Trump’s Week of Stinging Defeats Has an Important Lesson for the Supreme

This week, President Donald Trump suffered a string of defeats that exposed the real limits of his power at home and abroad. First, his Justice Department abandoned its efforts to illegally appoint Lindsey Halligan, his former personal lawyer, as U.S. attorney, yielding to a furious judicial rebuke of its dirty tactics. Then the president dropped his threat to seize Greenland through military force or ruinous tariffs in the face of stiff international resistance. At almost the same time, the Supreme Court threw cold water on his bid to fire Lisa Cook from the Federal Reserve. Meanwhile, Minneapolis residents continue to protest, thwart, and document his violent assault on immigrant communities. On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the vital lessons to be gleaned from these victories against the president’s abuses of power. A preview of their conversation, below, has been edited and condensed for clarity. Dahlia Lithwick: This story feels symbolic of the theme we wanted to talk about this week, which is that sometimes standing up to Trump really works. In November, a federal judge ruled that the Trump administration had illegally installed Lindsey Halligan as interim U.S. attorney in Virginia and threw out her sloppy indictments of James Comey and Letitia James. But somehow Halligan refused to leave the office and kept claiming the title. When a different judge, David Novak, told her to stop, she filed this seething reply, with full backing from Pam Bondi’s DOJ, calling him a partisan hack. Tell us how he responded this week. Mark Joseph Stern: This was one of the most incandescent judicial opinions I think I have ever seen. And, by the way, this is a Trump appointee; he’s not a flaming liberal. But Novak accused Halligan of wildly unprofessional conduct and openly breaking the law. This was a master class in dressing down the class clown. He wrote that her brief “contains a level of vitriol more appropriate for a cable news talk show and falls far beneath the level of advocacy expected from litigants in this Court, particularly the Department of Justice.” Novak also pointed out that the chief judge of the 4th Circuit has made the ruling against Halligan’s appointment binding across the district, so Halligan was “simply flouting a judicial order because of a disagreement” by pretending to still hold the office. He wrote: “Ms. Halligan’s response asserts that she is free to act in an unlawful capacity, because she disagrees that she does so unlawfully. But that’s not how our legal system works.” And he went on: “The Eastern District of Virginia has long enjoyed the service of experienced prosecutors” who “shared an unwavering commitment to the Rule of Law, putting the interests of the citizens of the District before their own personal ambitions, as true public servants do. Unfortunately, it appears that this ethos has come to an end.” Obviously, Novak was not backing down. He struck Halligan’s title as U.S. attorney from all relevant filings. And he said that while professional discipline—including potential disbarment—would have been appropriate, he would give Halligan “the benefit of the doubt” because of her unusual “inexperience” as a prosecutor. That was an extraordinary way to say: You are so unprofessional and inexperienced that I’m not even going to discipline you because you never had any business in this position in the first place. The really important thing here is that, in a world in which these folks act as though they have boundless impunity to do what they want, it is incredibly important for judges to say no. It’s the cornerstone of how we think about the judicial role. That said, I have to read one more smackdown. Novak wrote: “No matter all of her machinations, Ms. Halligan has no legal basis to represent to this court that she holds the position. … This charade of Ms. Halligan masquerading as the United States Attorney for this District in direct defiance of binding court orders must come to an end.” This is a historic dressing-down of somebody who thought they were made of Teflon. A few months ago, Halligan was asserting that she had the power to jail the president’s political foes on a pretext. And this humiliation is compounded by the fact that the chief judge of the district court posted a notice on Tuesday that the position of U.S. attorney was vacant—because even if Halligan had been appointed legally, her 120 days in the office were officially up. How did Halligan react to these slights? She gave up, which is not what I expected. It was entirely possible that the Trump administration would attempt to reappoint her as interim U.S. attorney for another 120 days and try to fight this out till the end. Instead, it surrendered. Bondi announced on social media that Halligan would no longer seek to serve in the position. That is a victory for all the judges who stood up to this unlawful appointment. And it took me by surprise because the Justice Department’s filing earlier sounded like the opening salvo of a major battle over the limits of a president’s power to install his crony as top prosecutor. Then, when the DOJ got shot down and embarrassed and threatened with actual consequences, it just tucked in its tail and limped away. There’s another topic I want to discuss in this same key. As late as Tuesday, America’s allies seem to be gearing up for a full-on confrontation with Trump over his deranged quest to seize Greenland. Canadian Prime Minister Mark Carney gave a stem-winder of a speech at Davos promising to defend Greenland’s sovereignty and bemoaning Trump’s “rupture” of the rules-based international order. Then, on Wednesday, in the face of all this, Trump just rolled over and gave up? He conceded defeat. He said he was not going to use military force to seize Greenland, which was the threat that he had been pushing for days—tanking the markets, terrifying the allies, forcing Denmark and Greenland to prepare for possible battle with the United States. He just said: Never mind, I’m not going to do that. Then he purported to secure a deal with NATO that would give the U.S. unlimited access to Greenland, something we already have under current agreements. So he didn’t do anything at all. He imperiled the entire world order to end up with the status quo. When Carney gave that speech, and world leaders gave him a standing ovation, I was worried. I wondered: Is this the provocation? Is this the moment we truly become a rogue nation? Are the tanks going to be rolling into Greenland? And instead, Trump gave up, just as he did with Halligan. The truth is that he’s weak. He is not the muscular president he pretends to be on television. When someone says no, and uses tools at their disposal to enforce that boundary, he stands down, because he is terrified of being defeated in a way that he can’t spin as a secret victory. That’s particularly salient in a week when so many horrors have befallen residents of Minnesota who are standing up to genuine tyranny. It may be tempting to slide into defeatism. But your point is that Donald Trump is a cartoon strongman’s idea of a strongman, right? He’s not actually very strong. If people and institutions and businesses and government stand up to him, he crumples. Let’s braid into that a conversation we had earlier in the week about the Supreme Court arguments over Trump’s attempt to fire Lisa Cook from the Federal Reserve. The justices were like: What? You can’t do this. We can’t have the Fed at the mercy of a president who goes on pretextual fishing expeditions to go after people he doesn’t like. The point here seems to be: Don’t cede all this power to him. And maybe if SCOTUS would grow a spine, this could end tomorrow. You observed on Wednesday that a lot of the justices sounded pissed. They were like: How did we get to this point? And it’s their own fault! They gave Trump so much leeway in all of these earlier cases to break the law. Then they seemed irked when he crossed the line that they had tried to draw in the sand over the Federal Reserve. They seemed to wonder: How could this happen? Well, look in the mirror. When you capitulate, you empower Trump to push further past your limits. That’s the lesson that the international community seems to have learned, and that our more courageous judges in the lower courts have learned. Let’s just hope that John Roberts, Brett Kavanaugh, and Amy Coney Barrett are learning it now, because it’s one of the few things that could turn around this catastrophe. With Trump, you’ve got to hold the line, or else you just get bowled over. That is what everyone out in the streets in Minnesota is doing right now, and we are seeing the results. The average protester blowing a whistle on the streets of the Twin Cities has shown more courage than John Roberts has in maybe his entire career.