Category: Courts and Politics

Making sense of the Trump-Roberts exchange about impeachment

19th March 2025

Two public statements about the impeachment of judges – and why the Roberts one is highly significant

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We are in strange constitutional times.

Yesterday there were two public statements, from the heads of their respective branches of the United States constitutional system.

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The first was from the president of the United States Donald Trump on social media:

“This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President – He didn’t WIN the popular VOTE (by a lot!), he didn’t WIN ALL SEVEN SWING STATES, he didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!! WE DON’T WANT VICIOUS, VIOLENT, AND DEMENTED CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY. MAKE AMERICA GREAT AGAIN!!!”

This social media post indicated Trump was perhaps a little disappointed with how the current case on deportations is going (covered on this blog  in the last couple of days).

And unlike many of the documents examined on this blog, this Trump post really is not a difficult text to parse.

Once upon a time, when things were normal, such a statement by a president or anyone else in a position of power would have caused consternation, and maybe even triggered its own impeachment.

Now, we just expect these things – and one’s eyes glaze over such missives, with their lines of block capitals, just like one’s eyes can glaze over those irksome American contracts which insist in putting dozens provisions in block capitals so as to make them (supposedly) duly prominent.

And the fact that Trump was attacking a judge and calling for their impeachment also registered hardly a shrug.

So what? This is what he does. Next news item, please.

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But.

It is a text not without interest – not for what it says, but for its context.

The timing of this post would accord with when Trump was probably being told of how the court case was going, with federal lawyers briefing him on the merits of the success of the defence.

As this blog has said, the US federal government are facing a hard time in this particular case – and there seems no obvious way that the government was not in breach of a court order.

If that was the substance of what Trump was being told, there is no wonder his response was this social media text. He would not take such news well.

But even after setting out this possible context, few would give such blather a second thought. More of the same.

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But.

Then something unexpected happened.

John Roberts, the chief justice of the United States Supreme Court, put out his own public statement.

Such statements are as rare as Trumps posts are ubiquitous, and so it had the sudden effect that Trump’s posts have lost long lost.

Roberts simply said this, in a mere two sentences, and without any block capitals or exclamation marks:

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

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Bang.

Of course, this does not mention Trump expressly. And nor it is it an exceptional statement – it states the obvious.

In and of itself, it is not a radical text.

Yet the context of this text maybe makes it very potent indeed, and for at least two possible reasons.

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First, it perhaps indicates that Roberts – part of the nominal conservative majority on the court – is not happy with threats to impeach judges over how cases are decided.

And if Roberts is not happy, it is likely that other conservative justices such as Amy Coney Barrett are unhappy too.

Given that Trump and his supporters hope and expect the conservative majority on the supreme court to ultimately uphold a lot of what they are currently doing, this statement was a signal that this majority cannot be taken for granted.

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Second, it appears to also be a signal of judicial leadership. Roberts is implicitly telling the other federal judges across America who are having to adjudicate legal claims arising from the current political turmoil not to be intimidated by threats of impeachment.

(Any impeachment would also require two-thirds of the senate – votes which the conservatives have not (yet) got.)

If it is such a signal of leadership then, again, this is not good news for Trump and his bullying supporters.

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Was it proper for Roberts to make such an extra-judicial statement?

Already conservative senators are saying that Roberts has trespassed onto the arena of the legislature, for it is Congress that decides whether to impeach.

(Such senators, of course, are silent on whether it was proper for the president to usurp the role of Congress on impeachment – but presumably such intellectual consistency is for the hobgoblin of little minds.)

But in any case Roberts was correctly stating the appropriate response to disagreeing with a court decision – you appeal, which is certainly proper for a chief justice to say.

And by saying what is the appropriate response, you are also necessarily saying what is not the appropriate response, and there is nothing wrong with him doing that expressly.

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One never would have expected the president and chief justice to engage in, what is in effect, a twenty-first century pamphlet war – to have such a row in public.

To his credit Roberts avoided joining with Trump expressly, but the meaning of his speech act was plain: it was a public correction, if not a contradiction, of the president of the United States. It was a public rebuke.

Roberts would not have enjoyed doing this, and so there must have been for him a compelling reason to overwhelm his usual reluctance to make such statements.

(One wonders if he is also tempted to make a general statement that court orders should also be complied with unless appealed – though that may be too close to the facts of many currently contested cases.)

Many – fully aware of Roberts’ own rather illiberal judicial record – were unimpressed with this intervention. It was too little, too late and he only has himself to blame for much of the current law and policy dumpster fires.

Perhaps.

But here Roberts did do the right thing, and for that he should be commended – even if much of the rest of his record should be condemned.

And if politics is about getting people to shift their position to a better position, then any such move should always be welcomed.

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Of course, the Roberts statement will make little difference to the current spectacular legal and political breakdown of the United States.

But it is a signal that those seeking to bring about this breakdown are not going to have it all their own way.

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A third and final post about the ‘Lettuce before Action’ of Elizabeth Truss

18th January 2025

The final piece of evidence which shows, on balance, that it was not intended as a serious legal letter

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So far this blog (here and here) has provided an immediate close reading of the libel letter sent by the former Prime Minister to the current Prime Minister, and yesterday it set out a more considered approach.

But there is one further thing which perhaps should be noted about the letter.

Let us look again at the first and final pages (which for reasons given in the previous points, I have taken out the letterhead of the law firm, though there is a reference to it on the the final page, which was unavoidable if I were to show the letter did not have a “wet ink” signature).

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There is something else missing, apart from the “wet ink” signature.

It is something which would normally be at the top of the first page, or maybe sometimes at the bottom of the last page.

The letter circulated to the media does not include any of the usual “furniture” of a legal letter: a reference number, the identity of the lawyer sending it, the email address for the recipient to respond to, and so on.

As this was a letter which explicitly was sent by email, then an email address for a response would be normal.

And given the law firm sending the letter lists three postal addresses for three offices, there would be a need at least for a file reference number or other identifying paraphernalia.

But there is nothing.

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Taken together with the evidence already detailed in the previous posts that this is a weak litigation letter, then this suggests one of the following scenarios:

1. the version of the letter sent did not have a “wet ink” signature, no reference number and no identifying information as to the lawyer and office which sent it;

2. the version circulated to the press was an unsigned “client copy” of the version of the letter sent, and the letter which was sent did have a reference number and identifying information as to the lawyer and office, and either Truss or someone in her circle leaked their “client copy” version of the letter;

3. the version sent and circulated to the press was not “leaked”, but was instead deliberately crafted and intended as a publicity version for release to the media, and so care was taken that this publicity version removed any identifying details.

Normally(!) the first option would the least likely, because it would odd indeed for a multi-office law firm (as opposed, say, to a High Street one-person firm) to have no identifying information whatsoever on a litigation letter for any reply to be directed to the right person.

Yet if it is the third option, then this would mean that the letter was never intended by Truss to be taken seriously by the recipient: it was always and entirely a media-political exercise.

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On balance, taking together both the muddled content (and lack of content) of the letter and the accumulation of telling details, this letter was never intended to be a credible litigation letter, it was always an exercise in publicity.

Your response to this may be (and perhaps should be) “duh, no surprise there, Sherlock” – but it is one thing to assert that a letter has no credible legal purpose, and another to demonstrate it could have no credible legal purpose, and to demonstrate on balance that it could have no credible legal purpose is what this short series of posts set out to do.

And, if so, it is an unwelcome development that lawyers’ letters are being. used for such a media-political purpose.

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Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech

17th January 2025

Before we start, the “lettuce before action” (for “letter before action”) line has been taken from the estimable Paul Magrath, whose weekly legal email is a must-read.

I really wish I had thought of the line for last week’s post.

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The post last week provided a quick close reading of the gloriously bad libel letter sent on behalf of the former Prime Minister Elizabeth Truss to the current Prime Minister Keir Starmer.

That post was done at speed: I wanted to respond to what the letter actually said, before I was aware of what others said it said. This is always the best way of engaging any formal document: work out what you can from reading the text yourself, before seeing what others tell you the text says.

This approach has its advantages – and also its disadvantages, not least that one can miss things others will see.

There was also the problem I did not then have access to the second page – though it was fun to speculate what could be on that second page.

This is now a more considered post, adding to the points made in the first post (which I think stands quite well), with the bonus of what seems to be the second page.

And for the reasons set out below, there is a worrying implication in the letter in respect of free expression. This is perhaps odd coming from a politician who often emphasises her free speech credentials.

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First, here is the full letter with what appears to be the second page (which has been taken with thanks from here):

 

 

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The second page, which I speculated must have contained all what was missing from the other pages, in fact adds nothing substantial to the letter.

Here it is again:

But, for completeness, the second page tells us that the words complained of were not said in parliament and so there is no issue of the absolute privilege for what is said in parliament (paragraph [7] and the footnotes to paragraph [4]).

And Paragraph [9] somehow manages to weaken what is already a very weak letter.

We already knew that this was a “cease-and-desist” letter that somehow did not set out what would happen if the recipient did not cease and desist. Paragraph [9] now sets out the sender is not even demanding a legal remedy at all.

In litigation terms, paragraph [9] should have instead been in an accompanying “without prejudice” proposing an offer for a compromised outcome. But for some reason it was included in, and thereby undermines, the “open” letter that would be placed before the court when the matter came to trial. It is a strange inclusion in such a letter.

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As set out last week, this libel threat is poor.

It is perhaps the weakest libel threat ever sent by an English law firm.

That said, it is in my view just about within the scope that a law firm could properly send, given very precise instructions.

But those very precise instruction would have to be to the effect of “send the weakest litigation letter you can”.

And so for that reason, I am not making a point of mentioning the law firm.

We should not visit the sins of a client upon a lawyer, and Truss – like you and me – is entitled to legal representation.

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Now are some further, more considered observations on the letter.

Notice the bulk of the letter is concerned with the appended expert’s report, including – impressively – a paragraph [16] with seven(!) sub-paragraphs.

This bulk makes the letter rather lop-sided.

The “legal” bits of the letter are nowhere near as detailed as the “economic” bits.

The impression this gives is that the origin of the letter was probably this report, which was then given to lawyers with the instruction of somehow building a legal letter on top of it.

The letter was thereby likely to be a device for promoting the content of the report, which it certainly did.

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And this then probably explains the existence of this letter.

As was set out last week, it is an utter failure as a libel threat.

Although – with a squint – one can see that it just about meets the requirements of a legal letter, it is plain that was not its purpose.

(And perhaps one error last week was for this blog to treat it earnestly, on its own terms, as a legal letter.)

It is not a serious legal document, but a political and media document.

And contrary to the “Private and Confidential” marking on its front page, it would appear that the intention of the client (if not of the law firm, who would have no control of the matter) was for it to be leaked and published.

That this is the case is further evidenced by the circulated version being unsigned.

For while some legal letters are not signed, and there is no strict requirement for an “ink” signature as such, it is also often the case that the client copies of correspondence are also not signed, just the letter which is actually sent.

It would seem that the letter must have been leaked either by the client or someone in her circle.

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As regards the expert report, a number of commenters have focused on the identity of the expert.

But it does not matter if the economist’s report on which the letter was relying was by John Maynard Keynes or Adam Smith.

It made no sense to rely on an expert’s report in respect of facts which the same letter also said were “clear”.

That is not what expert reports are for in civil litigation.

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And now we come to the possible implication of the letter for free expression.

Reading the letter as a whole, including the now non-missing page two, the threat made against the Prime Minister could be made by her against any person at all who said the words complained of.

There is nothing in the letter which would limit the alleged liability to the Prime Minister for saying those words.

Generally libel is blind to the identity and motives of the person who “publishes” the words – in this case says words reported in the media.

The framing of the letter is such that any person who published the words complained of would be liable to Truss for general damages.

The letter is addressed to Starmer, but it describes a claim Truss could also make against world.

Fortunately this letter is so hopeless that nobody will end up with legal liability.

But the premise of the letter is an extraordinary widening of legal liability for political speech, catching many political speech-acts on social media and other published media which most be people would assume was part of their everyday free speech in criticising Truss for what she did with the economy.

Given that the sender often promotes her belief in free speech, this is perhaps further evidence that the content of this letter was not really thought-through by Truss, beyond being the means of widely circulating a certain favourable (but probably legally inadmissible) report.

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The Prime Minister gave what must be the most appropriate response to this letter in PMQs on Wednesday.

“I got a letter this week from a Tory voter in a Labour seat.

“I hope that they do not mind me saying who it was—it was Liz Truss.

“It was not written in green ink, but it might as well have been.

“She was complaining that saying she had crashed the economy was damaging her reputation.

“It was actually crashing the economy that damaged her reputation.”

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There has been no announcement of any formal reply by Starmer to the letter, which is not surprising given the letter did not ask for a reply, still less (remarkably for a supposed cease-and-desist letter) demand any undertakings, and the letter also did not include any deadline.

Truss, however, seems to want to have the last word.

On X (previously Twitter) she responded to the Prime Minister’s jibe:

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Here, if Truss sincerely thinks accusing someone of crashing the economy is defamatory (subject to any defences), then she is with her “closer to home” comments herself defaming someone else in turn.

But at least she put “cease and desist” letter in ironic quotes.

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Politicians and others (and their lawyers) should always be careful in using any litigation documents – from letters before action to third party submissions – for the purposes of publicity.

Judges certainly do not like it.

And if done badly, you also end up looking very silly.

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At Substack, last week’s post on Truss has now overtaken the post on Taylor Swift to become the second most popular post ever published on that blog.

And this is fitting in a way.

For an alternative title for this post could have been: “Litigation (Liz Truss’s Version)”.

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Of Indictments and Impeachments, and of Donald Trump – two similar words for two distinct things

16th January 2025

Over at Prospect, for this my “weekly constitutional” post I have done something on why the ultimate fault for Trump not being held to account for what he did on 6 January four years ago is not with the failed, now effectively out-of-time prosecution, but with the fact it was not dealt with properly by the Senate when Trump was impeached.

This was something which should have been dealt with by impeachment, not indictment.

It was the wrong i———ment word.

This is not to say there are not problems with the prosecution, and I mentioned some of these in a post here a couple of days ago, when the special prosecutor’s report was published.

But.

Even taking the prosecution at its highest, it was wrong tool for the job.

When the Senate acquitted Trump over what he did on 6 January 2021 and so did not disqualify him from office (a political and not a legal sanction), all else followed.

What Trump did on 6 January 2021 also fitted various general criminal offences according to the published report, but that was incidental.

It was essentially a political wrong – and so it should have been dealt with by political means.

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Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench

New year’s eve, 2024

The former US President Jimmy Carter, who has just died, left office in January 1981 – just under 44 years ago.

Yet one of his many bench nominees was still actively serving as a federal judge as recently as 2021:

And that list also indicates that about 29 of those judges – while not on active service – have the semi-retired “senior status” and so can still serve as judges if required.

This shows the significant lingering power of every US President on the shape of the judiciary.

A 100 year-old president former president has died who left office over 40 years ago, and yet his appointments can still decide cases.

Bringing this around to today: the newly re-elected Donald Trump and the Republican Senate will be appointing a raft of young conservative judges to the judicial benches, in addition to those which were appointed during his first term.

And some of these will still be judging (or able to judge) in 40 or 50 years – long after many of you reading this post may be here.

The lingering effect of the two Trumpite moments will last for political generations. Some appointed judges may see out ten or more presidential terms and still be judging.

And judicial time limits are now more unlikely than ever: Trump and the Republican senators have no interest whatsoever in limiting the enduring power of their nominees. And presumably as and when (or if) the Democrats ever regain power, they will have no interest in limiting the terms of their appointees.

This is a practical effect of how what some say (or hope) may only be short-term political surges can have consequences that will last decades.

(See also: Brexit.)

We are not dealing only with the politics of the here and now, but about the law and government of the hereafter.

Perhaps things will one day get better for liberals and progressives.

Perhaps.

But it is going to be a long haul.

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Happy new year to the readers of this blog.

Thank you for your ongoing support.

There is going to be a lot to write about in the new year – and I am also going to explore the law and policy of AI, following my Candlemas story.

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How the criminal justice system deals with a riot

5th August 2024

Thirteen years ago, I went along to the south London shopping centre expecting to report on a riot. But there was not a riot.

Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

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Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

  • independent enforcement of a new ministerial code;

  • establishing new systems for managing conflicts of interest;
  • ditto, for lobbying;
  • improving regulation of post-government employment;
  • ensuring appointments to the Lords are only made on merit;
  • ensuring other public appointments are rigorous and transparent; and

  • strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

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Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

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The public service of an “Enemy of the People”

22nd June 2024

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The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act?

12th June 2024

As each party manifesto is published online, and for my own easy amusement, I like to search the pdf for words like “enshrine” and “clear”.

And after that easy amusement, I look for more serious things.

Yesterday the Conservative manifesto was published.

(Many “clears” but disappointingly only one “enshrine”.)

What were the Conservatives were promising (threatening) this time for the Human Rights Act?

 

Doing something to this Act has been a mainstay of every Conservative general election manifesto for as long as I can remember.

But the search return was…

…0/0.

I am a clumsy typist and so I thought: a typo. Let me try again.

And it was still a nil return.

Something must be up with the search function, I thought.

And so I tried “ECHR”.

I even typed out in full the “European Convention on Human Rights” and the “European Court of Human Rights”.

Nil, nil.

How odd.

Could it be that the manifesto actually did not threaten the Act or the Convention?

Well.

A closer look revealed one fairly oblique mention:

Of course, the European Court of Human Rights is not meaningfully a foreign court: it has British judges, British lawyers can appear, British residents can petition the court or appeal cases there, and its caselaw can be relied on in our domestic courts. Foreign law usually is a matter of expert evidence, but Strasbourg case law is part of our own jurisprudence.

It is an international court, of which we are part, rather than a foreign court.

But that is by-the-by.

What is significant is not this sort-of commitment, but the lack of any other promises (or threats).

It is an astonishing, unexpected absence for a Conservative manifesto – perhaps the manifesto equivalent to leaving a D-Day commemoration early.

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Over on Twitter, Adam Wagner noticed the same:

Of course, it must be noted that government has recently been disapplying the Act on a statute-by-statute basis, rather than making any full frontal attack.

But even taking that point at its highest, one would still expect an explicit manifesto commitment just for the claps and cheers of political and media supporters.

And this is a governing party that needs all the claps and cheers it can get.

It is a remarkable omission.

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And one suspects it is an accidental omission, for the governing party has little to gain by leaving it out, and something to gain electorally (or at least hold on to) by leaving it in.

If so, the possible significance of the omission is that the Conservative leadership, having got bored with the pretence that the Act will ever be repealed or substantially amended, simply are not thinking about it any more.

Their minds have moved on to other “red meat” for their more illiberal supporters.

But what it also means is that, in the highly unlikely event of the Conservatives staying in government after 4 July 2024, there is no manifesto commitment they can rely on in forcing any changes to the Act through the House of Lords.

What that in turn means is that the Human Rights Act will now be safe for the lifetime of the next parliament, whatever happens at the general election.

And that itself is quite a thing.

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Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy

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