Trump’s Intended Supreme Court Lawyer Is Off to Puzzling Start

Two recent filings by Donald Trump’s intended solicitor general, D. John Sauer, could have unintended ramifications if he’s confirmed as the government’s top lawyer at the US Supreme Court.

In both cases, the former Missouri solicitor general filed briefs on behalf of Trump personally. In at least one, he staked out a position inconsistent with the current administration’s stance.

In TikTok v. Garland, Sauer urged the justices to pause a federal law that could effectively ban the social media site in the US. That’s counter to the Biden administration, which asked the justices to uphold the measure. The case will be argued on Friday.

Sauer has separately asked the justices in Trump v. New York, to halt Trump’s sentencing, also on Friday, in his hush money case.

Those filings on behalf of Trump could require Sauer to recuse himself from representing the government in the future. Beyond that, it could impact his reputation before the justices, legal experts say.

The solicitor general’s “credibility before the court is of paramount importance,” said Gus Hurwitz of the University of Pennsylvania Carey Law School. Given the arguments Sauer is making, it’s “hard to understand how this is going to affect that reputation in the long term,” said Hurwitz, who is academic director of the school’s Center for Technology, Innovation & Competition.

Recusal Demands

Trump announced plans in November to nominate the former clerk to Justice Antonin Scalia to the role, calling Sauer “a deeply accomplished, masterful appellate attorney.”

Sauer had successfully represented Trump before the justices in his bid for immunity from criminal prosecution related to his efforts to overturn the 2020 election. He’s also been involved in other high-profile conservative battles, including student loan debt and Covid-19 misinformation.

Sauer would be one of two political appointees in the Solicitor General’s Office. The other would be the principal deputy, who doesn’t require Senate confirmation. Trump hasn’t said who he intends to tap for that role.

Hogan Lovells partner Sean Marotta said it isn’t unusual for a new solicitor general to have to recuse because of private practice work.

DOJ ethics guidance states that attorneys must disqualify “from any case in which you participated before entering government.”

Marotta noted that Biden administration Solicitor General Elizabeth Prelogar was recused from an Affordable Care Act case pending before the justices when the new administration came into office.

Prelogar didn’t sign on to a Feb. 10, 2021, letter notifying the justices of the government’s change in position in the case, California v. Texas, likely because she’d filed a friend-of-the-court brief in it while a partner at Cooley. The letter was instead signed by the next in line, career deputy Edwin Kneedler.

Before going into a new administration, attorneys try to wind down their practice, but sometimes they can’t help what they’ve done, Marotta said.

But Sauer hadn’t been listed as an attorney for Trump in either the TikTok or hush money cases before they reached the Supreme Court. Marotta said it’s surprising to see him taking on new work before his confirmation.

Reputational Harm

While Sauer can be replaced by other attorneys in the Solicitor General’s Office if required to recuse, a hit to his reputation based on the recent filings could be long lasting.

Wilson Freeman, an attorney with the public interest law firm Pacific Legal Foundation, said the TikTok filing was particularly unusual.

Sauer is asking the justices to pause the federal law that would ban Tik Tok nationally, rather than decide the free speech issues that have been raised. That’s because the law goes into effect Jan. 19, the day before Trump’s inauguration.

“This unfortunate timing interferes with President Trump’s ability to manage the United States’ foreign policy and to pursue a resolution to both protect national security and save a social-media platform,” the brief said.

In doing so, Freeman said Sauer is asking the court to “take an extraordinary action without providing a traditional legal justification.”

When asking for a stay, parties and their outside backers through amicus briefs typically point to a four-factor test that looks at, among other things, the likelihood of success and the fairness to each side, Freeman said. Sauer’s brief doesn’t really try to do that, Freeman said.

Instead, Freeman said the brief attempts to leverage the unusual timing of the law to suggest that a future deal by Trump could give the justices an “escape hatch” to avoid the thorny First Amendment questions. The brief relies largely on rhetoric to suggest the possibility of a future deal, he said.

For example, the brief said that “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform.”

Georgetown law professor Stephen Vladeck called it “ego-stroking, navel-gazing writing” in a Substack post Dec. 30.

The solicitor general is a repeat player at the Supreme Court, Hurwitz said, noting that the government is often involved in the most contentious and significant cases.

The solicitor general’s reputation with the justices is critical, he said. The solicitor general is frequently called the Tenth Justice given how highly the justices value the office’s view on resolving cases.

Vladeck thinks the kind of puffery in the TikTok brief, along with its lack of legal argument, is unlikely to be well received by the justices and could have long-term, harmful effects on the government’s relationship with the court.

“All in all, a not-terribly-auspicious start for the incoming Solicitor General and President-Elect,” Vladeck wrote.