Hi, and welcome back to Trump Watch. Your favorite legal-presidential crossover newsletter will be off next week, as its writer saw a global pandemic and mass protests and decided it would be a good time to move. In the meantime, contact me at [email protected] and follow me on Twitter at @jacq_thomsen.

 

   

Trump Wanted Aggressive Law Enforcement. Now Protesters Are Suing.

The national demonstrations over the killing of George Floyd are marching on, even with smaller numbers. But a new fight over the protests themselves is starting to play out in federal court, with complaints that target President Donald Trump himself or implicitly reference his calls for more police action tied to the protests.

The first major lawsuit filed against Trump over the protests came last week from the Black Lives Matter chapter of Washington, D.C., over the clearing of Lafayette Square so the president could have a photo-op at St. John's Church. The complaint, drafted by attorneys with Arnold & Porter, the ACLU of DC and the Washington Lawyers' Committee for Civil Rights, alleges that like "countless other times in our nation's bloody history, the Lafayette Square assault was violence against black people and their supporters committed by state actors. What differentiates the actions here from the others is that the president and attorney general of the United States ordered the violence."

And a second, similar lawsuit from a team at Gibson, Dunn & Crutcher was filed yesterday, describing the incident as "a day that will live in infamy. It's the day that our federal executive branch unleashed a military and paramilitary force on a band of peaceful protesters assembled in historic Lafayette Park across from the White House." That complaint referenced Trump's remarks "urging an aggressive and violent law enforcement response."

An amended complaint was filed earlier this week, seeking class status, and injunctive and personal injury claims for all of the individual protesters in Lafayette Square. "Representative plaintiffs and all class members had their constitutional rights violated and were harmed by the same wrongful conduct," the lawsuit reads.

Another federal lawsuit was filed Wednesday against the Trump administration over a temporary fence placed around the White House and Lafayette Park, blocking protesters from entering the area. That complaint, filed by Maryland attorney Joseph Hennessey on behalf of an individual protester, alleges the barrier and the tactics of law enforcement in the area violates protesters' First Amendment rights, pointing to Trump's urging of governors to pursue aggressive law enforcement tactics. Workers began to take down the fence on Thursday.

"Plaintiff Padilla has been further frustrated in her attempt to exercise her right to petition government by the intimidation tactics employed by defendants….who, Plaintiff Padilla believe, are acting on the president's announced policy to 'dominate' the areas adjacent to the White House to counteract any perception that the president is 'weak' and to counter any the image of the United States being a 'laughingstock,'" the complaint reads.

Perkins Coie, the Korematsu Center of the Seattle University School of Law and the ACLU of Washington are also suing the Seattle Police Department over allegedly violent tactics toward protesters. While the president was not cited in that complaint, his Twitter feed indicates he's taken a great deal of interest in those demonstrations, where law enforcement has repeatedly clashed with peaceful protesters.

Other lawsuits are being filed over law enforcement's treatment of non-protesters attending the events. The ACLU of Minnesota and a pair of local firms, Apollo Law and Fredrikson & Byron, last week filed a class-action lawsuit against Minneapolis police for allegedly attacking journalists covering protests.

And attorneys with Sidley Austin, featuring firm partner Tai-Heng Cheng and Minneapolis firm Greene Espel, filed a separate complaint Wednesday against Minneapolis authorities on behalf of photojournalist Linda Tirado, who is permanently blind in her left eye after police shot her in the head during a protest despite her being clearly marked as press. "Defendants did not welcome the press with open arms. In fact, there is a growing concern that there are superior orders for law enforcement to target mainstream media," the complaint reads, pointing to media reports of law enforcement attacking reporters and Trump's own attacks on the press.

The National Lawyers Guild chapter of New York this week demanded that New York Police Department officers be disciplined for arresting legal observers at protests. Observers, who wear gear that clearly labeled their status, were also arrested at demonstrations in Atlanta and other cities, according to the guild.

 

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This Week in Trump Judicial Nominees

Senate Majority Leader Mitch McConnell has filed cloture for the nomination of Judge Justin Walker for the U.S. Court of Appeals for the D.C. Circuit, teeing him up to be confirmed by the full Senate next week.

There's plenty of Democratic opposition to Walker—and as I reported earlier this week, some of his colleagues on the law faculty at the University of Louisville aren't supporting the circuit court nomination after earlier backing his confirmation to the Western District of Kentucky. But, with a Republican majority in the Senate, it seems like Walker is set to be confirmed.

The Senate Judiciary Committee this week also advanced Cory Wilson for the U.S. Court of Appeals for the Fifth Circuit. I'd expect a confirmation vote on him as well soon after Walker, filling the two remaining circuit court vacancies in the country.

But while the circuit seats fill up, district courts in California are still waiting for judges. Two nominees for the Central District of California were advanced out of committee in March but still haven't gotten a floor vote. The Senate Judiciary Committee was also to hear from a slate of district court nominees this week, including some for the Central, Eastern and Southern districts of the state, but that hearing was postponed. The Senate has yet to confirm a district judge for California nominated by Trump.

 

 

What We're Reading

>> 'A Line Was Crossed.' SCOTUS Lawyers Denounce Barr Over Move on Lafayette Square Demonstrators: "'Last Monday, the Attorney General violated his oath by overseeing violence against peaceful protesters exercising their First Amendment rights. Those actions are irreconcilable with the unbiased administration of justice and the rule of law,' the new statement from the Supreme Court practitioners, former clerks and constitutional law scholars said." [National Law Journal] More than 1,250 former Justice Dept. workers call for internal watchdog to probe Barr role in clearing demonstrators from Lafayette Square: "In a letter to Justice Department Inspector General Michael Horowitz, the group said it was 'deeply concerned about the Department's actions, and those of Attorney General William Barr himself, in response to the nationwide lawful gatherings to protest the systemic racism that has plagued this country throughout its history.'" [Washington Post]

>> Noel Francisco to step down as US solicitor general, sources say: "US Solicitor General Noel Francisco is expected to resign from his role as the government's top lawyer before the Supreme Court in the coming days, according to two sources familiar with the move. Francisco, 50, has led the solicitor general's office since September 2017 and been a forceful advocate for President Donald Trump. The White House is not expected to immediately name a permanent successor. Instead, the principal deputy solicitor general, Jeff Wall, will most likely be tapped as the acting solicitor general." [CNN]

>> Michael Flynn Should Be Sentenced for Lying to FBI, Court-Appointed Amicus Tells Judge: "On the question of whether Flynn committed perjury, [John] Gleeson said there was 'irrefutable evidence' that the former national security adviser lied to the court in the course of his prosecution. Gleeson said Flynn 'deserves punishment' for that offense, but he recommended that Sullivan take 'Flynn's perjury into account in sentencing him on the offense to which he has already admitted guilt' rather than initiate a separate prosecution." [National Law Journal]

>> A 16-Year-Old Boy Is Suing The Trump Administration, Claiming It's Using The Pandemic As An Excuse To Deport Him: "Department of Homeland Security officials have turned around thousands of immigrants, including children, at the southern border by using a March order issued by the Centers for Disease Control and Prevention (CDC) that bars the entry of those who cross into the country without authorization….[R[eferrals have dipped since the issuance of the CDC order and the [Office of Refugee Resettlement] received just 58 children for the entire month of April—lower than the average number of referrals in a single day in the period prior to the order. Instead, unaccompanied children at the border are turned back and deported by Department of Homeland Security officials under the CDC order." [BuzzFeed News]

>> Liberal groups back plan to expand Supreme Court: A group of progressive organizations is for the first time supporting the proposal to add justices to the court in hopes of weakening the conservative majority, according to a memo provided to POLITICO. The move comes weeks before the Supreme Court is expected to hand down opinions on several hotly contested issues, including President Donald Trump's tax returns, abortion rights and the fate of 'Dreamers.'" [Politico]

Thanks for reading! Trump Watch will be off next week, but I'll be back at the end of the month. Stay safe.