Donald Trump's 100 Days of Lawlessness
Former federal judge J. Michael Luttig says that ALL of Trump's signature initiatives are unlawful.
“It would be impossible to say, after Donald Trump's first 100 days in office, that America has a government of laws, not of men.”
That was the deeply unsettling conclusion of Michel Luttig today at the end of our conversation, in which Luttig cataloged the litany of unconstitutional actions Trump has taken since his inauguration.
Luttig has a major article coming out this week, and he gave Telos News an expansive preview during a 52-minute interview. Luttig identifies more than a dozen major Trump initiatives—from tariffs to deportations to weaponized executive orders— and provides a careful judicial review as to why each of them lacks legal authority.
Luttig told me that Trump’s executive orders targeting individual Americans alone should trigger impeachment. Though he has no illusions about that. “No Republican seems to care one whit,” he said.
Luttig served on the federal bench for 15 years, during which time conservatives frequently mentioned him as a possible Supreme Court nominee. (George W. Bush vetted him, and Ted Cruz once said he wished Bush had chosen Luttig instead of John Roberts.)
More recently, Luttig is best known for his testimony to the January 6th Committee in June 2022. I remember well reading his opening statement at the time, and this unsettling paragraph stuck with me:
America can withstand attacks on her democracy from without. She is helpless to withstand them from within. The relentless assaults on America and its democracy from within, such as January 6, which designedly call into question the very legitimacy of the institutions and instrumentalities of our democracy, are simply not contemplated by the Constitution of the United States and are therefore not provided for by that Great Charter for our governance.
Three and a half years later, after Trump was elected president and immediately pardoned every January 6th criminal, Luttig’s fears about the attack on democracy from within have not been assuaged.
He shared with me this key paragraph from his forthcoming article in which he spells out the many Trump initiatives that he concludes are unconstitutional or illegal:
For not one of his signature initiatives during his first hundred days in office does Donald Trump even have the authority under the Constitution and laws of the United States. Not for the crippling global tariffs he ordered unilaterally; not for his unlawful deportations of hundreds of immigrants to El Salvador’s squalid maximum security prison, CECOT; not for his deportation of U.S. citizens to Honduras; not for his defiantly corrupt vow and order from the Great Hall of the Department of Justice to weaponize the Department against his personal political enemies; not for his evil Executive Orders against the nation’s law firms and lawyers in personal vendetta for their representation of his political enemies and clients of whom he personally disapproves; not for his corrupt executive orders against honorable American citizens and former officials of his own Administration, Chris Krebs and Miles Taylor, a former DHS chief of staff who dared criticize Trump anonymously during his first term; not for his unlawful bludgeoning of the nation’s colleges and universities with unconstitutional demands that they surrender their governance and curricula to his wholly-owned federal government; not for his impoundment of billions of dollars of congressionally-approved funds or his politically motivated threats to revoke tax exemptions; not for his attempt to alter the rules for federal elections; not for his direct assault on the Fourteenth Amendment’s birthright citizenship guarantee; not for his mass firings of federal employees; not for Elon Musk and DOGE’s ravaging of the federal government; not for his threats to fire Federal Reserve Board Chairman Jay Powell; not for his unconstitutional attacks on press freedoms; and finally, not for his appalling arrest of Judge Dugan."
You can watch my full interview with Luttig on our YouTube channel or listen to it as a podcast.
What follows is an edited transcript of our (very depressing!) conversation.
Ryan Lizza: I want to start with number one on your list of Trump’s unconsitutional or unlawful actions: “the crippling global tariffs he ordered unilaterally.” Let's talk about that.
Judge Michael Luttig: The president has unilaterally ordered crippling global tariffs that threaten to bring on inflation and recession, not just domestically, but globally. And so today, several months later, the world is roiled by Donald Trump's unilateral imposition of those tariffs.
Now on the law, the Congress of the United States is given the authority under the Constitution to levy taxes and tariffs. Years ago, Congress delegated some authority in limited circumstances to a president to order tariffs in an emergency. And If the president does that, the tariffs that he orders must be very narrow, very tightly circumscribed to the particular emergency. In fact, the law seems to contemplate tariffs against a single country, for instance, and then those tariffs are to be very limited in duration.
So there's no question at all that Donald Trump does not have the authority under the particular statute delegating him authority—it's the I.E.E.P.A. [International Emergency Economic Powers Act]--
to order the sweeping tariffs that he did. And that's just the first example in that list of mine.
Lizza: I believe next Tuesday, a week from yesterday, the first significant court action challenging those tariffs. If I could ask you one kind of wonky question about that, Judge, not to get too in the weeds, but it's being challenged, under “the major questions doctrine.” What can you tell us about that? If you were serving as a federal judge looking at this case, is the major questions doctrine the
the right way to challenge Trump’s use of the I.E.E.P.A. or is there something simpler than that?
Luttig: It's both more complicated but ultimately simpler for this reason: the plaintiffs are challenging him first under the I.E.E.P.A., arguing there's not an emergency.
Now, in adjudicating that claim, any court would have to address the so-called “major questions doctrine” that was set down by the Supreme Court several years ago. In essence, that holds that for any major question of the allocation of power between Congress and the president, Congress must have spoken exceedingly clearly in order for the president to have the power and authority that he claims.
How is that relevant here? Well, it's very relevant for this reason: The I.E.E.P.A. doesn't even mention tariffs. No president of the United States has ever invoked the I.E.E.P.A. to order tariffs. And that's for all good reasons.
Lizza: That's kind of astonishing.
Luttig: Yes, that's the way to wrap that point up—it's astonishing. But we should say that for all of these assertions of power, the constitutional and legal arguments that Donald Trump is making— border on the frivolous. And most of them are contemptuous of the Constitution and the laws of the United States.
Lizza: There was an opinion out of Colorado yesterday. The judge had the same tone that you just had with the Trump administration's lawyers saying that their arguments are just not even worth her time reviewing.
I want to read it and see if you can help us unpack what she's saying here: “Respondents' arguments are threadbare costumes for their core contention,” which she quotes thusly: “as for whether the [The Alien Enemies Act] preconditions are satisfied, that is the president's call alone. The federal courts do not have a role to play.”
She goes on to say, “This sentence staggers. It is wrong as a matter of law and attempts to read an entire provision out of the Constitution. The court declines respondents' invitation to engage in such a revisionist exercise.”
And then I like this, her citation, her first citation here is, you know, see U.S. Constitution Article 3, Section 1.
Luttig: This is exactly what I was talking about. And the first thing that must be said is that the federal courts across the land are beginning to understand what's afoot with Donald Trump. As each one of these courts listens to his claims about the Constitution and the laws of the United States, the federal judges across the country are flabbergasted that the president would even make such absurd arguments.
Now, turning to the Colorado case in particular, let me diagram that passage quickly. So this case is a case involving one of the deportations of immigrants—some of them illegal, some not—to the United States. This has probably been his most spectacular initiative because it's aimed at ridding the nation of its illegal immigrants. But it's also been one of his most spectacular failures.
The president has invoked the Alien Enemies Act, which requires an emergency, an invasion of the United States. And Donald Trump, the president of the United States, has gone into the courts of the United States and says the United States has been invaded by this handful of illegal immigrants from Venezuela.
Well, the argument's laughable. And he knows what he's doing. And he's got the full-throated support of the Attorney General of the United States, who is telling him that these arguments are credible, when, in fact, not only are they incredible, they're contemptuous of the federal courts and of the Constitution of the United States.
But the reference to Article III, what that judge was saying is that Donald Trump wants to read out of the Constitution Article III, which establishes the federal judiciary as the final interpreter of the Constitution. But the judge's statement was apt because not just in these Alien Enemy Act cases, but, for instance, in the tariff cases, the executive order cases against the law firms, Donald Trump is literally, as a matter of constitutional law, asserting the power to interpret the Constitution of the United States. Nothing short of that.
Lizza: Is there a legal strain of thinking that he is drawing on at all? Or is this just totally making it up as they go along? Is there any kind of intellectual framework?
Luttig: I don't know what's inside the president's mind, and I will not purport to, but I doubt that he has any idea what he's saying or what his lawyers are saying.
Now, what his lawyers are saying to the lawyer, at this point, is that the federal courts, up to and including the Supreme Court, does not have the power to review these actions by the president. And that argument is grounded in constitutional doctrine and Supreme Court cases for almost 250 years.
But the general doctrine is only that in national security matters there are times, very, very few in number throughout our history, when the president wants to take action in defense of the nation. The Supreme Court has held that in those very limited instances, the courts cannot sit in judicial review of those very limited decisions.
Contrast that with the arguments that Trump's made in his first 100 days. Not one single one of them falls into that strain of constitutional interpretation that you identified.
Lizza: Let’s go through some of the executive orders.
Luttig: There’s the utterly corrupt executive orders that the president has issued against the nation's law firms and individual lawyers. And for that, I would just cite your viewers to a single paragraph in the Williams & Connolly brief in support of Perkins Coie.
Editor’s note: Here is the full paragraph Luttig was citing:
Because the Order in effect adjudicates and punishes alleged misconduct by Perkins Coie, it is an unconstitutional violation of the separation of powers. Because it does so without notice and an opportunity to be heard, and because it punishes the entire firm for the purported misconduct of a handful of lawyers who are not employees of the firm, it is an unconstitutional violation of procedural due process and of the substantive due process right to practice one’s professional livelihood. Because the Order singles out Perkins Coie, it denies the firm the equal protection of the laws guaranteed by the due process clause of the Fifth Amendment. Because the Order punishes the firm for the clients with which it has been associated and the legal positions it has taken on matters of election law, the Order constitutes retaliatory viewpoint discrimination and, therefore, violates the First Amendment rights of free expression and association, and the right to petition the government for redress. Because the Order compels disclosure of confidential information revealing the firm’s relationships with its clients, it violates the First Amendment. Because the Order retaliates against Perkins Coie for its diversity-related speech, it violates the First Amendment. Because the Order is vague in proscribing what is prohibited “diversity, equity and inclusion,” it violates the Due Process Clause of the Fifth Amendment. Because the Order works to brand Perkins Coie as persona non grata and bar it from federal buildings, deny it the ability to communicate with federal employees, and terminate the government contracts of its clients, the Order violates the right to counsel afforded by the Fifth and Sixth Amendments.
It's one of the most remarkable paragraphs that has ever been written in all of American history in a brief before a federal court.
Lizza: I think a lot of people who are not in Big Law were astonished that some of these firms decided not to fight this, not to sue — you would think these law firms are pretty good at suing — and instead decided to cut these deals. What's your view of that?
Luttig: It was offensive. The four or five or six firms that were some of the so-called Big Law firms, by which is meant big New York law firms and/or Washington law firms. It began with Paul Weiss. Paul Weiss sold out their own lawyers. They sold out their own clients. They sold out their sister law firms, which had also been subject to targeting executive orders by the president. They sold out the legal profession. And ultimately, they sold out the rule of law in America solely to protect their own partner draws.
And of course, two or three or four law firms chose a different path at great cost to the firms and to their lawyers, but that's because those firms believe in the Constitution and the rule of law, and they made the decision that I would have made. I would have spent my last penny if that's what it took to challenge this palpably unconstitutional act by the president. And it's not just unconstitutional and unlawful, this is pure personal vendetta against these law firms and their clients and lawyers that were there in the past. Never before in American history has a president—it never has occurred to a president to do something like this. And of course, Donald Trump has ignored the federal courts on that. Because he knows that whether a court ever agrees with him or not, he will have achieved his objective, which was to ruin these law firms and the individual lawyers.
Lizza: You call the executive orders targeting Chris Krebs and Miles Taylor “corrupt executive orders against honorable American citizens and former officials.” What's the case that those are illegal?
Luttig: The president — not only does he have no constitutional authority or authority under statutory law, this is corrupt under the Constitution and under the laws of the United States. If a president in the past would have issued one of these executive orders of personal vendetta, that would have been ample grounds for impeachment.
Lizza: You think so? You think that itself is an abuse of power that should bring the impeachment power to bear on it?
Luttig: Oh, my God, of course. I mean, let's just think out loud about that for a moment. The President of the United States levels his own presidential powers and the powers of the entire federal government against an individual citizen because he doesn't like them. Now, in the case of Chris Krebs, for instance, if the story can be worse, it is, right? Chris Krebs worked for Donald Trump, and his only sin against Donald Trump was that he didn't agree with Donald Trump that the election had been stolen from the president in 2020.
Well, the only one that believes that that election was stolen from Donald Trump is Donald Trump and his own sycophants. And here is Donald Trump, however many years later, issuing an executive order throwing the weight of the entire federal government against this one former administration official of his because he dared to say that the election was not stolen from Donald Trump. That's a high crime or misdemeanor within the meaning of the impeachment clauses without any question.
Lizza: What concerns you the most about Trump’s relationship with the Justice Department?
Luttig: We don't have a Department of Justice today. The Department of Justice is a wholly owned subsidiary of the Oval Office.
The first thing that the Attorney General did was get rid of all the good lawyers that followed the law and obey the law and believe in the constitutional laws of the United States. And they hired the kind of people that are making the arguments in front of the federal courts that we were just discussing.
You can't even imagine how offensive and contemptuous the Department of Justice lawyers are to the federal judges' faces, in court. Never, ever before has one single government lawyer spoken to judges the way all of these have.
Lizza: What about this issue of independent agencies and the independence of the Federal Reserve?
Luttig: It is unconstitutional to fire Jay Powell of the Federal Reserve. Anyone who speaks further on the issue would discuss the issue of the independent agencies and whether the law ought to be different. What's at issue here is a Supreme Court case, Humphrey's Executor, which was decided in 1935. And that was the landmark case in which the Supreme Court held that the chairman or members of a so-called independent agency could only be removed for cause.
That decision has applied to every independent agency and department since, up to and including the Federal Reserve. So Donald Trump is asking the Supreme Court to overrule Humphrey's Executor, and that's long been an issue for the conservative movement, and a legitimate issue.
It's entirely possible that this Supreme court will agree with the president, as to some of the independent departments and agencies. I don't believe it will ever agree with respect to the Federal Reserve Board, for instance. I don't take any position on it except this. There were no such things as independent departments and agencies at the time of the founding or the framing of the Constitution. But if the Founders had known that the federal government would come to have independent departments and agencies, as it has in the 250 years since our founding, the one thing I am certain of is that the founders would have forbidden this particular president from ever having control over the Federal Reserve because of his irresponsibility.
And I've often thought over the past few weeks, being the lawyer that I am, that Donald Trump has been making, pro se, the most compelling argument that could ever be made to the Supreme Court: Never to overrule Humphrey's Executor.
Lizza: In other words, a court that might be sympathetic to overruling that case might have second thoughts just because of who the president is right now and how he might use that power?
Luttig: Absolutely. The other way to think of it, and this is the substantive way to think about it, is that they are witnessing in real time what it would mean to give a president control over the Federal Reserve. I don't know any judge, any judge that I've ever known in my life, of the hundreds and hundreds, that would ever let this president have control over the Federal Reserve.
Lizza: You were one of the signatories on a letter this week with over 150 former state and federal judges condemning the arrest of Judge Hannah Dugan in Wisconsin. Tell us about your views on that arrest. Just to play devil's advocate, if a judge breaks the law, obviously they should have the same consequences as anyone else. I think we all agree on that. So what was so disturbing about this case?
Luttig: No one would disagree with you. If a judge breaks the law, the judge should be held responsible for that. Just like a president of the United States.
Lizza: Well, we’ve learned that’s an exception
Luttig: Well, the hypocrisy is almost incomprehensible, right? This was, in my view, a setup. It was televised. They arrested Judge Dugan, handcuffed her, and walked her out to the waiting FBI or other automobile, and took her down for booking. You don't shackle someone who's done what they allegedly said she did. You know where she is. She's a sitting federal judge. She's not going to resist arrest. There was no reason whatsoever to handcuff her or shackle her. There was no reason whatsoever to do any of it, including the arrest.
Lizza: You believe this arrest of Judge Dugan was related to the general judicial reviews going on in ways that are not racking up a lot of victories for the Trump administration? Do you think the two things are related?
Luttig: No question. No one can suggest otherwise, right? Donald Trump instigated a war on the federal judiciary, the Constitution, and the rule of law on his first day in office. And he's been prosecuting that war with a vengeance in front of the world ever since.
And part of that war is quite obvious to everyone: threatening and intimidating the federal judges. Donald Trump himself has called for the impeachment of Judge [James] Boasberg, I think. And his sidekick, Elon Musk, called for the impeachment of every federal judge that rules against Donald Trump and his administration.
I mean, you don't have to read between the lines to understand what's going on. And you add to that the fact that the president himself has directly defied an order from the Supreme Court of the United States to facilitate the release of Abrego Garcia. There's really just no question about what's going on. The only story that ought to be written is the fact that it is going on, and no Republican seems to care one whit.
Lizza: This is an astonishing litany of constitutional abuses you’ve outlined. Having written this piece after having read all the filings and opinions in these many cases and after coming to these conclusions, what do you fear, medium to long term? And what gives you some confidence that we'll steer the ship back in a more legal, constitutional, sane direction?
Luttig: Well, let me start at the end. I don't have any confidence at all today that we will come out the other side of this. What I do know today is that it would be impossible to say, after Donald Trump's first 100 days in office, that America has a government of laws, not of men.
This was an important conversation. Became a paid subscriber on Judge Luttig’s suggestion. 😉. Great interview Ryan. 👏🇺🇸
Dictator on day one, two, three...