The Volokh Conspiracy
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More on the Phone Call Between Trump and Alito
On Wednesday, I wrote about the ABC News Story on Trump's phone call with Justice Alito. On Thursday, the New York Times offered a far more in-depth, and frankly confounding story. No, not confounding for the reasons you might think. I was confounded that multiple people in Trump's orbit are leaking information to the New York Times to sabotage an Alito clerk from a position in the administration, and in the process creating problems for the Justice.
The story begins:
Justice Samuel A. Alito Jr. received a call on his cellphone Tuesday. It was President-elect Donald J. Trump, calling from Florida. . . .
Justice Alito said in a statement on Wednesday that the pending filing never came up in his conversation with Mr. Trump and that he was not aware, at the time of the call, that the Trump team planned to file it. People familiar with the call confirmed his account. . . .
The circumstances were extraordinary for another reason: Justice Alito was being drawn into a highly personalized effort by some Trump aides to blackball Republicans deemed insufficiently loyal to Mr. Trump from entering the administration, according to six people with knowledge of the situation, who spoke on the condition of anonymity to describe private conversations.
I had to read that last sentence three times to figure out what was going on. (I am a fast writer but a slow reader.) Six people (six!) in Trump's orbit spoke to the New York Times (of all publications!) about an effort to block an Alito clerk from obtaining a high-level appointment. Six is a stunning number. Articles usually cite "several" unnamed sources, but I can't recall seeing a specific number, especially one that was so high. But in the process of talking to New York Times about this internal squabble, these conservatives dragged poor Justice Alito into the maelstrom. Why? Why? Why?
The article continues to describe the situation of William Levi, who clerked for Justice Alito and has a sterling resume:
The phone call centered on William Levi, a former law clerk of Justice Alito's who seemingly has impeccable conservative legal credentials. But in the eyes of the Trump team, Mr. Levi has a black mark against his name. In the first Trump administration, he served as the chief of staff to Attorney General William P. Barr, who is now viewed as a "traitor" by Mr. Trump for refusing to go along with his efforts to overturn his loss in the 2020 election.
Mr. Levi has been under consideration for several jobs in the new administration, including Pentagon general counsel. He has also been working for the Trump transition on issues related to the Justice Department. But his bid for a permanent position has been stymied by Mr. Trump's advisers who are vetting personnel for loyalty, according to three of the people with knowledge of the situation.
Again, the sourcing here is very precise. Six people spoke about the "totally perfect" phone call. And three of those six were aware of Levi's employment situation.
As Mr. Trump puts together his second administration, Mr. Barr is among a handful of prominent Republicans who are viewed with such suspicion that others associated with them are presumptively not to be given jobs in the administration, according to people familiar with the dynamic. Republicans in that category include Mr. Trump's former secretary of state Mike Pompeo and his former U.N. ambassador Nikki Haley. To be called a "Pompeo guy" or a "Haley person" is considered a kiss of death in Mr. Trump's inner circle. Resistance to such people can usually be overcome only if Mr. Trump himself signs off on their hiring.
This last part is important. The reason why President Trump, and not a subordinate had to make the call, is that Trump himself had to personally sign off on the hiring. The ethical guidelines provide that "there would be no impropriety in a judge answering an inquiry from a screening committee or appointing authority with respect to the judge's knowledge concerning the qualifications and other relevant factors of a nominee for appointment to any public office." Trump was the "appointing authority" so Justice Alito was allowed to receive the call from him. If Trump was not the final decision maker, I'm not sure that he could have made the call.
People on Team Trump said that Alito requested the call. But Alito said Levi facilitated the call:
Tuesday's phone call took place against that backdrop. Several people close to the Trump transition team on Thursday said their understanding was that Justice Alito had requested the call. But a statement from Justice Alito framed the matter as the justice passively agreeing to take a call at the behest of his former clerk.
The disconnect appeared to stem from Mr. Levi's role in laying the groundwork for the call in both directions. It was not clear whether someone on the transition team had suggested he propose the call.
This path seems probable. Levi told his former boss about what was going on. Alito said he would be willing to talk to Trump. But Alito did not reach out to Trump. Instead, Levi suggested to Trump that Alito was open to a call from him. And Trump called Alito. This part the sources think "was not clear."
The story continues:
During the call, according to multiple people briefed on it, Mr. Trump initially seemed confused about why he was talking to Justice Alito, seemingly thinking that he was returning Justice Alito's call. The justice, two of the people said, told the president-elect that he understood that Mr. Trump wanted to talk about Mr. Levi, and Mr. Trump then got on track and the two discussed him.
Trump, apparently, was a bit confused about what was going on. Maybe he was affected by the "relatively insubstantial" burdens imposed by Judge Merchan on what Chief Justice Roberts and Justice Barrett referred to as "the President-Elect's responsibilities." Yes, Trump has a lot legal proceedings this week, on top of President Carter's funeral and changing the Gulf of Mexico to the Gulf of America. I think we can cut him just a bit of slack if he was confused.
Nothing about this story makes sense to me.
