Trump and Retribution - Legal Question

Factual Questions
1

Obviously Canadian and American laws differ, Presidents and other leaders have enormous amounts of power, and politicians have the right and obligation to make decisions for the public good.

However, in Canada, my understanding was that public officials are not legally permitted to target specific individuals in a malicious way. This goes back to a case in the province of Quebec, Roncarelli v. Duplessis, where the Premier of Quebec intervened to deny a licence to a bar owner who supported some causes related to Jehovah’s Witnesses.

Trump can presumably fire people for just cause and has a lot of flexibility to hire whom he wants, although for some positions he needs Congress or Senate approval. But how are these decisions supported in American law, when Trump has made the retaliation and personal animus components so publicly? Is there no equivalent law in the US, or does it not apply here… for reasons?

2

There is nothing in the US Constitution that places such a limit on the President, and no law short of the Constitution would be capable of placing such a limit. Presumably, the Founders expected that if a President went too far, Congress would impeach and remove them.

3

If Trump denies someone something they are legally entitled to, the courts will shoot him down. That was the issue in the Roncarelli case. On the other hand if a provincial premier fires someone in the government, that is their prerogative unless the position was somehow protected.

I might point out that the US Bill of Rights lacks the totally outrageous “notwithstanding” clause that allows protected rights to be overridden by government legislation so long as they say that this legislation is valid notwithstanding the Bill of Rights.

4

Including the ‘Trump’ Supreme Court?!

5

Pam (everything has a price) Bondi, and Eileen (sure want to be on the supreme court) Cannon, would disagree. They’ll give him whatever his vindictive, petty heart desires.

6

[Moderating]
Reminder: This thread is in FQ. This is not the place for politicking. If you have nothing else to say, don’t say it.

7

It’s going to greatly depend on which act you believe is retribution.

There are a great many people working in the executive branch that serve at the pleasure of the president. They are basically at will government employees. They can be fired at any time. Some of them are in positions that require Senate approval for appointment. The Senate does not have to approve any firings.

Other employees are hired under contract. Some positions are covered by statute. Recently the president fired several inspector generals. Apparently 30 days notice is required and the president doesn’t have the authority to do immediate firings.

You would have to ask about specific actions in order to determine if it’s proper or not.

8

I"m afraid this isn’t an accurate summary of Roncarelli. The majority held that the Liquor Licence Commission had no authority to cancel Roncarelli’s licence for reasons completely unrelated to compliance with the terms of the licence. The Premier was held personally liable in a civil action for ordering the Commission to act in an illegal fashion.

Duplessis certainly did it for reasons of personal animus against Roncarelli, but the holding of the Court relied on the lack of legal authority for either the Commission or him to cancel the licence on those grounds. He was ordered to pay damages of $33,123.53 (the SCC increased the damages by $25,000, a rare change on appeal).

The decision is available on CanLII, but not on the Supreme Court reports, because the Chief Justice of Canada has said that no-one reads those old cases anyway.

9

I came across this… though it is more about the Inspectors General it has a little relevance.

Excerpt:

John Choon Yoo, a law professor at University of California at Berkeley, told Newsweek in an email on Saturday: “President Trump is well within his power to remove members of the executive branch at will. In Seila Law v. CFPB (2020), the Supreme Court held that Congress could not protect officers of the United States from removal by the President…In Seila Law, the Court said that the only officers that Congress might be able to protect are those that are members of multi-body commissions, like the FCC or the SEC.”

He added: “The Inspectors General do not have that status; they are simple members of the executive branch agencies. Even if Congress attempts to place conditions on their removal, those conditions are unconstitutional. Any Inspector General that attempts to challenge their removal in court—they would still have to leave office and just sue for back pay—will be wasting their money in lawyers fees.”

Tristan Snell, a lawyer who helped lead the prosecution of Trump regarding Trump University, wrote on X, formerly Twitter, Saturday morning: “Trump fires 17 inspectors general - all the internal govt enforcement officials for every major government agency and department This was ILLEGAL - firing an IG requires 30 day notice to Congress. CONGRESS MUST ACT TO REINSTATE THEM, NOW.”

Barbara McQuade, MSNBC legal analyst and former U.S. attorney for the Eastern District of Michigan under the Barack Obamaadministration, wrote in a Saturday morning X post: “Trump has fired 12 inspectors general without providing the 30-day notice to Congress required by law. He really is pushing the legal limits of his power and daring Congress to stop him.”

Democratic Senator Elizabeth Warren, a former Harvard Law professor, wrote in an X post: “It’s a purge of independent watchdogs in the middle of the night. Inspectors general are charged with rooting out government waste, fraud, abuse, and preventing misconduct. President Trump is dismantling checks on his power and paving the way for widespread corruption.”

Sidney Powell, Trump’s former lawyer, wrote early Saturday on X: “Existing IGs are virtually worthless. They may bring a few minor things to light but accomplish next to nothing. The whole system needs to be revamped. They are toothless and protect the institution instead of the citizens.”

10

I’m sure your summary is far better, but am unsure why mine is inaccurate. What you said doesn’t contradict:

“where the Premier of Quebec intervened to deny a licence to a bar owner”…

11

If I’m reading @Northern_Piper correctly, what was illegal was denying the license for any reason other than the terms of the license, not specifically denying it for reasons of retribution or personal animus. Which makes a big difference, because it’s easy to prove in a court of law that the reason wasn’t violation of the terms, but much harder to prove what the actual reason was.

12

Yes and no. I see your point, and this could be what Northern Piper is saying. But in Canada, my limited understanding is that malfeasance requires unlawfulness AND improper purpose by a public official, so some indication of animus or spiteful state of mind is still required.

13

The reason I ask this is due to the Inspectors General. If the act was unlawful since they did not give warning, and likely due to animus, is there anything there? The fact there is does not necessarily mean it is worth fighting or makes a difference, of course.

14

I strongly suggest anyone interested in this topic read Project 2025 not just to understand the political bent, but also to get an idea of the vast scope of the Executive Branch and the sort of people and organizations the president can control and what they do. Six trillion dollars goes a long way.

15

That was John Torture-is-fine Yoo.

16

Not quite sure what you mean there.

More on the law and Inspectors General (limited gift link).

Excerpt

Congress passed the Inspector General Act as part of the wave of post-Watergate reforms to government. The idea was to have officials embedded in major parts of the executive branch who did not report to that department or agency’s head, and so were able to perform independent internal oversight.

In 2020, Mr. Trump summarily ousted or sidelined a series of inspectors general who were seen as investigating his administration aggressively. Partly in response to that, Congress strengthened the 30-day-notice law by requiring presidents to provide a “substantive rationale, including detailed and case-specific reasons” for the firing. In an interview, Mr. Ware warned that if the administration could flout that part of the Inspector General Act, then it would establish that it need not abide by the rest of that law — including provisions requiring giving the watchdogs unfettered access to agency files — either.

“What strength is there in the Inspector General Act if they say they don’t have to abide by parts of it?” he asked. “This is a threat to our democracy.”Another person familiar with the matter, who spoke on the condition of anonymity to discuss the deliberations, said several of the fired watchdog officials were discussing whether to file a lawsuit over the fact that Mr. Trump had defied the notice law. It was not yet clear if any would do so.

Some advisers to Mr. Trump have been interested in advancing the so-called unitary executive theory, an expansive view of presidential power. According to the theory, the president must have complete control of the executive branch, so Congress may not give other officials independent decision-making authority or restrict the president’s ability to fire them. Michael J. Missal, who was removed as the inspector general for the Department of Veterans Affairs, pointed to Congress as a potential defense of the institution.

“For inspectors general to continue to improve government services and ensure taxpayer funds are spent effectively, they must continue to be truly independent and have the support of Congress,” he said. Democrats have vehemently denounced the purge, portraying it as clearing the way for corruption to go undiscovered.

17

John Yoo wrote a legal opinion that said that torture, ordered by the President (through the US military in Iraq), was just hunky-dory and perfectly legal.

Should we accept any of his legal opinions about the scope of the President’s powers?

The Department of Justice’s Office of Professional Responsibilityconcluded in a 261-page report in July 2009 that Yoo committed “intentional professional misconduct” when he “knowingly failed to provide a thorough, objective, and candid interpretation of the law”, and it recommended a referral to the Pennsylvania Bar for disciplinary action.

Referral for professional discipline did not happen, because another Justice lawyer said « Oh heck, he was just careless when he said torture was a-okay. Let’s not make a federal case out of this, mmmm’kay? »

ETA: it was the CIA in Afghanistan. Major difference, of course.

In his defence, he did have a U.S. Supreme Court decision to support his position:

Yoo cited an 1873 Supreme Court ruling, on the Modoc Indian Prisoners, where the Supreme Court had ruled that Modoc Indians were not lawful combatants, so they could be shot, on sight, to justify his assertion that individuals apprehended in Afghanistan could be tortured

18

Thanks for that. I vaguely remember the uproar but did not realize Yoo “justified” it with that precedent.

19

Link to Wikipedia articles:

20

Almost all countries consider restrictions on torture, slavery, refoulement, genocide, piracy and territorial aggression and expansion to be jus cogens. I’d imagine that Yoo’s policies left the United States in pretty dubious company. Of course, times are completely different now.