Donald Trump famously said on the campaign stump: “I alone can fix it.’’ He now wants that to become Supreme Court doctrine.
Trump has inserted himself into the legal battle between the federal government and TikTok over a law that would ban the social media platform in the United States unless its China-based parent company sells it to an American owner by Jan. 19.
What does this have to do with Trump? Absolutely nothing, but that didn’t stop him from submitting a friend-of-the-court brief in the matter on Friday, urging the justices to place the law on hold until he can assume office and strike some sort of deal.
This request is devoid of any legal or factual support, but we’ll get to that in a minute. Trump’s brief, filed by his attorney and intended nominee for US solicitor general D. John Sauer, is an alarming preview of how the president-elect sees the Supreme Court and how he intends to treat it once he returns to office: as merely another arm of his MAGA empire that he can control on demand.
Congress passed the law at issue based on bipartisan national security concerns about the Chinese government using the app to spy on Americans and influence social media content. TikTok challenged the law’s constitutionality, arguing that it violates Americans’ free speech rights. The Supreme Court took the case up two weeks ago on an expedited basis, with arguments set for Jan. 10 and a decision expected days later.
Enter Trump with an argument that is as gobsmacking in style as it is in content.
“Through his historic victory on November 5, 2024, President Trump received a powerful electoral mandate from American voters to protect the free speech rights of all Americans — including the 170 million Americans who use TikTok,’’ Sauer wrote in the amicus brief. Sauer also calls Trump “one of the most powerful, prolific, and influential users of social media in history.’’
But here’s the kicker: “President Trump alone possesses the consummate deal-making expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government — concerns which President Trump himself has acknowledged.’’
Um, no.
Let’s start with the sheer temerity of Trump’s argument. Essentially, he is asking the Supreme Court to ignore the law, ignore the Constitution, and grant Trump some sort of new presidential deal-making power never contemplated by the Founders — all while Trump is still a private citizen.
There can only be one president at a time. The TikTok law — with its Jan. 19 sale deadline — was designed to be executed under Biden’s watch. Are there potential First Amendment problems with the legislation? Sure, and that is what the justices are tasked to figure out. But that question has nothing to do with a future president’s alleged deal-making prowess.
Or, to be more accurate, the lack thereof. Remember, Trump already tried to “fix’’ TikTok during his first term, invoking emergency economic powers to issue an executive order to ban the platform.
But that measure was swiftly blocked by federal courts that ruled Trump overstepped his authority. Some deal-making skill, Mr. Fixit.
So what is Trump even doing here? The only reasonable explanation, besides Trump’s clear lack of understanding of how the law or Constitution work, is he is testing his power over the Supreme Court, and the loyalty of the lawyer he has picked to be the federal government’s top litigator during his second term.
Sauer’s brief drips with the kind of fealty to Trump unbefitting someone of his resume. The Harvard Law alum clerked for now-retired Federal Appellate Judge J. Michael Luttig — now a vocal Trump critic — and the late Supreme Court Justice Antonin Scalia.
Sauer is also the former solicitor general for the state of Missouri, so he is well aware that the job Trump nominated him for is one representing the interests of the government — the people — not extolling the virtue of any one person’s “consummate deal-making expertise.’’
But Sauer is also the attorney who argued that Trump was immune from federal prosecution for his attempt to upend the 2020 election results and for inciting violence on Jan. 6, 2021. The resulting decision by the court’s conservative majority and Trump’s reelection effectively brought that prosecution to an end.
Clearly that taught Trump the wrong lesson: that the justices, including the three he installed, are there to do his bidding.
But members of the Senate, who have a constitutional duty to advise and consent to Sauer becoming the next solicitor general, must do their jobs in ensuring that office does not become a political one, and that Sauer doesn’t become Trump’s Roy Cohn on the taxpayers’ dime. The ridiculous brief he submitted to the nation’s highest court Friday should be exhibit A at his confirmation hearing.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com. Follow her @KimberlyEAtkins.
