“Have you ever had to make up your mind, to pick up on one and leave the other behind? It ain’t often easy; it ain’t often kind. Did you ever have to make up your mind?”
As I thought about writing my annual “worst legal decision” of the year for 2024, that lyric from The Lovin Spoonful’s popular 1965 song came to mind. The problem arises because this year was very good for those who track bad legal decisions.
There were so many possibilities to choose from, and it was hard to make up my mind.
At first, the obvious choice seemed to be the Supreme Court’s July 1 Trump v. United States decision. In the immediate aftermath of that decision, I said granting presidents broad immunity from criminal prosecution showed that “Instead of acting as a defender of constitutional governance, the Court is aiding and abetting a partisan project. It is unabashedly helping to move the United States down the road to authoritarianism.”
“No longer,” I wrote, “can we say that the United States is a country where no one is above the law.” I called Trump v. United States an “infamous decision….”
Harvard Law School’s Jack Goldsmith disagrees. “The immunity holding,” he says, “bound the president to law….” In Goldsmith’s view, the decision will not result in a tide of criminal behavior in the Oval Office.
He points to “the underappreciated truth that for almost every act of presidential lawbreaking, the president must rely on executive branch subordinates who are not immune from criminal liability even if the president is immune. This principle of subordinate criminal liability, combined with executive branch norms of right behavior, are the main determinants of executive branch compliance with criminal law.”
I wish I shared Goldsmith’s view.
Beyond the immunity decision, if we stick with the Supreme Court there would be several other candidates for the title of the year’s worst legal decision. Examples include Trump v. Anderson (ruling that states could not determine eligibility for federal office), City of Grants Pass v. Johnson (holding that banning homeless people from camping outside did not violate the Eighth Amendment even when they have nowhere else to go), and Loper Bright Enterprises v. Raimondo, (overruling the principle of Chevron deference and ending judicial deference to an agency’s reasonable interpretation of an ambiguity in a law that the agency enforces).
But for now I want to highlight other bad legal decisions from an area where I focus my academic work, the death penalty.
The first was Alabama’s January 25th execution of Kenneth Smith. Smith, who survived a botched legal injection in November 2022, was put to death by nitrogen hypoxia.
His execution was nothing short of a horrible betrayal of the Constitution’s ban on cruel punishments. As the Associated Press reported, when the gas started to flow, “Smith began to shake and writhe violently, in thrashing spasms and seizure-like movements…. The force of his movements caused the gurney to visibly move at least once.”
Another candidate for the year’s worst legal decision was the September 24th execution of Marcellus Williams by the state of Missouri. He was put to death notwithstanding considerable evidence that Williams did not commit the crime for which he was put to death. The ACLU rightly labeled the Williams execution “state-sanctioned murder.”
But after mulling my choices, I landed on Donald Trump’s nomination of Matt Gaetz as Attorney General of the United States and the president-elect’s effort to turn the Justice Department into a Trump legal defense firm. Let me explain why.
First, Trump knew that Gaetz had nothing to recommend him for the Attorney General position other than the prospect that Gaetz would be Trump’s protector and enforcer. That is why Trump tried to gaslight Americans by calling Gaetz a “deeply gifted and tenacious attorney.”
In truth, based on his very limited experience, it would be more accurate to ask, as an article in Newsweek did, “Is Matt Gaetz a Lawyer?”
Trump also promised Gaetz would “root out systemic corruption” at the Department of Justice. “Few issues,” Trump claimed, “are more important than ending the partisan Weaponization of our Justice System. Matt will end Weaponized Government, protect our Borders, dismantle Criminal Organizations, and restore Americans’ badly shattered Faith and Confidence in the Justice Department.”
Yet, Trump knew that restoring faith in anything was hardly Gaetz’s stock and trade.
As the New York Times put it, Gaetz is regarded by his former congressional colleagues “as a chaos agent who…likes to light a match simply to watch it burn. Bringing that kind of arsonist’s glee to the Justice Department would hardly allay concerns that Mr. Trump will exact retribution from his adversaries.”
This view was not confined to blue-state news organizations like the New York Times.
On November 14, South Florida’s Sun Sentinel editorial board labeled Gaetz “Trump’s tool for retribution.” The editorial called him “a provocateur who’s good at delivering rhetorical red meat on the MAGA speaking circuit.”
“Matt Gaetz,” it said, “would disgrace the country…. [He] must never become America’s attorney general.”
Such shock and revulsion were not limited to newspaper editorial pages. During a gathering of the House Republican Caucus, there were “AUDIBLE GASPS when Rep. MATT GAETZ was announced as President-elect Trump’s pick for Attorney General.”
And former federal prosecutor Paul Rosenzweig got it right when he characterized the Gaetz nomination as “a collective middle finger from Trump to America…. It demonstrates (as if demonstration was necessary) that Trump is morally, ethically, and mentally not qualified to be President.”
If anyone had any doubts about the kind of person Trump wanted to run the Justice Department, they should read the report of the House Ethics Committee. As the New York Times reports, the committee found many instances of unethical and illegal behavior, among them that Gaetz had attempted “to bully witnesses against him…. The committee had serious concerns that Representative Gaetz might retaliate against individuals who cooperated with the committee.”
Trump’s nomination of Gaetz was a middle finger directed at all who believe in the rule of law and refuse to succumb to Trump’s delusion that his many legal problems resulted from the Biden administration’s plot to punish him because he was a threat to the Democrats.
Now Gaetz is gone, having withdrawn as a cascade of troubles descended on him. But if we look at what is left behind in Trump’s Justice Department nominations, Americans should not rest easy.
After Gaetz’s withdrawal, the president-elect hardly took a breath before announcing a replacement. His choice, former Florida Attorney General Pam Bondi, has the legal and leadership experience Gaetz lacked.
But Trump’s eagerness to nominate her arises from the fact that Bondi has long served as one of his most ardent defenders. She demonstrated her loyalty by serving as a lawyer for him in his first impeachment trial and as an eager participant in spreading Trump’s Big Lie about the 2020 election.
In Trump’s world, she may be another, if more subtle, middle finger to the country and the Department of Justice.
With his nomination of Gaetz (and of Bondi), Trump made clear that, in his view, all law is simply a disguised form of politics and that personal loyalty is more important than fidelity to any principle. It also demonstrated that he thinks he can do anything and get away with it.
To understand why the Gaetz nomination was so abhorrent, we might refer to the presidential immunity case again. In Justice Ketanji Jackson’s dissent, she warned about the consequences of taking the kind of cavalier and dangerous attitude that, she claimed, animated the majority’s misuse of the law to protect Donald Trump.
“To the extent,” Jackson wrote, “that the majority’s new accountability paradigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted. And, without a doubt, absolute power corrupts absolutely.”
“If,” Jackson continued, “one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny….” Likewise, “[i]f the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
“I worry,” Jackson warned, “that, after today’s ruling, our Nation will reap what this Court has sown.” Trump’s nomination of Gaetz was an expression of that “contempt” and one of the first fruits of what the Court sowed in the immunity decision.
Trump’s former National Security Advisor John Bolton got it right when he said that Matt Gaetz is “the worst” Cabinet nomination “in American history.” The New Republic’s Michael Tomasky put it quite simply when he claimed that what Trump did “constitute(d) open mockery of this country’s ideals and [was] thoroughly insane to boot.”
But, as Ezra Klein notes, the “absurdity (of the Gaetz nomination) is a cloak.” It is a “signal” that in the world that Donald Trump wants to create, there is “no viable path in politics or public service” without substituting loyalty to him for loyalty to the Constitution.
That signal did not die when Gaetz withdrew. It will be the lifeblood of the Trump administration and a threatening presence in American life.
In that sense, Gaetz was just the canary in the coal mine. That’s why I have chosen to designate his nomination as Attorney General as the worst legal decision of 2024.
