The Rule of Law (Part II)

I’ve written here about the rule of law recently.  Because of recent events, I have decided to revisit that topic.

On Jan. 27, 2016, Pres. Trump issued an executive order on immigration.  That executive order led to widespread protests and to numerous lawsuits, challenging it on both statutory and constitutional grounds.  At this moment, Judge James T. Robart, a federal district judge in the Western District of Washington, has issued a temporary restraining order, at least temporarily barring enforcement of that executive order.  The Justice Department has appealed that TRO to the U.S. Court of Appeals for the Ninth Circuit.

None of this is remarkable.  For example, 113 Congressional Republicans, in 2013, joined in a lawsuit filed by the attorneys general of 26 states, challenging Pres. Obama’s executive orders that created the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and that expanded his earlier Deferred Action for Childhood Arrival (“DACA”) programs.  Speeches were made for and against those programs, and the White House defended them.  A federal district judge in Texas granted a preliminary injunction against enforcement of DAPA.  That preliminary injunction was affirmed by the Fifth Circuit and by an evenly divided Supreme Court.  However, no final injunction or final judgment has yet been issued.

What is unusual about the current lawsuit against the Trump executive order has been the President’s tweets about the district judge and about the lawsuit.  Among other things, he has referred to Judge Robart as a “so-called judge”; told his followers to “blame [the judge] and court system” if “something happens”; and used the word “Politics!” as an apparent explanation if the Administration were to lose that lawsuit. Those tweets, and especially the “so-called judge” tweet, have drawn widespread criticism.

Pres. Trump not only made a patently false ad hominem attack on a sitting federal judge, who happens to have been appointed by a Republican, but he also preemptively blamed the entire federal judiciary if “something happens” in the future.  And after his nominee to the Supreme Court, Judge Neil Gorsuch, told Sen. Blumenthal of Connecticut that he was “disheartened” by those “demoralizing” comments — a statement that was corroborated by a staffer who was assisting Judge Gorsuch in the confirmation process — Pres. Trump accused Sen. Blumenthal of lying.

These developments are profoundly troubling.  It is true that prior Presidents have criticized court rulings.  Some Supreme Court Justices decided not to attend Pres. Obama’s State of the Union address because of his public criticisms of that court’s decision in Citizens United.  But criticism of a decision is very different from criticism of a judge.  And blaming the judiciary if “something happens” (whatever that means) is a way to discredit a negative decision before that decision is even handed down.

This may not make any difference in the short term.  Federal judges hold their positions for life.  The President can’t remove a judge, and even Congress can’t remove a judge just because a majority in the Senate doesn’t like that judge’s opinions.  But this kind of highly personalized attacks could have a real impact if, for example, a federal jury were called on to decide the guilt or innocence of an alleged terrorist.  The President’s loose lips, or hyperactive twitter fingers, could so inflame public opinion that it could become impossible to find an impartial jury.

The Presidency is very different from a political campaign.  A campaigner might or might not get heard, and usually speaks as a part of a competitive contest in which the campaigner is not the only one speaking.  The President commands an international audience.  His words, and even his tweets, are preserved for posterity.  His followers, including every member of his political party, might follow his words blindly.  What the President says has real consequences, both in the short term, for the particular dispute at hand, and in the long term, by destroying respect for the judiciary and the entire court system.

Pres. Trump has shown an alarming disrespect, if not contempt, for the rule of law.  Only time will tell whether he will change his tune.  If not, we may be suffering the effects for decades.