Trump Asks Supreme Court to Help Him Fire the Register of Copyrights
The administration’s bid for Supreme Court intervention comes after an appeals court last month found the administration likely lacked the authority to dismiss Register of Copyrights Shira Perlmutter.
The Trump Administration this week turned to a familiar playbook for help in their now months-long quest to fire Register of Copyrights Shira Perlmutter: the Supreme Court’s emergency docket.
In an October 27 filing, administration lawyers asked the Supreme Court to stay an appeals court decision blocking the administration from interfering with Perlmutter’s employment, arguing that—despite an appeals court’s finding to the contrary—both the Library of Congress and the Copyright Office are part of the executive branch and that Perlmutter’s dismissal by Trump was therefore lawful.
“This application involves another case of improper judicial interference with the President’s power to remove executive officers—here, the Register of Copyrights,” administration lawyers argue in the petition.
“Earlier this year, the President removed the previous Librarian; designated an Acting Librarian under the Federal Vacancies Reform Act of 1998…and directed the Acting Librarian to remove [Perlmutter] as Register,” the brief goes on to argue, asserting that U.S. Deputy Attorney General Todd Blanche, whom Trump purportedly appointed as the acting Librarian of Congress following the May 8 dismissal of Carla Hayden, ratified Perlmutter’s dismissal when he appointed DOJ veteran Paul Perkins as acting Register of Copyrights.
But in a 2-1 decision, the U.S. Court of Appeals for Washington D.C. on September 10 held that both Blanche’s and Perkins’ appointments were likely unlawful, that Perlmutter was likely not legally removed, and that district court judge Timothy Kelly, a Trump appointee, erred in denying Perlmutter’s bid for a preliminary injunction.
In a brief per curiam order, the appeals court barred Trump administration officials from “interfering with [Perlmutter’s] service as Register of Copyrights and Director of the U.S. Copyright Office” pending a further order of the court.
Andrew Richard Albanese
The appeals court decision came after Kelly, on May 28, denied Perlmutter’s bid for a temporary restraining order, and two months later, on July 30, denied her bid for a preliminary injunction, both of which sought to keep Perlmutter in her job while her lawsuit challenging the Trump administration's attempt to remove her is decided on the merits.
In his rulings, Kelly narrowly found only that Perlmutter could not show “irreparable harm,” a key point in deciding whether injunctive relief is warranted.
However, in a lengthy concurrence, written by judge Florence Pan and joined by judge J. Michelle Childs, both Biden appointees, the appeals court explained that Kelly botched his irreparable harm analysis by failing to properly weight the "unusual actions" relating to Perlmutter's removal and whether Perlmutter’s firing represented a “genuinely extraordinary situation”—factors that must inform the irreparable harm analysis, the majority held, and which “distinguish this case from other removal cases.”
Judge Justin Walker, a Trump appointee, offered a brief dissent, suggesting that the risk of a court allowing a properly “removed officer” to continue exercising executive power is a greater threat to the country than the risk of keeping a “wrongfully removed officer” from doing her job.
Meanwhile, in a blow to the administration’s chances, the full U.S. Court of Appeals for Washington D.C on October 1 denied the administration’s bid to have the three-judge panel’s decision reheard en banc by the full appeals court.
The legal drama began after Perlmutter was axed via email on Saturday, May 10, just days after the shock firing of Librarian of Congress Carla Hayden. Perlmutter's firing immediately set off alarm bells, coming on the heels of her decision to release a pre-print edition of a Copyright Office report on copyright and AI, which expressed views with which the President disagreed.
The administration’s bid for a Supreme Court stay comes as Kelly last week canceled a November 4 hearing on competing motions for summary judgment in the case, indefinitely delaying the litigation, citing the government shutdown.
On the merits, the administration’s Supreme Court filing—like its head-spinning September 22 motion for summary judgment in the case—offers a spaghetti-on-the-wall approach, brimming with thin, post-hoc justifications for why Perlmutter’s dismissal should be legal. Furthermore, despite its arguments to the Supreme Court, DOJ lawyers have admitted in a separate filing of fact that Blanche has not in fact assumed control of the Library of Congress, nor has Paul Perkins assumed control of Copyright Office.
Andrew Richard Albanese
Carla Hayden's first deputy Robert Newlen, by statute, automatically ascended to the role of Acting Librarian of Congress upon Carla Hayden’s firing, lawyers say, and has been openly serving in that capacity since.
And despite Trump's efforts to fire her, the appeals court suggested that Perlmutter in fact remains the legally appointed leader of the U.S. Copyright Office. Notably, in May, when Perkins arrived at the Copyright Office with the intent of taking control, he was denied entry by staffers, and DOJ lawyers acknowledged that he has not returned since.
Nevertheless, the administration has had success in getting the Supreme Court to grant several stays of appeals court decisions off the so-called “emergency” or “shadow” docket—usually brief, unsigned orders that allow the administration to take its desired course of action while the merits of the lawsuits challenging those actions play out in the lower courts.
Should the Supreme Court grant the stay requested here, the net effect could likely be irreversible, as it could give the administration—which has proven itself adept at dragging out court cases—the ability to remove Perlmutter and to effectively take over the Copyright Office while the litigation plays out.
Attorneys for Perlmutter have until November 10 to respond to the DOJ's petition.
