Trump’s Henchmen In Black Robes— Senate Republicans Start Confirming The Judicial Time Bombs

Nothing Says Rule of Law Like ‘Fuck You’ to the Courts— Meet Emil Bove

Yesterday, the Senate acted on 2 Trump nominations. They ended the filibuster on, and then voted to confirm, Controller of the Currency nominee Jonathan Gould 50-45, every Republican present voting aye and every Democrat— even Fetterman, Slotkin and Gallego voting nay. In between those two votes, though, was a much more consequential vote— the first judicial nomination of the second Señor TACO term.

It was for a lifetime (she’s 37), big deal appointment for Whitney Hermandorfer (R-TN) to be United States Circuit Judge for the Sixth Circuit (Michigan, Ohio, Tennessee and Kentucky). It passed 51-43. Again, no Dems present voted for it and no Republicans opposed it. They’ll vote on the final confirmation on Monday, but she’s headed for the Court of Appeals. She has clerked for Supreme Court Justices Sam Alito and Amy Coney Barrett and, before he was on the Supreme Court, Brett Kavanaugh.

After her confirmation hearing last month, MSNBC legal correspondent Lisa Rubin wrote that “If I were invited to lunch with Hermandorfer, I expect she would be— as she was during Wednesday’s hearing— modest, poised, interesting and likable. But her paper trail and some of her exchanges with senators could be ominous signs of the Trump judicial nominees to come… Her six years of actual legal practice is roughly half of what the American Bar Association considers necessary to be qualified for a federal judgeship.

What’s far more troubling is how she has spent that time and what she won’t discuss.

For example, Hermandorfer signed Tennessee’s amicus brief in one of the birthright citizenship cases now before the Supreme Court. Tennessee’s brief echoes the Trump administration’s primary arguments:

• First, the citizenship clause does not confer citizenship simply because of a child’s “presence” in the U.S.

• And second, in any event, an injunction that extends beyond the plaintiffs in a given case and applies nationally is an unlawful exercise of judicial power.

When Sen. Dick Durbin (D-IL) asked Hermandorfer why Tennessee submitted that brief, she said: “We were not satisfied that all of the information regarding the contemporaneous meaning of the Fourteenth Amendment was being presented to the various courts, given that the litigation was proceeding so quickly.” She elaborated that Tennessee’s brief highlighted “1800s-era sources regarding the meaning of the Fourteenth Amendment” and maintained that the state “did not take an ultimate position with regard to the merits of the executive order,” but instead intended to underscore that it isn’t an “open-and-shut case.”

That all sounds fair, right?

Yet the brief’s first page argues plainly that if the Constitution’s citizenship clause is interpreted to focus on “parental domicile,” or where someone’s parents reside, rather than mere presence, Trump’s executive order banning birthright citizenship is constitutional. That position is not only antithetical to more than 125 years of American jurisprudence and lived experience, but her response to Durbin also raises questions about her veracity.

Hermandorfer’s exchange with Sen. Amy Klobuchar about habeas corpus, the legal means by which a prisoner or detainee can seek release, was similarly revealing.

The Minnesota Democrat noted White House deputy chief of staff Stephen Miller’s recent statement that the Trump administration was “actively looking at” suspending the writ of habeas corpus, which, according to the Constitution, can be suspended only “when in Cases of Rebellion or Invasion the public Safety may require it.”

Such suspensions are widely understood to require congressional action. As Hermandorfer’s ex-boss Justice Barrett and appellate superstar Neal Katyal have jointly written, the relevant constitutional text “does not specify which branch of government has the authority to suspend the privilege of the writ, but most agree that only Congress can do it.” Klobuchar therefore asked: “Do you agree that only Congress can suspend the right to habeas corpus?”

Hermandorfer wouldn’t engage, however, much less acknowledge, that every time the writ has been suspended— even when the suspension ultimately was ruled unconstitutional by the Supreme Court— Congress was either involved in the decision or ratified it thereafter, as in Abraham Lincoln’s case. 

Instead, she replied:

“That is a issue that is under active consideration by the political branches, and could very well come before me if I were confirmed as a judge. So I think, in prudence, as a judicial nominee, it would not be appropriate for me to pass on the validity of any such arguments.”

Hermandorfer isn’t the first judicial nominee to somewhat mischaracterize her prior legal advocacy. Nor is she the first to avoid inconvenient questions. But until this administration, both birthright citizenship and the need for Congress to approve any suspension of habeas were taken as givens across the ideological spectrum.

That Whitney Hermandorfer, like Trump himself, considers them viable legal disputes should concern us all.

And she’s far from the worst of the Trump nominees up for confirmation by the Senate— and likely to be confirmed. Most observers of this kind of thing agree that the worst of the worst is Emil Bove, nominated by Señor Trumpanzee for the Third Circuit’s Court of Appeals (Pennsylvania, New Jersey, Delaware and the Virgin Islands). Last month David French wrote that “Just as [Trump] wants sycophants and yes men staffing his administration, he’s now moving toward staffing the judiciary with the same kind of person: judges who will do whatever it takes to curry favor with a president who values fealty above all… cranks like Kash Patel, Robert F. Kennedy Jr. and Pete Hegseth. But as bad as those men are, their influence is ultimately limited— first by Trump himself, who feels completely free to overrule and disregard any decision they make for the sake of his own interests and whims, and second by time itself. Trump’s political appointees won’t be in American government for long, and while they can inflict lasting damage during their short tenures, the next president can replace them and at least start the process of repair.”

Emil Bove, however, would be a problem for a very long time. At 44 years old, he’s been nominated for a lifetime appointment to the federal bench. That means he’d long outlast Trump in the halls of American power, and if past performance is any measure of future results, we should prepare for a judge who would do what he deems necessary to accomplish his political objectives— law and morality be damned.

Bove… served as one of Trump’s lead defense attorneys in his federal and state criminal cases.

At the start of his second term, Trump named Bove the acting deputy attorney general, and Bove immediately made himself an instrument of Trump’s vengeance. He ordered F.B.I. officials to compile lists of agents who participated in investigations related to the Jan. 6 attack on the Capitol. He fired Justice Department prosecutors who were hired to work on Jan. 6 cases without any evidence of wrongdoing.

He ordered prosecutors in the Southern District of New York to drop criminal charges against Eric Adams, the mayor of New York, seemingly on the ground that prosecuting Adams could interfere with Trump’s immigration agenda, an action which triggered a revolt in the Southern District.

Judge Dale Ho, a federal district judge in the Southern District of New York, wrote that Bove’s decision to dismiss the charges against Adams “smacks of a bargain: dismissal of the indictment in exchange for immigration policy concessions.”

On Tuesday, a former Justice Department lawyer named Erez Reuveni filed a whistle-blower complain that included claims that Bove said in a March meeting that the Justice Department should consider saying “fuck you” to courts that enjoined efforts to deport immigrants under the Alien Enemies Act. Bove denies Reuveni’s account.

Even before Trump’s second term, Bove was a controversial figure. During his first tenure at the Department of Justice, he faced an internal investigation over alleged mistreatment of subordinates. His superiors initially recommended a demotion but then later decided against it.

In a Truth Social post announcing Bove’s nomination, Trump included this ominous line: Bove, he wrote, will “do anything else that is necessary to, MAKE AMERICA GREAT AGAIN.” That statement caused Ed Whelan, a senior fellow in the Ethics and Public Policy Center, to write in National Review that there is a “danger that Bove, if confirmed, would leap to the top of Trump’s list for the next Supreme Court vacancy.”

…During his testimony on Wednesday, Bove not only denied that he’d threatened to defy court orders, he said, “I am not anybody’s henchman, I am not an enforcer.”

But actions, as you may have heard, speak louder than words, and Bove’s actions indicate that Trump was exactly right when he said that Bove would do “anything else that is necessary” for the MAGA movement.

Republican senators have so far given Trump everyone he wants in the executive branch this term. They haven’t voted down a single nominee (Matt Gaetz and several others stepped aside before any Senate votes), even when those nominees were obviously and grotesquely inexperienced and incompetent. Trump won the election, they reason, and they’re letting him staff his team.

But judges are not part of the president’s team. They’re a separate branch of government. This means that there is an even more urgent necessity for Republican senators to exercise their independent judgment.

Yesterday Josh Gerstein and Kyle Cheney reported that the aforementioned whistleblower Erez Reuveni “has provided Congress with a trove of emails and text messages to corroborate his claims” that Bove told the Justice Department to just say “fuck you” to courts that ruled against deporting immigrants under the Alien Enemies Act. Bove was part of the cabal that sent Venzuelan migrants to El Salvador despite a judge, James Boasberg, ordering them not to.

“The messages,” wrote Gershwin and Cheney, “show increasing alarm among Justice Department lawyers that the administration had in fact defied court orders and that some officials— including a prominent DOJ lawyer brought on by the Trump administration— could face sanctions for misleading the courts.

Just prior to Boasberg’s decision, Justice Department officials worried that the effort might be stopped by a court. That’s when, according to Reuveni, Bove uttered the “fuck you” line.

After Boasberg’s decision, Reuveni sent a text message to an unidentified colleague referring back to Bove’s alleged comment: “Guess we are going to say ‘fuck you’ to the court. Super,” he wrote. The colleague responded: “Well, Pamela Jo Bondi is. Not you.”

The messages show that in the hours after Boasberg’s ruling, Reuveni repeatedly relayed to colleagues that the immigrants covered by the judge’s order should not be turned over to El Salvador. And he later expressed concern that they seemed to have been handed over anyway.

In one of the newly-disclosed emails, the acting head of Justice’s Civil Division, Yaakov Roth, told Reuveni and other officials that the men were unloaded based on legal advice given by Bove. The email indicates Bove said it was OK to do so because the flights had left U.S. airspace before Boasberg, who initially delivered his order orally, followed up with a written order in the court’s electronic docket.

“I have been told … that the principal associate deputy attorney general advised DHS last night that the deplaning of the flights that had departed US airspace prior to the court’s minute order was permissible under the law and the court’s order,” Roth wrote to Reuveni and two DOJ colleagues on March 16, the day after the controversial flights from Texas to El Salvador.

With Judiciary Committee member Thom Tillis saying he plans vote to confirm Bove, there’s virtually no chance he won’t be recommended by the committee. Like something out of Kafka, these nominations trap us in a legal machinery designed to confuse, punish and render powerless any attempt at resistance. Bove’s rise— from Justice Department enforcer to potential lifetime judge— echoes the logic of The Trial, where guilt is assumed, truth becomes malleable and the system operates with its own impenetrable, self-justifying rules. In Kafka’s world, the individual never stands a chance. In Trump’s, that’s the point. Bove would even like to see a third Trump term in the White House.