The Federal Judges Speaking Out Against Trump

The judiciary may be the last line of defense for American democracy.

Latest Apr 9, 2024 0 37 Add to Reading List

The Federal Judges Speaking Out Against Trump

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The federal judiciary may turn out to be an endangered democracy’s last line of defense.

First, here are three new stories from The Atlantic:

Pointed Rhetoric

Four decades ago, Neil Postman prophesied an apocalypse of moral idiocy in the age of mass media. “When a population becomes distracted by trivia,” he wrote, in Amusing Ourselves to Death, “when cultural life is redefined as a perpetual round of entertainments, when serious conversation becomes a form of baby-talk, when, in short, a people becomes an audience and their public business a vaudeville act, then a nation finds itself at risk; culture-death is a clear possibility.”

Postman was prophetic, but he couldn’t have had any idea how bad things would get in the age of Donald Trump and Twitter. Faced with Trump’s behavior, America’s norms of decency and truth proved to be far more fragile than many of us imagined. And we don’t have many of those barricades left now, do we?

But the federal judiciary may turn out to be an endangered democracy’s last line of defense. Here again, Trump—who faces 91 felony charges and massive judgments in civil cases for fraud and defamation—is responding with an onslaught of personal attacks and insults, almost daring judges to hold him in contempt for violating the gag orders they have slapped on him. Over the weekend, Trump declared on Truth Social that he was prepared to become “a Modern Day Nelson Mandela” if he was thrown into jail. “It will be my GREAT HONOR.”

In the short run, Trump is trying to delay, disrupt, and discredit the various cases against him. But his attacks are also part of his larger effort to delegitimize the justice system as a whole and to spread fear within the institutions tasked with holding him accountable.

Some judges, however, are pushing back. Hard. The picture is admittedly mixed: A dilatory Supreme Court has thrown Trump a lifeline by delaying a ruling on his immunity claims, and U.S. District Judge Aileen Cannon seems intent on rescuing Trump from his stolen-document case with her repeated delays (whether she means to do so is not yet clear).

But others in the federal judiciary—including Republican appointees—are using remarkably vivid language to express their disgust and concern over Trump’s behavior. Although some conservative-leaning judges view the Trump era as an opportunity to reorient constitutional law, a sizable group of these judges has come to see Trump’s lies and threats as a clear and present danger.

U.S. District Judge Reggie Walton, an appointee of George W. Bush, took the remarkable step of going on CNN to sound the alarm over Trump’s social-media attacks on the family of the judge presiding over his New York hush-money case.

“It’s very disconcerting to have someone making comments about a judge, and it’s particularly problematic when those comments are in the form of a threat, especially if they’re directed at one’s family,” Walton told CNN. “The rule of law can only function effectively when we have judges who are prepared to carry out their duties without the threat of potential physical harm.” Walton specifically highlighted the case of an assailant who went to the home of U.S. District Judge Esther Salas in 2020, shot and killed her son, and wounded her husband.

Walton’s fears are widely shared among federal judges. As Reuters reported in February, serious threats to federal judges have more than doubled since 2021, and more than 70 percent of the judges currently opt into the U.S. Marshal Service’s offer to provide electronic security systems for their homes.

U.S. District Judge Royce C. Lamberth, also a Republican appointee, has called out Trump’s embrace of the January 6 rioters—albeit without naming the former president. Lambert said at the resentencing hearing of the January 6 rioter James Little that he was “shocked to watch some public figures try to rewrite history, claiming rioters behaved ‘in an orderly fashion’ like ordinary tourists, or martyrizing convicted January 6 defendants as ‘political prisoners’ or even, incredibly, ‘hostages.’”

Just last week, in a blistering sentencing memo, Lamberth reiterated that the January 6 attack on the Capitol was not an act of civil disobedience, “because it was violent, not peaceful; opportunistic, not principled; coercive, not persuasive; and selfish, not patriotic.” (Emphasis in original.)

January 6, Lamberth wrote, “must not become a precedent for further violence against political opponents or governmental institutions. This is not normal. This cannot become normal. We as a community, we as a society, we as a country cannot condone the normalization of the January 6 Capitol riot.”

These themes have been repeated by one judge after another. The retired federal appellate judge (and Atlantic contributor) J. Michael Luttig has called Trump a “clear and present danger” to democracy. Last month, U.S. District Judge Rudy Contreras warned that Trump could encourage his supporters to instigate another violent attack after the 2024 election. Jeffrey Sabol, a man sentenced to prison for his actions in the January 6 riots, told the FBI that he had “answered” a “call to battle” on January 6. “It doesn’t take much imagination to imagine a similar call coming out in the coming months,” Contreras said during Sabol’s sentencing hearing.

As Tom Nichols wrote last week, Americans can become exhausted and numbed by Trump’s falsehoods and violent rhetoric. But the evidence suggests that federal judges are neither exhausted nor numbed.

Trump envisions a presidency in which he would quite literally be above the law, immune from accountability, and free to wreak vengeance on his opponents. The Trump 2.0 strategy depends on the former president and his associates bending the institutions of government—including the military and the Department of Justice—to his will. Congress, especially one controlled by the GOP, is unlikely to be either a check or a balance if the other institutions fail.

Which leaves the courts.

The pointed rhetoric from these judges is an important indicator: The federal judiciary is the one institution left standing that viscerally understands, and is willing to actively resist, the threat the former president poses.

Related:

Today’s News

Arizona’s supreme court ruled that a restrictive Civil War–era abortion law, which bans abortion unless the pregnant person’s life is at risk (with no exceptions for rape or incest), is enforceable.
A New York appeals judge rejected Trump’s bid to delay his Manhattan criminal trial while he challenges the gag order imposed on him in the case.
James and Jennifer Crumbley, the parents of a Michigan school shooter, were sentenced to 10 to 15 years in prison for involuntary manslaughter. Their unprecedented cases raised the question of who can be held legally responsible for mass shootings.

Evening Read

Multiple old pictures and documents next to a brown cardboard box and a cup of coffee — Photograph by Sarah Palmer for The Atlantic*

Our Last Great Adventure

By Doris Kearns Goodwin

“It’s now or never,” [Dick Goodwin] said, announcing that the time had finally come to unpack and examine the 300 boxes of material he had dragged along with us during 40 years of marriage. Dick had saved everything relating to his time in public service in the 1960s as a speechwriter for and adviser to John F. Kennedy, Lyndon B. Johnson, Robert F. Kennedy, and Eugene McCarthy: reams of White House memos, diaries, initial drafts of speeches annotated by presidents and presidential hopefuls, newspaper clippings, scrapbooks, photographs, menus—a mass that would prove to contain a unique and comprehensive archive of a pivotal era …
For years, however, Dick had resisted opening these boxes. They were from a time he recalled with both elation and a crushing sense of loss. The assassinations of John F. Kennedy, Martin Luther King Jr., and Robert Kennedy; the war in Vietnam; the riots in the cities; the violence on college campuses—all the turmoil had drawn a dark curtain on the entire decade. He had wanted only to look ahead.
Now he had resolved to go back in time.

Read the full article.