Round-up: Trump's golden shield. Tariff backpedal. Trump v. the BBC

Analysis of the week's events

Trump’s “golden shield”

One of the most important agencies of the U.S. government is one that you might never have heard of. It’s the Justice Department’s Office of Legal Counsel, usually known just as OLC.

The job of the OLC is to provide official advice to the Attorney General and the rest of the administration on legal matters. If a government department wants to do something and it needs to know whether that thing is legal or not, it asks the OLC. The office then writes an official opinion, and that opinion is generally considered binding on the executive branch.

That gives the OLC enormous power. It’s also the reason that the office’s independence has generally been fiercely protected. Traditionally, the head of the OLC has been a career civil servant or otherwise highly respected lawyer who can draw bipartisan support.

It’s easy to see why the OLC needs an independent leader. If the president hand-picked a yes-man to head the office, it could just crank out legal opinions letting that president do whatever he wanted.

OLC opinions don’t just enable government officials to do something in the moment - they also protect them from prosecution later. Courts will generally not allow the criminal prosecution of an executive branch official for an action if the OLC had declared that action to be legal. This is why the opinions are sometimes called “golden shields”.

And as you might imagine, this is all leading us to Trump.

Trump broke with precedent earlier this year when he picked T. Elliot Gaiser, a relatively inexperienced and highly partisan lawyer, to be head of OLC. Gaiser was previously a lawyer for Trump’s 2020 presidential campaign, and was involved in efforts to overturn that year’s election result. At only 36 years old, Gaiser’s main qualifications in the field of constitutional law seem to be a clerkship with Samuel Alito and an argument before the Supreme Court in Ames v. Ohio Department of Youth Services. That case ended with the court unanimously ruling against Gaiser.

Now ensconced at OLC, Gaiser has produced a new golden shield ruling which seeks to provide legal justification for Trump’s strikes against civilian vessels in the Caribbean and Pacific Ocean. Here are some details from the Times:

The memo, which was completed in late summer, is said to open with a lengthy recitation of claims submitted by the White House, including that drug cartels are intentionally trying to kill Americans and destabilize the Western Hemisphere. The groups are presented not as unscrupulous businesses trying to profit from drug trafficking, but as terrorists who sell narcotics as a means of financing violence.

Based on such claims, the memo states that Mr. Trump has legitimate authority to determine that the United States and its allies are legally in a formal state of armed conflict with “narco-terrorist” drug cartels, according to the people who have read the document. The rest of the memo’s reasoning is based on that premise.

For example, the people said, the memo asserts that boats believed to be carrying narcotics are lawful military targets because their cargo would otherwise generate revenue that cartels could use to buy military equipment to wage the purported armed conflict.

And a lengthy section at the end of the memo, they said, offers potential legal defenses if a prosecutor were to charge administration officials or troops for involvement in the killings. Everyone in the chain of command who follows orders that comply with the laws of war has battlefield immunity, the memo says, because it is an armed conflict.

What is particularly disturbing about this is the way that the memo makes what is essentially a political rather than a legal argument. The idea that the U.S. is in a state of armed conflict with “narco-terrorists” is a piece of political rhetoric, not a legal finding.

When Trump-aligned lawyers have tried this sort of thing with real judges and juries they nearly always get laughed out of court. But OLC findings are their own closed legal loop. So long as other officials in the executive branch can be convinced to take them seriously and act on them, there’s essentially nobody who can step in and stop them.

And so, the killings continue - and we are left wondering what the next golden shield might be designed to protect.

Trump’s tariff backpedal

Reeling from its party’s comprehensive defeat in last week’s elections, the White House is scrambling to change the political narrative. It has alighted, sensibly enough, on the issue that polls show voters care about the most - the cost of living. But its plans may end up revealing yet more political weaknesses ahead.

According to reports, the White House has decided to announce a series of tariff rollbacks on foodstuffs in order to lower their prices. Agreements have already been reached on beef and coffee from Latin America, with more reportedly to come.

Some sort of price relief will no doubt he welcome news to consumers.

But the bigger problem for the White House is that by taking this step, it is implicitly agreeing that tariffs in general actually raise prices. And that’s a huge problem, because massive tariffs have been at the centerpiece of Trump’s economic agenda.

If you zoom out, Trump’s economic policy is truly extraordinary. After winning an election largely on the promise to deal with inflation, he has implemented a policy agenda whose main planks are things that every independent economist thinks make inflation much worse.