← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Preview: Fed Up
00:09:20
The Supreme Court’s conservative justices feel very differently about handing unrestrained powers to the president when their 401(k)s are at stake.
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- [00:04]
A
Hi, and welcome to a special bonus episode of Amicus Slate's podcast about the courts and the law. I'm Dahlia Lithwick.
- [00:11]
B
And I'm Mark Joseph Stern.
- [00:13]
A
And we are popping up with this extra midweek episode because while President Donald Trump was wrapping up his rambling and largely incoherent impersonation of Tony Soprano In Davos, the nine justices of the U.S. supreme Court were settling into hear two hours of oral arguments over President Trump's efforts to remove Lisa Cook, a Federal Reserve governor, by way of a truth social post last August, alleging that she had committed mortgage fraud. Again, mortgage fraud. The D.C. circuit had actually stayed that effort at removal. The case hurtled up to the high court on the shadow docket without any real record, without any real facts, without much guidance other than the president's feelings. And so Solicitor General John Sauer used Wednesday morning's arguments to claim that presidential removal decisions, even at the Fed, are virtually unreviewable, while former Solicitor General Paul Clement, representing Lisa Cook, argued that this had all happened illegally and sloppily and at a minimum, far too fast, insisting that this was just not a good way to do law. So Mark and I have convened this special session of the Amicus plus Smokeless Cigar Bar in order to try to discern what precisely a high court is to do without facts, law, articulable harms to the president in a case where they might not even be able to craft a remedy and might have no authority to intervene at all. It is High Court Calvin Ball, but this time it's played with neither a ball nor, it seems, a Calvin. So, hi there, Mark.
- [01:55]
B
Hi again, Dalia.
- [01:56]
A
And I wonder if you could just start by reminding us how we got here and how it is that Donald Trump pushed this, the Supreme Court, into a place where I think it was demonstrably clear from arguments they really did not want to be.
- [02:10]
B
So when Donald Trump went back to the White House last January, he very quickly started firing a bunch of people who he could not legally fire, people on the Federal Trade Commission, the National Labor Relations Board. And he got favorable decisions from the Supreme Court allowing him to fire those people, at least while their cases were pending, and basically expanding presidential power of removal beyond where it had ever been before. And I think that emboldened him to go after the kind of golden calf, the Federal Reserve, and then try to fire a member of the Federal Reserve Board of Governors, specifically Lisa Cook, who is a Joe Biden appointee and a black woman and a liberal. And all of the things that Trump hates. And so having successfully purged all of these other Biden holdovers from all these other agencies, he thought he could get Cook as well. He declared on Truth Social that Cook had committed mortgage fraud. Highly dubious allegations, as we'll discuss. It seems that one of his underlings had just sort of set about finding something incriminating about Cook that could be used to justify removing her from the board. And so Trump just decreed in August, Lisa Cook is gone. But she didn't leave. She refused to leave. She instead went to court because the statute creating the Federal Reserve specifically says that the President can only fire members of the Board of Governors for cause. And she argued a bunch of things, but namely that that cause did not exist here. There was no good cause to remove her, and that she deserves notice and a hearing if she is going to be removed so that she can contest the allegations against her. As you said, Dahlia, the lower courts ruled in Cook's favor. This case rocketed it up to the Supreme Court. A few months ago, the Supreme Court set the case for oral arguments, but did not allow Trump to fire Cook in the meantime, which was kind of a clue they would see this case differently from the others where they did let Trump fire these officials. And, yeah, now they've backed themselves into a corner where they have to somehow write an opinion explaining why Lisa Cook and the Federal Reserve are so very special and must be protected from Trump while almost all of the rest of the executive branch can be purged willy nilly because Trump hates Democrats and doesn't think they have any legitimate claim to govern.
- [04:36]
A
I want to talk about the arguments on Wednesday morning because, as you say, there was a lot of kind of technical legal jargon. In fact, I want to hypothesize that the more nothing happens, the more technical legal jargon you get. It was really fascinating to listen to Solicitor General Sauer trying to kind of make jargony lemonade out of this lemon of a case. So there was lots of stuff happening, right? So, you know, talking about what for cause even means and what kind of a notice and a hearing even means. And Chan Sauer said that cause pretty much means whatever the President says, and also that his decision on that is final. I want to listen first, if we can, to a clip of Justice Ketanji Brown Jackson pressing Sauer on that very point.
- [05:26]
C
Traditionally, when an allegation is made about someone's misconduct or whatnot, there's an opportunity for that person to present evidence, for the other side to present evidence. And even if the President was the final arbiter of this. One would expect that he would do so on the basis of evidence. So what I'm trying to understand is what is the evidence that has been presented and considered with respect to Ms. Cook's alleged misconduct? Well, the removal order addresses that because it. What is the removal order that the Truth Social Post? No, it's the August 25th letter. I think it's DOC 1 dash 4 in the district Court. But the removal order addresses that the evidence is you have mortgage applications within two weeks of each other that make clearly conflicting representations. Was Ms. Cook given the opportunity in some sort of formal proceeding to contest that evidence or explain it? Not a formal proceeding. She was given an opportunity in public because in the world, like, she was.
- [06:25]
A
Supposed to post about it, that seems like it's kind of the heart of this thing. Did Sauer have a good answer for her?
- [06:31]
B
No, he didn't. And I think that question shows what a charade this whole thing is, because you have the Solicitor General trying to sort of clean up Trump's mess to say, oh, well, the President announced that he was going to remove Lisa Cook. She had an opportunity to prove that the allegations against her were false, and she didn't do so. And that means the President can presumptively just knock her out. And as Justice Jackson pointed out. Okay, well, the allegations against her were laid out, really, in a Truth Social post. They were back, backed up by one piece of paper in a very large stack of papers in a mortgage application in which, as best we can tell, she accidentally checked a box indicating that a house she was going to purchase would be a primary resident rather than a vacation home. However, she correctly identified the house as a vacation home. Everywhere else in the application and in other financial records, there is no indication that the lender misunderstood or was deceived by her error. And so what we have here is an honest mistake that people make all the time. That is not a big deal. And so her sort of response was pretty muted, I think, because she wanted to defend the institution of the Fed before she defended her honor. But how was she gonna do either of those things if Trump just decreed that she was gone and she didn't have an opportunity to respond? So I loved Justice Jackson saying, like, was she supposed to just post maybe on Truth Social, Right. Maybe on X, maybe, you know, on BL Guy, she could post her retort and that would be the notice and a hearing that she was due under the statute. And General Sauer, by the way, I resist calling him General I know that they do that the solicitor general should not be called general. He's not in the army. But John Sauer really just sort of fumbled and mumbled and said, well, we think she had the opportunity to rebuke these allegations and she didn't. And I don't think any of the justices really bought that.
- [08:27]
A
Yeah, that was amazing. I thought metaphor for the whole argument, the idea that like screw the record through the facts. Like the place this is properly litigated is on Truth Social and she somehow like waived her opportunity to have a hearing when she didn't post on the Internet and it was just like up is down. And Slate plus members can access this conversation in full right now. Visit slate.comamicus+ to get access wherever you listen. You can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. We'll be back with your regularly scheduled Amicus episode on Saturday morning. And until then, take good care.