They said whether cause for removal exists in any given situation will depend on the seriousness of the alleged conduct and the extent of any nexus to the governor's professional duties.

The problem here is that she's not accused of misconduct in office.

She's accused of checking a box that maybe she shouldn't have checked long before she was on the board.

There's no indication that she received any benefits from this, as opposed to President Trump, who has been found to have misrepresented property values to get very substantial benefits from insurers and banks.

So this is largely irrelevant, even if it was true, and there's pretty good reason to think it's not true.

The broader picture here is that the Supreme Court, both in Dr. Cook's case and in the accompanying slaughter case, made very clear that the president is not entitled to the Federal Reserve Board of his choosing, that this part of the statute is legal, is constitutional, and any sensible president would take the message and drop it, just as any sensible president would read what the Supreme Court said about tariffs and drop it, or would read what the Supreme Court said about birthright citizenship and drop it.

This president won't drop it.

But it's so difficult to prosecute a perjury case.

They said, "Whether cause for removal exists in any given situation will depend on the seriousness of the alleged conduct and the extent of any nexus to the governor's professional duties." I mean, these charges appear to have no nexus to her professional duties.

Yeah.

The problem here is that she's not accused of misconduct in office.

She's accused of checking a box that maybe she shouldn't have checked long before she was on the board.

There's no indication that she received any benefits from this, as opposed to President Trump, who has been found to have misrepresented property values to get very substantial benefits from insurers and banks.

So this is largely irrelevant, even if it was true, and there's pretty good reason to think it's not true.

The broader picture here is that the Supreme Court, both in, uh, Dr. Cook's case and in the accompanying Slaughter case, made very clear that the president is not entitled to the Federal Reserve Board of his choosing, that this part of the statute is legal, is constitutional, and any sensible president would take the message and drop it, just as any sensible president would read what the Supreme Court said about tariffs and drop it, or would read what the Supreme Court said about birthright citizenship and drop it.

So that seems to, you know, write the motion for dismissal based on vindictive prosecution if they do get a grand jury to indict her.

Well,

there are a bunch of cases from the Supreme Court and elsewhere going back many years suggesting that the court should defer to the president on national security matters.

And it's easy to understand why.

But the assumption in those cases is that the national security claim is at least plausible.

And what I think he is doing here is showing that if you're willing to lie without constraint, that you can make any of these legal categories irrelevant.

We've seen that in many other ways where he's used money from one person.

program to address a completely different passing fancy of his.

We really need this in the middle of a traffic circle in D.C.?

David, national security seems to be Trump's go-to argument.

Well, there are a bunch of cases from the Supreme Court and elsewhere going back many years suggesting that the court should defer to the president on national security matters.

And it's easy to understand why.

But the assumption in those cases is that the national security claim is at least plausible.

And what I think he is doing here is showing that if you're willing to lie without constraint, that you can make any of these legal categories irrelevant.

We've seen that in many other ways where he's used money from one program to address a completely different passing fancy of his.

And he's, I think, now going to force the courts to reconsider deference to the president on national security because they certainly are not going to want to be dragged into something as absurd as You get to build an arch anytime you put a sniper on it.

We really need this in the middle of a traffic circle in D.C.?

And as surprised as I've been over the past few years with the decisions of the Supreme Court allowing Trump to expand executive power, that decision really shocked me because the president and federal agencies like the post office have no role to play in elections, and that seems crystal clear.

The Supreme Court is taking the position that anyone challenging the administration will be held very, very strictly to the letter of all procedural rules.

And at the time the plaintiffs in this case filed suit, no one outside the federal government had been harmed.

Now, under the Supreme Court's precedent, you can sue over an imminent harm.

And when the President of the United States, who this very Supreme Court is empowered to completely control the federal executive branch, says we will interfere with mail voting, that strikes me as an imminent threat.

But the Supreme Court said there were enough details that had yet to be filled in And there was time for a challenge if the administration ever did move forward.

But it was striking to me that the opinion of the court said absolutely nothing about the merits.

Do you have any confidence that when this comes back to them, as it will, I guess, within the next couple of weeks, maybe, do you have any confidence that they'll reject Trump's attempt here?

And he told reporters on Wednesday that he didn't even look at this.

Yeah, there's so many holes here, it's hard to count them.

Blanche says the agreement didn't go forward, but as you note, they don't modify it, and he doesn't have authority to modify it unless you say, well, actually, he's Trump's lawyer in all respects, so he can modify it on behalf of both the plaintiffs and the defendants, which I don't think is quite the case, but he has no authority to modify it because it requires the agreement of the plaintiff's counsel.

So he didn't modify it.

He just said they didn't act on it, which is true, but doesn't mean they won't act on it in the immediate future as soon as he's confirmed.

And he says that they haven't put the money out there, but he doesn't promise not to raid the justice fund for payoffs for more Trump-affiliated lawbreakers.

The judgment fund is still there.

David, what kind of an attorney general do you think Blanche will be? Sometimes when people get a new position, they step up.

And he told reporters on Wednesday that he didn't even look at this.

Yeah, there's so many holes here.

It's hard to count them.

Blanche says the agreement didn't go forward, but as you note, they don't modify it, and he doesn't have authority to modify it unless you say, well, actually, he's Trump's lawyer in all respects, so he can modify it on behalf of both the plaintiffs and the defendants, which I don't think is quite the case.

But he has no authority to modify it because it requires the agreement of the plaintiff's counsel.

So he didn't modify it.

He just said they didn't act on it, which is true, but doesn't mean they won't act on it in the immediate future as soon as he's confirmed.

How do you judge his performance as acting attorney general?

I don't know that he ever really asserted independence from the president.

No, he really didn't.

I mean, at one point, he said that we will act with integrity.

At another point, he made the predictable statement that, of course, if he was asked to do something illegal, he would resign, but that would never happen with this president.

But he is part of a Justice Department that is asserting a historically broad reading of presidential powers, which includes no independence for anybody in the executive branch, himself included.

So he can't claim to be independent without having that used against his own lawyers when they're asserting their unified executive theory.

And Blanche admitted that the settlement agreement is a contract and it could conceivably be resurrected.

That leads me to believe that the president is not comfortable with the weaponization fund being dead.

Is that true?

not in the form that he is suggesting.

Typically, decisions in administrative agencies are made well below the cabinet member, and it's not appropriate to ask a cabinet member to put in a declaration about a decision where they weren't in the room.

And very commonly there is someone else who's more important who was in the room and you should get the statement from them.

But whereas here you have the very top officials in the Justice Department signing this thing, it's entirely appropriate to ask why they did it and ask them to explain what appears to be highly unethical conduct.

I would just add that we have seen in this administration more examples of papers that are only signed by top officials than I believe we've ever seen before.

When I litigated against the Justice Department, you never even saw the Attorney General or the Deputy Attorney General or even usually the Assistant Attorney General's name.

What do you think about Blanche's response to that? He acknowledged that mistakes were made and at one point even apologized to the victims.

But how did they defend their dissents?

In many respects, there are four dissents, because Justice Kavanaugh agreed with the dissenters on the constitutional issues.

Only a five to four majority said that the Constitution protects people's birthright citizenship.

Three of them thought that the president can take it away himself, and a fourth thought that Congress could.

And it's instructive that the dissenters really don't come up with a single coherent theory, nor really does the federal government.

They're getting a scrap from here and a scrap from there and trying to weave it into something else.

and they have quite a number of different legal theories going on, but they seem to say, well, at some point the U.S. deviated from the English common law, kind of remarkable from judges who on other occasions treat the common law as practically having been handed down on tablets to Moses.

How did other chief justices handle the assignment of the majority opinion.

But how did they defend their dissents?

In many respects, they're for dissents because Justice Kavanaugh agreed with the dissenters on the constitutional issues.

Only a five to four majority said that the Constitution protects people's birthright citizenship.

Three of them thought that the president can take it away himself, and the fourth thought that Congress could.

And it's instructive that the dissenters really don't come up with a single coherent theory, nor really does the federal government.

They're getting a scrap from here and a scrap from there and trying to weave it into something else.

and they have quite a number of different legal theories going on, but they seem to say, well, at some point the U.S. deviated from the English common law, kind of remarkable from judges who on other occasions treat the common law as... practically having been handed down on tablets to Moses.

How did other chief justices handle the assignment of the majority opinion?

So what about that argument that he'll make later on in the program about preventing anything wild and crazy from happening?

Well, that sounds a lot better than it is.

First off, the requirement of 34 states to call a convention, Congress has always interpreted that as meaning that 34 states have to agree at the same time on the same purpose for a convention.

If that's the test you apply, then at most he's got 20 states.

I'm not sure he has that many, but he certainly doesn't even claim to have more than 20.

That's barely over halfway there.

So what has increasingly become clear is that the people seeking to persuade the country to call a convention have failed.

Are you equally distrustful of allowing members of Congress to be the avenue if we do need to change something in the Constitution?

Tell us the reasons why you think this settlement is unlawful.

Article 1 of our Constitution says that, "No money shall be drawn from the Treasury except where Congress has enacted an appropriation." And the Anti-Deficiency Act, which goes back over 100 years, gives teeth to that, and makes it a federal crime, with two years in prison, if you distribute federal funds without a valid appropriation.

This is an attempt to circumvent that.

They're claiming they can use the Judgment Fund, which is an appropriation, but it's for settlements arrived at in accordance with law.

And one provision of federal law says you cannot obtain the jurisdiction of the federal courts collusively.

Another provision of federal law says that federal lawyers have to follow the same ethical rules that apply in their states, and those rules prohibit collusive litigation.

So the very fact that this case is Donald Trump versus Donald Trump means that it is not eligible to be settled under the Judgment Fund.

And then you have this unprecedented fund.

We're just doing the same thing." Discuss.

No.

No prior administration has used the Judgment Fund to settle a case brought by the head of that administration.

So it's pretty hard to find much of an analogy.

Um, the Judgment Fund is a law passed by Congress, um, that says that where judgments have been entered against the United States, uh, those may be paid.

Um, the judgments have to be under one of about 10 statutes that particularly allow people to sue the United States, and if you get a judgment under those, uh, you may be paid.

Um, there is, um, room in a couple of those statutes that the Judgment Fund refers to for paying settlements, but those settlements have to be arrived at consistent with federal law, and this one wasn't.

What do you make of those additional documents that were filed later?

Can you explain what the police officers are alleging in their lawsuit?

Sure.

Um, I don't think there's a serious question that the fund is illegal, but the Supreme Court has said just because something is illegal or even unconstitutional, you don't get to go into court to challenge it.

Uh, the Supreme Court requires what they call injury in fact.

You have to show that you are harmed in a way other than a person who cares about the Constitution.

And the police officers are saying that this money is being made available to the people who assaulted them before and who are actively threatening them and who could well assault them again in the same way.

And so that this is encouraging and arguably even subsidizing violent behavior against them, which gives them standing to challenge it.

Do you think it will pass muster?

I mean, are there any safeguards in place?

place?Absolutely none.

This is a 100% slush fund.

The president or the attorney general will appoint, without Senate confirmation, all five members of this committee.

If any of them do anything the president doesn't like, he can fire them and replace them with whomever he wants.

So the committee is completely subservient to the president on both a macro and a micro level.

So this is allowing the president to distribute $1.776 billion to whomever he wants, based on whatever they want.

The second Trump administration has been all about trying to erase what happened on January 6th, and it seems to be more and more blatant, and that the Justice Department doesn't care anymore about following the rules, or at least giving the appearance of following the rules.

Actually, I can't think of another time.

You don't usually hear that, and I think the reason you don't is because they're afraid that it will interfere with their ability to work with one another in the future.

But when justices believe that there already is no ability to work together, frustration can boil over.

There are not a lot of controversial cases on which Justice Sotomayor and Justice Kavanaugh have been on the same side, and there have been quite a few where it's been otherwise.

But I think that the point that she's making perhaps more bluntly than some would is an important point and about the shadow docket.

Justice Kavanaugh asserted as a indisputable fact that US citizens and legal permanent residents are immediately let go.

There's overwhelming evidence that's not true, and if the Supreme Court was taking cases that were properly developed in the lower courts on the facts, it would know that's not true.

Is that just utter defiance of the Court?

Then Wynn came back in his opinion and said, "If anything creeps toward the water's edge, it's the notion that lower courts must divine binding doctrine from orders that say nothing of the kind." It does seem to put lower courts in a terrible position.

Well, it does.

And there are two distinct criticisms of the shadow docket that really need to be separated here.

One is about inputs, and the other is about outputs.

There are a lot of criticisms, which I share, that they're taking too many cases, and they're not getting the benefit of lower court decisions, of a fully developed record or oral arguments, and that that can lead to them making bad decisions, decisions that are much worse than the same court would have made if it had proper inputs.

But there's a second distinct complaint about the outputs, that they don't give us much in the way of opinions, and that's what we're arguing about here.

I suspect Judge Wynn would just as soon the Supreme Court take fewer cases on the shadow docket.

They always claim that they get along wonderfully.

The other thing in all these cases, particularly the IRS case, is that how does he prove damages when his net worth has increased since he became president?

These cases are absurd on the merits.

You don't need to know much about them to know that they are ridiculous.

There's also serious questions about how he could show fault.

The president, again, claims he runs the entire executive branch.

Who was president when these leaks occurred? Why, he was.

So perhaps he ought to sue literally himself for mismanaging the federal government during his first term.

If every politician sued over a poll that didn't turn out to be right, the courts would be clogged.

Did any of his arguments seem to resonate with the justices? Well,

the biggest advantage that the president has in this case is that the Supreme Court is pretty clearly going to strike down security of tenure requirements.

for the vast majority of executive branch officials.

That's the Trump versus Slaughter case.

An oral argument on that made pretty clear that the court is going to overrule Humphrey's executor and allow the president to fire at will members of even very sensitive boards like the Federal Trade Commission.

So the question here has always been, can the Supreme Court find a way of differentiating the Federal Reserve from the Federal Trade Commission, and all those others.

And that's, I think, what the Solicitor General was trying to go with here is to suggest that the court should just treat this case like any other.

When they write their opinion, do they have to explain away that exception to the unitary executive theory and also their likely decision allowing Trump to fire the FTC commissioner?

Was there an argument from the Solicitor General that resonated with any of the justices? Well...

The biggest advantage that the president has in this case is that the Supreme Court is pretty clearly going to strike down security of tenure requirements for the vast majority of executive branch officials.

That's the Trump versus Slaughter case.

An oral argument on that made pretty clear that the court is going to overrule Humphrey's executor and allow the president to fire at-will members of even very sensitive boards like the Federal Trade Commission.

So the question here has always been, can the Supreme Court find a way of differentiating the Federal Reserve from the Federal Trade Commission and all those others? And that's, I think, what the Solicitor General was trying to go with here is to suggest that the court should just treat this case like any other.

Once you look at the specifics, the accusations against her fall apart in your hands.

She was obviously given no hearing.

When they write the opinion, do they have to explain away what they do with the FTC? And where does it leave the unitary executive theory?

Again, a 63 decision on Tennessee's ban on gender-affirming care for minors.

This is a case that should have been very difficult for the court because The court had already in Bostock said that discrimination against people because they are gay or because they're transgender is a violation of the statutory ban on discrimination on the basis of sex.

Some were afraid the court would overturn Bostock.

They didn't, although some justices made clear they would love to.

The majority didn't overturn Bostock.

but it turned it into a sort of wordplay game where there's not perhaps that much vitality left in Bostock.

They said, well, this isn't discriminating on the basis of sex because a child designated at birth as male who wants these treatments will be denied them on the basis of this policy, and a child designated at birth as female Who wants these treatments will be denied them because they don't need these treatments.

It's striking to me that in cases involving culture war issues, we almost always see the six to three ideological split, with the court's conservative supermajority prevailing, of course.

Like last term, there is a case involving a death row inmate, and this is about whether he can be executed in the light of conflicting IQ scores.

Yes.

The Supreme Court decided a long time ago that the Eighth Amendment's prohibition on cruel and unusual punishment means that we shouldn't be executing people who are severely mentally deficient.

We can keep them in jail, but we shouldn't kill them.

That they may not be able to fully understand what we're doing to them and that that's just blatant cruelty.

But of course, once you say that, you have to define what it is to be mentally deficient.

And this has come down to IQ scores, typically old ones before someone turned 18.

And this is about the right to carry in public places in Hawaii?

Is that a controversial interpretation?

It is controversial.

The statute isn't terribly well written, but I think she follows most of the rules of statutory interpretation.

And she says, if the attorney general can just keep reappointing people for additional 120 day slots, then why would the president ever bother to go to Congress? for confirmations, and why is the statute even mentioned district courts, since presumably the Attorney General would take that power if it was there, would never let it fall to the district court.

That's part of her reasoning.

The other part of it that I think is also persuasive is that Congress changed this rule for about a year and then went back.

So Congress... had an arrangement where the Attorney General could appoint people for as long as she wanted, and they thought about it for a year, and they said, no thanks, we don't want any more of that.

Does that go away now? Is that over?

In theory, that

could be said to be valid.

The Speaker of the House is elected, and if the purpose of electing Mr. Trump Speaker is to make him president, I think there's an argument that that would also violate the 22nd Amendment of the Constitution.

But certainly... puts a thumb in the eye of popular intent.

We had had a four-term president, President Roosevelt.

The country across all political lines concluded that that was too much power for any individual to have, that it resembled authoritarian countries too much.

And we decided we didn't want to do that anymore.

Of the Supreme Court cases coming up that are going to test presidential authority, is the tariffs case the most significant or is there another one that's more significant?