Welcome To The Monkey House

I'm listening in on the Perkins Coie hearing in DDC. (I made it onto the call!) Judge Howell is just recapping where everything is at - 3 pending motions, she hasn't ruled on sections 2 and 4 previously, so she's going to focus on that.

So starts a very long thread on a hearing in the case Trump was trying to complain about. He is a party in the case only insofar as he signed the EO Perkins Coie is suing to block from being applied to them.  I have to start by admitting I don’t know the status of the case or even (fully) the reason for the hearing. But I experienced a rare few hearings where I didn’t need to do much, and the PC lawyer in this case knew what he had very early on. Here, for example, in what could be called a fine invocation of the “I’m just a simple country lawyer” trope (“P” is PC’s lawyer):

P - you said just the facts. well i'm a trial lawyer, so i was waiting for the government to explain the facts.

Record is undisputed that the EO was retaliatory [he's killing it!]

March 2023, President Trump - "I am your retribution"

Admissible record, government said nothing about that.

A great deal of PC’s argument is in that vein and it’s very effective, especially since the government didn’t argue the facts because, well, the lawyer didn’t know them. (PC went on to argue the government hadn’t effectively countered any of the facts introduced by plaintiffs. The judge wasn’t heard to disagree.)

The first part of the hearing was the judge questioning the DOJ lawyer about the government’s position (the PC lawyer actually called it a “cross examination” in his discussion with the judge). The DOJ mostly answered with variations of “IDK.” I came away with the distinct impression he’d been told to show up at the hearing about an hour before it started. If you want to credit DOJ with a strategy, it seems be, the less the courtroom lawyers know, the less they make the government’s position worse.

 It is not a winning strategy.

But what I took from the court’s examination of the government’s position in this case, is that the government at large doesn’t want to follow procedures. It doesn’t want to follow a process, IOW; it just wants to rule. I don’t mean that in an apocalyptic martial law way; I just mean the people in charge, like Trump or Hegseth or RFK, Jr, aren’t interested in administrating government, as much as they are interested in making it do what they want it to do, rules and regulations be damned.

But the dirty little secret of government is that it has to function according to rules and regulations, and in accordance with “reasonable” outcomes. Congress, for example, has the greatest amount of authority under the Constitution (wouldn’t know that, would ya?). But even it is constrained, not necessarily by the Constitution and amendments, but also by “reasonableness.” Congress can’t arbitrarily enact laws. Granted, “arbitrary” is not easily defined, but it’s a check on Congressional legislative power.

At one point, the judge asks DOJ about the President’s power to rescind security clearances. Trump acts like it’s a power absolute, but the court is concerned about when that power is used for punishment (as in the blanket revocation of clearances which is one of the fact issues in this case). There are lines the law will not allow to be crossed.

My point is, as exposed in this hearing, the administration is acting recklessly and with some determination to rule without the strictures of law, which include procedures and regulations. The DOJ lawyer tries to say the EO’s expressly acknowledge “all applicable laws,” but the actions of the government eschew regulations designed to give the governed reasonable notice of what is required. Yea, you too may hate all those “technicalities” and “red tape,” but without them there is no rule of law, but only the rule of the diktator.

This hearing, arcane as it is to non-trial lawyers, is a window on the administration. And that window reveals a monkey house where everybody’s screeching and flinging poo. 💩