Trump’s Toast, Folks

Clark Neily

Up until now, I’ve been hesitant to predict how the various prosecutions of Donald Trump are likely to turn out. But no longer. I believe yesterday’s indictment in Georgia sealed Trump’s fate, and it is now all but certain that he will be convicted of multiple felonies in one or more of the four pending cases against him. Here’s why.

The Georgia indictment is a bombshell—the equivalent of a Texas Hold’em poker player shoving their entire stack of chips into the middle of the table and declaring, “All in.” In sum, the Georgia indictment alleges that Trump orchestrated a sprawling criminal conspiracy (or “enterprise,” in the language of the indictment and Georgia’s state RICO statute) involving more than 20 named and unnamed co‐​conspirators ranging across half‐​a‐​dozen states for purpose of unlawfully changing the result of the November 2020 presidential election. There is nothing subtle or nuanced about this indictment—in effect, it accuses Donald Trump, Rudy Giuliani, Mark Meadows, John Eastman, Jeffrey Clark, Sidney Powell, and a dozen others of staging an unsuccessful coup. If the case goes to trial, which seems likely, the jury will either believe that characterization or they will not. I think they will, for three reasons.

1. Trump’s disdain for truth. America has seen its fair share of lying politicians, but Donald Trump is in a class of his own. He appears to view literally any interaction with another human being as an opportunity to be exploited and a game to be won. In Trump’s world, rules are for chumps, norms are for losers, and the truth is whatever you can get another person to believe— nothing more. And of course, history makes clear that this approach has been quite effective at advancing Trump’s interests in certain settings—preening on the set of a game show, for example, or spinning up a fawning, frothing crowd at a campaign event.

But not only will those antics not work in a courtroom, they will backfire. Given the nature of the allegations against him, Trump will have to take the stand even though he has a right not to, and given his nature, he will lie to the jury just like he has lied to everyone else his entire life.

Trump will look those jurors in the eye and tell them that not only did he believe the election was stolen at the time, he still believes it now and in fact it was stolen. And Trump will double down on his risible assertion that his post‐​election harangue of Georgia Secretary of State Brad Raffensperger—during which Trump demanded that Raffensperger “find” 12,000 votes in order to flip the result there and suggested that Raffensperger might be committing a criminal offense if he failed to do so—was “an absolutely PERFECT phone call.” Moreover, some of Trump’s co-defendants—Mark Meadows, perhaps, or Jeffrey Clark—will cut deals with the prosecution to save their own skins, and Trump will, with great bombast and zero credibility, falsely accuse them of lying when they testify honestly and plausibly about who said and did what.

At the end of the day, the jury will have to decide who was lying to them—a parade of credible and often highly sympathetic prosecution witnesses, or Donald Trump—and he will make it easy for them.

2. Trump’s disdain for process. Again, Donald Trump doesn’t see the world the way normal people do. Instead of institutions to be respected and rules to be followed, he sees marks to be gulled and systems to be gamed—emphatically including elections and trials. Trump’s complete disdain for fair procedures—and for people who meekly accept the results of those procedures when they lose—will be on full display throughout every stage of all four of the criminal cases against him. As we have already seen, Trump will not be able to resist the temptation to manipulate the process by threatening or cajoling witnesses, insulting prosecutors, and slagging judges who rule against him. Then, having displayed nothing but contempt for the proceedings, Trump or his counsel will turn to the jurors at the end of each trial and remind them of their solemn civic duty to carefully consider the evidence, arguments, and burden of proof—and render a verdict of acquittal. The jurors will remember their civic duty, alright, and they will condemn Trump for disregarding his.

3. Complexity. The third reason Trump will be convicted in one or more of the cases against him is this: complexity. Litigation is a complicated process featuring an often mind‐​numbing interplay of procedural rules, substantive laws, court filings, documents, discovery, fact witnesses, expert witness, and a constant procession of unforeseen twists and turns that evoke the maxim that no plan survives contact with the enemy. And that complexity multiplies geometrically with the number of related proceedings going on at the same time, which means that Trump’s legal teams will find it nearly impossible to coordinate across all four of the ongoing prosecutions in New York, Florida, DC, and now Georgia. But it’s even worse than that.

Litigation complexity is hard enough to manage with a client who plays it straight, both with the court and with their own counsel. But Trump doesn’t play it straight—he never has, and it appears he’s constitutionally incapable of doing so. So he will lie: in court, in public, on social media and—fatally—to his own lawyers. Simply put, Trump’s defense teams will not be able to keep track of all the different positions their client has taken (or directed his various lawyers to take in different proceedings), and eventually things will come completely unraveled. Judges will become increasingly disgusted by the shenanigans and stop giving Trump any benefit of the doubt; there will also be internecine squabbling among members of his defense teams, and some will likely quit when they refuse to execute some of their client’s more unethical demands or realize that he has no qualms about taking them down with him when the time comes.

One last point. These three dynamics are not isolated and discrete; instead, they’re dynamic and mutually reinforcing. Being an inveterate liar is a major liability in litigation. So is being openly disdainful of the entire process. And so is complexity. But put all three of those together at the same time for the same defendant, and his goose is cooked. So you can put a fork in Donald Trump—he’s done.

Student Loan Forgiveness and Standing

Clark Neily

Last Thursday, the Supreme Court struck down President Biden’s student loan forgiveness program, finding that it was not plausibly authorized by statute and that the State of Missouri had standing to challenge the program via a state‐​created loan‐​servicing entity that would lose tens of millions of dollars in fees if the program took effect. This post will explain why Cato filed its own, now‐​moot challenge to the loan forgiveness program, followed by some thoughts on the increasingly pernicious role of “avoidance doctrines” such as standing, ripeness, and mootness in public‐​policy litigation.

The great miltitary strategist Sun Tzu famously said that the acme of skill in war is to subdue the enemy without fighting. For government lawyers, the acme of skill is to shield unlawful policies from judicial review by persuading courts that there is some procedural bar against challenging them. Last week, the Supreme Court rebuffed the Biden administration’s attempt to employ that precise stratagem to forestall a judicial determination as to whether the president has the power to forgive nearly half‐​a‐​trillion dollars worth of student loans without express congressional authorization. Surprising no one, the Court’s answer to the substantive question was a resounding “no.” But constructing a legal challenge that would ensure the judiciary reached the merits of that question was a dicey proposition. Why? One word: Standing.

In brief, standing is a court‐​created rule that says only certain people can challenge a given policy in court. To have standing, the would‐​be plaintiff must have suffered a concrete injury that was caused by the policy at issue and can be fixed (or “redressed”) by the courts. Thus, for example, I do not have standing to challenge the Justice Department’s sweetheart plea deal with Hunter Biden, both because I’ve not been personally injured by it (mere outrage is insufficient) and because there’s really nothing the courts can do about DOJ’s propensity for coddling VIPs.

Like so many judge‐​made legal rules, however, standing is both amorphous and prone to abuse. It’s amorphous because it lacks clear doctrinal parameters and can be easily enlarged or constricted as a matter of judicial whim. And of course that makes it prone to abuse, since judges can simply declare that a given plaintiff either does or does not have standing depending on whether they do or don’t want to reach the merits of the case at hand. To be clear, not all standing inquiries represent such an exercise in procedural roulette, but an increasing number of them do—particularly as poliymakers become more conscious of their ability to defeat judicial review through strategic legerdemain.

Thus, the key question in the loan‐​forgiveness case was not so much the legality of the program itself, but instead whether the Biden administration and its lawyers could persuade the judiciary that the executive branch can expend nearly half‐​a‐​trillion dollars in unappropriated funds without causing a sufficiently concrete injury to confer standing on any individual or entity affected by that program. As we learned last Thursday, the answer is no. But boy, was it close.

Without delving too much deeper into federal standing doctrine, the basic problem here was that the Supreme Court has generally rejected the concept of “taxpayer standing”—that is, the idea that any given person who pays taxes can sue the government simply because it is (arguably) spending that revenue unlawfully. Accordingly, when President Biden announced his intent to forgive student loans without express congressional authorization, there was a scramble among people and groups who opposed that policy to identify a concrete and individualized theory of standing that might pass muster with a judiciary that tends to be more comfortable rubber‐​stamping challenged government programs than striking them down—especially when they involve things like the proper scope of federal power, economic regulations, property rights, or tax policy.

As noted, Missouri and a handful of other states led with the theory that a blanket student loan forgiveness policy would deprive them of fees generated by their respective loan‐​servicing entities. Another suit was filed by two college graduates from Texas who challenged the Department of Education’s failure to follow proper administrative procedures, which they said might have resulted in better debt‐​forgiveness terms for each of them.

At the time, it was unclear whether either of those standing arguments would prove viable, and additional complaints were filed by other groups, each asserting a different theory of standing. This included a lawsuit brought on Cato’s behalf by the New Civil Liberties Alliance, which alleged that Biden’s blanket loan forgiveness program would prejudice non‐​profit employers like Cato, for whom Congress had created a more targeted policy called the Public Service Loan Forgiveness Program that was designed to give non‐​profits a recruiting edge by providing loan‐​forgiveness to their employees after ten years. Whether legitimate or illegitimate from a policy perspective, the advantage conferred on charitable employers by that program would be eliminated by across‐​the‐​board debt forgiveness, which represents a cognizable injury that is redressable by the courts—et voila: standing.

As it turns out, the Supreme Court held unanimously that the two Texans lacked standing to challenge Biden’s loan forgivness program while ruling 6–3 that the states (or at least one of them, which is all that mattered) did have standing. Bottom line, it was a close call, and it was fortunate that Cato and others were waiting in the wings with their own unique—and potentially more persuasive—standing theories. But those other cases, including Cato’s, are now moot in light of the Court’s decision to find standing in the states’ challenge and strike down Biden’s loan forgiveness scheme.

In retrospect, the half‐​dozen lawsuits filed against that program may seem like overkill. But as a colleague at my first law firm used to say of a judge in one of his cases, “You never know on any given day what’s going to get his attention: Will it be the red rubber ball, the shiny metal object, or the baby rattle? So you bring ‘em all.” And so it is when seeking to overcome the slew of avoidance doctrines routinely deployed in public‐​policy litigation by government lawyers like ink from a fleeing squid. If standing, ripeness, and mootness can fairly be compared to a game of craps—and they can—then it makes sense for both sides to get as many chips on the table as possible.

If that sounds like hyperbole, consider the following examples, which represent merely the barest hint of the jaw‐​dropping bad faith with which avoidance doctrines are asserted by government lawyers and employed by judges to make potentially troublesome cases go away:

  • Cato v. SEC (DC Cir. 2022). This case involved a First Amendment challenge to the SEC’s policy of imposing a lifetime gag order on defendants in civil enforcement actions as a condition of settlement. Cato sued on behalf of an author who wrote a memoir about being caught up in that process that it was unlawful for him to publish due to the gag order. As a would‐​be publisher of that work, Cato asserted the well‐​established theory of third‐​party standing, but the DC Circuit held that the “redressability” requirement for standing was not met on the premise that all of the challenged gag orders had been incorporated into judicially enforceable consent decress around the country that judges in DC were powerless to disturb. Besides being incorrect on the law, that holding was based on a demonstrably false factual premise: Contrary to the DC Circuit’s completely baseless assertion—that was supported nowhere in the pleadings or the record because it was false—all gag orders (including the very one at issue in this case) had not been incorporated into judicially enforceable consent decrees—a fact that Cato pointed out repeatedly throughout the litigation and again in its petition for rehearing, which the DC Circuit ignored.
  • Parker v. Heller (DC Cir. 2007). Another example of standing gamesmanship from the DC Circuit arose in the Second Amendment challenge to the District of Columbia’s gun laws brought on behalf of six DC residents by me, former Cato board chair Bob Levy, and Alan Gura. In blatant and acknowledged disregard for Supreme Court precedent, the DC Circuit invoked its special law of standing for guns and held that five of the six plaintiffs lacked standing because they had not yet violated the law and received a specific threat of prosecution—actions that are never required in any other setting to establish standing. Only Dick Heller was ultimately found to have standing because he had made an entirely futile attempt to register a handgun in DC and was denied—an act that the DC Circuit risibly (but correctly, as a matter of circuit precedent) held supplied an alternative basis for standing.
  • Alvarez v. Smith (2009) and NY State Rifle & Pistol Ass’n v. City of New York (2020). These are both examples of “strategic case mooting,” a common practice whereby government lawyers will vigorously defend an unconstitutional policy in the lower courts and then moot the case if it looks like the challengers might win on appeal and thereby establish favorable precedent. Alvarez was a challenge to Illinois’ unconstitutional civil forfeiture procedure, which the state defended below but then mooted when the case got to the Supreme Court by returning the plaintiffs’ unlawfully seized vehicles. NY State Rifle & Pistol involved a challenge to a New York City ordinance that severly constrained people’s ability to move a lawfully registered pistol from one location to another (e.g., from an apartment in Manhattan to a cabin in upstate New York), which the City defended vigorously in the lower courts but then repealed immediately after the Supreme Court granted certiorari, in a transparent (and ultimately successful) effort to derail the case. So much for all the assertions the government made in the lower courts about the supposed importance of the law, the momentous safety issues involved, etc.—all of which turned out to be cynical, disingenuous prattling.

As suggested above, the list could go on almost indefinitely. But the takeaway is this: When it comes to the willingness of government lawyers and judges (a wildly disprportionate number of whom were themselves courtroom advocates for government before taking the bench) to employ standing, ripeness, mootness, and other “avoidance doctrines” in order to derail challenges to plausible allegations of unlawful governemnt action, there is no bottom.

And that’s why Cato joined the fray over President Biden’s unlawful student loan forgiveness scheme—not because there was every any doubt about the merits; but instead to help make it as difficult as possible for the judiciary to sweep that unlawful power grab under the rug with the handy‐​dandy standing‐​broom. 

Statement on Trump Indictment

Clark Neily

Reports that Donald Trump has been indicted on federal charges of mishandling classified documents, obstruction of justice, and conspiracy raise a host of mind‐​boggling questions, including whether it is possible for someone to run for president while incarcerated, whether a newly elected president can pardon himself, and whether President Biden will, in order to avoid the spectacle of the federal government prosecuting a declared presidential candidate during an election, pardon Trump preemptively.

Other questions include whether prosecutors can induce Trump to—as the vast majority of defendants do—waive his right to a public jury trial and plead guilty (doubtful), whether the case will be televised if it goes to trial (also doubtful—and shameful), and whether prosecutors can secure a unanimous guilty verdict from a jury in Southern Florida, where prosecutions of public figures are notoriously difficult. Regardless of how the prosecution ultimately plays out, it will likely represent a stress test both for criminal justice system and constitutional provisions that have rarely—if ever—been explored or invoked. Buckle up—it’s going to be a wild ride.