The head-spinning chutzpah of Trump’s TikTok brief (original) (raw)

It’s not often that a single friend-of-the-court brief to the Supreme Court merits individual attention. Then again, it’s not often — not ever, actually — that a brief is filed like the one by President-elect Donald Trump in TikTok v. Garland.

Under a 2024 federal law, the popular social media platform must be sold to a non-Chinese company or effectively shut down in the United States by Jan. 19 — a deadline that, by happenstance, falls a day before Trump is to be sworn in for a second term.

Agreeing to hear the case on a supersonic schedule, the Supreme Court said last month it would hold oral argument Jan. 10 on TikTok’s claim that the statute violates its First Amendment rights. (A federal appeals court unanimously rejected that argument in early December.)

The Biden administration, which last I checked was still in office, is defending the law, saying it “addresses the serious threats to national security posed by the Chinese government’s control of TikTok, a platform that harvests sensitive data about tens of millions of Americans and would be a potent tool for covert influence operations by a foreign adversary.”

Then came Trump, with a brief authored by D. John Sauer, the lawyer who won Trump’s immunity case and, more important, has been tapped to be his solicitor general, the government’s top advocate before the high court. As noted by the Wall Street Journal’s editorial board — yes, the Wall Street Journal — the document “is extraordinary in several ways, none of them good.”

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There is the head-spinning chutzpah of Trump’s ask, that the justices suspend the law from taking effect until he is president. Remember, Trump was against TikTok before he was for it. As president, Trump issued an executive order designed to crack down on TikTok’s operations in the United States. His 2020 directive stated that TikTok’s “data collection threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”

But that was then: The order was blocked by a federal judge who ruled that Trump had exceeded his authority, then later rescinded by President Joe Biden. And this is Trump, for whom consistency is no virtue. He then went from TikTok antagonist to TikTok advocate, a switcheroo that happened to coincide with a March 2024 meeting with Republican megadonor Jeff Yass, a major investor in TikTok parent company ByteDance (Trump said they didn’t discuss the company), and more broadly with Trump’s discovery that the platform could be an effective campaign tool.

Now, Trump portrays himself as the champion of free speech against Democratic efforts to kill TikTok — this despite the overwhelming, bipartisan votes last year for the measure. “For all those that want to save TikTok in America, vote Trump,” he declared in an all-caps message on Truth Social in September.

And so much for that one-president-at-a-time stuff. The Biden administration is doing its constitutional duty, which is to defend a duly enacted statute. Trump’s argument is that, because he is about to be sworn in and is now determined to ride to TikTok’s rescue, the court should concoct some basis on which to suspend the operations of the statute until he takes over. This isn’t the law, and it’s not the way courts are supposed to operate. You can’t claim to be a believer in the unitary executive and not let that executive govern until his time in office runs out.

Then there is the brief itself, which is breathtaking in its obsequious praise of Trump. Sauer says Trump doesn’t take a position on whether the law runs afoul of the First Amendment — the court should just hit pause and await Trump’s arrival — but his humility stops there.

Sauer presents himself less as the Tenth Justice, the common nickname for the solicitor general, than as First Cheerleader. Trump, he writes, “is one of the most powerful, prolific, and influential users of social media in history. Consistent with his commanding presence in this area, President Trump currently has 14.7 million followers on TikTok with whom he actively communicates, allowing him to evaluate TikTok’s importance as a unique medium for freedom of expression, including core political speech.”

Not only that, “President Trump alone possesses the consummate dealmaking 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,” Sauer continues. “Indeed, President Trump’s first Term was highlighted by a series of policy triumphs achieved through historic deals, and he has a great prospect of success in this latest national security and foreign policy endeavor.”

This kind of language has no place in a Supreme Court brief, certainly not from the man who will represent the United States before the justices. Sauer’s goal must be to continue currying favor with Trump, because he surely can’t believe this is the way to convince justices — or, in fact, do anything except undermine his credibility with them before he starts the job.

Perhaps as solicitor general, Sauer will keep in mind that his client is the United States, not Donald Trump. But this extraordinary document does not bode well.