasberg by refusing to provide almost any details about the deportation operation, repeatedly invoking national security to defend the secrecy. “Why are you showing up today and not having answers to why you can’t even disclose it to me?” the judge asked.
• Yesterday morning, Trump took to social media to call Boasberg a “Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President—He didn’t WIN the popular VOTE (by a lot!), he didn’t WIN ALL SEVEN SWING STATES, he didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”
• Trump’s post sounds as if he is nervous about the increasing unrest over his policies and is trying to convince people that he has a mandate although in fact more people voted for other candidates in the 2024 election than voted for him. But it was his suggestion that any judge with whom he disagrees should be removed that sparked pushback from Chief Justice of the Supreme Court John Roberts, who issued a statement saying: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose”.
• Roberts wrote the Trump v. United States decision of July 1, 2024, establishing that presidents cannot be prosecuted for crimes committed as part of their official presidential duties, and it seems likely that Trump did not expect a rebuke from him. But I have a concluding note about Roberts below.
• U.S. District Judge Theodore D. Chuang also sought to stop the administration’s power grab. In a scathing 68-page decision, Chuang found that the actions of Elon Musk and the “Department of Government Efficiency” to destroy the United States Agency for International Development, or USAID, “likely violated the United States Constitution in multiple ways.” Chuang explained that the destruction of USAID hurt not only the 26 current or recently fired employees and contractors of USAID who had filed a lawsuit against Elon Musk and the “Department of Government Efficiency.” That destruction also hurt “the public interest, because they deprived the public’s elected representatives in Congress of their constitutional authority to decide whether, when, and how to close down an agency created by Congress.”
• While the question of who is in charge of the so-called Department of Government Efficiency is such a mystery that it has spawned its own social media hashtag—WITAOD, for “Who is the administrator of DOGE?”—Chuang clearly identified Elon Musk as the person in charge. Trump “identified Musk as the leader of DOGE,” he notes, and “Trump and Musk held a joint press conference in the Oval Office to answer reporters’ questions about DOGE.” Chuang noted the many, many times when Trump called Musk DOGE’s leader.
• In the lawsuit, USAID employees argued that Musk has acted as an officer of the United States without having been duly appointed to such a role. The Constitution provides that the president can appoint such officers, who exercise “significant authority,” but that they must be confirmed with the advice and consent of the Senate. Musk, quite obviously, was not. The White House has tried to get around this issue by claiming that Musk is only an advisor to the president, but Chuang wasn’t buying it. “[B]ased on the present record,” he wrote, “the only individuals known to be associated with the decisions to initiate a shutdown of USAID…are Musk and DOGE team Members.” Musk therefore “exercises actual authority in ways that an advisor to the President does not.”
• Chuang ordered that parts of USAID must be restored, although what effect that will have is unclear since the agency has been destroyed.
• Trump continued his attack on the rule of law yesterday when he fired the two Democratic commissioners at the Federal Trade Commission, which protects consumers from collusion and anti-consumer practices. The firings leave only two Republicans on the commission and leave it without a quorum to do business. Beginning with the 1935 case of Humphrey’s Executor v. United States, the courts have established that the president cannot fire officials in agencies created by Congress without a serious reason like neglect of duties. Legal analyst Mark Joseph Stern wrote: “Trump’s action here is brazenly illegal under any interpretation of the law as it stands.”
Yeah, Chief Justice Roberts is right. Trump’s attack on Boasberg is juvenile, civically illiterate, and perilous to the rule of law. It was also just an echo of his sidekick Elon Musk’s recent rants about courts.
But the statement is notable for what it leaves out: any acknowledgment of the substantive dispute in the case, which is whether Trump is defying court orders. Roberts seems more concerned about rhetorical attacks on the personal integrity or employment status of judges than he does with systemic attacks on the judiciary as a whole.
In his end-of-year report last year, Roberts wrote that “elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected”.
These suggestions are no longer sporadic, and they are largely coming from one party, yet Roberts’s focus now is on the personal.
The odds of a successful impeachment of Boasberg right now are roughly nil. But the administration does appear to have flouted Boasberg’s order – he’s now trying to determine the facts – following weeks of threats to defy judges. Another judge’s order in a deportation case was also ignored this weekend, though the government claims that it hadn’t received official notice.
Even if Trump hasn’t yet explicitly defied a court, he is clearly laying the groundwork to do so. Every major legal pundit predicted this on Day 1 of the new administration.
The personal differences between Roberts, a quiet and intellectual lawyer of serious ideological commitment, and Trump, a noisy and brash politician more interested in personality than policy, are great.
BUT … on their views of presidential power, the men are less far apart. Last summer, Roberts wrote a decision for the court that conferred great immunity on Trump’s actions as president. After Trump approached Roberts following his speech to a joint session of Congress, Trump said to him “Thank you again. Thank you again. I won’t forget”. Trump later said he was “simply expressing gratitude for Roberts swearing him in”. Sure, sure 😂
Roberts admittedly has no good options. Perhaps he doesn’t want to weigh in on Trump’s apparent willingness to defy courts because he expects these matters to reach the Supreme Court and doesn’t want to appear to be an interested party. Or perhaps Roberts is less bothered because he believes that the president will prevail on these matters at the Supreme Court.
Trump is effective at destroying norms because he forces institutions and individuals to either succumb to his partisan logic or else avoid the fight and thus cede the debate to him.
As Andrew Kewer noted last night on his blog in Atlantic magazine, during his confirmation hearings to be chief justice, Roberts famously likened judges to umpires, calling balls and strikes.
But his statement yesterday is akin to responding to the Black Sox baseball scandal by defending the officiating.
The players here aren’t arguing about the strike zone; they’re trying to rig the game.
Oh, yes, one final point …
Trump held a phone conversation yesterday with Russian president Vladimir Putin, allegedly about a proposed ceasefire in Russia’s invasion of Ukraine. During the 2024 presidential campaign, Trump boasted that he would end Russia’s war against Ukraine in a day, and he is now eager for any end to the hostilities. But Putin seems less eager to reach a solution than to demonstrate his dominance over Trump. Yesterday, when the phone call was scheduled, Putin was on stage at an event. When his interviewer asked if he needed to go because he would be late for the call, Putin dismissed the question and laughter broke out. Brett Bruen, president of the Global Situation Room public relations firm wrote: “Making leaders wait is an old Putin power play. But, this is pretty brutal. Putin is publicly mocking Trump.”
While Trump’s team portrayed the conversation as productive, Putin maintained that Ukraine was the aggressor in the war, although it was Russia that invaded Ukraine. Putin also demanded that the U.S. and allies must stop all military aid and the sharing of intelligence with Ukraine, conditions that would hamstring Ukrainian resistance to the Russian invasion.
Any *deal* will be totally on Putin’s terms, and Trump will gave in to every term.
I might have more later, if I can stomach writing about it. Enjoy your day.