22nd April 2025
The US government is on the back-foot in its own courts because it is not thinking strategically
*
Over at his Substack the great historian of strategy Lawrence Freedman has provided a magisterial account of why the economic strategy of President Trump is in such a mess.
From Freedman’s conclusion:
“Some bad strategies are the result of incompetence, miscalculation, and inattention. Most fail to consider how other key actors will behave. But the worst are the result of bad theories, so detached from reality that efforts are directed towards achieving goals that are unattainable, employing methods that are bound to fail. To extricate a country or an organisation from a bad strategy it is essential to acknowledge its wrongness and retreat, but with a truly bad theory that requires abandoning an embedded world view.
“In this case a bad theory, nurtured over decades, has led to calamitous policies devised in haste and enacted impetuously in defiance of all received wisdom on the impact of tariffs on the national and international economy. The severity of the impact was accentuated by the chaotic and contradictory nature of the implementation. Much of what has been lost over the past month, in trading rules and economic trust, may never be recovered.”
*
Much of Freedman’s conclusion, and indeed much of the content of his detailed and insightful post, can be transferred from economic policy to Trump’s use and misuse (and abuse) of law and the courts.
Same problem, different context.
*
It must have seemed so clever and – for the instigators – fun.
They would invoke an ancient law and then, in a show of brute power, they would deport human beings to another country to be held indefinitely in a terrifying super-prison. The human beings would not have any access to due process, and indeed there may even be no evidence against them.
The instigators would then clap and cheer at their public display of cruelty.
And when it seemed a court order had come too late, the president of the receiving country tweeted “Oopsie” and this, in turn was re-tweeted, by the actual Secretary of State from his personal account.
What larks: they must have found it hilarious.
And as this blog has set out, this a point where it became clear there was a constitutional crisis in the United States.
Not only were the orders of the courts not being taking seriously, the courts were being mocked openly by senior members of the administration.
*
It is now becoming apparent that not only was this policy nasty, but it was also not thought-through legally.
There was a rush on 15 March to put in place this shock-and-awe policy, but there was no underlying legal or litigation strategy.
And that lack of a legal or litigation strategy explains the frustrations the administration is now having with pushing on with this policy.
Indeed, the policy now is blocked by an extraordinary order of the supreme court of the United States, issued at just after midnight on Good Friday.
All but two of the justices of the supreme court – including all three of Trump’s appointees from his first term – supported this order. The only dissents were from justices Thomas and Alito.
(“Justice Alito dissents” is a welcome legal phrase in any supreme court judgment, and it perhaps should be set to music to the tune of “Miss Otis Regrets”.)
The sheer extraordinariness of this emergency supreme court order can be seen from Alito’s dissenting statement (which significantly the court did not wait for before issuing the order).
So incensed is Alito you will see that he loses all power of normal judicial prose and is reduced to listing his grievances in bullet points.
Alito was not a happy Easter bunny.
And in his bullet points he makes what would otherwise be some sound points: the majority of supreme court did act of its own volition, and at speed, and in highly unusual circumstances.
But what his bullet points miss is why the majority of the supreme court – including four usually conservative judges, including three Trump appointees – felt the need to do this remarkable judicial act.
Why did the majority of the supreme court feel there was no alternative?
*
Earlier on Good Friday, the official White House Twitter account published this remarkable tweet.
Back on 15 March the Secretary of State was (perhaps) careful to re-tweet the sarcasm of the El Salvador president from his personal and not official Twitter account.
Now the official White House Twitter account was itself stating that an order of the court will not be taken seriously.
You will recall that the supreme court – unanimously – ordered the United States government to “facilitate” the return of Abrego Garcia.
Whatever the meaning of the Good Friday tweet, it shows that the United States government is not taking seriously that they must “facilitate” the return of Abrego Garcia.
He is, according to the White House, “never coming back”.
*
The Good Friday tweet was unpleasant and crass and infantile – but crucially from a litigation perspective, it was also unwise.
And here we go back to Freedman’s post, and to the importance of strategic thinking.
In litigation a properly thought-through strategy means that one should not close down options and, in particular, one should not alienate the courts. The courts are the source of most useful options in serious litigation – courts can make orders, impose stays, strike cases out.
But the US government here advertised that they are not taking court orders seriously – and not just from a sly re-tweet from a personal account, but from the official White House account itself.
And the tweet does not stand in isolation – it is in the context of the ongoing failure of the United States government to properly provide requested and required information to the courts about the deportation cases.
In essence: the courts simply do not believe what the government is telling them.
And in litigation, there is no worse situation for any party to that litigation to be in than to lose the confidence of the judges.
Generally it means that at each round of litigation – each interim hearing, each application, each appeal – the judges will go against you.
And at its extreme, the courts will, of their own volition, make orders against you.
For the supreme court of the United States to make that midnight order was an absolute rebuttal of whatever litigation “strategy” the United States government was following with these cases.
Perhaps those at the US government thought the conservative majority of the Supreme Court meant that favourable decisions were in the bag.
But all they have now been left with are Alito’s worthless bullet points instead.
*
And this brings us to another point about litigation strategy.
You do not really need a litigation strategy for when things go well straight away.
You need a strategy for when things go badly: to work out what you do in various foreseeable unwelcome situations that may flow from your initial decisions.
But the evidence of the deportation cases indicates that there was no thought put into what would happen – other than a vague notion of weaponising a clash with the court – if the policy had setbacks.
Take the case of Abrego Garcia.
Taking the government’s position seriously for a moment, what should have happened when it was obvious a mistake was made and someone had been deported in breach of an order, was for that mistake to be rectified.
The government could then have used rectifying that mistake to show that its general policy had safeguards, and so should not be legally challenged.
But instead the government doubled-down, thereby indicating the whole policy scheme had no safeguards.
There had been no contingent thinking about what to do if a mistake was made.
If Abrego Garcia had been returned promptly and safely, it would have perhaps made the rest of the scheme harder for critics to discredit as being unfair.
Of course, the whole scheme is nasty and inhumane – but here we are looking at what strategic options could have been open to a supporter of this evil scheme.
Again, it seemed that the US government had not thought this through beyond the 15 March flights.
As with the tariffs, no thought was put into what could happen next.
*
A similar lack of strategic thinking is apparent in the attempts to bully Harvard University.
Those attacking the university seem to have not thought about what would happen if the university rejected the demands and sued instead.
But Harvard seem to be putting serious thought into their strategy, as this post indicates.
*
Overall, Trump and his government appear to have three general impulses:
– to demonise and monster in the media and the courts those who can be demonised and monstered and thereby humiliated;
– to intimidate those who are capable of being intimidated, such as law firms and universities with weak leaderships; and
– to manipulate and gain leverage over those who cannot be demonised or intimidated, such as foreign trading states, so as to do “deals”.
None of these bullying impulses add up to a strategy – or even to a tactic. They lead only to first-move antics, which may or may not work depending to the Trump government’s cynical assessment of those involved.
And this is true not only of their approach to law and litigation – but also, as Freedman avers, to economic strategy.
This is not say that that the bullying impulses set out above will fail – many rulers have managed to keep power a long time with such an approach, for it is based on unwelcome truths about human nature.
But such an approach will tend to fail with complex processes such as litigation and trade negotiations, where the confidence of other parties is essential to keep options open, and where contingent planning is required for when things do not go as originally intended.
Shock-and-awe can work – and keep working – in certain limited contexts, but in complex matters, the shock-and-awe approach can soon become shockingly awful.
Your posts are not only eminently readable, I also find them absolutely essential to begin to understand the situation in the United States with respect to legal,processes. Thank you. Please don’t stop. Honestly, I wouldn’t complain if there were lots more! 🙂
Putting myself in Trump’s shoes, I think that allowing for safeguards would defeat the whole purpose of the exercise. If you’re going to set up a system with safeguards, you might as well detain these people in the United States. The whole point of shipping them to El Salvador in the first place is to avoid any and all (legal) safeguards, so once you agree to correct one mistake, you might as well cancel the entire scheme.
Well, that approach has failed then.
Thank you. Yes, it may have been the case that little or no considered strategy was in place for the economic, social and legal policies being enacted in the USA.
Unless the strategy was confrontation with the legal system in order to launch a powerful coup. That would be consistent with the three general impulses you mention.
Never forget Alexanders solution to the complex Gordion Knot. What happens in the Department of Defense is now crucial.
“Unless the strategy was confrontation with the legal system in order to launch a powerful coup. “
That is not a stategy, although it may perhaps be a goal or objective. And if that was the goal, then they are failing because of….a lack of strategy.
My first thought was the same as Allan Wort’s: the goal might be not to win the case in court, but to provoke a confrontation with the Supreme Court with the goal of establishing that Red Caesar stands above the constitution and the Supreme Court is irrelevant. I think that would be a strategy, but not a legal strategy. It would be like a chess player making random moves with the intention of reaching a point where he will throw the board aside and pull out his gun. From the perspective of a Grandmaster, viewing the game, there is no strategy. But if it turns out that the other player had taken the precaution of wearing a bullet proof vest, we would commend that as showing a good grasp of the enemy’s strategy.
However, I do not think it is at all likely that there is a well thought out plan for a military coup. If there were, surely Peter Hegseth would have told a journalist by now.
Ha ha ha
This is my thinking as well. There is no legal strategy, but that doesn’t necessarily signal failure. Losing court cases doesn’t matter if those judgements and orders can be ignored. Can the President (with passive support from Congress) openly defy the Supreme Court? This is what is being tested. If you want an answer to that question then I can think of no better course of action.
Does that count as a strategy? I think it arguably does. In Trump’s mind everything in government boils down to party politics. If he can turn enough of the people against the Supreme Court when they increasingly go against him and make the justices feel fear, then he wins.
It’s wise to have a well thought out strategy, but move-fast-and-break-things can still sometimes win.
Thank you for this really helpful post which seems to demonstrate that lawyers, and the legal system, can sometimes be fair and even a force for good (apologies for unjust aspersions on a valiant group!).
It is also most reassuring that the Trump-appointed Justices seem to be independently minded (as I am sure lawyers would expect), at least for the moment.
Very interesting but where is Trump leading us?
Seems to me Trump and friends are like kids in a toyshop. They have opened a lot of boxes and thrown a lot of toys around and are getting bored. Reality seems a lot less exciting, the toys don’t go any more. Mr Putin has ignored the US because he knows the US has no real power to hurt him. Trump is kicking some poor people around because he can and his buddies cheer him on.
Like the millstones of God the law grinds slowly but most exceeding fine. Probably Trump will get bored if he is pushed back by the courts, Trump et al don’t do ‘fine’ and will thus move on to other toys to break. The interest will come when someone risks getting their collar felt for ignoring a court injunction – I doubt many will chance it. Donald is running out of toys to break, someone will soon ask – what’s the point Donald?
Where to next? The harsh laws of economics will not go away, the world has people who are better at making cars and washing machines and aeroplanes. King Donald’s barons will probably get fed up seeing their wealth go down the drain. Only another 44 months to go.
Can it yet be said that the American state has the monopoly of violence? In Franco’s Spain there was no doubt, and more than one generation of willing enforcers made a career of it, complete with a pension. But, wisely, Franco’s constitution lacked the U.S. Second Amendment. Logically that will have to be “suspended” fairly soon if the growing popular protests are not to progress to the stage of effectual resistance. Once any prospect of that has been thoroughly stamped on, lawyers can still talk but no-one with any real power will be listening.
Also, the economic chaos attributed to Trump’s incompetence looks like a deliberate attempt to make his fellow-citizens feel as if they are trapped in a burning building. When you’re trapped in a burning building, law is not the chief thing on your mind. You’re more concerned with the fact that these fire-engines will only help you if you had the foresight to insure your house with the insurance company that employs them.
I’m cautious about making this observation as I feel I lack the direct knowledge or even insight needed to gird it with confidence, but…
We are discussing the actions relating to the Trump Administration’s legal strategy as being one that results in the Administration winning its cases. I don’t think that applies here at all. We are discussing these action as though there has been a discussion of strategy which at some point involved lawyers: I don’t think that applies here either.
Let’s step back half a pace and consider a couple of things…
First, in this second Trump Administration, the cabinet and the circle of presidential advisors completely lack anyone with a spine and largely lack anyone with *government* competence in their field. Here, the most relevant element for our consideration is that the president is surrounded by nodding heads, his cabinet of “Yes” women and men. From this we should infer that any “legal strategy” in play here consists of the president stating something that he wants to happen and the relevant officials rushing to comply.
Second, we need to consider the litigant himself. If my first point is even partially correct, then it is highly likely that some of the administration’s representation to various courts are based on what the president wants, not on what would be sound judgement or a solid legal strategy.
Third, we need to consider the lifetime experience of the litigant. Donald Trump has literally boasted of the number of cases with which he has been involved, as either plaintiff or defendant. In those thousands of iterations, he has come to consider the legal process as either a hindrance to his plans or both a sword and a shield with which to battle his adversaries. Donald Trump believes in acting first – doing what he wants – and then, if it should happen to turn out that a disadvantaged party takes him to court, to either file a counter-suit, slow-walk the process, or take any other steps necessary to render the case moot. I would offer his track record in the high-profile cases filed against him since 2016 as evidence – in particular the two most dangerous, namely the document retention case and the Jan 6th insurrection case, both being defeated – not on the merits, but either through outrageously compromised judgements [Aileen Canon, documents case] or by running out the clock [Jan 6 case].
Fourth, I would offer consideration of Donald Trump the businessman. Mr Trump styles himself as the consummate deal-maker, but, in his area of expertise – real estate – he has a relatively low probability of having to deal with the same client twice… and when he does, it is because that person has a favourable opinion of him and of the Trump brand. It is much more likely that once he has sold a property, Trump never has to deal with that person again… which means that he can conduct his business affairs using a “burn the fields” approach.
Fifth and last, I would ask us to consider what the actual goal of these various pieces of litigation might be. Donald Trump is a consummate showman – he is much more concerned with optics than with substance. He is much more concerned with how something will “play with his base” than with whether something is legally write or wrong.
If we take all of these elements and put them together, I would respectfully argue that there is a strategy in play and it is to please or appease his base. Trump is transactional at his core and he clearly has plans for the next four years. It is critical that he keeps his base “on side” – at least until the other side of the 2026 mid-terms – which is why he is concentrating on those topics that seemed to be most motivating *to his base* during the campaign. These were the immigration problem he stoked up and inflation. That last item represents his single biggest mistake to date – a total dedication to his belief that tariffs would be a good idea and good for the US economy – perhaps egged on by the likes of Peter Navarro, who found himself within the Inner Circle and in Trump’s good graces after serving prison time for the President.
So I *do* see a strategy here. It’s just not a legal strategy. Instead it uses legal activity in furtherance of other, more “marketing related” goals.
And it has been wildly successful.