When reviewing Trump's DOJ nominees, recall how John Roberts said he could run DOJ

Also: The Fifth Circuit might review that Mississippi mail voting decision. And: The Supreme Court lets a lawsuit against Facebook to go forward.

With Donald Trump’s announcement that former Florida Attorney General Pam Bondi is his pick to replace Matt Gaetz as his nominee for attorney general after Gaetz dropped out Thursday, all four people Trump has announced for Justice Department positions have previously served as a defense lawyer to him.

Bondi served as one of Trump’s defense lawyers in his first impeachment trial. Bondi was supporting Trump’s aims in the lead-up to the election as well, running the legal arm of the America First Policy Institute, as The New York Times reported in late October.

Trump has hired many defense lawyers over time, and fired many as well, so it is true that a lot of lawyers served as a defense lawyer to him over time. In addition to the state felony convictions and outstanding state and federal charges, Trump also is the only president to have been impeached twice — although he was never convicted by the Senate.

Trump’s choices for Nos. 2 and 3 at DOJ, as well as his choice for solicitor general, have served as criminal defense lawyers for him, as I discussed previously.

This makes sense, coming from Trump, and yet it should be seen as extremely concerning — especially given July’s decision from the U.S. Supreme Court holding that the president is absolutely immune from criminal prosecution for official acts “on subjects within his ‘conclusive and preclusive’ constitutional authority.”

As Trump puts together his Justice Department, I want to highlight a key section from Chief Justice John Roberts’s opinion for the court in that decision that should merit additional attention now.

In laying out the basis for absolute presidential in certain core aspects of presidential power, Roberts discussed areas where presidents have absolute power, such as the pardon power and foreign country “recognition determinations.” Sandwiched in between those was one that might seem sensible on its face: “Congress lacks authority to control the President’s ‘unrestricted power of removal’ with respect to ‘executive officers of the United States whom he has appointed.’“ In all of those areas, Roberts wrote, a president must have absolute immunity from criminal prosecution.

The expansive way Roberts applied that “removal” power leads to current concerns. In discussing the allegations in the D.C. federal indictment against Trump based on his efforts to overturn the 2020 election, Roberts stated, first, that “the Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” adding, “The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.’”

Then, he made clear how expansive that was in practice:

Essentially, Roberts declared that a president can’t be subject to prosecution for any discussions with, sought actions from, or actions taken by anyone who he could remove from office — even if they are “sham[s]” or “improper.”

And now, Trump wants his defense lawyers to run the Justice Department.

[Update, 6:15 p.m.: Less than an hour after this report was published, The Washington Post reported on just two of the ways Trump is reportedly considering using the Justice Department. He “plans to fire the entire team that worked with special counsel Jack Smith to pursue two federal prosecutions against the former president, including career attorneys typically protected from political retribution, according to two individuals close to Trump’s transition,” the Post reported, as well as “assemble investigative teams within the Justice Department to hunt for evidence in battleground states that fraud tainted the 2020 election, one of the people said.“

Now, as with all things Trump, take plans, as Trump himself put it, as being more of “concepts of a plan” than plans themselves — although it is important that the transition’s spokesperson, Karoline Leavitt, essentially confirmed the first plan, telling the Post, “President Trump campaigned on firing rogue bureaucrats who have engaged in the illegal weaponization of our American justice system, and the American people can expect he will deliver on that promise.”]

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Mississippi mail ballot law case could go en banc at the Fifth Circuit

At least one judge on the U.S. Court of Appeals for the Fifth Circuit is taking a closer look at the challenge to Mississippi’s law that allows ballots to be counted if mailed by Election Day so long as they are received by then or within five days thereafter.

Back in October, a panel of three Trump appointees to the U.S. Court of Appeals for the Fifth Circuit held that the law — which mirrors laws in many other states — is illegal because it is preempted by federal law. Although the decision did not go into effect immediately, the consequences could be significant in future elections.

Since then, the veterans and retirees groups that intervened in the case asked the full Fifth Circuit to reconsider the case en banc.

On Thursday, the court issued an order that a judge was withholding the mandate in the case — essentially, keeping jurisdiction over the case and not sending it back to the district court. Soon thereafter, the court asked for a response to the en banc request to be filed by December 2.

Law Dork will have more on this as circumstances warrant.

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Shareholder case will proceed against Facebook after SCOTUS order

A decision not to decide at the U.S. Supreme Court on Friday will allow shareholder litigation against Facebook coming out of the Cambridge Analytica scandal to go forward.

The court dismissed Facebook, Inc. v. Amalgamated Bank as having been “improvidently granted” — referred to as a “DIG” — which essentially means the justices decided they shouldn’t have taken the case, which was argued on Nov. 6, at all.

Facebook had appealed a 2023 decision of the U.S. Court of Appeals for the Ninth Circuit allowing some of the securities fraud claims brought against the company to proceed.

Because of Friday’s Supreme Court decision DIG-ing the case, no changes to the national standards for securities fraud litigation will be happening. The Ninth Circuit’s decision will stand in this case, however, allowing the litigation against Facebook to proceed.