We are underway. Judge Nichols says he expects to decide by Sunday, unless Trump relents on his 27th threat. Trump's lawyers think the supposed banning is "minor".
Judge Nichols asks for citations to any administrative record as to the rationale for the banning. . . . there is none, yet -- says Trump's lawyer.
Judge asks about TikTok's similar California suit. . . John Hall for TikTok says they tried, but much of the delay is due to Commerce's 45 day delay. And the legal theories (see below) were laid out in LA a month ago. Significantly, there was a business solution, but now Trump has changed the requirements for the business solution.
Moreover, it was only on this Tuesday that Trump reinstated the ban threat. And as of now, there is no agreement as to an M&A deal.
Judge Nichols is strongly signaling that he will require oral argument this weekend.
Trump's lawyers will not (as of now) agree to "added delays" on the order taking effect. We are now likely headed to emergency hearings this weekend. Judge Nichols taking final statements from each side. Order to issue shortly. Briefs due tomorrow, and Saturday, at 2:30 PM; Sunday 10 AM hearing on TRO -- unless Trump relents by 2:30 PM tomorrow. We are adjourned. End, live blogging.
So -- to recap: the Trump attempted closing of the WeChat functionality, remains enjoined, nationwide -- out of San Francisco's federal district courts, as of last Saturday afternoon.
In the last 48 hours (because chaos is his only brand!), Trump has mis-spoken (to put it most-charitably), and on video -- about the contours of the deal he previously "approved" -- between TikTok, and Oracle and Walmart. Specifically, he has directly contradicted what the parties themselves have said will be the ownership structure (with ByteDance said to still be in strong super-majority control of the US entity's voting securities).
So. . . Trump today purported to re-assert a September 27 potential "banning" date, for TikTok overall (but not WeChat), if his demands aren't met (whatever those might be!).
And that led TikTok's US lawyers to file in DC, for a new preliminary injunction motion -- against the enforcement of these lawless and ill-starred "orders" out of Trump's camp. That is now set for a DC federal district court hearing (to decide whether there will be weekend oral arguments, on a TRO -- among other matters) tomorrow, at 10 AM EDT -- the 24th (I'll live blog it!), thus (from the over 50 page memo of law supporting the motion by TikTok for the preliminary injunction, filed tonight):
. . . .[T]he President asserted that for him to approve a restructuring that would avoid the ban, the Treasury Department had to receive a “substantial portion” of any price paid by the U.S. acquirer or partner. Ex. 15; see Ex. 16 at 2. It is entirely improper for the President to demand a payment in these circumstances -- as the President himself has since admitted. Ex. 17 (“Amazingly, I find that you’re not allowed to do that — you’re not allowed to accept money. . . . There’s no legal path to doing that.”). . . .
The Prohibitions were issued against the backdrop of a political reelection campaign in which the President has increasingly relied on anti-Chinese rhetoric. See, e.g., Ex. 7. And there is no question that the first mention of the Trump Administration possibly banning TikTok came on the heels of the episode in which TikTok users claimed to have used the app to make it appear to the President’s campaign that attendance for the President’s Tulsa rally in June would be vastly larger than it actually was, Ex. 9, an embarrassment that led to the campaign running ads against TikTok, Ex. 11. The record will make clear that these [Ed. Note: petty ego-driven] issues -- not any purported national security concerns -- were the actual rationale for the Prohibitions. See, e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 54-55 (D.C. Cir. 1977) (when an agency sets forth a “fictional account of the actual decision-making process” a reviewing court “must perforce find its actions arbitrary”); Tummino v. Torti, 603 F. Supp. 2d 519, 544-46 (E.D.N.Y. 2009) (agency action is arbitrary when articulated basis is “fanciful and wholly unsubstantiated” and other considerations are evident from record).
The claim that national security concerns were the agency’s actual motivation for requiring a total ban of TikTok in the United States is contradicted by the President’s persistent focus on extracting some type of financial bounty in exchange for permitting Plaintiffs to continue their lawful business in the United States. On August 3, 2020 -- three days before the August 6 order was issued -- the President stated that TikTok “[doesn’t] have any rights” and that he would ban the company unless it were acquired through “an appropriate deal” in which “the Treasury. . . of the United States gets a lot of money.” Exs. 15, 16. This demand for a payment to the Treasury is at odds with notion that banning TikTok is necessary to protect national security. The President also demanded that the parties involved in the TikTok-Oracle-Walmart deal “pay $5 billion into a fund for education” so that “we can educate people as to the real history of our country.” Ex. 27.
Such a demand not only is completely untethered to the national security concerns on which the Prohibitions were purportedly based, but is entirely inappropriate. Indeed, in analogous contexts, courts -- as well as the government itself -- have recognized the impropriety of the government demanding that a private party make a payment to a third party. For example, the Supreme Court has long recognized that the government “effects an unconstitutional taking when it transfers property, without any justifying public purpose, from one private party to another.” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 637 F. Supp. 1398, 1406 (D.D.C. 1986), aff’d, 830 F.2d 374 (D.C. Cir. 1987) (citing Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 241 (1984) and Thompson v. Cons. Gas Corp., 300 U.S. 55, 80 (1937)). . . .
We will soon see that the San Francisco order for a preliminary injunction of last Saturday. . . was correctly decided. For the sake of a complete record only -- this is the nonsense Trump filed tonight, prior to tomorrow's hearing. I will live blog it. Watch this space.
नमस्ते
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