Spiegel Stuff: The Gavel: Trump’s avowed AI order to face legal hurdles

By Ella Lee and Zach Schonfeld | Wednesday, December 10

Trump's avowed AI order to face legal hurdles

President Trump's promised executive order that would kneecap state laws aimed at regulating artificial intelligence is likely bound for the courts.

The president announced his plan Monday to create "one rulebook" by which the tech industry will abide when it comes to AI, a move that would override the regulations passed by individual states.

"We are beating ALL COUNTRIES at this point in the race, but that won't last long if we are going to have 50 States, many of them bad actors, involved in RULES and the APPROVAL PROCESS," Trump wrote on Truth Social.

"THERE CAN BE NO DOUBT ABOUT THIS!" he continued. "AI WILL BE DESTROYED IN ITS INFANCY!"

But it could face legal headwinds and criticism off the bat, especially as AI regulation is still a fledgling effort.

"A great federal system could be better, in theory," said Nicholas E. Stewart, executive director of the Justice Education Project. "But in practice, without a system in place, states are only really the ones filling the gaps."

All 50 states — plus Washington, D.C., Puerto Rico and the Virgin Islands — introduced legislation this year on AI, and some 38 states adopted or enacted about 100 measures, according to the National Conference of State Legislatures.

That patchwork of state laws could come under fire with an executive order from Trump.

Though it's not clear what the final order will look like, a draft order seen last month by our colleague, tech reporter extraordinaire Julia Shapero, would have created a task force dedicated to challenging state AI laws and restricted certain broadband funding for states with AI laws deemed overly burdensome.

Florida Gov. Ron DeSantis (R), who last week proposed an AI "bill of rights" for his state, wrote on X Monday that any effort by the president to "preempt" states' actions by overriding their laws — as Trump's post seems to suggest — would be unlawful.

"An executive order doesn't/can't preempt state legislative action," DeSantis said, responding to a post urging the state to challenge Trump's would-be executive order. "Congress could, theoretically, preempt states through legislation."

Either way, legal challenges seem inevitable — and the Trump administration could quickly run into issues.

There's one big problem to start: At least one of the tech companies that might celebrate lesser regulation, OpenAI, has acknowledged that "federal preemption over existing or prospective state laws will require an act of Congress."

The admission came in the footnote of a submission to the White House's Office of Science and Technology Policy and could be used by legal challengers to undermine the foundation and authority of Trump's efforts.

More generally, as DeSantis noted, an order overwriting state laws could pose questions about the separation of powers between both Congress and the executive branch, and strains on federalism.

Federal lawmakers last week did reintroduce the Artificial Intelligence (AI) Civil Rights Act, which aims to bar companies from using "biased and discriminatory AI-powered algorithms" in making "critical decisions" for American lives.

But the regulation of AI is still in early stages, and efforts to crack down on emergent technology have major gaps. That's especially true of regulation of AI's impact on the justice system, according to Stewart.

Stewart, lead author of the book "Next Steps into Criminal Justice Activism: Technology, Ethics, and the Future of Justice," which publishes next Tuesday, told The Gavel in an interview that AI is already built into every stage of policing, which prosecutors now use to build timelines, case theories and arguments as opposed to human witnesses.

"Policing and prosecution are being quietly rewritten by systems that don't think, can't explain themselves and are not accountable to anyone," Stewart said. "And when you remove people from key decisions, handing those decisions to generative AI, you don't get neutrality — you get automation of the same biases and power imbalances that already exist, except they're only faster, quieter and harder to challenge."

The book, which was shaped by the Gen Z-led Justice Education Project, includes chapters dedicated to interviews with legal experts at Columbia University and the University of Pennsylvania detailing the dangers of leaving AI's spread into the legal system unaddressed, especially for communities already disproportionately affected by heavy policing.

Columbia University professor Daniel Richman — who, loyal readers may know just-so-happens to play a key role in the Justice Department's dismissed case against former FBI Director James Comey — told the authors in one chapter, shared with The Gavel ahead of publication, that an "invisible system" like these can inflict harm just as well, with fewer questions asked.

"Anytime you expand data collection, you risk widening the net of the criminal justice system," Richman said.

(We'd be remiss not to mention: Richman's bid to temporarily block DOJ from accessing his own data, which prosecutors relied on to argue he was authorized by Comey to make disclosures to the media, was on Saturday granted by a judge.)

Stewart said that Trump's executive order would amount to a federal takeover of AI regulation before there's a comprehensive federal standard in place.

"So, as the administration moves ahead, we can see the strongest state-level safeguards — especially around discrimination, privacy and surveillance — overridden overnight, potentially," he said. "And that would shift enormous power to Washington and to the tech companies building these systems (in) Silicon Valley, leaving communities with fewer tools to challenge harmful uses of AI in the justice system."

Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).

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IN FOCUS

US attorneys hit wall; Noem in judge's crosshairs; Use of force stalls

Trump hits wall with US attorneys

Trump's bid to install loyalist U.S. attorneys in top offices nationwide seems to have hit a dead end, as his Justice Department's efforts to keep embattled prosecutors in their positions have faltered.

"It's a very sad situation," the president said Monday. "We're losing a lot of great people."

His remarks came after his former personal lawyer, Alina Habba, stepped down as the top federal prosecutor for New Jersey after a panel of federal appeals court judges ruled she was unlawfully serving in the role.

Habba was the first of his loyalist U.S. attorneys to be ruled disqualified in July, but others followed.

The top federal prosecutors in Nevada, the California district including Los Angeles and the Virginia district that includes D.C.'s suburbs have all since been found to be unlawfully holding their posts, while a challenge to the U.S. Attorney for the Northern District of New York is pending — and a judge signaled it's one the federal prosecutor may lose.

Trump's Justice Department has taken extensive steps to keep these attorneys in their roles, but Habba's resignation marks a reality check for the administration.

Habba said in her announcement that the decision was to protect the "stability and integrity" of the U.S. Attorney's Office for the District of New Jersey, saying judges stopped holding trials and handing down sentences with her at the helm, "leaving violent criminals on the streets."

Court watchers have largely attributed the disruptions to confusion around the legality of her leadership, but the consequences have been real. The New York Times reported in August that the delays were wreaking havoc on the lives of those whose lives were tied up in New Jersey's federal courts, and the appeals court ruling came only on Dec. 1.

A similar story is playing out in the Eastern District of Virginia, where the name of Lindsey Halligan — the disqualified U.S. attorney — is still appearing on court filings.

Several outlets have reported judges pushing back from the bench, questioning why a federal judge's ruling that found Halligan never lawfully served as the district's top prosecutor would not preclude her participation in cases.

One of those judges, U.S. District Judge Michael Nachmanoff, oversaw Comey's case at the trial level and Halligan's disqualification was the reason for its dismissal. He ordered her name struck from a different man's case records and said he was finding it "difficult to reconcile" the disqualification ruling with the Justice Department's actions now, according to CNN.

The Justice Department hit back Monday in a joint statement from Attorney General Pam Bondi and Deputy Attorney General Todd Blanche that said certain district and magistrate judges in Halligan's district were pursing an "unconscionable campaign of bias and hostility" against her and her line prosecutors.

"Lindsey and our attorneys are simply doing their jobs: advocating for the Department of Justice's positions while following guidance from the Office of Legal Counsel," the No. 1 and 2 DOJ officials said. "They do not deserve to have their reputations questioned in court for ethically advocating on behalf of their client."

On Tuesday, a judge suggested at a hearing that Halligan should take a page out of Habba's book and relinquish her role. Pointing out her resignation, Judge Leonie Brinkeman said, "that's the proper position, in my view," according to the Times.

The Justice Department has not appealed Halligan's dismissal, keeping her in the role, nonetheless. It's not clear how far DOJ will take any of the U.S. attorney disqualifications, after dismissing Habba's case before it could reach the Supreme Court.

But the calculus could involve efforts to reindict Comey and New York Attorney General Letitia James (D), the two Trump foes Halligan was hand-picked to pursue charges against in the first place.

The bigger problem, identified by Trump, is the excessive stalling of Senate confirmation for his nominees, bumping their tenure out of the interim window where many initially served lawfully before the legality of their leadership came into question upon its expiration.

On Monday, the president blamed the Senate's long-standing blue slip tradition that lets lets home-state senators veto presidential nominees to district courts and U.S. attorney offices.

Trump vowed in August that he'd sue over the practice, but such a lawsuit against what the president has called a "gentleman's agreement" would face long odds and never came to fruition.

Boasberg v. Noem

U.S. District Judge James Boasberg has his eye on Homeland Security Secretary Kristi Noem as the judge weighs potential criminal contempt referrals.

Boasberg oversees one of the highest-profile challenges to Trump's invocation of the Alien Enemies Act to swiftly deport alleged Venezuelan gang members to a Salvadoran megaprison.

Nearly nine months after Trump first invoked the law to quickly launch deportation flights, the case has returned to Boasberg's court, and he's resuming his contempt inquiry.

Noem has taken center stage upon the Justice Department disclosing for the first time that she made the final decision not to turn around planes as Boasberg handed down an oral and subsequent written order to do so on the night of March 15.

"I made the decision to continue the transfer of custody of the Alien Enemies Act detainees," Noem, under penalty of perjury, reaffirmed in a declaration submitted Friday.

The Trump administration maintains it didn't violate Boasberg's directive because the flights were already out of U.S. airspace by that time.

Months ago, Boasberg disagreed, but he has yet to identify any specific officials responsible. He's now weighing whether to refer any of them for criminal prosecution.

As the Obama-appointed judge mulls next steps, the government's latest court filings provide the clearest picture yet of how Noem came to her decision.

Blanche and Emil Bove, the then-principal associate deputy attorney general whom Trump later tapped for a federal appeals judgeship, in sworn declarations told Boasberg they had analyzed the judge's statements that March night.

The duo said they advised the Department of Homeland Security's acting general counsel, Joseph Mazzara. Mazzara, in turn, advised Noem, he confirmed in a sworn declaration of his own.

None of the officials disclosed what the advice was, calling it privileged material.

What's next? Boasberg wants to hear from witnesses.

The judge asked that Erez Reuveni appear on Monday. Reuveni worked in the Justice Department this spring and has become a whistleblower, accusing top officials of ignoring court orders.

Reuveni has said Bove suggested government attorneys may need to tell the courts "f‑‑‑ you" and defy any order blocking Trump's use of the Alien Enemies Act. Bove denies Reuveni's account.

Reuveni now works at Democracy Forward, a left-leaning legal organization that prolifically challenges the Trump administration in court.

After Reuveni testifies, Boasberg ordered the government to produce Drew Ensign, the deputy assistant attorney general for the Office of Immigration Litigation, for Tuesday.

Boasberg has said he's obligated to consider three factors to determine if an official should be referred for criminal contempt: (1) his order was "clear and reasonably specific"; (2) "the defendant violated the order"; and (3) "the violation was willful."

Meanwhile, Republican lawmakers are stepping up their scrutiny of the judge.

Six GOP senators — Eric Schmitt (Mo.), Mike Lee (Utah), Tommy Tuberville (Ala.), Lindsey Graham (S.C.), Kevin Cramer (N.D.) and Bill Hagerty (Tenn.) — sent a letter last month to the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit urging him to suspend Boasberg.

It comes as some in the party hope to impeach the judge. Boasberg has also drawn Republicans' ire for signing orders barring phone providers from telling lawmakers that Special Counsel Jack Smith was searching their records along with comments Boasberg reportedly made at a closed-door meeting of federal judges.

Last week, the Senate Judiciary Committee was set to hold a hearing on "rogue judges" and impeachment. It was postponed.

Chicago use-of-force case fizzling

The class-action lawsuit that sparked an expansive order restricting immigration agents' use of force in the Chicago area is fizzling out.

Border Patrol Commander Greg Bovino has shifted his focus from Chicago to Charlotte. It left the plaintiffs declaring victory and a push to drop their lawsuit that garnered national attention.

Not so fast, however.

"This is transparent procedural gamesmanship," the Justice Department pushed back in court filings Thursday. "To be sure, if Plaintiffs want to stop litigating and this Court grants their motion for dismissal with prejudice, that is beyond Defendants' control."

"But this gambit should be seen for what it is."

The judge is expected to grant the dismissal "with prejudice," meaning it would prevent them from bringing substantially similar claims in the future.

The Justice Department wants that to be air-tight, insisting journalists, protesters and clergy members can't file lawsuits claiming new constitutional violations by immigration agents.

U.S. District Judge Sara Ellis, an Obama appointee who oversees the case, hasn't yet granted the dismissal request after holding a hearing last week. Ellis reportedly wants to give any class members an opportunity to object before ruling.

Already, the Chicago Tribune and the Chicago Sun-Times have told Ellis that before ruling, she should first ensure the government produces various documents to the press and public related to the case.

Some have already been turned over, but others haven't as the government works to make redactions.

"A dismissal should not derail the right of the public and the press to access the materials that the parties submitted to the Court and that the Court has already determined are a part of the public record in this case," the outlets wrote in court filings Thursday.

SIDEBAR

5 top docket updates

Habba out: Alina Habba, the former personal lawyer to Trump, stepped down from her contested position atop the federal prosecuting office in New Jersey after federal courts ruled she was unlawfully appointed. She said she'll take on a new DOJ role as a senior advisor to Attorney General Pam Bondi for U.S. Attorneys.
SCOTUS OKs Texas map: The Supreme Court in an emergency ruling enabled Texas to use its congressional map for the midterms that adds up to five GOP pickups and ignited a mid-decade restricting war. The court's liberal justices publicly dissented.
Jan. 6 pipe bomb arrest: Brian Cole Jr., the Virginia man accused of planting two pipe bombs outside the Democratic and Republican national committee offices on the eve of the Jan. 6, 2021, Capitol riot, was arrested and made his first court appearance, unraveling one of the longest lasting mysteries from those days.
James no bill: The Justice Department failed to secure a new indictment against New York Attorney General Letitia James (D) after its initial case against her was dismissed, a blunder for prosecutors who have trained their sights on the Trump adversary.
New SCOTUS emergency case: The Trump administration asked the Supreme Court to intervene in a dispute involving immigration judges' free speech rights. The dispute raises significant implications for lawsuits filed by federal employees. It's the administration's 32nd emergency appeal since taking office.

In other news

Privileged behavior: Trump personally asserted executive privilege to keep thousands of documents out of discovery in a long-lasting civil case stemming from the Jan. 6, 2021, Capitol attack. See his unmistakable signature yourself in the court filings here.
Stay a while: In an exclusive interview with Politico, Trump said he hopes Justices Samuel Alito and Clarence Thomas stay on the bench, a response to calls for the 70-somethings to retire so the president could appoint new conservative justices.

THE ORDER LIST

Cases the Supreme Court is taking up — or passing on — this term.

In: Birthright citizenship

Last week, we previewed six petitions to keep an eye on. The court took up four of them.

The headliner is Trump v. Barbara, the battle over the constitutionality of Trump's birthright citizenship restrictions (for real, this time).

The justices also agreed to hear Abouammo v. United States, an appeal brought by a former Twitter manager accused or providing information to an associate of Saudi Arabian Crown Prince is Mohammed bin Salman about Saudi dissidents. Defendant Ahmad Abouammo argues he was convicted in the wrong venue.

The court also took up T.M. v. University of Maryland Medical System, which implicates the scope of the Rooker-Feldman doctrine. The doctrine prohibits federal district judges from considering cases brought by state-court losers complaining of injuries caused by a final state court decision.

And finally, the court agreed to hear Jules v. Andre Balazs Properties. The dispute stems from discrimination claims a security guard brought against Chateau Marmont, the historic Hollywood hotel known for its celebrity guests. At issue before the high court is a thorny jurisdiction issue.

Out: Book ban challenge

The court declined to hear Little v. Llano County, Texas, a challenge to the county public library removing 17 books from its shelves.

A district judge found the removals were motivated by a desire to censor certain viewpoints. But the 5th U.S. Circuit Court of Appeals dismissed those claims, saying that public library patrons had no right to challenge the removals under the First Amendment.

The patrons had asked the high court to take up their appeal.

They were represented by Elizabeth Prelogar, former President Biden's solicitor general. It was one of her first petitions she brought to the Supreme Court since returning to private practice at the law firm Cooley.

Maybe: Vaccine mandates

The Supreme Court asked the Trump administration to weigh in on whether to take up three pending petitions.

The first, Does 1-2 v. Hochul, involves a challenge to New York's COVID-era vaccine mandate for health care workers. They are raising claims under Title VII of the Civil Rights Act of 1964.

The second, Crowther v. Board of Regents of the University System of Georgia, is a major dispute over Title IX, the federal law that bans sex discrimination in federally funded schools. The petition, brought by Georgia Tech's former women's basketball coach and another employee, concerns if school employees have the right to bring Title IX lawsuits.

And the third, Hoffman v. WBI Energy Transmission, concerns eminent domain. The Natural Gas Act delegates that constitutional authority to condemn property to private companies so they can construct federally funded pipelines. The case involves how "just compensation" to property owners should be calculated in those cases.

PETITION PILE

Petitions to take up cases that the justices are keeping a close eye on.

Gun rights: Last week, we highlighted the dozens of challenges to the federal crime for felons possessing firearms. No action yet, but we hope you held your beer, because the court has relisted 21 additional Second Amendment petitions. Some concern that same felon-in-possession law. Others challenge an AR-15 ban in Cook County, Ill., and high-capacity magazine bans in California and Washington state.
Rodney Reed: Texas death row inmate Rodney Reed is back at the Supreme Court in his fight for DNA testing to provide he's innocent in a 1996 murder. Three years ago, the court ruled 6-3 in his favor that he hadn't waited too long to seek the testing. Now, the fight concerns whether the murder weapon Reed wants tested was potentially contaminated, and whether the refusal to test it violates his due process rights. The case is Reed v. Goertz.
Fourth Amendment (pinging Luigi Mangione followers): A criminal defendant in Iowa is asking the justices to provide a national answer on whether police violate the Fourth Amendment's protections against unreasonable searches when they search someone's bag without a warrant while arresting them, if the bag was inaccessible to the person when searched. This is the issue at the center of Luigi Mangione's ongoing pre-trial hearing in New York. The case is Scullark v. Iowa.
Vermont statehouse removal: Vermont State Police Sergeant Jacob Zorn is asking the justices to toss an excessive force lawsuit brought by Shela Linton, who suffered permanent wrist damage after being forcibly from the state House chamber floor in 2015. Linton was conducting a sit-in supporting universal health care. An appeals court ruled a judge wrongly ruled the sergeant could claim qualified immunity without going to trial. The case is Zorn v. Linton.

ON THE DOCKET

Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:

Today

The Supreme Court is set to hear oral arguments regarding how multiple IQ scores factor into whether someone is eligible for the death penalty. The case is Hamm v. Smith.
The U.S. Court of Appeals for the 4th Circuit is set to hear oral arguments in the Trump administration's appeal in a challenge to the president's executive order cracking down on diversity, equity and inclusion (DEI) brought by 11 intelligence community members on DEI-related assignments.
A federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in two unions' challenge to Trump's Labor Day executive order exempting six agencies from the coverage of the Federal Service Labor-Management Relations Statute.

Thursday

A federal judge in New York is set to hold a status conference in the sex trafficking case against former Abercrombie & Fitch CEO Mike Jeffries and two others.

Friday

There are no notable hearings.

Monday

The Supreme Court will announce orders.
The U.S. Court of Appeals for the D.C. Circuit is set to hear oral arguments in the Trump administration's appeal of a challenge to Trump's efforts to gut collective bargaining for federal workers, brought by federal employee organizations and unions.
A federal judge in Massachusetts is set to consider university associations' bid for remedies against the Trump administration after the judge found Trump's crackdown on pro-Palestinian campus activists was unlawful.
A trial is set to begin in Alaska against a man accused of sending graphic threats to kill Supreme Court justices and their family members.
A federal judge in California is set to hold a preliminary injunction hearing over the state's congressional map, adopted through a ballot proposition, Proposition 50, drawn to benefit Democrats.

Tuesday

A federal judge in Florida is set to oversee a settlement conference in a lawsuit brought by a group of migrants detained at Alligator Alcatraz and four immigration groups seeking to guarantee attorney access and other steps.
A federal judge in Massachusetts is set to oversee a hearing regarding the Trump administration's motion to dismiss a lawsuit seeking to mandate women's registration for the Selective Service draft.
Another Massachusetts federal judge is set to hold a hearing with countering arguments for summary judgment and dismissal in a challenge to the Department of Homeland Security's decision to end temporary protected status (TPS) for Haitians and Venezuelans.
And a third federal judge in Massachusetts is set to oversee a summary judgment hearing in a challenge to DHS's policy seeking to deport noncitizens to a third country without giving them notice or opportunity to contest their fear of persecution there.