“Order In The Court!” “A Pastrami Sub, Please!”

Indulge me here a moment; BlueSky is much more complicated to re-post than Twitter. Anna Bower is reporting for Lawfare:

HAPPENING NOW: Temporary restraining order hearing in DC v. Trump, a suit filed this morning over Trump's effort to takeover the DC police.

Judge Ana Reyes just took the bench.

I'm listening in for @lawfaremedia.org

Follow along ⬇️

Judge Reyes starts off by explaining why we're here.

At the outset, she says she WON'T rule on Trump's determination that there's an "emergency" under section 740 of the Home Rule Act. She also won't address the "federal purpose" issue.

Wants to focus on AG Bondi's order.

Here's Bondi's order. [no, I didn't copy that]

Judge Reyes starts by saying that the AG orders the Mayor and the DC police department to do things directly and provides that Commissioner Cole shall have authority of the Chief of Police.

Judge Reyes observes that nothing in the Home Rule statute give Bondi power to give direct orders to MPD...

Before turning it over to the parties, Judge Reyes says:

Can we all agree that I'm fortunate enough to be the first person to rule on that section of the Home Rule Act? Huzzah!

Counsel for DOJ is up to respond to her initial observations.

He says the President can request services from MPD, from the mayor. He has done that by delegating to the Attorney General...

DOJ continues: The Attorney General has in turn acted on that by directing the mayor to have the MPD essentially answer to requests made by administrators (i.e., Terrence Cole, noted in Bondi's order)...AG's order makes clear the chief of police is still the chief police

Reyes: Where's it say that?

DOJ essentially argues that Bondi giving title of "emergency police commissioner" to Terrence Cole is just "semantics." He's trying to argue that Cole is just a federal liaison to the police department.

Judge Reyes: But "ou can't just take control of the entire police department...."

You can't just say I want you to be up at Chevy Chase and I want you guys to look around for anyone with open alcohol containers and arrest them...Those are local law enforcement issues, right?

Judge Reyes: I mean, it can't be that you have a federal purpose of making sure, oh, I don't know, the capital is safe, ...but then I can send police out to see if there are people drinking with open alcohol containers?

DOJ: If administrator Cole told the chief of police, look, I need a lot of people in Dupont Circle right now to address open alcohol. Yeah, I think he is entitled to do that under the statute and under the order. And I don't see a problem with that.

Judge Reyes: To me it's not a semantic issue. It's an issue about what exactly it is that the federal liaison (Cole) is doing and who's actually in control of the police department.

Judge Reyes: The President, in the case of a national emergency, he has the power to ask for specific services related to the federal purpose of the emergency. But he can't, I don't think, say "I just need the entire MPD to do whatever I want" and "to listen to whoever I say"

DOJ: Statute is broad and not really subject to judicial review...the purpose of the AG memo is to further operationalize the implementation of [Trump's] executive order

Judge Reyes: I mean, why can't the executive order just actually track the language of the statute, which is to say the President is requesting of the mayor the services of the MPD to help with X, Y and Z, and Mr. Cole is going to be the liaison.

Judge Reyes: Why is it that MPD can't go out and fight street crime [without permission from feds], or that they need Mr. Cole's permission to determine how you know where to whether to send people?

Judge Reyes: Are you saying if I was the chief of police and I wanted to issue directive that everyone wear dress blues on Tuesday, I wouldn't be able to do that unless I go through Mr. Cole? I mean, that's, this is incredibly broad

DOJ: They haven't identified anything like that happening

Judge Reyes: You're making the argument that the President can basically run the entire police department based on language that doesn't even allow the President to talk to the police department. He has to go through the mayor. He has to issue the order through the mayor of DC.

DOJ: In the context of an emergency application, they do have a burden of showing that this poses a real problem. Because what is the order they want to give that they can't [bc of the AG's order]? Is it wearing dress blues? What are we talking about here, and why does it need to be addressed today?

DOJ: We want this to be successful over the 30 day period. It's not a long time. We want to work with DC police/leadership in a way that doesn't create confusion and delay. And we were doing that until this suit was filed...

Judge Reyes: Every wants this to be successful but my job is to make sure it's within constitutional and statutory bounds....By the way, did you just get this today?

DOJ: Yes

Reyes: Nice job.. I wonder if some of this is just cleaning up the language [in the federal orders]

Now counsel is up to argue on behalf of DC.

He begins: The statute says, clear as day, that the President shall ask the mayor. What I took my friends to suggest is he thinks the president can ask of the mayor to tell everyone to listen to me. If that's right...hard to know where to begin

DC: Having the mayor in the middle of the statute would be completely negated. The statute would have a self destruct button because they could say, from day one, that the president can cut the mayor out of it.

DC: Another problem is that it allows the president to make the effective appointment of the police chief. And the Home Rule act clearly gives that power to the mayor. Nothing in the statute refers to appointments....

DC: The notion that any time the district and the federal government disagree about the manner of policing, the federal government has a tool in its back pocket that says "Home Rule is over" as it relates to the police department...that is clearly not authorized by the statute

Reyes: If the President called the mayor and said, "I need the services of the MPD to help ICE"...I don't think that she could say no....Would that be appropriate?

DC: I think that still is directing the mayor to provide a district-wide policy

DC: It would ask the mayor to provide services in a manner that violates DC law....This is not a federal preemption provision...I see nothing in this statute that involves having some ability to override commands [of DC law]

Counsel for DC mentions other provisions of the Home Rule act, says they support idea that Congress didn't intend to give power to the president to compel DC to adopt new policies or revoke policies that the federal government doesn't like

Counsel for DC says Bondi order is subject to arbitrary and capricious review under the APA. Reyes isn't sure. DC says president delegated power to her (head of an agency, DOJ) and she took final agency action so it is subject to that review.

Reyes is back to her assist ICE hypo.

Reyes: What you're saying is that you're not going to answer the question of whether or not, if the President says, "I'm asking mayor for help from the police department to assist ICE", that is something he can do?

In response, DC takes position that president can't direct the provision of services that otherwise violate or are inconsistent with DC law.

Reyes wonder if that negates Section 740 altogether by allowing DC council to get around it by passing laws saying MPD can't assist the President

Reyes: What relief do you want me to do? I don't think I can say the full order violates the statute. I don't think statute is as narrow as you think or as broad as DOJ thinks.

DC: I think you should enjoin in two buckets. One is installation of AG's hand picked person as chief of police to operate direct control over MPD. That's flagrantly unlawful. Should be enjoined from doing that.

DC: Second bucket is to enjoin the orders in the memo...those are directed directly to the MPD.

Reyes: Well, it does say in intro that she's order mayor to implement the orders....I want to get to practical solution. I agree 2, 3, and 4 may be contrary to statute but answer isn't to say start over

Reyes: We've been going for an hour and I want to give court reporter a 15 minutes break. During recess, I want counsel to try to work something out for sections 2, 3, and 4...

She warns DOJ that if they don't work something out and she enters a TRO that is then violated, that's contempt of court.

I’ve saved my comments until the end. Judge basically wants parties to settle this on terms the court will accept. Still waiting for that, so I’ll end the court reporting here.

What follows was written as I copied, but for formatting reasons, didn’t interject at the time. I will say this didn’t go well for DOJ. That said…

No, lawyers and judges do not know how to discuss semantics, and it hurts my head when they try to. What lawyers mean is: "I'm squirting squid ink now because I got nothin'. Please let me escape." What the judge means is: “Fuck no." And that ain't a matter of semantics.

That bit about "not subject to judicial review" is their primary grounds for appeal. Got to get it in the record so it can be. DOJ also meant: "POTUS can do what he wants, and you can't stop us." Reyes wasn't having that.

This didn’t go well for the government. They’re counting on the Sinister Six to let the unitary executive be unitary. The only way to do that is to gut the Home Rule statute by saying D.C. is not a sovereign state and can’t stand apart from Presidential authority. The contrast here is with the states, which can’t impede ICE (for example), but can’t be compelled to help them, either (hence “sanctuary cities.”). Trump could send the military to New York (and then litigate Posse Comitatus), but even then he can’t force New York authorities to prosecute people his agents arrest. Not for state crimes. That would require a “state of exception” and so martial law, which is a legal concept but not really provided for by Constitution or statute. And that would be the REAL “Constitutional crisis.”

Especially if Congress didn’t oppose Trump and remove him from office for violating his oath.

I will point out Trump has said he can do this.

May you live in interesting times.

After that, this seems a bit anticlimactic, but:

We're still waiting. Perhaps DOJ and DC are still trying to work something out with respect to sections 2, 3, and 4 of Bondi's order. Not sure.

Those sections of the AG's memo purport to rescind certain local orders/policies that apply to the DC police.

I'll also note that Judge Reyes made it clear at the beginning of the hearing that she's going to have the parties back in court next week to deal with some issues she thinks she'll need to hold an evidentiary hearing on. So whatever she does today isn't necessarily the end of the matter.