Update No. 2

Keeping Track of Legal Cases

Think Trump was expecting FIFTY-EIGHT lawsuits?

As we live through this truly unprecedented stretch of American history, it feels very much to me like a war. I’m not talking about anger or hatred. I’m talking about the vast mobilization of forces and the gigantic efforts being expended on both sides. As in so many wars, we have an unanticipated sneak attack, but we also have a robust pushback. Attorney Norm Eisen of the Contrarian, who has personally participated in many of the lawsuits, gleefully calls it “Flooding the Zone” vs “Shock and Awe.”

Incidentally, I don’t think that the best generals expend much anger on the enemy. More often, they focus their anger on their own troops to rouse them to their best efforts.

For the first few days after the Musk coup, I was afraid no one would fight back. His actions were so decisive and crudely effective, I wondered if our side had the resources to answer. However, there are now no less than FIFTY-EIGHT lawsuits challenging the Trump Administration.

You find complete information on any of these lawsuits including links to filings and judgments at the excellent Litigation Tracker Database at Just Security.

More user-friendly is the Legal Challenge Tracker at the Washington Post (I just updated this link and it should be free now). It simplifies the 58 lawsuits down to thirteen issues. It also categorizes them as blocked, partially blocked, awaiting decision, and upheld for Trump. It also provides a brief summary of ongoing litigation on each issue written in something closer to plain English.

Washington Post Legal Challenges Tracker

Trump Has Won Exactly One Time

Unfortunately, Trump has scored his first win in the 58 cases— but on a technicality. A federal judge ruled that a federal employee labor union had no standing to sue to block the “Fork in the Road” letter sent to federal employees. The judge ruled that the labor union itself was not harmed by the letter, and Congress has set up an administrative process to adjudicate employee grievances against the government. Basically, the court told the federal employee labor union, “I don’t have congressional authority to hear this case.”

Yet this relatively minor defeat should be seen in the light of the very significant wins in other cases. Federal judges who have ruled against Trump include appointees from the Reagan, George W. Bush, and Trump 1.0 administrations. These jurists come from a Republican Party that has ceased to exist.

So, the courts have told Musk to halt many of his illegal activities— not that I don’t think he won't keep doing whatever he thinks he can get away with behind their backs. Musk is probably thinking along the lines, “What they don’t know about they can’t enjoin.” As a consequence, Musk and his juvey marauders will remain the termites in the edifice of the federal government for some time to come. But as more information about their law-breaking comes to light, the courts will have fuel for more focused injunctions. Now that federal employees see that the courts are ready to act, they will be more willing to provide information, which can be done anonymously at this point.

Remember that this is a war and wars are destructive. The federal government will not be in good shape when this is over, but if the federal government was built once it can be built again. Things were far worse after World War II: cities and nations were reduced to rubble but were back on their feet and better than ever 15 years later.

How do Courts Enforce Their Judgments?

The first step is an injunction or a temporary restraining order (basically “stop doing that”). If the prohibited behavior continues, the court can find the defendant in civil contempt, which is often punished by a fine. You may remember that Donald Trump was fined 10 times for contempt of court by Judge Juan Merchan during his Manhattan hush money trial. Fines can either be a one-time penalty or a daily fine until the enjoined behavior ceases.

If a defendant continues to defy the court, imprisonment can be imposed for criminal contempt. In cases involving Trump and members of his administration, this would not come into play until the issue had been adjudicated to the level of the Supreme Court.

So, we aren’t in an actual constitutional crisis until Trump defies a Supreme Court order. Many people are asking the question, “What then?” I presented one idea about how to handle Trumpian defiance a few days ago. Guest author Tanner Caplan will present another powerful idea in a post to be published tomorrow.