How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful

Over at his Substack the great historian of strategy Lawrence Freedman has provided a magisterial account of why the economic strategy of President Trump is in such a mess.

From Freedman’s conclusion:

“Some bad strategies are the result of incompetence, miscalculation, and inattention. Most fail to consider how other key actors will behave. But the worst are the result of bad theories, so detached from reality that efforts are directed towards achieving goals that are unattainable, employing methods that are bound to fail. To extricate a country or an organisation from a bad strategy it is essential to acknowledge its wrongness and retreat, but with a truly bad theory that requires abandoning an embedded world view.

“In this case a bad theory, nurtured over decades, has led to calamitous policies devised in haste and enacted impetuously in defiance of all received wisdom on the impact of tariffs on the national and international economy. The severity of the impact was accentuated by the chaotic and contradictory nature of the implementation. Much of what has been lost over the past month, in trading rules and economic trust, may never be recovered.”

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Much of Freedman’s conclusion, and indeed much of the content of his detailed and insightful post, can be transferred from economic policy to Trump’s use and misuse (and abuse) of law and the courts.

Same problem, different context.

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It must have seemed so clever and – for the instigators – fun.

They would invoke an ancient law and then, in a show of brute power, they would deport human beings to another country to be held indefinitely in a terrifying super-prison. The human beings would not have any access to due process, and indeed there may even be no evidence against them.

The instigators would then clap and cheer at their public display of cruelty.

And when it seemed a court order had come too late, the president of the receiving country tweeted “Oopsie” and this, in turn was re-tweeted, by the actual Secretary of State from his personal account.

What larks: they must have found it hilarious.

And as this blog has set out, this a point where it became clear there was a constitutional crisis in the United States.

Not only were the orders of the courts not being taking seriously, the courts were being mocked openly by senior members of the administration.

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It is now becoming apparent that not only was this policy nasty, but it was also not thought-through legally.

There was a rush on 15 March to put in place this shock-and-awe policy, but there was no underlying legal or litigation strategy.

And that lack of a legal or litigation strategy explains the frustrations the administration is now having with pushing on with this policy.

Indeed, the policy now is blocked by an extraordinary order of the supreme court of the United States, issued at just after midnight on Good Friday.

All but two of the justices of the supreme court – including all three of Trump’s appointees from his first term – supported this order. The only dissents were from justices Thomas and Alito.

(“Justice Alito dissents” is a welcome legal phrase in any supreme court judgment, and it perhaps should be set to music to the tune of “Miss Otis Regrets”.)

The sheer extraordinariness of this emergency supreme court order can be seen from Alito’s dissenting statement (which significantly the court did not wait for before issuing the order).

So incensed is Alito you will see that he loses all power of normal judicial prose and is reduced to listing his grievances in bullet points.

Alito was not a happy Easter bunny.

And in his bullet points he makes what would otherwise be some sound points: the majority of supreme court did act of its own volition, and at speed, and in highly unusual circumstances.

But what his bullet points miss is why the majority of the supreme court – including four usually conservative judges, including three Trump appointees – felt the need to do this remarkable judicial act.

Why did the majority of the supreme court feel there was no alternative?

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Earlier on Good Friday, the official White House Twitter account published this remarkable tweet.

Back on 15 March the Secretary of State was (perhaps) careful to re-tweet the sarcasm of the El Salvador president from his personal and not official Twitter account.

Now the official White House Twitter account was itself stating that an order of the court will not be taken seriously.

You will recall that the supreme court – unanimously – ordered the United States government to “facilitate” the return of Abrego Garcia.

Whatever the meaning of the Good Friday tweet, it shows that the United States government is not taking seriously that they must “facilitate” the return of Abrego Garcia.

He is, according to the White House, “never coming back”.

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The Good Friday tweet was unpleasant and crass and infantile – but crucially from a litigation perspective, it was also unwise.

And here we go back to Freedman’s post, and to the importance of strategic thinking.

In litigation a properly thought-through strategy means that one should not close down options and, in particular, one should not alienate the courts. The courts are the source of most useful options in serious litigation – courts can make orders, impose stays, strike cases out.

But the US government here advertised that they are not taking court orders seriously – and not just from a sly re-tweet from a personal account, but from the official White House account itself.

And the tweet does not stand in isolation – it is in the context of the ongoing failure of the United States government to properly provide requested and required information to the courts about the deportation cases.

In essence: the courts simply do not believe what the government is telling them.

And in litigation, there is no worse situation for any party to that litigation to be in than to lose the confidence of the judges.

Generally it means that at each round of litigation – each interim hearing, each application, each appeal – the judges will go against you.

And at its extreme, the courts will, of their own volition, make orders against you.

For the supreme court of the United States to make that midnight order was an absolute rebuttal of whatever litigation “strategy” the United States government was following with these cases.

Perhaps those at the US government thought the conservative majority of the Supreme Court meant that favourable decisions were in the bag.

But all they have now been left with are Alito’s worthless bullet points instead.

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And this brings us to another point about litigation strategy.

You do not really need a litigation strategy for when things go well straight away.

You need a strategy for when things go badly: to work out what you do in various foreseeable unwelcome situations that may flow from your initial decisions.

But the evidence of the deportation cases indicates that there was no thought put into what would happen – other than a vague notion of weaponising a clash with the court – if the policy had setbacks.

Take the case of Abrego Garcia.

Taking the government’s position seriously for a moment, what should have happened when it was obvious a mistake was made and someone had been deported in breach of an order, was for that mistake to be rectified.

The government could then have used rectifying that mistake to show that its general policy had safeguards, and so should not be legally challenged.

But instead the government doubled-down, thereby indicating the whole policy scheme had no safeguards.

There had been no contingent thinking about what to do if a mistake was made.

If Abrego Garcia had been returned promptly and safely, it would have perhaps made the rest of the scheme harder for critics to discredit as being unfair.

Of course, the whole scheme is nasty and inhumane – but here we are looking at what strategic options could have been open to a supporter of this evil scheme.

Again, it seemed that the US government had not thought this through beyond the 15 March flights.

As with the tariffs, no thought was put into what could happen next.

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A similar lack of strategic thinking is apparent in the attempts to bully Harvard University.

Those attacking the university seem to have not thought about what would happen if the university rejected the demands and sued instead.

But Harvard seem to be putting serious thought into their strategy, as this post indicates.

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Overall, Trump and his government appear to have three general impulses:

– to demonise and monster in the media and the courts those who can be demonised and monstered and thereby humiliated;

– to intimidate those who are capable of being intimidated, such as law firms and universities with weak leaderships; and

– to manipulate and gain leverage over those who cannot be demonised or intimidated, such as foreign trading states, so as to do “deals”.

None of these bullying impulses add up to a strategy – or even to a tactic. They lead only to first-move antics, which may or may not work depending to the Trump government’s cynical assessment of those involved.

And this is true not only of their approach to law and litigation – but also, as Freedman avers, to economic strategy.

This is not say that that the bullying impulses set out above will fail – many rulers have managed to keep power a long time with such an approach, for it is based on unwelcome truths about human nature.

But such an approach will tend to fail with complex processes such as litigation and trade negotiations, where the confidence of other parties is essential to keep options open, and where contingent planning is required for when things do not go as originally intended.

Shock-and-awe can work – and keep working – in certain limited contexts, but in complex matters, the shock-and-awe approach can soon become shockingly awful.