In this episode of Unwritten Law, Mark Chenoweth and John Vecchione break down the Supreme Court’s oral argument in Trump v. Cook, a case that puts presidential power, Federal Reserve independence, and the meaning of “for cause” removal squarely before the Court.

The discussion explores why the Justices appeared unusually skeptical of the government’s position, how the case arrived on the emergency docket, and whether a president must provide notice or a hearing before removing a Federal Reserve governor. Mark and John examine the distinction between the Fed’s interest-rate authority and its regulatory power, debate whether pre-appointment conduct can justify removal, and unpack the broader separation-of-powers implications.

If the Court limits the president here, does it invite a direct constitutional challenge to “for cause” protections? And what does this case signal about how the Court views executive control over independent agencies? A lively, substantive conversation about one of the most surprising Supreme Court arguments of the term.

Mark Chenoweth: Welcome to Unwritten Law with Mark Chenoweth and John Vecchione. We are here to talk this week about the recent oral argument in the Trump v. Cook case at the U.S. Supreme Court. This of course is the case deciding whether President Trump has the ability to fire a Federal Reserve governor, a member of the Board of Governors, Lisa Cook, “for cause.” So, there's not a challenge to the standard itself in this case. The question is whether the standard has been met. And I thought it was a very lively oral argument, John.

John Vecchione: I thought it was the most surprising argument this term.

Mark Chenoweth: Interesting. Okay.

John Vecchione: I did not think that the Justices would be as hostile to the government as the question sounded. I thought, of course, some of them would, but it did strike me that almost all the Justices were concerned about how this got here and what was happening. And we’ve been used to the idea that this Supreme Court’s gonna let the Executive run every part of the Executive agencies.

Mark Chenoweth: Right.

John Vecchione: And, in this case, I thought that the government was on its back foot from the very beginning a little more than we’ve seen in any of these type of cases.

Mark Chenoweth: I think that's fair. One thing that was interesting to me, John Sauer mentioned in his opening two minutes that you get before they start asking questions, that the Federal Reserve doesn't just set rates, that it has these other regulatory –

John Vecchione: Right.

Mark Chenoweth: – responsibilities. And I don’t think he ever came back to that point later, and I thought that was one of the strongest reasons why the president needs to be able to fire these folks “for cause” is because of their regulatory responsibilities. And I think if there’d been more focus on that and less focus on “Oh, Fed independence…” Because I don’t think anybody is thinking “Oh, we need Fed independence because of the regulatory writing aspect of it.”

John Vecchione: They don't want the money supply to change at political whim. That’s the main thing here, right?

Mark Chenoweth: That's right.

John Vecchione: Congress didn't want it because they knew what they’d do, and the president didn't want it because they knew… This is historically, not today. So that is what they're all focused on, and they're not focused on the regulatory part of this. But also, who decides what causes and whether they're gonna make it a nullity or a test really seem to be what’s going on here. I thought everyone knew, but probably people listening to this show probably know but we should say Cook, there's a guy in…

Mark Chenoweth: FHFA, I think, is it?

[Crosstalk]

John Vecchione: Yeah, Pulte.

[Crosstalk]

Mark Chenoweth: Federal Housing Finance Agency.

John Vecchione: Yeah, I think it’s Pulte and he’s going through all of the people –

John Vecchione: – Trump doesn’t like and seeing if they put anything he thinks is false in their applications for loans or whatever. And so, he flagged Cook…

Mark Chenoweth: Just be careful. I don’t think we know he’s doing that.

John Vecchione: Oh…

Mark Chenoweth: I think that's the accusation?

John Vecchione: Okay. Yeah, that's the accusation. No pro-Trump people have suddenly ever been found with this, even though many of the cabinet have done it. But I will allow that. I will be neutral in this thing. But in any event, so what happens is so Cook put down that it was gonna be a residence. And then, there's some back and forth because apparently, she put in other papers that said no, she was gonna have somebody live there…

Mark Chenoweth: Oh, I think some other documents says it’s a vacation home.

John Vecchione: Right, exactly.

Mark Chenoweth: Some other documents given to the lenders.

John Vecchione: So, it is a mixed question of fact. And the president’s view is that, and John Sauer’s very strong on this, even if it is a mixed question of fact “Look, this piece of paper’s there and it creates in the public mind concern about the Federal Reserve.” But the question is does the president get to choose what cause is or is there some adjudicative process to do that? And that seemed to be the nub of this.

Mark Chenoweth: It did, and there was a lot of discussion about and questions asked by both sides on what that process would look like. And the statute doesn’t call for notice and hearing. That's not in the statute. It’s in a lot of statutes, but it’s not in the Federal Reserve statute. And there isn’t a constitutional obligation to provide notice and a hearing, or at least there isn’t a precedent saying that there is a constitutional obligation to provide notice and a hearing. So, that would be new if they did decide that there is a constitutional obligation. I didn't hear them tending that direction.

And Chief Justice Roberts seemed to be saying, “Well, what would the point be of requiring her to sit down for 30 minutes? There isn’t really a factual dispute here. She's claiming there's sort of an inadvertent error here –

John Vecchione: Right.

Mark Chenoweth: – on one part of it. And the president’s like “Well, that's enough for me. You're gone.” It’s not as though there's going to be some meeting of the minds if they sit down.”” And so, the thing that no one said, which I have to wonder about, is if you say that she has a right, does every single federal official have a right to notice and hearing before being fired by the president? Because that would take a lot of his time if that were required.

John Vecchione: Well, “for cause.” “For cause.” So, the argument is that when Congress puts in a “for cause” thing, that that is what does it. They say that that language comes with soil from some previous case that I’m not sure of, right? There was a lot of talk about soil in this argument. I thought it was a farming case for a minute because they were always saying, “Oh, it moves with the soil.” And Paul Clement was using that quite a bit. And then, John Sauer says, “There's no soil.” So, in any event, so there are previous cases or something, and I have to say I was not aware of that. And the other thing that struck me is they kept using this abbreviation that I’ve never heard before for what are the three things? I’m trying to think. Inattention…

Mark Chenoweth: No. No. So, it’s neglect of duty –

John Vecchione: Neglect.

Mark Chenoweth: – is the N, right?

John Vecchione: Right.

Mark Chenoweth: And malfeasance is –

John Vecchione: Malfeasance.

Mark Chenoweth: – the M. And the I is the one that I’m struggling to remember…

John Vecchione: I thought it was “inattention” or something.

Mark Chenoweth: I’m sure I have it here.

John Vecchione: Did they I, N, M? I, N, M?

Mark Chenoweth: Yeah, that’s what they kept saying. Yeah.

John Vecchione: So, they kept saying, “I, N, M” and I was like “What the heck?” because I had never heard that abbreviation for those three things. And I wonder. I can’t recall seeing it. I read the Cook brief, but I don’t recall seeing that abbreviation, and yet all of the advocates and the Court were using it.

Mark Chenoweth: Inefficiency was the I.

John Vecchione: That’s it, inefficiency.

Mark Chenoweth: Inefficiency, neglect of duty, and malfeasance, that was the standard that they were trying to import. But that's not the standard for Cook. It’s “for cause,” right?

John Vecchione: Right.

Mark Chenoweth: But the statute doesn’t specify that that's the standard.

John Vecchione: And that was another soil argument.

Mark Chenoweth: That's right.

John Vecchione: So –

Mark Chenoweth: That's right.

John Vecchione: – I don't know how these soil arguments are gonna come out…

Mark Chenoweth: But if they were, for example, to rule for the president I don’t think that there's anything that would prevent Congress from coming back with a amendment to the statute saying, “When we say “for cause here” what we mean is inefficiency, neglect of duty, malfeasance.”” And they could even specify “We’re ignoring pre-appointment conduct” because that was one of the debates as well is “Well, this is something that she did before she was confirmed. And so, that should sort of be off the table automatically.” And Justice Alito wasn’t having that. He had quite a field day with his set of hypotheticals as to pre-appointment conduct, and “Okay, so what if this? What if this?” And Paul Clement was sticking to his line admirably.

John Vecchione: “I have to stick to my previous argument.”

Mark Chenoweth: But he says, “I know where this is going and it’s only gonna get worse” sorta. But I think Justice Alito made his point, which is I think the strongest argument about this, is “Look, if this was conduct that was known to the Senate at the time of confirmation and at the time of the appointment by the president, then you probably can’t relitigate that.”

John Vecchione: Right.

Mark Chenoweth: I think that's the strongest argument. But if it is something that comes out that’s new… And look, do I think this is the worst possible thing that could come out about somebody? No.

John Vecchione: Certainly not this year.

Mark Chenoweth: Well, I’m remembering back when I was working on judicial nominations. We had somebody who President Bush had nominated and had gone up to the Senate for confirmation. And it came out during this time, pre-confirmation, mind you, that he had been engaged in, or at least was accused of and it looked pretty bad for him, a sort of scheme where he was buying things at Target, then going back to Target with the receipt and pulling things off the shelf and returning the things off the shelf rather than things he’d actually bought.

John Vecchione: Oh, my Lord.

Mark Chenoweth: Sort of an unsophisticated shoplifting kind of scheme, right? Well, President Bush withdrew that –

John Vecchione: Right.

Mark Chenoweth: – nomination, needless to say, or didn't renominate him in the new –

John Vecchione: Right.

Mark Chenoweth: – Congress. I can’t remember the timing of when it all sort of happened. But suppose something like that came out right –

John Vecchione: Right.

Mark Chenoweth: – after someone had been confirmed? For an Article III federal judge –

John Vecchione: Right.

Mark Chenoweth: – it would be impeachment, but –

John Vecchione: Right.

Mark Chenoweth: – for a Federal Reserve governor you couldn’t fire someone for it? Of course you could, I would think.

John Vecchione: Well, the question they were debating was “Does it have to be a big crime or little?” It reminded me a little of impeachment, like “What’s a high crime and misdemeanor?” The argument went along those lines: a clerical error, does it rise to the level of that? But the question is, was it a clerical error, right? What’s really going on here is Cook says it’s a clerical error, and the administration says, “No, it was a fraud to get lower interest rates.”

Mark Chenoweth: And by the way, it doesn’t appear she ever paid it back or refinanced at a higher rate or anything like that.

John Vecchione: Right.

Mark Chenoweth: So, she’s still enjoying the benefit of the inadvertent error, as far as I can tell. It didn't come up at the oral argument.

John Vecchione: Right, exactly. And also, it appears the bank knew. This is a little bit like Trump’s case where the bank knew everything.

Mark Chenoweth: Interestingly that didn't deter Letitia James at all –

John Vecchione: It did not.

Mark Chenoweth: – from bringing the case.

John Vecchione: It did not but apparently…

Mark Chenoweth: You might see why President Trump sees it the way he sees it.

John Vecchione: But it does look like the bank knew everything, at least from the papers she’s shown. And it looked like the bank knew everything in Trump, but it didn't matter so that could be driving. I hadn’t thought of that until we just discussed it right now, but it is similar.

Mark Chenoweth: “What’s sauce for the goose is sauce for the gander,” is that…?

John Vecchione: Yeah.

Mark Chenoweth: That does seem to be the way that the president operates on some of these things. So, one of the other sort of controversies that came up is sort of the whole fact that notice was given on Truth Social…

John Vecchione: I love that part of it.

Mark Chenoweth: You like that? “Does that count as sufficient notice or not?” And Justice Sotomayor in particular was pushing back against the Solicitor General in that “We understand we’re at the Supreme Court now.” She had notice at some point –

John Vecchione: Right.

Mark Chenoweth: – but the contention was that by the posting on Truth Social, between then, and I think she was fired five days later or something like that, that that was –

John Vecchione: Sufficient notice?

Mark Chenoweth: – sufficient notice. And then, how is she supposed to respond? If she doesn't have a Truth Social account or whatever…?

John Vecchione: I promise you Cook does not have a Truth Social account.

Mark Chenoweth: Of all the bets you’ve made on this program, John, that might be the safest one that you’ve ever. Way to stick your neck out.

John Vecchione: Exactly. So, Paul Clement said, and I do wanna get to something else too, but he said that “It might be notice but it’s not sufficient notice.” And in the law, here’s the thing. When you're trying to serve a complaint there are all kind of ways to serve complaints. Even if the complaint is on the cover of the New York Times, that is not sufficient notice to bring him into court, right? So, here, this discussion of notice was very lawyer-like because she probably knew about it, but that's not what we normally think of notice. So, they were going back and forth about this, but the fact that it was Truth Social and the fact that this was Twitter adjacent –

Mark Chenoweth: Right.

John Vecchione: – and is this enough; and all I could think of was, and this is probably petty, but the phenomenon that came out with Twitter where people would break up by Twitter.

Mark Chenoweth: Oh, yeah.

John Vecchione: They would put something up there and that would be the breakup, –

Mark Chenoweth: Right, right.

John Vecchione: – which was not a thing when I was… Right?

Mark Chenoweth: Was this on Facebook? You would change your relationship status or something like that? Yeah.

[Crosstalk]

John Vecchione: Right. Yeah, exactly. Yes, exactly. Exactly. And that would be the notice that –

Mark Chenoweth: Right, right.

John Vecchione: – you were broken up. It was reminding me of that. I’m like “Is this maybe insufficient or is it just rude?”

Mark Chenoweth: Right, right. Can you ghost a governor of the Federal Reserve Board? Is that possible? But I do think, coming back to this question of hearing, I think there were very different ideas among the Justices and certainly between our friends Mr. Clement and Mr. Sauer as to what an adequate hearing would entail. And I have a hard time believing that the Court really wants to try to specify that here. It seemed like they were –

John Vecchione: No.

Mark Chenoweth: – looking for a more limited solution. So, what does that look like? So, one’s limited solution might be “Well, we’re not gonna specify the hearing. But she didn't have any hearing, and so we’re gonna say that she has to have some hearing.” They could say something like that. That wouldn't be that helpful, but they could say something like that.

John Vecchione: The other thing that I think bothered them was the president said she was a criminal and a crook and all this before he did anything. Right?

Mark Chenoweth: Well, that certainly bothered…

John Vecchione: They thought that the fact, “Well, even if the president is the factfinder, he can’t make up his mind before he’s seen anything.”

Mark Chenoweth: He can’t prejudge is what they were saying.

John Vecchione: Can't prejudge.

Mark Chenoweth: And Clement was strong on that. I think the SG missed a real opportunity to respond on that because I think the obvious response is “Wait a minute. You're assuming that he hadn’t already looked at the material before he made that announcement. Now, he didn't prejudge this. At least there isn’t proof that he prejudged this several days before doing the tweet.” So, his response, I would think, would be “I looked at the material when it was put in front of me. Yeah, I had an open mind about it.” Now, it’s true that he apparently didn't talk to her about it before –

John Vecchione: Right.

Mark Chenoweth: – making an announcement. And so, maybe that's the response there, but I don’t necessarily think it’s the case that because he announced it when he did that he had prejudged it before looking at the material. I think he had already looked at the material at that point.

John Vecchione: And there's another issue here is, is she fired or is she reinstated, right?

Mark Chenoweth: They used different words, didn't they?

John Vecchione: Yeah. So, this is an interesting one. So, he did the “You're fired…”

Mark Chenoweth: Except she wasn’t there.

John Vecchione: She wasn’t there.

Mark Chenoweth: If he had just had a nice Celebrity Apprentice table and she was at the other end, then –

John Vecchione: We’d know.

Mark Chenoweth: – we’d know. There's your hearing. We didn't get that here.

John Vecchione: So, the question is, the remedy. So, the stay is in place, right? So, there's a stay against her not being a Federal Reserve, and the Federal Reserve folks are letting her do all the Federal Reserve thing. This isn’t a case where the agency is not recognizing her as a Federal Reserve Board member.

Mark Chenoweth: Right. This isn’t the Newman case, in other words.

[Crosstalk]

John Vecchione: It’s isn’t. No. Exactly. And so, what’s going on is, what are they gonna do about this stay? Because this was a stay and this was an interim docket appeal, it looks to me like a lot of this was going around like “What is this thing before us and what should we do about it under our standards?” And I think that might have created the hostility to the administration because there seemed to be the idea with everyone, probably except Alito, that “Why don’t we let this case go forward and find out what the facts are –

Mark Chenoweth: In the lower court.

John Vecchione: – right, and what is the harm here?” And the harm from Sauer, he had another one; he didn't have just the regular “The president has to run the Executive Branch.” He had that “It’s clear that the populace completely has no faith in the Federal Reserve while Cook’s there.” And I think the answer to that is, sure, Republicans don’t. I don't know that everyone does. And I certainly think that markets prefer not 1% interest.

Mark Chenoweth: Although he had a response to that too of course –

John Vecchione: That was good.

John Vecchione: It went up for three days or something like this….

Mark Chenoweth: There's a difference too; I gotta say this. Look, what is there, 15 governors or something like that on the Federal Reserve Board of Governors?

John Vecchione: Right.

Mark Chenoweth: You're talking about one governor. It doesn’t flip the control –

John Vecchione: Nope.

Mark Chenoweth: – of the board. It’s not the Chairman of the Federal Reserve; it’s not Powell. I think that maybe Cook and her team are putting a little too much emphasis on that independence point because I’m not sure. It doesn’t change things that much of the real outcome.

John Vecchione: And I also think though that the other thing going on here is is that they're gonna make a direct attack on the Federal Reserve, its independence. They're gonna do it. So, why this sideshow in a weaker position? Because the injunctive stay aspect of this cuts both ways. It cuts against Cook in some ways and for her in other ways. And for the Supreme Court waiting doesn’t hurt them much in this case. Okay, for the reasons you just said, it’s somewhat of a tempest in a teapot about whether interest rates are gonna go down to 1% or 0.5% or whatever it is or stay through a normal vote.

Mark Chenoweth: Because they're not if this is the only thing that happens.

John Vecchione: They're not. So, if I’m a Supreme Court Justice, am I thinking “I like facts. I’d like to know what's going on here and I’d like to hear what the lower courts have to say. And then this is not illegal; it’s provincial. What's the real harm in allowing this if I know also that I’m gonna get a real case on whether the Federal Reserve can be controlled by the president or not?”

Mark Chenoweth: Well, I don't know that you know that. So, I look at this a little differently provincially, which is the president tried to do what the statute says the president can do. The statute says you can fire someone “for cause.” He identified a cause and he fired her, and now he’s getting all this blowback. And I think that someone in President Trump’s shoes might say, “I tried it your way. Fine. I’m gonna challenge the constitutionality of the “for cause” provision. Well, now you're really in the soup because you have a provision that Congress did pass, and then you have to decide the constitutional question “Does Congress have the authority to put a “for cause” provision into place or doesn't it?”

Wouldn’t we be in a much happier world where the president can fire people for cause and isn’t challenging the constitutionality of a “for cause” provision? I think that's a better world. So, if I’m a Supreme Court Justice looking at this provincially, I might think the better thing to do here is to let the president fire somebody “for cause.” There is a cause here. It’s not pretextual. She hasn’t said that she didn't do the thing that she was accused of doing. She has said, “Well, it wasn’t fraud. It wasn’t deliberate,” whatever, but she hasn’t said she didn't do the thing that he’s accused her of. So, let this one go…

John Vecchione: So, I’m gonna be Paul Clement now. I’m gonna put my hands up the air like this, like he does.

Mark Chenoweth: Oh, I wasn’t there.

John Vecchione: No, he always does this.

Mark Chenoweth: Oh, okay.

John Vecchione: Puts his hand up in the air and said, “I wanna live in a world. I wanna live in a world…”

John Vecchione: And lots of others but yes. And “I wanna live in a world where the president can’t find any picayune thing, call it “cause,” and fire somebody because then what we have is form over substance. And Congress was trying to put in substance here.” That's his argument. I don’t know that they were for the reasons that you said. They could have put in a process; they could have done those things, and they didn't do them explicitly.

Mark Chenoweth: Even though they’d done them in a different law a month before.

John Vecchione: See, that's a powerful argument. “But I don’t want that happening where they can say, with Trump, “She has very unattractive hair. She doesn’t look like a Federal Reserve officer.”” And then, he goes “Is that cause?” So, I do think that there is a question here about letting anything be “cause,” and I’m not sure I wanna live in that world either.

Mark Chenoweth: I just don't think this one’s trivial enough to trigger that concern. I think this one’s legit.

John Vecchione: It’s far better than my example.

Mark Chenoweth: But you're right. Former Solicitor General Clement did bring this point up. He said, “In the Soviet Union, was it Beria who –

John Vecchione: Yes. “Find me the man…”

Mark Chenoweth: – “Find me the man. I’ll show you the crime?”” He said, “This is worse than that. This is “Find me the person. I’ll show you cause for getting rid of them.”” And look, I’m not saying that a “for cause” standard is a strong standard. What I am saying is it’s the standard Congress put in, and if you don’t like it, Supreme Court, then uphold the standard and then Congress needs to go back and put in a tougher standard if it wants to.

John Vecchione: And I will say this. All of these issues, I still think it was the most surprising and interesting argument of this term because of how it got there…

Mark Chenoweth: And they heard argument

John Vecchione: And they heard argument.

Mark Chenoweth: They haven’t been hearing argument on the emergency docket. This came on the emergency docket. They didn't decide it. They pushed it off for argument.

John Vecchione: That's true. So, I just found the whole thing fascinating for a lot of reasons; that everyone wasn’t in their normal slot in this argument. Maybe Alito was

Mark Chenoweth: I was gonna say, “Maybe Jackson was.”

John Vecchione: Exactly and Jackson. But no because Jackson riffed off Alito’s thing. She was referring to the Conservative Justices’ questions, which she rarely does. So, even she was a little different. So, I did think all of them, there's something about this case that doesn’t fit their normal ideas and I’m wondering if it isn’t the emergency docket. We’re gonna see when the opinion comes out. I think we’ll know more, right?

Mark Chenoweth: Well, for sure. And we know already from the decision last summer that they’d said that the Fed is different. But I think, and this gets back to what you were talking about at the beginning and the concern for rate setting, that Congress didn't trust itself. They didn't trust the president. The president who signed it, Wilson, didn't trust himself and didn't trust future presidents certainly to do the right thing on interest rates. We call this a Ulysses contract, right…

John Vecchione: Yes. That’s good. Ulysses tied himself to the mast so the sirens wouldn’t pull him off the boat, right?

Mark Chenoweth: Exactly. And then, he was ordering his men to unlash him so he could go and sort of lead to his death and –

John Vecchione: Sure.

John Vecchione: It’s like Young Frankenstein where Gene Wilder tells them “No matter what the Monster does, don’t let me out. Don’t let me out.” And then, the Monster’s coming up and “Let me out.”

Mark Chenoweth: For a more modern reference. But I suspect that once the Christopher Nolan movie comes out that maybe everyone will have the lashing to the mast reference again. But at any event, the thing I think is important to remember in this case is that setting interest rates isn’t the only thing that the Fed does. It has all these regulatory responsibilities as well. If Congress wants to bifurcate that and have the Ulysses contract just go to the people who are responsible for the rate setting, I think in a way everyone could maybe swallow hard and say, “I’m not exactly sure that the Constitution fully permits this but everybody, all the branches seem on board that this is the right way to do it. So, we're gonna deal with that.”

The idea that the president doesn’t have control over people who are doing standard regulation of credit cards and banks and so forth, that the Fed does with all of its other regulation, I think that's the concern because, for all the reasons in our amicus brief, the president has all of the executive power under the vesting clause. He has the duty to take care under the Take Care Clause that all of these things are gonna be done. Under the Appointments Clause there are restrictions on his appointment power, but there aren’t restrictions on his removal power. So, the textualist arguments.

And Justice Barrett said this, that there are three strong, separate textualist arguments here that defend the idea of the president having this. I don’t think she said that all support –

John Vecchione: Right.

Mark Chenoweth: – having removal power, but she said these are the three sort of –

John Vecchione: Right.

Mark Chenoweth: – strong textualist arguments. And I think that the Court is going to have to figure out how to handle that. And if three strong textual arguments like this don’t get you to the result that a textualist Supreme Court would ordinarily get you to, that would be noteworthy.

John Vecchione: It will.

Mark Chenoweth: And I think concerning from a separation of powers standpoint.

John Vecchione: It is. But us, I’ve said it a number of times in this program, I’ll say it again, when John Roberts finds that the Fed independence is threatened, he will decide that the Fed officers are a tax.

Mark Chenoweth: Well, we will know more when the decision comes out. Trump v. Cook at the U.S. Supreme Court. I would say, I don’t always recommend that people listen to the oral argument, but I thought John Sauer and Paul Clement both did a nice job. And I thought that the Justices were animated. They were all interested. They asked very good questions of both sides, and I think folks who are looking for an oral argument to listen to, this would be a pretty fascinating one to hear.

John Vecchione: Without question.

Mark Chenoweth: You’ve been listening to Unwritten Law.

[End of Audio]

Duration: 28 minutes