John Dean: When Trump Attacks Judges, Where is the White House Counsel?

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Donald McGahn, lawyer and Trump advisor, leaves the Four Seasons Hotel in New York City, U.S., June 9, 2016. John Dean writes that Trump’s nominee to the Supreme Court, Judge and now Justice Neil Gorsuch, found Trump’s invectives toward the federal judiciary “demoralizing,” because Gorsuch knows many of the judges being attacked by Trump, and knows that they are hardworking and honest judges. Brendan McDermid/reuters

This article first appeared on the Verdict site.

The attacks started during the presidential campaign, when candidate Donald Trump openly criticized U.S. District Court Judge Gonzalo Curiel, repeatedly accusing this American-born judge of being biased because of his Mexican heritage—since Trump had proposed building a wall on the Mexican border.

In fact, it seems Trump was upset that the judge refused to dismiss the class action lawsuits against him and Trump University, an action by former students accusing him of fraud and deception.

“I have a judge who is a hater of Donald Trump, a hater. He’s a hater,” Trump often declared.

If Trump’s claim was true, why did he not have his attorneys file a motion to require Judge Curiel to recuse himself? The answer was that his attorneys knew it would be a baseless claim, they had no evidence whatsoever, so they would have been sanctioned for such a frivolous motion. Trump, of course, settled the lawsuits for $25 million before he became president.

As president, Trump has continued his attacks on the federal judiciary. In February, he issued an executive order banning Muslims from seven countries, and because of the way the order was implemented, it sent international travel into chaos by literally imprisoning foreign travelers at U.S. international airports.

ACLU attorneys, and attorneys general of several states, went to federal courts throughout the country to block Trump’s action. It was U.S. District Court Judge James L. Robart, a federal judge in the state of Washington, who ruled first to temporarily block enforcement of Trump’s travel ban.

The next morning, a Saturday, Trump fired off a tweet-storm about Judge Robart’s ruling, asserting: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.”

Days later, the government’s lawyers were aggressively questioned in the nationally televised argument before the three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, which then upheld Judge Robart’s ruling.

In response, Trump observed: “And I don’t ever want to call a court biased, so I won’t call it biased. And we haven’t made a decision yet [about going to the U.S. Supreme Court]. But courts seem to be so political, and it would be so great if our justice system—if they would be able to read a statement and do what’s right.” Political because they disagreed with Trump, and followed long-standing law.

Notwithstanding criticism for his belittling Judge Robart, who is a widely respected jurist appointed by Bush II, calling him a “so-called judge,” and accusing the 9th Circuit of politicizing their court, and not doing what was right when they ruled against Trump, he proceeded to threaten all these judges by claiming they would be responsible if there was a terrorist attack from any of the nations covered by his travel ban.

Trump has continued these unprecedented attacks on the federal judiciary. Most recently this week with his attack on U.S. District Court Judge William Orrick, in San Francisco, after the April 25, 2017, ruling temporarily enjoining the Trump Justice Department from cutting off federal money to sanctuary cities—those cities unwilling to pursue undocumented immigrants for the federal government.

Following Judge Orrick’s ruling, the White House Press Secretary’s office issued a statement that opened with the following sentence: “Today, the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation.”

That sentence and the rant that follows read like the press office never looked at Judge Orrick’s clear and careful 50-page ruling, which shows it was the President of the United States who was ignoring the law, and not on some minor technical point, rather well established constitutional doctrines.

The one-page White House press release is riddled with false statements. The lead sentence in the second paragraph offers this bogus exaggeration: “Once again, a single district judge—this time in San Francisco—has ignored Federal immigration law to set a new immigration policy for the entire country.”

In fact, Judge Orrick is following the existing law. And in the third paragraph Trump’s White House takes another baseless shot at Judge Orrick: “This case is yet one more example of egregious overreach by a single, unelected district judge. Today’s ruling undermines faith in our legal system . . . .”

The Trump White House response is beyond unsophisticated; rather it may be the most ham-handed response I have ever read out of any White House. Look, by way of comparison, at the response of the Obama White House to a Texas judge striking down the efforts to limit enforcement of the immigration laws to protect the “Dreamers.”

Related: Michael Dorf : Will Gorsuch Make the Supreme Court Less Polarized?

The statement is measured, when announcing the Department of Justice will appeal, because the court’s ruling is contrary to the overwhelming precedent to the contrary. No attack on the judge. No claim that he is usurping the president. No statement that the judge was abandoning “the rule of law.”

Presidents have long had their differences with the courts, and they have spoken out when they so disagreed. But unlike Trump, who attacks the integrity of the judge with whom he disagrees, and further attacks the legitimacy of the courts to pass on his executive actions, most presidents have made clear they fully support of our constitutional system. A few notable examples make the point.

After several months of silence following the U.S. Supreme Court ruling in the Dred Scott case, the worst decision ever made by that court, on June 26, 1857, Republican Senate candidate Abraham Lincoln addressed the case in response to the comments supporting the ruling by his political opponent Senator Stephen A. Douglas.

Lincoln embraced the thinking of the dissenters on the Court, Justices McLean and Curtis. But Lincoln went out of his way to show deference to the High Court. Note Lincoln’s approach:

And now as to the Dred Scott decision. That decision declares two propositions—first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court—dividing differently on the different points . . . .

Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”

We believe, as much as [Senator] Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself.

More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to overrule this. We offer no resistance to it.

During his first inaugural address, March 4, 1861, Lincoln again alluded to the Dred Scott ruling, but when doing so giving full deference to the Supreme Court. Lincoln said:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.

And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.

No president had more difficulty with the federal judiciary than did Franklin Roosevelt. As he worked to pull the United States out of the Great Depression, he found the principal opposition to his efforts came from a handful of aging justices on the Supreme Court.

The country and the overwhelming majority in Congress disagreed with the Court’s striking down one legislative attempt after another to modernize the American economy to meet the dire conditions imposed by the deep economic depression.  

In an address to the nation— a “fireside chat”—on March 9, 1937, Roosevelt explained his recommended solution to the country, which had been introduced in Congress a month earlier. Nowhere in his over 4,000 word “chat” does he trash the Court, or any of the justices, like Trump is now doing.

Related: Michael Dorf : Will Trump's Supreme Court Outlaw Abortion?

Here are a few samplings of his tone:

Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government—the Congress, the Executive and the Courts.

Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the three horses . . . .

For nearly twenty years there was no conflict between the Congress and the Court. Then Congress passed a statute which, in 1803, the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it.

But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation upon it: “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.”

But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.

In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.

FDR’s court-packing plan failed, but the Supreme Court got the message, and stopped blocking efforts to develop and legislate the “New Deal.” The aging justices retired and the president added the new members he had sought with his legislative effort to expand the court.

I worked for a president who was highly critical of the federal judiciary, particularly the Supreme Court. As I noted in a prior column, he said awful things about justices he did not like. But unlike Trump, Nixon only said these things behind closed doors, and but for the taping system they would never have been known.

Related: Robert Reich : Now Trump Is Threatening the Independence of Judges

All of Trump’s hyperboles, and ad hominem attacks, do not further his causes, rather serve to stiffen the resistance of the federal judiciary which Trump appears to view as another political body to roll over.

Trump’s nominee to the Supreme Court, Judge and now Justice Neil Gorsuch, found Trump’s invectives toward the federal judiciary “demoralizing,” because Gorsuch knows many of the judges being attacked by Trump, and knows that they are hardworking and honest judges.

Justice Gorsuch also understands that because of the judicial code of ethics, federal judges cannot defend themselves by responding when attacked—making them perfect targets for a bully president.

I keep wondering, where is the White House Counsel? Why isn’t he telling the President he is hurting himself, as he tries to hurt the federal judiciary.

Trump is using the tactics of a tin pot dictator, not the President of the United States. But it is still not clear that Trump aspires to be president. Rather, he merely wants the attention that comes with the job!

John W. Dean was a counsel to President Richard Nixon.