The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Lock Them Up?

Will the Biden administration prosecute lawyers in the Trump Administration?


In the past two weeks, there have been two law professor freak-outs. First, the Trump Administration refused to accept new DACA applications. Instantly, the professoriate charged the lawyers in the Trump administration with flouting the Supreme Court's Regents decision, as well as the district courts' injunctions. (How many of these professors carefully parsed the memorandum and the complex litigation history before making these claims?) One professor on a list-serve actually argued that the Trump administration lawyers should be thrown in jail for contempt of court. Of course, none of these claims were true. The Trump Administration merely issued a new policy. And those policies will be challenged anew. No one has been held in contempt. No one is going to jail.

On Friday, President Trump issued a memorandum that provided financial assistance to people affected by COVID-10. He issued another memorandum that deferred payroll taxes till the end of the year. Once again, the professoriate charged that President Trump was flouting the law. (How many of these professors actually checked the statutory framework before making these arguments?) Again, a law professor on a list-serve argued that these actions violated the Anti-Deficiency Act and--you guessed it--contended that administration officials should be thrown in jail. Once again, none of these claims are true. The disaster relief memorandum is on solid legal footing. And I am confident the payroll tax memorandum memorandum is based on at least a plausible legal argument--though I am more confident about it today after some further research than I was yesterday. No one is going to jail.

Fortunately, these tempests finish pretty quickly. Emails are forgotten. Tweets are deleted. And everyone moves on.

Yet, I am still troubled. The burning desire to throw Trump Administration lawyers in jail is latent, and this passion rears its head on a moment's notice. We have already seen bar complaints filed against Attorney General Barr. Whose law license is next? Perhaps disbarment proceedings can become the forum for public retribution. Or will the Biden administration consider prosecuting the lawyers who authorized President Trump's most controversial actions?

The January 2017 meeting of the American Association of Law Schools (AALS) was a somber affair. It was held in San Francisco, shortly before the inauguration. During one of the main gatherings, a presenter asked everyone in the audience to talk to their neighbor about how they would deal with the incoming administration. It was a coping session. At that point, I stood up, and quietly, but non-discreetly, left the banquet hall.

What will happen at the January 2021 AALS meeting, which will be held (virtually) in San Francisco. Perhaps a thousand law professors can lead a chant over Zoom: "Lock them up!"