On Friday, the Trump Justice Department claimed the legal power to tear down the Statute of Liberty — and told a three-judge panel that no litigant would have the power to stop the demolition if the government acted quickly enough.
That’s not an exaggeration, though it is, for now, just a thought experiment.
Edwin Eisendrath, the host of Lincoln Square’s “It’s the Democracy, Stupid” and former CEO of the Chicago Sun-Times, and I discussed the latest jarring headline this afternoon during a 45-minute live-streamed conversation that circled around a theme: How are the rule of law antibodies standing up to the authoritarian contagion gripping the United States?
Along the way, we discussed the cases of Kilmar Abrego Garcia, former Milwaukee County Circuit Judge Hannah Dugan, ex-FBI director James Comey, New York Attorney General Letitia James, and the “Broadview Six.” We assessed Acting Attorney General Todd Blanche’s odds of receiving the Senate’s permanent stamp of approval in light of his record in office and explained why the Supreme Court’s restoration of racially discriminatory congressional maps in Alabama stunned even some of the most cynical observers.
Toward the end of the conversation, we returned to the breaking news: Lady Liberty’s hypothetical razing.
In seeking to overturn an order blocking the construction of the East Wing ballroom, Justice Department attorney Yaakov Roth laid out a sweeping vision of unchecked executive power during oral arguments.
U.S. Circuit Judge Patricia Millett, a Barack Obama appointee, questioned the position that courts are powerless to act when the government tries to “move fast and break things.”
“If the government decides, very quickly, to bulldoze the Statue of Liberty—the people whose ancestors that was the first thing they saw coming to this country, but the government moved too fast—nothing can be done?” Millett asked.
“I think that— I think that’s right, yes,” Roth replied.
(Listen to the exchange in full at minute 23:13 of the video linked here.)
It’s important to note: Federal judges often test the consequences of a litigant’s position with an extreme hypothetical, and there is a famous example involving Donald Trump: the immunity decision.
In arguing for sweeping presidential immunity from criminal prosecution, Trump’s then-defense attorney John Sauer was asked whether a sitting president could order SEAL Team Six to assassinate a political rival without fearing prosecution. Sauer answered yes, and the Supreme Court majority effectively endorsed that position in Trump v. United States.
The majority simply played down the likelihood that a president would use the power that the court handed the executive as an “extreme hypothetical.”
In that sense, oral arguments in the East Wing construction case this morning had an uncanny ring of the familiar.
Watch the video at the top of this newsletter for more analysis.
