Jess Bravin
Appearances
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
Well, that decision is playing into it all the time. 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
So 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
The Journal.
Trump 2.0: A Showdown With the Judiciary
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 that had the court ruled the other way he might have you know been put on trial or or you know perhaps history would have gone in a different direction
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
Or another way is that President Trump has also done sort of 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
He 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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 lines.
The Journal.
Trump 2.0: A Showdown With the Judiciary
Well, I cover the Supreme Court, so I've got to put them in my bracket.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
Yes, there is, over the Supreme Court room, and they call that the highest court in the land.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
Get a free throw and sort of— That's right. You can overrule.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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 online. without going through immigration courts and the usual process.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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. And the judge said, all right, well, slow down. I'm going to issue an order to pause this for 14 days so I can consider these legal arguments.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
There is some opacity about exactly what happened next. The 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 Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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 judge doesn't have the authority to do it. So they're sort of saying both things. One, he issued an illegal order—
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
The 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
So temporary orders at the outset of lawsuits are quite common. And 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—
The Journal.
Trump 2.0: A Showdown With the Judiciary
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, had also been convicted of crimes or other kinds of true misconduct, not simply crimes. making a decision that the president thinks is egregiously wrong.
The Journal.
Trump 2.0: A Showdown With the Judiciary
So 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
So they are sending a message to the courts that, you know, 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. You know, any 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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
The Journal.
Trump 2.0: A Showdown With the Judiciary
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. I 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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, and also Congress can.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
Or is it just, you know, a flat-out defiance of a Supreme Court directive? As 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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 They said, well, we don't want to talk about hypotheticals, or there's a big debate about that, or they kind of left it open.
The Journal.
Trump 2.0: A Showdown With the Judiciary
And interestingly, there was even a Republican senator, John Kennedy of Louisiana, who scolded them.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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. If 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
He 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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
Trump 2.0: A Showdown With the Judiciary
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.
The Journal.
The TikTok Ban Goes to the Supreme Court
That's all for today, Friday, January 10th. The Journal is a co-production of Spotify and The Wall Street Journal.
The Journal.
The TikTok Ban Goes to the Supreme Court
The show is made by Katherine Brewer, Pia Gadkari, Rachel Humphries, Ryan Knutson, Matt Kwong, Jessica Mendoza, Annie Minoff, Laura Morris, Enrique Perez de la Rosa, Sarah Platt, Alessandra Rizzo, Alan Rodriguez-Espinosa, Heather Rogers, Pierce Singey, Jivika Verma, Lisa Wang, Katherine Whalen, Tatiana Zamise, and me, Kate Leinbaugh, with help from Trina Menino.
The Journal.
The TikTok Ban Goes to the Supreme Court
Our engineers are Griffin Tanner, Nathan Singapak, and Peter Leonard. Our theme music is by So Wiley. Additional music this week by Katherine Anderson, Peter Leonard, Bobby Lord, Emma Munger, Nathan Singapak, Griffin Tanner, So Wiley, and Blue Dot Sessions. Fact-checking by Mary Mathis. Thanks for listening. See you Monday.
The Journal.
The TikTok Ban Goes to the Supreme Court
After Congress passed a law last year that threatened TikTok, people on the platform had big reactions.
The Journal.
The TikTok Ban Goes to the Supreme Court
TikTok went to court to block the law. And that's how this case got to the Supreme Court today. First up was TikTok. The company's lawyer, Noel Francisco, laid out TikTok's arguments that the law was a violation of the First Amendment, of TikTok's freedom of speech.
The Journal.
The TikTok Ban Goes to the Supreme Court
The justices will determine whether or not the law banning TikTok in the U.S. will go ahead. It's slated to go into effect January 19th.
The Journal.
The TikTok Ban Goes to the Supreme Court
How did the justices respond to the TikTok argument?
The Journal.
The TikTok Ban Goes to the Supreme Court
Here's Justice Samuel Alito in questioning, saying that because ByteDance isn't a U.S. company, the First Amendment doesn't apply.
The Journal.
The TikTok Ban Goes to the Supreme Court
Justice Elena Kagan asked TikTok's lawyer outright if ByteDance's algorithm can be separated from the platform.
The Journal.
The TikTok Ban Goes to the Supreme Court
That's our colleague Jess Braven, who covers the Supreme Court. Big picture, what's at stake in this hearing?
The Journal.
The TikTok Ban Goes to the Supreme Court
ByteDance has control of the algorithm that serves TikTok users their videos. And the justices kept pressing TikTok's lawyer on whether the app could operate without that algorithm. Here's Justice Katonji Brown-Jackson.
The Journal.
The TikTok Ban Goes to the Supreme Court
After the justices were done grilling Francisco, Jeffrey Fisher, a lawyer representing creators on TikTok, stepped up. Fisher argued against the ban and called TikTok the most vibrant speech forum in the U.S.
The Journal.
The TikTok Ban Goes to the Supreme Court
What did you make of the arguments from Jeffrey Fisher, the lawyer for the TikTok creators?
The Journal.
The TikTok Ban Goes to the Supreme Court
Today, the Supreme Court took up the TikTok ban.
The Journal.
The TikTok Ban Goes to the Supreme Court
After his opening statement, Fisher faced questions from justices, starting with Clarence Thomas.
The Journal.
The TikTok Ban Goes to the Supreme Court
TikTok's lawyer Francisco also suggested that if the court doesn't throw out the law, it should at least postpone it. President-elect Trump had asked the court to pause the TikTok shutdown until after he takes office. At the end of the hearing, Francisco had a final thought.
The Journal.
The TikTok Ban Goes to the Supreme Court
Overall, how convincing do you think the lawyers were for TikTok and the creators?
The Journal.
The TikTok Ban Goes to the Supreme Court
Coming up, what the government argued and how the Supreme Court justices responded.
The Journal.
The TikTok Ban Goes to the Supreme Court
The government's argument for upholding the law banning TikTok rests on national security. The Chinese government's control of TikTok poses a grave threat to national security. That's the U.S.
The Journal.
The TikTok Ban Goes to the Supreme Court
PRC, or the People's Republic of China. National security leaders from agencies like the FBI, DOJ, and CIA have been concerned about the Chinese ownership of TikTok for years. They allege ByteDance could have access to user information on TikTok. TikTok says it protects U.S. user data. How did the justices respond to the government's case?
The Journal.
The TikTok Ban Goes to the Supreme Court
Welcome to The Journal, our show about money, business, and power. I'm Kate Leinbaugh. It's Friday, January 10th. Coming up on the show... Will the Supreme Court uphold the TikTok ban?
The Journal.
The TikTok Ban Goes to the Supreme Court
Justice Neil Gorsuch pushed back on the idea that TikTok users didn't know the risks of using the app.
The Journal.
The TikTok Ban Goes to the Supreme Court
Prelogger also emphasized that if ByteDance divests, TikTok could go on functioning. And she ended by focusing on the national security concerns about ByteDance.
The Journal.
The TikTok Ban Goes to the Supreme Court
Jess expects the justices to rule on this case before January 19th. Right, so after listening to all of these arguments and the questioning. And as a veteran Supreme Court reporter, how do you read the tea leaves for what's going to happen?