United States Law and Policy – Page 2 – The Law and Policy Blog

The paradox of the Billionaires saying that Court Orders have no value, for without Court Orders there could not be Billionaires

11th February 2025

Those saying that Orders of the Court can be freely defied should be careful what they wish for

Imagine a billionaire, and imagine then their billions being somehow, unlawfully confiscated.

These unlawful confiscations could be in terms of their physical possessions being taken away; or titles to their real property being transferred to someone else; or the transfer away of monies in bank accounts and trust funds; or the titles in intangible property, such as intellectual property rights, being fraudulently assigned; or their contractual entitlements being wrongly nullified; or whatever.

Imagine whatever the species of wealth, it was by some unlawful means no longer to be the wealth of the billionaire.

What is the poor billionaire to do?

The billionaire would contact their lawyers, and the lawyers would then take legal actions; if needs be, the lawyers would apply to the Courts for remedies and sanctions, so that the unlawful confiscations are ceased and desisted from, and the property returned, and so on.

Whatever the species of wealth, there will be some legal means for the billionaire’s lawyers to seek legal redress form a court of competent jurisdiction.

And so in each and every case, the lawyers will be seeking an Order of the Court.

And not only would the lawyers be seeking an Order of the Court, they would be expecting that the Order of the Court would be respected and would be enforced.

The wealth of any billionaire (or of anybody else) is ultimately a bundle of legal rights – in contract, in property, in trusts, and so on.

It is because these rights are enforceable that the wealth exists and accumulates. Unless the legal rights are enforceable, there simply is no wealth.

And any enforceable legal right usually means ready access to an Order of the Court.

But.

If Orders of the Court have no inherent value – that it is open for others to freely disobey the Orders of the Court – then what ultimately depends on Orders of Court becomes suddenly precarious.

Therefore those – billionaires and others – who say that Orders of the Court can be freely defied, on a pick-and-choose basis should be very careful for what they wish for.

For without compliance with Orders of the Court, there cannot be any billionaires.

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Why Donald Trump is not really “transactional” but anti-transactional

4th February 2025

A contract lawyer’s perspective on how Trump uses deals and deal-making

Contract law is (for me) the most exciting and satisfying area of law.

(Constitutional law and criminal law and media law are all very interesting in how they regulate real life activity, but only contract law is exhilarating. I once read Patrick Atiyah’s extraordinary Introduction to the Law of Contract in one go on a long plane journey, and the same author’s The Rise and Fall of Freedom of Contract is one of the best intellectual histories ever published.)

And so it is from a contract law perspective that this post looks at the question of whether Donald Trump, the businessman-turned-President, is “transactional” in his political approach.

This is certainly what many pundits are saying:

Are these pundits right?

Has this new conventional wisdom hit upon something?

From a contract law – and contract lawyer’s – perspective, Trump is not “transactional”.

Indeed, he is the opposite of transactional: he is instead anti-transactional.

A transaction is a two-way process, an exchange where a party agrees to do a thing in return for another party agreeing to do a thing.

To use old-style language, a transaction is a bargain, an exchange of promises.

And for the business people concerned in a commercial transaction, that contract has sanctity. So if a party does not comply or even breaches the contract there are remedies which are intended to place the injured party in the position they would have been had the agreement been properly performed. Often these are “money” remedies, but sometimes they can be injunctions or other court orders.

The court will enforce what the parties had agreed, for the agreement is the thing.

But for Trump, the agreement is not the thing.

An agreement is there to be opportunistically repudiated, and not to be performed.

An agreement offers an opportunity to gain leverage, for a new negotiation. for a new exertion of power.

This approach has also been spotted by one acute British observer:

For Trump, notwithstanding his ghost-written book The Art of the Deal, deals are not an art but about artfulness.

For Trump, a hire is only of any use so long as they can then be “fired”.

Transactions are just there for suckers.

There is nothing inherently weak in this anti-transactional approach: and indeed it has proved successful for Trump, both politically and commercially.

And, yes, he does deploy the rhetoric of “the deal”.

But this only makes him transactional in the same way an atheist going on about “God” makes them a Christian. There is instead a positive disbelief in the words and concepts being used.

And so each supposed agreement with Trump is a mere marker for the next use (and abuse) of leverage: few if any transactions will ever be transacted. Things will move on, there will be new exertions of power, and new things demanded.

For Trump, a contract, like Littlefinger’s chaos, is a ladder.

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From constitutional drama to constitutional crisis?

1st February 2025

When do constitutional problems become incapable of constitutional solutions?

What is a “constitutional crisis”?

There has certainly been a great deal of constitutional drama in recent years – in the United Kingdom, the United States, and elsewhere.

But some of this drama somehow resolved itself.

In the United Kingdom, for example, the breathless threats and press briefings that the government was to do unlawful things in respect of Brexit in the end came to very little, though some (impotent) legislation was passed.

The United Kingdom supreme court in the Miller cases and parliament, by means of the Benn Act, put the government back into its constitutional box – and the once intense political-media frenzy over the Northern Irish protocol came to a whimpering end with the Windsor framework.

But sometimes constitutional dramas do spill into constitutional crises – political tensions harden into political contradictions, and these in turn can result in bloody violence.

On the islands of Britain and Ireland this has happened at least four times since the 1620s: the civil wars and political violence of the 1630s and the 1640s; the succession and religious conflicts from 1685 to 1746; the Irish war of independence and the Irish civil war; and most recently, the Troubles.

The execution of Charles I

Constitutional crises are serious political conflicts where constitutional means are unable to resolve the conflict, and the ultimate outcome of the conflict then becomes uncertain.

Often the political actors involved in the crisis will resort to violence – or be prepared to do so.

At such times it may not matter that a constitution is codified or not. For what has failed is not the form of the constitution, but its substance. The real failure is that of constitutionalism.

What then is constitutionalism? It has many definitions, but one approach is to regard it as the acceptance that there political rules and principles that should apply, regardless of partisan or personal advantage.

In other words that there are rules of the game.

What has happened in the United States over the last few days looks like a determined and comprehensive attack on various political institutions, by and on behalf of the newly re-elected President Trump.

As there are well-grounded fears that neither the federal judicial benches nor Congress will check and balance this attack, then there are the makings of a genuine constitutional crisis.

And the ultimate cause of this is not so much the failure of their codified constitution, but a deeper and wider failure of constitutionalism – including but not limited to the licence given by the United States supreme court to the president to do unlawful acts, and the failure of the Senate to discharge its constitutional obligation to convict Trump on impeachment after the attempted insurrection of 2021.

From such things, other things have now followed.

Brace, brace.

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Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said

21st January 2025

Around Westminster, the most useful guides to the nature of modern politics may not be the journalists and commentators, still less the ‘think tanks’ with their portentous names and solemn but flimsy ‘reports’.

They are perhaps instead the con-artist conjurers on Westminster Bridge – whose activities are detailed in this fine piece.

For it is these lowly tricksters that remind us that we should watch what is done, and not to be distracted by anything else.

The Conjurer, painted by Hieronymus Bosch

In the United States and the United Kingdom there is currently a lot of noise and a lot of misdirection.

As a famous chess player once observed:

“The point of modern propaganda isn’t only to misinform or push an agenda. It is to exhaust your critical thinking, to annihilate truth.”

The constant noise and endless misdirections are indeed exhausting.

By the time any of the noise and misdirections are translated into action (or inaction), you are tired to notice and others will be too tired to care.

We will be onto the next outrage, and then the next, and the next.

The hard thing is to separate out what is done (and not done) from what is said.

In the United States there has been a flurry of Executive Orders from the newly inaugurated President Donald Trump.

This sounds very impressive, and it sounds very scary.

But, an Executive Order is not a precise thing – it is a generic term to describe a range of documents that can come from the President.

As this US academic explains:

Some of these Executive Orders will be instruments provided for and envisaged by pre-exisiting enacted legislation: and these will usually have direct legal effect.

Others will have no legal framework and have no legal basis for having any effect.

Many will range between these two extremes.

All will be ‘Executive Orders’ put forward and signed by the President – but pretty much that is all they will have in common.

And according to another US observer, many of these Executive orders are not even of serviceable quality:

This is not surprising: competent legal drafting is not easy, and many of these “Executive Orders” are from pressure groups and professional antagonisers.

Like the Truss legal letter recently examined on this blog, what you have here are media-political devices disguised in the form of legal documents.

But it is a mask, and what we are seeing is essentially a masquerade.

This is not to say that some – maybe many – of these Executive Orders are not going to have adverse effects for somebody – especially in the short term.

Indeed, given the many partisan conservative judges now on the federal bench, there will be energetic judicial exertions to give effect to otherwise shoddy Executive Orders.

But what it does mean is that we should be careful not to accept everything at face value.

For a flurry of Executive Orders may be little different from a flurry of Press Releases.

And we should be mindful that we are dealing with con-artist conjurers.

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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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Why did the DoJ prosecution of Trump run out of time?

14th January 2025

How was Trump able to time-out a significant prosecution?

The volume of the United States Department of Justice (DoJ) report dealing with the prosecution of Donald Trump over the event of 6 January four years ago has just been published.

It will take time to digest – and please note this blog is not written by an American lawyer.

But there is one key question that has to be asked of the report and the failed prosecution it details and describes.

And it goes to the last portion of the report:

“but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”

This balanced CNN report from earlier this year provides informed views as to the delays, with defenders and critics of the DoJ process both quoted.

My preliminary view as a commentator on litigation matters is that the prosecution underestimated the effective lawyering of Trump’s advisers and also underestimated how the courts may go against them.

They had what seemed a one-sided litigation strategy – that is to say, not a meaningful litigation strategy at all.

If a party to a dispute has absolute control over events, it does not need a strategy.

A litigation strategy instead is needed so as to anticipate and deal with what the other parties can and will do, and what the courts can and will do.

Trump’s lawyers had a strategy of delay and obstruction – and it worked very effectively, at least with the federal prosecutions (though not entirely, of course, with the New York fraud prosecution, though they still ensured the sentencing there was too late so as to be meaningless).

Not for the first time, those who though they had the measure of Trump underestimated his sheer will for survival.

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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.

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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The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion

18th November 2024

The new Republican presidency-congress in the United States as well as developments in other countries mean that in addition to the illiberalism we have had so far, there is more – perhaps worse – to come.

So how should liberals respond?

Here are three suggestions, humbly put forward.

1. Do not respond, if you can, to catastrophism. You are going to think how bad things can be, and will project this on to the other side. You will then react to what your mind has conjured up. Even if those projections are plausible, this will exhaust you quickly. You will have little energy or focus left for what they do come up with.

2. Do not respond, if you can, to what the illiberals say they will do. They will goad you and frighten you, as they enjoy “owning the libs”. They like the sound it makes, the reactions they can get. Again, even if these threats are plausible, reacting to each bare threat will exhaust you quickly. You will again have little energy or focus left for what they do come up with.

3. Respond, if you can, to what they actually do – not what you fear they will do, or even what they say they will do. What they actually will do will be bad enough, and will need your energy and focus. The illiberals will hope – and expect – that all the noise and fears under (1) and (2) will mean that by the time they do put measures forward, they will have little opposition.

As Margo Channing in All About Eve said, we are are in for a bumpy ride.

We don’t need to make it even bumpier for ourselves.

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New stories for old – making sense of a political-constitutional rupture

14th November 2024

LAUNCELOT: I will send help as soon as I have accomplished a daring and heroic rescue in my own particular…

CONCORDE: Idiom, sir?

LAUNCELOT: …idiom!

– Monty Python and the Quest for the Holy Grail

Last week, before the US presidential election, there was uncertainty.

(This blog recorded that moment here.)

Few if any people had any idea about what would happen next.

Now many people are getting used to the news of the election, even if they are not happy (to say the least) with what happened.

For many, the re-election of Donald Trump as president was not how the story of 2016 was supposed to end.

His presidency was supposed to have been a one-off, an aberration. It was to be regarded as a moment of electoral madness, albeit one which has had unfortunate lingering structural effects for the composition of the supreme court and other judicial benches for at least a generation.

In this way the story was seen as similar to that of Brexit in the United Kingdom, where another 2016 moment of electoral madness also had unfortunate lingering structural effects – in that case of the United Kingdom being outside the European Union for at least a generation.

And now, that perhaps comforting sense of distance has been snatched away.

It is instead happening again.

“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was, Oh no, not again.”

– The Hitchhiker’s Guide to the Galaxy, by Douglas Adams

This time round, of course, the rookies of the first presidency are now seasoned veterans – with four years’ experience and a further four years’ reflection of the failures of the first presidency.

In 1852, Karl Marx wrote of the return of a Napoleon Bonaparte to power in France (emphasis added):

“Hegel remarks somewherethat all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce. Caussidière for Danton, Louis Blanc for Robespierre, the Montagne of 1848 to 1851for the Montagne of 1793 to 1795, the nephew for the uncle. And the same caricature occurs in the circumstances of the second edition of the Eighteenth Brumaire.”

Given the mishaps of the first Trump presidency, it looks like Marx’s famous maxim should now be adapted to read “the first time as farce, the second time as tragedy”.

“Here’s where the story ends
Oh, here’s where the story ends

It’s that little souvenir, of a terrible year, which makes my eyes feel sore”

– The Sundays

But.

Nothing is certain in human affairs, and the new presidency may not actually go the way its supporters hope (and the rest of us fear).

Over on Bluesky, the always thoughtful and perceptive “The Stylite” commenter averred the following:

In 2019 in the United Kingdom, of course, the gods punished Boris Johnson by granting him what he wanted – a huge majority and a general election mandate. The “big dog” caught the car.

And soon Johnson was gone, not only from Downing Street but also from Parliament.

What happened in 2016 had created an opportunity for the populists – and 2019 was when that opportunity was flunked.

Could 2024 be the 2019 of the United States?

In the United States, Trump and the Trumpites are generally oppositional – grievance-mongers and complainers about the Washington elite and so on.

It is not a mindset that adapts well to actual government.

And although there is “Project 2025” – there is otherwise little sense of what the new administration will actually do. The early appointments do not indicate any great seriousness.

Will the gods punish Trump and the Trumpites with also giving them what they want?

Who knows.

But whatever happens, the old story of Trump’s election in 2016 being a one-off has to be replaced with a new story – one which has not taken shape.

And until and unless those opposed to Trump can make sense of what has happened, then there is little chance that they will revive to take advantage of any failures and disappointments in what is to come – to escape this dreadful moment.

CONCORDE: Quickly, sir! This way!

LAUNCELOT: No, it’s not in my idiom! I must escape more….

CONCORDE: Dramatically, sir?

LAUNCELOT: …dramatically!

– Monty Python and the Quest for the Holy Grail

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The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next

8th November 2024

The working assumption of many in reaction to the re-election of Trump as President is that he will serve a full term.

And that is the most likely outcome, as that is what presidents tend to do once elected: they serve out their term.

But there are other possible outcomes.

Some outcomes are morbid, and they are possibilities for any president, especially for one advanced in years.

And there is the possibility he may step down mid-term – or be replaced mid-term.

If Trump stands down mid-term, the new President Vance could pardon him for all and any federal crimes (though not state crimes). This would meet one of Trump’s presumed objectives for having re-run for President.

And if the timing of the replacement is done just right then a President Vance has the prospect of up to (but not quite) ten years in office: here the Twenty-second amendment to the US constitution provides:

“Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. […]”

If the replacement is done on the day after the second anniversary of the start of the term, then there would seem nothing to prevent a President Vance from then running for election and then re-election as President.

[Edit – in other terms: (2 years minus one day) plus 4 years plus 4 years.]

It can also be noted that in a way Trump has done his job for his backers in getting re-elected and, accordingly, there is nothing more he can personally do for them which another friendly occupant of the Oval Office cannot also do. If their objective is dominance over the medium- to long-term then they will be already thinking about the approach to the 2028 election.

And if there are doubts (real or otherwise) about the cognitive alertness of President Trump there is also the Twenty-fifth Amendment, where a President can be effectively removed against their will, on declaration of the (well) Vice-President and others.

On the other hand, a President Trump serving a full term may suit his backers just fine.

Trump is not a President to personally drive legislation through Congress – he is not a Lyndon Johnson or a Franklin Roosevelt.

But with a Republican Senate he does not need to do so: they can drive through the legislation themselves, subject to the final composition of the House of Representatives.

What a lazy president enables is for those around him to dominate the judicial nominations and discretionary powers.

So we can expect a raft of conservative nominations for the judicial benches – and for Justices Clarence Thomas and Samuel Alito to stand down and be replaced by 40 or 50 year-old strong conservatives, nominated by Trump and approved by the Senate. That will secure the Supreme Court for the conservatives for at least another twenty years, if not more.

And we can expect a huge amount of Executive Orders and such like, which in turn will be upheld by conservative judges – for who needs congressional legislation when you can have the combination of executive rule-making and nod-along judges?

Those around Trump will not be the inexperienced incoming staffers of the 2017 presidency, but people who know what to do and how to do it, many with hard experience of the first Trump presidency.

They will know what to do so as to fit things around a golf-playing president.

Trump himself may not be busy, but those around him will be.

Brace, brace.

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