Donald Trump and his flunkies usually tell us exactly what he is up to. Judges considering the risk and result of his handiwork should take note.
FBI Director Kash Patel went to the trouble of publishing an enemies list, filled with people he refers to as “government gangsters.” Trump has never allowed doubt about his determination to seek revenge against his foes. Ever since James Comey refused to bend the knee to Trump, or New York Attorney General Tish James went after Trump’s phony real estate evaluations, or then-congressman and now Sen. Adam Schiff (D-Cal.) managed the first impeachment trial, or Jack Smith prosecuted him for Jan. 6 and other alleged crimes, Trump has vilified his enemies and vowed to pursue “retribution” through the justice system. So when—no surprise!—Comey is indicted (and others investigated) and Trump celebrates it with the vigor of a playground bully, no reasonable person can doubt this is a vindictive prosecution.
Likewise, after Trump has demonized blue cities for years, propounded a false and dystopian vision of war zones, and sent in ICE forces (who inevitably provoke violence) to brutalize and terrorize nonwhites, no honest observer could accept as valid the pretext he advances (rebellion, invasion, or inability to enforce federal laws) for deployment of our National Guard.
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When Trump publicly admits his nefarious motives (e.g., using the shutdown to fire Democrats, labeling his political opponents “terrorists”), judges should not ignore his explicit animus nor accept at face value the benign explanations that government lawyers concoct in court. Judges have a choice: Allow Trump to take them as fools, or look at the facts including his own admissions when assessing his power grabs?
Lower courts are increasingly determining that accepting Trump’s disingenuous rationalization amounts to dereliction of their judicial duties. In the Alien Enemies Act cases, courts repeatedly rejected his preposterous assertion that we are engaged in a war with or facing invasion from another country, as the statute requires.
Likewise, U.S. District Judge Waverly Crenshaw indicated he had reason to doubt that the Trump regime has a legitimate criminal case against Kilmar Abrego Garcia. In allowing Abrego Garcia’s attorneys discovery to make out a case of vindictive prosecution, he effectively demanded to look under the hood to see if the government was on the up-and-up.
(Spoiler: It’s not.)
In a similar vein, U.S. District Court Judge Karin Immergut in Oregon rejected Trump’s preposterous claim that Portland was “war ravaged.” She acknowledged that while the president is entitled to “a great level of deference… [that] is not equivalent to ignoring the facts on the ground.” Instead, judges must review whether the president’s factual determination is within the “range of honest judgment,” she explained. But when his determination lacks any “colorable basis,” courts must act. That’s why Trump could not prevail on assertions “simply untethered to the facts.”
In this abnormal presidency, which compulsively lies and attacks courts, judges should follow these examples. The normal presumption of regularityafforded presidents and the wide berth granted on national security (which applies to foreign policy, not domestic policing) should not apply when, as Just Security demonstrates, the president has racked up a shocking record of deceit. It documents 15 cases in which the Trump regime did not comply with court orders, 35 cases where there was ample reason for “Court distrust of government information and representations,” and 50 cases in which the government’s actions were held to be “arbitrary and capricious.” Surely, that record justifies the presumption of illegality.
Trump blows up whenever judges cross him, daring them to ignore facts as well as the law. “They are projecting this notion that no judges should be able to intervene or stop something that the president believes is good policy, Rep. Dan Goldman (D-N.Y.) told me this week. “It is the most absurd argument I could ever come up with because, of course, that is exactly what the judiciary’s role is…to interpret what the law is, what the law allows for and doesn’t allow for.” Judges must not accept the president’s absurd stance.
SubscribedEspecially when Trump routinely and publicly contradicts representations that government lawyers make in court, judges should deny whatever deference other presidents have enjoyed. Some simple rules should be applied based on the regime’s record over the last 10 months:
When Trump’s public statements contradict lawyers’ self-serving representations in court, judges should doubt the latter and order discovery.
Trump’s executive utterances attacking private individuals and groups’ First Amendment rights of speech and association should create a presumption that government actions (e.g., tax, regulatory, criminal) targeting them are retaliatory, and hence, invalid. The government should have the burden to rebut these attempts.
When government lawyers evade or violate court orders or misrepresent facts, judges should make findings of contempt, sanction them, and make referrals to state bars.
While lower court judges nominated by presidents of both parties (including Trump) have increasingly adopted such approaches, the MAGA Supreme Court majority still facilitates Trump’s bad faith maneuvers. In abusing the shadow docket and overruling lower courts’ detailed fact-finding, the MAGA justices give Trump leeway to lie, encourage even more outrageous conduct, and incentivize him to hurl more invectives toward the judiciary. The deference offered should be to the lower courts as finders of fact.
Unless it wants to forfeit any judicial role in checking the president, the MAGA majority must support lower courts’ independent fact-finding role. Its cockeyed view of injunctive relief, which assumes the president is irreparably injured whenever he does not get to do what he wants—while no weight is afforded to his victims—amounts to declaring that only his desires matter. Such a position is a recipe for dictatorship. When cases reach the merits, the MAGA justices will have to decide: Rubber stamp whatever Trump does (i.e. bend to a despot), or exercise independent judgment? If the MAGA majority does not end its pattern of constitutional dereliction, a future president and Congress will need to rescue and revise our system of checks and balances (e.g., expand the Supreme Court, limit its appellate jurisdiction).
Unlike Trump’s dictatorial assertions, courts have an obligation to seek the truth, not just buy into his fantasies. The rule of law’s survival depends on it.
