Why do you guys seem surprised by Trump’s lawyers’ tactics?
Yesterday in a comment on the pod Sam did with Kyle Cheney right after SCOTUS issued its decision, I wrote that SCOTUS’ decision required the govt to do nothing except to “say” it had tried to free Garcia.
If the govt fulfilled the minimal requirement of saying that it had tried t…
Why do you guys seem surprised by Trump’s lawyers’ tactics?
Yesterday in a comment on the pod Sam did with Kyle Cheney right after SCOTUS issued its decision, I wrote that SCOTUS’ decision required the govt to do nothing except to “say” it had tried to free Garcia.
If the govt fulfilled the minimal requirement of saying that it had tried to free Garcia, beyond that Court did not actually order the govt to give any account of steps taken to try to free Garcia, but only asked—very politely—that “the Government should be prepared to share what it can concerning the steps it has taken.” In the polite formula—the Government should “share what it can”—is the implication that the govt itself gets to decide what it can share, that the Court has no power to compel the govt to disclose anything about its efforts.
Thus, Roberts’ decision—obviously he was the main author—provided a clearly marked roadmap that would allow the govt to continue its course unchanged, by merely saying:
“We tried, but can’t get him back. And (sorry, not sorry) we can not ‘share’ any details about our efforts because the details, in this foreign policy matter the Constitution assigns solely to the president to conduct, are too sensitive to disclose.”
Simply put, Roberts’ decision had zero effect on the govt’s position or tactics in this case.
Before Roberts issued his decision, Trump’s lawyers stonewalled, defied court orders, lied about facts to the point of firing a govt lawyer who skirted too close to the truth, and refused to provide the court with relevant factual information.
After Roberts issued his decision and sent the case back to the district judge to implement the decision, Trump’s lawyers immediately continued to do exactly what they had been doing before Roberts issued his decision. The only difference now is that the Roberts decision effectually instructed the govt how it can, without risk of judicial intervention deprive a foreigner or a citizen of due process (and their freedom and possibly their life) by kidnapping them into the control of a foreign government, and then pleading——without proof—an inability to secure their return.
The upshot of Roberts’ decision is this advice to the government and its lying lawyers: “Just say you tried, and although we in the judiciary might fuss around about it, in the end we will have to take your word for it.”
We shouldn’t be shocked that Trump’s lawyers are doing exactly what Roberts told them they could do. The Court will not save us.
Here’s a link to the similar and related comment I posted yesterday on Sam’s pod with Kyle Cheney.
Except this was returned to the lower court judge who rewrote the instruction to be very clear. They’re in violation of SCOTUS, they ordered the return, not a feeble attempt.
This case will probably go back to SCOTUS quite soon, and then we’ll see for sure whether Roberts’ Court can gather the collective will to compel Trump’s underlings to make a real effort to free Garcia. The govt’s response on remand indicates—at the very least—that the govt believes SCOTUS’ decision is toothless.
Why do you guys seem surprised by Trump’s lawyers’ tactics?
Yesterday in a comment on the pod Sam did with Kyle Cheney right after SCOTUS issued its decision, I wrote that SCOTUS’ decision required the govt to do nothing except to “say” it had tried to free Garcia.
If the govt fulfilled the minimal requirement of saying that it had tried to free Garcia, beyond that Court did not actually order the govt to give any account of steps taken to try to free Garcia, but only asked—very politely—that “the Government should be prepared to share what it can concerning the steps it has taken.” In the polite formula—the Government should “share what it can”—is the implication that the govt itself gets to decide what it can share, that the Court has no power to compel the govt to disclose anything about its efforts.
Thus, Roberts’ decision—obviously he was the main author—provided a clearly marked roadmap that would allow the govt to continue its course unchanged, by merely saying:
“We tried, but can’t get him back. And (sorry, not sorry) we can not ‘share’ any details about our efforts because the details, in this foreign policy matter the Constitution assigns solely to the president to conduct, are too sensitive to disclose.”
Simply put, Roberts’ decision had zero effect on the govt’s position or tactics in this case.
Before Roberts issued his decision, Trump’s lawyers stonewalled, defied court orders, lied about facts to the point of firing a govt lawyer who skirted too close to the truth, and refused to provide the court with relevant factual information.
After Roberts issued his decision and sent the case back to the district judge to implement the decision, Trump’s lawyers immediately continued to do exactly what they had been doing before Roberts issued his decision. The only difference now is that the Roberts decision effectually instructed the govt how it can, without risk of judicial intervention deprive a foreigner or a citizen of due process (and their freedom and possibly their life) by kidnapping them into the control of a foreign government, and then pleading——without proof—an inability to secure their return.
The upshot of Roberts’ decision is this advice to the government and its lying lawyers: “Just say you tried, and although we in the judiciary might fuss around about it, in the end we will have to take your word for it.”
We shouldn’t be shocked that Trump’s lawyers are doing exactly what Roberts told them they could do. The Court will not save us.
Here’s a link to the similar and related comment I posted yesterday on Sam’s pod with Kyle Cheney.
https://open.substack.com/pub/thebulwark/p/scotus-order-trump-administration?r=2k6d1&utm_campaign=comment-list-share-cta&utm_medium=web&comments=true&commentId=107959411
Except this was returned to the lower court judge who rewrote the instruction to be very clear. They’re in violation of SCOTUS, they ordered the return, not a feeble attempt.
I wish it were so!
This case will probably go back to SCOTUS quite soon, and then we’ll see for sure whether Roberts’ Court can gather the collective will to compel Trump’s underlings to make a real effort to free Garcia. The govt’s response on remand indicates—at the very least—that the govt believes SCOTUS’ decision is toothless.