Trump to Supreme Court: Posting On Truth Social Is Due Process, If You Think About It

The justices confront some of the more unsettling implications of this era of government by right-wing influencer.

The good news (such as it is) out of the Supreme Court this week is that even the conservative justices seem reluctant to allow President Donald Trump to nuke the global economy by firing Federal Reserve Board members who are not lowering rates as quickly as he’d like. The bad news is that oral argument in the case, Trump v. Cook, revealed just how enthusiastically the conservative movement’s brightest minds have abandoned any pretense of caring about normal legal process, and are embracing this new, stupid era of government by poster instead.

Trump v. Cook is about Trump’s efforts to fire Lisa Cook, a member of the Federal Reserve Board who, under federal law, can only be removed from her position for “cause.” Setting aside the question of whether “cause” exists, a key issue in Cook’s case is whether her purported termination complied with the Constitution’s Due Process Clause. Part of the challenge with answering this question is that Trump effectively fired Cook in stages: On August 20, he called for Cook’s resignation on Truth Social; on August 22, he told reporters he would fire her if she didn’t resign; and then on August 25, he posted (also on Truth Social) a letter to Cook announcing her termination “effective immediately.”

Cook sued, and the lower courts decided that under Cleveland Board of Education v. Loudermill, a 1985 Supreme Court case, she was entitled to “oral or written notice of the charges” against her, along with an explanation of the “evidence” and an opportunity to present her “side of the story.” The Trump administration doesn’t think Loudermill should apply to Cook’s claims, but also argues that even if it does, the elements of the Loudermill test have been satisfied here. Why? Because (1) Trump posted and (2) Cook neglected to post back.

I understand that, even in Trump Justice Department-adjusted terms, this might sound too dumb to be real. (Among the many reasons why: If the President of the United States publicly accuses you of a crime, the very first thing any lawyer will tell you is that you must not, under any circumstances, tweet about it.) In his brief, Solicitor General D. John Sauer dances around the fact that the forum in which Trump ostensibly “publicized” the charges is Truth Social, but the argument is right there if you fill in the blanks: Sauer argues that Cook received “notice” of the charges when Trump first demanded Cook’s resignation via post, and that by failing to post in the days that followed, Cook “spurned” her opportunity for rebuttal.

Sauer did not budge from this position at oral argument, even under increasingly withering questions from Justice Ketanji Brown Jackson. After Jackson asked whether Cook had been offered a “formal proceeding” in which she could contest the evidence against her, Sauer said that no such proceeding was necessary, because she was “given an opportunity in public.” The tone of Jackson’s follow-up questions—“In the world? Like, she was supposed to post about it?”—is the same one my parents used with me when I argued that I didn’t really “break” my curfew because they failed to specify a time zone for it.

Later, in an exchange with Justices Brett Kavanaugh and Amy Coney Barrett, Sauer again argued that Trump’s Truth Social post provided Cook with adequate notice, and that she had the “chance” to “tell her side of the story,” but hadn’t “adopted” it. Sauer also reminded Kavanaugh of Supreme Court precedent that generally cautions judges against “dictating procedures to the president.” This is Sauer’s polite way of informing Brett Kavanaugh that if Trump wants to mandate that constitutional due process take place within the virtual confines of a niche social media network he owns, the Court should be just fine with that.

The extent to which tweets satisfy the requirements of the Due Process Clause is not the most important issue in Trump v. Cook. But Sauer’s confident answers to the justices’ incredulous questions provided a fascinating peek at the extent to which your federal government has been captured by terminally online right-wing influencers who are incapable of anything other than doing posts. If and when the Supreme Court has to issue a formal decision about the legal force of randomly capitalized presidential missives fired off from the toilet in the Oval Office, I am not necessarily predicting that the holding will be bad. I am simply saying that the fact that the Court has to spend time and energy thinking about this stuff is, both for the justices and the country, some deeply embarrassing shit.

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