All posts tagged "courts"

Ted Cruz slammed over GOP ‘effort to demonize’ federal judges in time of rising threats

Government watchdogs and legal experts warned that Republicans’ call for the impeachment of two federal judges at a Senate judiciary committee hearing this week upends historical norms and sets a dangerous tone of intimidation.

Led by Sen. Ted Cruz (R-TX), Wednesday’s hearing, Impeachment: Holding Rogue Judges Accountable, was a nearly three-hour partisan battle on the merits of impeaching James “Jeb” Boasberg, chief judge of the U.S. Court for the District of Columbia, and Deborah Boardman, district judge for the U.S. Court of the District of Maryland.

Only 15 federal judges have ever been impeached by the House of Representatives, and only eight removed by the Senate.

Nonetheless, Republicans claim Boasberg is biased against President Donald Trump and his administration and accused Boardman of letting a defendant’s gender identity factor influence what they say is a lenient sentencing of an attempted assassin of conservative Supreme Court Justice Brett Kavanaugh.

“The whole idea that we have a bunch of rogue judges out there just strikes me as not worthy of credence,” said Jonathan L. Entin, a professor emeritus of law at Case Western Reserve University.

“It's a slogan. It's something you put on social media for your 15 minutes or 15 seconds of fame.”

Jay Young, senior policy director for civil rights and civil liberties at Common Cause, a nonpartisan government reform group, said Cruz’s hearing was “an effort to demonize” the judges and “prove a political point.”

“This effort to mischaracterize opinions that you don't believe, you don't agree with, it just feels so dangerous right now,” Young said.

In a June 2024 National Judicial College survey, more than half of judges reported threats to their safety.

“The whole reason why impeaching judges for their rulings, specifically, hasn't been done is to prevent intimidation,” said David Janovsky, acting director of The Constitution Project at the Project On Government Oversight, an independent watchdog.

“This is certainly a moment where there are plenty of threats to judicial independence and integrity, and so crossing a line that hasn't been crossed to go after judges in this moment seems misguided.”

Some judges who have ruled against Trump reported intimidation and doxxing.

“The idea that supposedly responsible federal officials are talking about impeaching judges, for which there's no justification and no real prospect, can't improve the situation,” Entin said.

“If you're a federal judge, and you see something like this, your hair is going to stand on end. This is not appropriate behavior. It's not responsible behavior.”

‘Railing against judges’

Going back to Marbury v. Madison, the 1803 landmark U.S. Supreme Court case which instituted the principle of judicial review, there has been a “well-established tradition in the United States that you don't impeach judges because they make rulings with which you disagree,” Entin said.

“You don't run them off the bench.”

Even the attorney for Anthony Burns, a fugitive slave whose 1854 trial led to outrage when a judge sent him back to slavery, was “the strongest opponent of removing the judge,” Entin said.

“There is a history of people railing against judges saying that ‘They're wrong. They're either tools of the establishment making rulings that oppress workers and consumers, or maybe they’re wild-eyed radicals who are trying to subvert the rule of law,’” Entin said.

“The standard can't be, ‘I'm mad because I lost, therefore this judge is corrupt or incompetent and should be removed from office.’”

‘Wrong-headed’

The Trump administration has railed against Boasberg for decisions including his order in early 2025 to halt deportation flights headed to El Salvador under the Alien Enemies Act — an order that was defied, presenting probable grounds to hold officials in criminal contempt.

“All of this looks very much like a MAGA-coordinated strategy to bring pressure and threats to bear on a federal judge,” said Sen. Sheldon Whitehouse (D-RI) during Wednesday’s hearing.

Sen. Sheldon Whitehouse (D-RI) at Wednesday's hearing. Picture: Screengrab

Whitehouse described “an environment in which violent threats are prevalent and in which MAGA DOJ repeatedly refuses to assure us that proper investigative practices are being followed with regard to such threats.

“Presumably, the purpose is to scare Judge Boasberg off or block him from examining contempt of court by MAGA’s Department of Justice.”

Boasberg also presided over several cases related to the Jan. 6, 2021 attack on the U.S. Capitol, when rioters attempted to block certification of President Joe Biden’s victory over Donald Trump in 2020.

During Wednesday’s hearing, Republicans repeatedly pointed to Boasberg’s authorization of non-disclosure requests for telephone toll records related to Special Counsel Jack Smith’s investigation of Trump’s attempts to overturn the 2020 election.

Cruz said: “He knew that Jack Smith was a partisan Democrat engaged in an effort to go after Donald Trump, that he was subpoenaing over 400 Republicans, so the one thing he knew is all of these targets were Republicans.

“The only conceivable basis for Judge Boasberg signing these orders one after the other, is an animus that says every Republican on Planet Earth, every American who voted for Donald Trump, there is reasonable basis to believe they are criminals.”

Whitehouse pushed back on Cruz’s comparison of Boasberg to “a partisan hack” as grounds for impeachment.

“MAGA faults Chief Judge Boasberg because it was Republican senators whose records came up, but that's investigation 101,” Whitehouse said during the hearing.

“People under investigation had called senators. That's why senators’ toll records came up in the investigation. As Jack Smith testified, he did not choose those members. President Trump did.”

When Whitehouse suggested Boasberg approved the telephone subpoenas due to “foreseeable misconduct by Donald Trump and his co-conspirators,” Cruz chalked up the argument to “a longer version of ‘orange man bad.’”

Entin said: “The whole rationale behind this, that you have to impeach judges who make controversial rules, is just wrong-headed. It fundamentally undermines the rule of law.

“Some judges are good, some judges are bad, but we have never, that I know of, impeached federal judges for their rulings.”

‘Quixotic quest’

In the case of Boardman, the Maryland district judge, the DOJ is appealing her eight-year prison sentence for Sophie Roske, charged as Nicholas John Roske, for attempting to assassinate Kavanaugh.

The DOJ sought a sentence of 30 years to life. Throughout the hearing, Cruz emphasized that Roske is transgender and called Boardman’s sentencing “a gross dereliction of duty.”

“It's pretty rich for conservatives to be complaining that the person who stalked Justice Kavanaugh got only eight years for that when President Trump has pardoned 1,500 people who tried to subvert the 2020 presidential election,” Entin said.

Entin said Cruz “should know better” than to push for impeachment of judges on such grounds, given his background as a Harvard Law graduate, Supreme Court clerk and former Solicitor General of Texas

Even in an election year, “it’s wrong for him to pull in stunts like this,” Entin said.

“He knows better than to go off on this kind of quixotic quest.

“Especially he knows better because he knows that it's not just Justice Kavanaugh, by the way, who has faced threats. Some judges have been murdered. Some judges have had family members murdered by people who couldn't get to the judge but could get to the family member.”

Cruz wrote a Jan. 7 letter to House Speaker Mike Johnson (R-LA) encouraging him to advance articles of impeachment against Boasberg and Boardman, but either being removed with a two-thirds Senate vote remains unlikely, Entin said.

“Given a closely divided and highly polarized Senate, it is virtually inconceivable that a judge would actually be removed from the bench because of a controversial ruling,” Entin said.

“It has never happened in our history.”

'Massive corruption': Supreme Court set to boost Trump in case bigger than Dobbs — experts

The Supreme Court is poised to overturn a 90-year-old decision protecting the heads of independent federal agencies from firing by the president — a move more significant in the court’s rightward march than the 2022 decision to overturn the right to abortion in Roe v. Wade, alarmed legal experts tell Raw Story.

“This is the most important case of the decade,” said Seth Chandler, professor at the University of Houston Law Center.

Following oral arguments in Trump v. Slaughter last week, most observers predict the Court will side with President Donald Trump in his firing of Federal Trade Commissioner Rebecca Slaughter.

That will “further unleash massive corruption by this executive branch,” said Lisa Graves, co-founder of Court Accountability and author of Without Precedent: How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights.

‘Even more powerful’

Trump v. Slaughter revisits a 1935 case, Humphrey's Executor v. United States, which concerned President Franklin D. Roosevelt’s firing of an FTC commissioner over disagreements about New Deal policies.

The Supreme Court ruled that Congress could enact laws limiting the president’s ability to fire independent agency officials.

Now, Dec. 8 arguments in front of the current, right-wing-dominated Court made it clear there’s likely no “path for Humphrey's Executor to survive,” Chandler said.

“You're really changing the structure of government and a precept of law on which Congress has relied for 90 years and delegated immense power to these so-called independent agencies, and if these independent agencies are no longer independent, but are basically subject to loyalty tests from the president, that really changes the way that our government functions.”

Harold Krent, professor at the Chicago-Kent College of Law at the Illinois Institute of Technology, agreed that “Humphrey’s Executor is mostly dead.”

“For the most part the idea of an independent-expert-type agency will be over,” Krent said. “It's incredibly significant. It gives the president even more powerful control over these agencies.”

Along with the FTC, agencies likely to be affected are the Securities and Exchange Commission (SEC), the National Labor Relations Board (NLRB), the Occupational Safety and Health Administration (OSHA) and the Federal Energy Regulatory Commission (FERC), Krent said.

“It’s just a wide array of agencies which would almost for sure fall in the wake of the Slaughter case,” he said.

“It just means that there's more of a political edge to all agency investigations and policymaking, and so there is less of a check.”

Chandler said Justice Elena Kagan, a liberal appointed by President Barack Obama, questioned whether “Congress would ever have given so much power to the agencies if it knew that they were going to be subject to the political control of the president.”

“In a post-Humphreys Executor world where Congress felt the people who took leadership positions in these agencies were immune from political firings by the president, they were willing to grant enormous powers to these agencies and basically make them a fourth branch of government,” Chandler said.

“But, now we have half of the deal being taken away. We have that the agencies are now subject to the political desires of the president, but they still have all the power that they did originally.”

‘Out of control’

Legal experts predict that the Court will rule 6-3 in Trump’s favor in Slaughter, along ideological lines.

“I think the majority is going to say Humphrey’s Executor was very dubious when it was enacted and that the agencies look quite different from the way they were conceived,” Chandler said.

Seth Chandler (Photo credit: University of Houston Law Center)

The process of weakening Humphrey’s Executor was already in motion, Chandler said, pointing to a 2020 decision, Seila Law LLC v. Consumer Financial Protection Bureau, which allows the president to remove the leader of a single-headed agency at will.

It’s likely the same logic will apply to a multi-person commission, Chandler said.

“I think they're going to say that in some sense the die has already been cast, that Humphrey's Executor has been on life support for a decade, and that it's now time to pull the plug,” Chandler said.

Humphrey’s Executor was an explicit target of Project 2025, the hard-right leadership plan from the Heritage Foundation, Graves said.

Noting that the Court had already “chipped away” at Humphrey’s Executor, Project 2025 said: “The next conservative Administration should formally take the position that Humphrey's Executor violates the Constitution's separation of powers.”

Trump’s claim on the campaign trail that he had no involvement with Project 2025 “misled the American people grossly,” Graves said, adding that the Court has since matched Trump’s “aggression in trying to destroy long-standing rules.”

“That the Supreme Court is playing along with this and actually eagerly embracing it is a sign of how out of control and arrogant the Roberts Court is, because the easiest thing for this Court to do would be to uphold the lower courts that are following those long-standing precedents,” Graves said.

“Instead, it has sought to combine its counter-constitutional edict, giving Donald Trump immunity from criminal prosecution, which swept him back into the White House.

“It's been seeking to combine that ruling, giving Trump extraordinary, unprecedented and unwise powers, with a whole series of rulings through the shadow docket, and now through the primary docket, that further expand presidential power, and I would say so, expand it recklessly.”

‘Loyalty pledges’

After Trump v. Slaughter, Chandler said, he anticipates Trump will seek to extend his firing power to lower-level agency employees, because if the Supreme Court determines “the Constitution vests all executive power in the president, and you take that literally, then it's hard to see why the decision wouldn't extend all the way down the federal bureaucracy.

“President Trump has not been shy about insisting that loyalty to him, personally and to his ideas, is extraordinarily important in government … even with Humphrey's Executor on life support, so I don't see why he would show any restraint once it's killed off,” he said.

“Could he require, essentially, loyalty pledges from mid-level clerks at the NLRB? Why couldn't he insist that they're part of the executive branch and that they are just acting as his delegates, and if they're unwilling to commit to him, why should they have a job?”

FILE PHOTO: A view of the U.S. Supreme Court in Washington, U.S. June 29, 2024. REUTERS/Kevin Mohatt/File Photo

Krent agreed.

“The Heritage Foundation, that's what they had recommended in terms of giving the president absolute power over all federal employees, and there is the extreme version of the unitary executive.

“I don't think the Court's going to go there in this particular case, but that's certainly within the goals of the Trump administration, and so it's something the Court may have to face at a future date.”

Graves called giving the president the power to fire independent agency heads at will “a recipe for corruption.”

“The corruption that Trump is engaged in is manifesting on a daily or weekly basis,” she said.

“The idea that the president would be controlling the decisions of the FTC, which relate to an array of matters about corporate conglomeration, as he's basically trying to orchestrate who gets control of a major swath of media, including CNN — it’s extraordinary.”

Warner Bros. Discovery, the parent company of CNN, is preparing to undergo a merger with Netflix or Paramount. Trump has called for selling CNN to new owners.

‘Rampant corruption’

Commissions leading federal agencies typically have split-party representation — which could also disappear following a ruling for Trump in Slaughter, Krent said.

“This whole idea of a balanced independent agency thinking about energy policy or labor policy, banking policy, consumer relations policy, that seems to be done,” Krent said.

That would allow Trump to enact his policies, such as tariffs, as he pleases.

“If he wants to just start changing even tax policy or energy policy or labor policy, he'll be able to do it by saying, ‘This is what I want you to do, or I fire you,’” Krent said.

“It would have all sorts of ramifications across the economy.”

Congress could theoretically limit the power of agencies by defunding them, “but not in reality,” Chandler said.

“It's just something that we took for granted, that you could have, in effect, a fourth branch of government in which immense power had been vested, and when you take that away, and you say it's all subject to the president's control, and you don't undo the prior delegations of power, that is a huge deal,” Chandler said.

A ruling in Trump’s favor will give him “far more power than the founders ever anticipated,” Chandler said.

Krent said overturning Humprey’s Executor “cuts against not only history, but precedence.”

“That could lead to the end of the civil service,” he said.

Graves said: “This would be yet another instance of the Roberts Court handing Donald Trump extraordinary powers that no president should have, and the presidents before him did not.

“This would return, in some ways, the United States to a previous era, which was really disreputable, where civil service appointments … were handed out as a part of a political spoils system, which was rampant with corruption.

“That's why the modern civil service system came to be over 100 years ago, to try to make sure that we would have people serving us at all levels of federal agencies who were well-qualified for those positions and not merely supplicants to the president.”

Krent said overturning Humphrey’ Executor would lead to “increasing politicization of policymaking across the government,” to “the detriment of the American people.”

“It may mean that you're going to have less expertise in government, less political party balance in terms of how these agencies work, and ultimately, that's against the congressional design.

“Regulation and policymaking will just be infused with the president's brand of whatever is politically convenient at the moment.”

These Trump challenges to justice should alarm every American — not just former judges

The public has been hearing from a lot of federal judges over the past year, much more than normal. That’s because many of them are concerned about the Trump administration’s commitment to the rule of law.

Dickinson College President John E. Jones III was appointed as a federal judge by President George W. Bush and spent 20 years on the bench after being confirmed unanimously by the U.S. Senate in 2002. Jones spoke with The Conversation U.S. senior politics editor, Naomi Schalit, about America’s legal landscape after almost a year of Donald Trump’s presidency.

What does the case just argued at the Supreme Court about the president’s ability to fire leaders at independent agencies tell you about Donald Trump’s presidency?

We’ve seen a progression over time, with both Republican and Democratic presidents, where there’s been a stronger and stronger chief executive. But there’s been nothing like this administration, where the president has fired members of heretofore independent agencies. Having listened to oral arguments, which at times can be misleading, there’s very little question that the Supreme Court is going to overturn the “Humphreys Executor” precedent.

What it means is that this president will have the opportunity to utterly remake all of these independent agencies now. He’s going to take people out, root and branch, and put folks in who are either with the program or they’re not going to get appointed.

So this case is emblematic of Trump’s approach to presidential power?

He does not recognize and does not want among his appointees — certainly we see this in the Cabinet — any modicum of independence. You’re either with him 100 percent or you’re against him. Now that will extend to these independent agencies, and that means that the measured sort of regulations that have existed for a long time are going to be disrupted and maybe even eliminated.

This year has seen unusual amounts of activity in the Supreme Court’s shadow docket. What is the significance of that?

This is the court’s emergency docket. If the court takes these cases, they order a very abbreviated briefing and they decide the matter very quickly. Typically, this is a problem for lower court judges, as the cases are decided with very little explanation.

Sometimes months and months intervene before the court gets back to that case and renders a full and complete determination. One example would be the birthright citizenship case that came up to the court on the shadow docket. The court rendered an interim decision about whether U.S. District Court judges could issue orders stopping nationwide enforcement of Trump policies. They didn’t rule on the merits of the birthright citizenship case.

Since then, there have been conflicting decisions across the country. You have circuits that have ruled on the question and other circuits that haven’t ruled on it at all. So depending on where you live in the United States, you may or may not be subject to what heretofore has been the accepted interpretation of the 14th Amendment.

This administration’s clear strategy — to flood the zone by simply challenging every adverse decision against it in the lower courts — means there are an unprecedented number of cases coming up to the Supreme Court. It just means that there’s utter confusion in the lower courts, and it’s been the subject of a lot of dissatisfaction among lower court judges. It really puts the federal court system into a state of uncertainty and chaos, and obviously it’s not good for the public.

U.S. attorneys are nominated by the president and confirmed by the Senate. Congress limits how long interim U.S. attorneys can serve in these positions. But the Trump administration has circumvented those limits, keeping a number of interim U.S. attorneys on the job past the 120-day limit. These cases have been challenged in court. Why is this conflict notable?

What the president has attempted to do flies in the face of legislation that says that these interim appointments are limited to 120 days. Every court has found that the president’s appointment or attempted appointment beyond the first 120 days is unlawful and unconstitutional. It is a limitation on the president’s power.

If the president’s version were correct, you could just have endless interim appointments without any involvement by the Senate. This is a place where the courts have, in effect, upheld the integrity of the advice-and-consent system and the constitutional role of the Senate.

Trump ordered the Department of Justice to prosecute James Comey and Letitia James, among others. He has also granted massive numbers of pardons and commutations. What are your thoughts on these?

My takeaway as an American citizen and as a former judge is that at bottom, President Trump simply lacks respect for our system of justice.

I don’t think you can find otherwise when on your first day in office you issue over 1,000 pardons for people who were justifiably convicted or pled guilty to what was, by any account, an insurrection on Jan. 6, 2021. He has pardoned countless people since then, including a former president of Honduras who his own administration prosecuted and for which there was abundant evidence that he was a drug trafficker. He’s blowing up boats in the Caribbean without, in my view, any rationale that’s grounded in law. The president believes the law is whatever he says it is at any given moment.

As to the Department of Justice, I think that’s one of the most worrisome things about this administration. There is a seamless interface between the White House and the Department of Justice that is problematic, and it is quite clear that the Department of Justice will do anything that the president wants.

I think we’re in a very, very difficult and dark place when the president by fiat can simply order his attorney general to prosecute a person. And I think every American should worry about a world where that takes place without any buffer.

The administration has a documented pattern of disobeying or sidestepping court orders. Your thoughts?

The way our system is supposed to work is that people can disagree with lower court decisions, but they have to obey them, unless they’re stayed by application to a higher court. The administration seems to have decided that they’re going to write U.S. district judges out of the picture and simply disregard their orders.

When I served as a U.S. District Court judge, I always understood that I had pretty awesome power to do things. That power was to be used sparingly and carefully, but when I ordered something, I expected that that order would be followed.

That is the nature of the rule of law and our system of justice that now has been turned on its head by this administration.

The second point is that I would wish that our Supreme Court would take a stronger stand against this kind of gamesmanship in the lower courts. Those who serve in the third branch — the nation’s courts — are all in this together. There has to be more attention given to an administration that has really gone rogue in terms of how they treat the orders of U.S. District Court judges.

I don’t think the public has ever heard more from judges or former judges or retired judges than they are hearing right now. That includes you, president of a university, former federal judge, saying things that I think the public isn’t accustomed to hearing from either current or former judges. What’s going on?

What’s happening is that judges who come from all stripes, philosophically and party affiliations, are deeply concerned and offended about the tenor of the times, and they feel the need, as I do, to become active and to rally to the support of our system of justice. Imperfect though it may be, I’ve always regarded it as the fairest and best system in the world.

We are in this nightmare for one reason — and it's our own leaders' fault

The Supreme Court says it will determine whether the Trump regime can “end birthright citizenship.” That’s the name given to the clause in the 14th Amendment that says that if you’re born on US soil, you’re a US citizen entitled to the “privileges and immunities” of citizenship.

Many roads were traveled to get here, the main one being Donald Trump’s decade-long campaign of hatred against immigrants.

But a road that gets less attention is just as important: Trump’s hate-mongering never saw an equal, opposite and liberal reaction.

Instead, over those years, the Democrats accepted as true the lies told by Trump and Republican allies about immigrants and immigration law.

For instance, the southern border is not open. It has never been open in our lifetimes. But Trump says it is. The Republicans say it is. Their rightwing allies say it is. And the Democrats rarely challenge them.

Over time, the result has been a kind of conventional wisdom about the southern border that is so deeply established that House Minority Leader Hakeem Jeffries (D-NY) avoided facing it head-on in a recent interview with CNN. Instead, the New Yorker gave Trump credit for securing the border.

“The border is secure,” he said. “That's a good thing. It happened on his watch.”

Fact is, nothing about the southern border has changed. It wasn’t open last year, under Joe Biden’s watch. It wasn’t secured this year under Trump’s. That there are fewer migrants coming across is the result of other factors, mainly Trump’s criminal treatment of immigrants. (In practice, they now have few legal protections. Everyone knows it.)

By giving Trump credit for something he did not do, Jeffries validates the lie — that under a Democratic president, the southern border was open. In doing so, he undermines his own party’s position, allowing the GOP to define the terms. That makes it untenable to stand up for immigrants and their constitutional rights. Ultimately, Jeffries cedes ground in a much bigger debate over who counts as an American.

Repeat this pattern long enough, in the absence of an equal, opposite and liberal reaction to Trump’s hate-mongering, and you get what we now have: a high court that will decide whether a president can break the law and ignore the unambiguous wording of the 14th Amendment.

For too long, the Democrats have treated the southern border as a distraction. The Republicans have not, because it represents the highest stakes — the power to decide who America is for. Is it for the rich white men who have historically controlled it or for everyone?

I don’t know what the Supreme Court is going to decide, but I do know the mainstream position of the Democratic Party can no longer hold. The Democratic Party needs to be reminded of its values, the liberal principles that have animated reformers since the founding.

For that task, the republic is fortunate to have visionaries like Adam Gurri. He’s the editor of Liberal Currents, a publication dedicated to the revival of American liberalism after a long period of complacency. Adam is currently in the middle of a big fundraising push to expand the magazine’s reach and influence. I think he’s doing so just in time.

In this interview, Adam tells me about an ambitious project coming up, something he calls The Reconstruction Papers, an effort to lay down the intellectual basis for the restructuring of the constitutional order.

Above and beyond that, Adam told me, “we will stand for and promote a set of principles and won't be cowed either by political expediency or institutional force. And we will continue to cultivate a community alongside the publication that people can feel safe inside of.”

JS: American liberalism has needed a refresher for a long time. I think Liberal Currents is that refresher. Its focus, above all, is liberty and justice for all. How did you get started and why?

AG: We started out as a response to Trump the first time around. More to what he represented than the man himself. It seemed to us that liberalism had grown complacent. Its values had become assumptions held by a lot of people, and those assumptions had gone more or less unquestioned for a generation.

We got started because we believed those assumptions were by and large good, actually, but that people had been left unable to articulate why they were good. There was an intellectual vulnerability in this regard, because our enemies had spent decades aware of what our assumptions were and positioning themselves to attack them, whereas we liberals spent that time feeling as though we had already won.

Good times make weak liberals? Hard times make strong liberals?

I don't like to put it that way just because it sounds like we need some kind of existential battle in order to make progress, and I just don't believe that's the case.

What I would say is that things were becoming untenable already. A lot of our best institutions were designed under economic and social conditions that no longer apply. A lot of our oldest institutions were first drafts of democracy that sorely needed updating and we just sort of knuckled down and kept going.

A lot of work needed to be done, I suppose is my point. And a lack of truly understanding the heart of it, the why, the rationale behind these choices made in the past made it harder to to get that work done. The open conflict of the Trump era has certainly brought things into sharper focus for a lot of people. I'd like to think that wasn't the only path we could have taken, and I certainly believe we needn't hope for some future conflict to help us advance yet further some day.

Where do you see the place of Liberal Currents among other liberal publications, the few there are, and where do you want it to be?

If I were to draw a parallel, I would say Liberal Currents seeks to be The Atlantic, if The Atlantic were run by people truly committed to liberalism and to opposing the consolidation of dictatorship here.

We are a place where liberals can have internal debates about how to orient ourselves to events, as well as for ideas and principles. But we are also a place that won't blow with the political winds, but instead continue to fight for liberal principles, on behalf of everyone, even when trans rights or immigration does not poll well, say.

We are also a place that seeks to give positive answers and provide an actual vision of a liberal future. A lot of people have been caught flatfooted by the crisis. Many genuinely just don't know what to do, even if they understand the danger. We want to be a place that provides at least the beginnings of answers, starting points and ways of thinking about the problem.

You're in the middle of a big fundraising push. What do you envision for Liberal Currents?

We're going to grow the voice of genuine liberals who hate fascism in our media system. One concrete thing we're going to do is invest in a project we're calling The Reconstruction Papers, a printed essay collection where we will draw on a wide variety of subject matter experts in political science, higher education, media studies and more.

These experts will write about how to not only repair the damage that has been done in their area of focus, but how to rebuild and reform into something better than we started with. In general our pitch to people is that we will aim to grow ourselves into a version of The Atlantic that will never abandon trans people or immigrants or people of color to fascists.

We will stand for and promote a set of principles and won't be cowed either by political expediency or institutional force. And we will continue to cultivate a community alongside the publication that people can feel safe inside of.

Trump's eugenic horror is about to get the green light — and that's just the beginning

The Supreme Court has agreed to hear a lawsuit regarding the constitutionality of President Donald Trump’s executive order to restrict the right to birthright citizenship. If the Supreme Court rules in Trump’s favor, then children born in the US would be denied citizenship if their parents are undocumented or residing in the country under temporary legal status.

Let’s not mince words here: Trump’s executive order is cruel and xenophobic. Children born of undocumented immigrants or visa holders have committed no crimes. They are not responsible for the circumstances of their birth. There is also no legitimate legal basis. The 14th Amendment is clear:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

None of these facts matter to Trump. His administration would readily tear families apart and see children born into a second-class status simply because their births were not to his liking.

This is only the beginning of the cruelty that his birthright ban would unleash. If the Supreme Court rules in his favor, it would pave the way for any president (or wannabe monarch) to redefine citizenship at their discretion. After all, if simply being born in the US is not enough to guarantee citizenship, then what is? Where do we draw the line?

Well, if you’re Trump, then it’s the color line. For the Trump administration, not all babies are created equal. Restricting birthright citizenship is their way of preventing “hundreds of thousands of unqualified people” from acquiring the “privilege of American citizenship.” It is about dissuading the wrong kinds of people from having the wrong kinds of babies.

Sound far-fetched? Well, consider this: Trump, the self-proclaimed “fertilization president” (gross!), has sought to expand access to in vitro fertilization (IVF). As Trump puts it, we want “beautiful babies in this country, we want you to have your beautiful, beautiful, perfect baby. We want those babies, and we need them.”

Mehmet Oz, the administrator for the Centers for Medicare and Medicaid Services, champions the future of “Trump babies.” Vice President JD Vance literally says he wants “more babies in the United States of America.” The Trump White House insists that they need “growing numbers of strong, traditional families that raise healthy children.”

But, if that’s true, then what is the purpose of Trump’s executive order? If they want more babies to be born in this country, then why push to deny babies their legitimate birthright? It’s because Trump is pro-baby so long as it’s the right kind of baby.

Beautiful, healthy, strong and perfect — those are the babies Trump wants. And those are the babies that, in his view, migrants do not have.

Trump has explicitly said that migrants have “bad genes” that cause them to commit crimes. That they are “not humans, they’re animals.” He has said that migrants from South America, Africa, and Asia are “poisoning the blood of our country” — a view that parallels Hitler’s rhetoric about “blood poisoning” and race mixing. Trump calls Somalis “garbage” and says that “I don’t want them in our country, I’ll be honest with you … their country is no good for a reason.”

He believes this about migrants, and he believes it extends to their children. This pseudoscientific eugenic drivel is at the core of his executive order.

That is the real danger of Trump’s birthright ban. As it stands, birthright citizenship provides a clear-cut metric. Aside from two niche exceptions, if you were born here, you are from here. There’s no loophole to exploit. There’s no definition to reevaluate and abuse. There’s no place for prejudice, discrimination, or bigoted understandings of what it means to be an American. There’s no ambiguity regarding who belongs. The simplicity of birthright is precisely its strength.

It’s also precisely why the Trump administration wants to undo it. Birthright citizenship is a strong barrier against the administration’s most fascist impulses to recreate “the meaning and value of American citizenship.” As he said on the campaign trail, “If I win, the American people will be the rulers of this country again. The United States is now an occupied country.” His current administration similarly claims that Europe faces “civilizational erasure” if it does not restrict migration and preserve its “Western identity.”

If Trump’s mission is, as he explicitly says, to liberate the US and protect Western values threatened by migration, then he won’t stop with the children of undocumented immigrants. Trump cannot be allowed to define who is a citizen. For the good of the nation and for future generations, we cannot let him succeed.

Jordan Liz is an Associate Professor of Philosophy at San José State University. He specializes in issues of race, immigration and the politics of belonging.

These 6 treacherous Trump lackeys will never be forgotten — or forgiven

The losers in political battles often insist that history will prove them right and their opponents wrong. As comforting a thought as this may be for people licking their political wounds, it is rarely true. History forgets far more than it remembers. Apart from a few major players, even people who gain a degree of prominence in the politics of their time will eventually disappear into the black hole of advancing years. Their victories, defeats, glories, and disgraces — all blown away by the wind of time like dust on their gravestones.

If there is any group today that deserves the censure of history, it is the Republican members of Congress. Faced with the existential threat that President Donald Trump poses to our democracy, their nearly unanimous response has been to worshipfully give him whatever he wants — reducing their role to little more than handmaidens to a would-be tyrant.

These people have been given the honor of serving as representatives in the United States Congress. And all the Constitution asks of them in return is to take and honor an oath to support and defend the Constitution.

One by one, these Republicans raise their right hands and take the oath of office. Then one by one, they quickly throw that oath away.

But as deserving as these Republican politicians are of history’s censure, most will likely escape it. There are just too many of them — 535 total senators and representatives, with approximately 272 of them currently Republican. Trump will, of course, be remembered and judged severely. The same goes for a few prominent congressional leaders. But as for the rest, within a relatively brief time, as measured by the long view of history, they will be forgotten, their sins forever interred with them in their graves.

But for justices of the United States Supreme Court, it is a different story. Unlike the Congress, the Supreme Court is made up of only nine justices. And of those nine current justices, only six have consistently supported Trump’s authoritarian actions. When it comes to the judgment of history, these few justices will have no place to hide and no crowd to be lost in. If they continue to support Trump’s ever-growing list of power grabs, their treachery, and yes it would be treachery, will never be forgotten and certainly never be forgiven.

The origin story of the current far-right Supreme Court majority begins 43 years ago, in 1982, when Ronald Reagan was president and car radios blasted out songs like “Eye of the Tiger” and “I Love Rock and Roll.” That was also the year the Federalist Society was born. Best described as a breeding ground for right-wing judges, it has led a decades-long quest by wealthy conservatives to produce a dependably right-wing Supreme Court.

They knew doing this would take time, and they were prepared to play the long game. The Federalist Society’s core strategy is to embrace and groom conservative law students. With easy access to almost limitless funding from their wealthy conservative patrons, the society has had no need to pinch pennies.

They have helped to establish Federalist Society chapters in law schools across the country, financed scholarships to Federalist Society seminars, arranged social opportunities for student members to meet and converse with prominent judicial conservatives, and much more. Later, after law school, the group works to connect prized prospects with leading right-wing judges for prestigious clerkships, putting them on the path to future judicial appointments of their own.

All six of the current far-right justices have strong connections with the group. They grew up as lawyers in an environment that strongly encourages the use of the law as a weapon to remake America into a far-right paradise. These six far-right justices are called conservatives, but this is true only in the political sense of the word. They are anything but conservative in the judicial sense.

Traditional judicial conservatism is based upon things like respect for precedent and a commitment to judicial restraint, neither of which in any way describes the actions of these six justices. Not only have they repeatedly overruled well-established precedents, they have shown no consistent judicial philosophy in doing so. And even when they do purport to follow a particular judicial philosophy, such as originalism, it is often little more than a smokescreen.

One “good” example from an earlier time is District of Columbia v. Heller, decided in 2008, in which the Supreme Court, for the first time, held that the Second Amendment creates a private right to gun possession. In writing the majority opinion, Justice Antonin Scalia claimed to follow an originalist view of the Constitution and that history supported this view. The audaciousness of this claim led to a number of conservative as well as liberal constitutional scholars rejecting the court’s rationale.

Even then, it was the political result that mattered, not the jurisprudence. This court isn’t about judicial philosophy and legal principles. It is about the raw application of power for political ends — political ends that are largely contrary to the preferences of a majority of the American public.

But then, why would it be otherwise? Does anyone believe that the small collection of massively wealthy families who funded this conservative judicial revolution did so out of concern for judicial philosophy? Of course not. These wealthy families spent their hard-earned money — or perhaps more accurately in many cases their hard-inherited money — for concrete political ends. They wanted to increase their wealth and power even further by reducing government regulation, destroying labor unions, cutting worker protections, ending government protection of the environment, force feeding right-wing religious dogma, and the rest of the fat catalog of the daydreams of the greed-is-good crowd.

And if these ends can best be achieved by flushing functioning democracy down the toilet, they will shed few tears. And if one is to judge by their actions since Trump returned to the presidency, the current right-wing justices seem ready to drive the train.

But there is a tenuous basis for hope. One characteristic shared by almost all Supreme Court justices is a profound concern over their historical legacy. These are smart people. Even living within the isolating fog of the far-right, at least a few of these justices must recognize they are dancing with a legacy of infamy. If defending democracy and the constitutional separation of power is not enough to motivate them to push back against Trump’s authoritarian actions, perhaps their certain condemnation by history will be.

The Dred Scott opinion was handed down almost 170 years ago, but the shame of the decision hasn’t lessened with time. The primary legacy Chief Justice Roger B. Taney left behind was a full-throated defense of the evil of slavery and racism. And that is how history remembers and damns him.

Few things are guaranteed in this world, but one thing seems certain. If the Supreme Court majority continues down the road of aiding and abetting Trump’s quest for dictatorial power, they are inviting an infamy far worse than Taney’s.

This is something the six justices should remember, because history will never forget.

Steven Day practices law in Wichita, Kansas and is the author of The Patriot's Grill, a novel about a future America in which democracy no longer exists, but might still return.

This vile Trump threat would redefine who gets to be American

You might think that when you are a US citizen, you cannot have that status taken away. You would be wrong, it turns out. And behind that fact is a long and often ugly history.

Last Sunday, President Donald Trump said that he would “absolutely” denaturalize American citizens if he could. It comes after a wave of harsh rhetoric directed toward immigrants after the tragic shooting of two National Guard members last week.

Yes, the words that the president says have been discounted. But there’s policy behind the rhetorical provocation.

Denaturalization is the process of stripping citizenship from someone who obtained it illegally, such as by not meeting the requirements or by committing fraud or lying during the application process. At first, government interpreted that standard loosely, leading to years of abuse.

As my colleagues Faiza Patel, Margy O’Herron, and Kendall Verhovek explain:

More than 22,000 Americans lost their citizenship between 1907 and 1967 based on political affiliations, race, and gender, according to denaturalization scholar Patrick Weil. President Woodrow Wilson’s administration began denaturalizing German- and Asian-born citizens during World War I, along with anarchists and people who spoke out against the war. During World War II, a push for denaturalization of naturalized citizens from Germany, Italy, and Japan intensified. A primary target included members of the pro-Nazi German-American Bund for disloyalty and insufficient attachment to the principles of the Constitution.

After the war, the Second Red Scare took hold of a country fearful of domestic communism amid its emergence abroad. Sen. Joseph McCarthy of Wisconsin led witch hunts, with denaturalization often used as a tool against accused communists or sympathizers. Among those targets was Harry Bridges, an Australian-born, nationally known labor leader accused of being a communist, who faced an ultimately unsuccessful campaign to revoke his citizenship. The Supreme Court ruled in his favor, not once, but twice.

As Weil puts it, a process that was intended to redress fraud and illegality in the naturalization process became used to “expel from the body politic ‘un-American’ citizens.” But even during wartime, the Supreme Court responded, limiting its use.

Throughout the 20th century, the court issued several rulings setting a high bar for denaturalization. In 1943, the court struck down a move to denaturalize Russian-born William Schneiderman over ties to the Communist Party, requiring a “heavy burden” for rescinding citizenship. And in 1946, the court warned against the use of denaturalization as a “ready instrument for political persecutions.” It’s why in recent decades, denaturalization attempts have been appropriately rare... until now.

Over the summer, Trump directed Justice Department lawyers to “maximally pursue denaturalization proceedings.” At the time, a spokesperson said that “denaturalization proceedings will only be pursued as permitted by law and supported by evidence against individuals who illegally procured or misrepresented facts in the naturalization process.” Trump’s parameters seem to be much broader. In his Thanksgiving Truth Social post, he said he would “denaturalize migrants who undermine domestic tranquility.”

Among his targets? Trump has repeatedly suggested that he is open to denaturalizing New York City Mayor-elect Zohran Mamdani and Rep. Ilhan Omar (D-Minn.). When asked about Elon Musk, he told the press, “We’ll have to take a look.” It appears that crime isn’t so much a motivation as disloyalty; the law isn’t so much a motivation as impulse.

But we shouldn’t mistake impulse for foolishness.

It’s all part of a broader effort to target the rights of immigrants and redefine who is an American. That started on Inauguration Day with the effort to eliminate birthright citizenship, a right that is explicitly in the Constitution. And it’s part of efforts to reverse what top administration officials have called a conspiracy to alter the makeup of the electorate. In an interview, the director of US Citizenship and Immigration Services, Joseph Edlow, accused previous administrations of admitting immigrants to “make them all citizens and then spread them out to try to change demographics elsewhere in the country.” And on the campaign trail last year, Trump adviser Stephen Miller declared, “America is for Americans and Americans only.”

Stripping citizens of their citizenship in the name of making the electorate more “American” is arguably one of the most un-American acts imaginable. More than a century ago, the Supreme Court held that naturalized citizens are on the same footing as those born in the country, and for decades, the Supreme Court has made clear that stripping citizens of their citizenship due to their views or expressions “would run counter to our traditions.”

We are a nation of immigrants and also a nation of laws. The courts must continue to ensure that those laws protect naturalized citizens from being punished for speaking out.

Michael Waldman is President of the Brennan Center for Justice at NYU School of Law, a nonpartisan law and policy institute that focuses on improving the systems of democracy and justice.

Trump's twisted onslaught won't be stopped by these enablers

The “F-word,” fascism, has recently seen increasing use in American public discourse — and for good reason. Some critics claim that the word, fascism, has been overused — and wrongly applied to the behavior and propaganda of President Donald Trump and his regime. They are wrong. Even though other words do describe Trump’s behavior, such as authoritarian, corrupt, cruel, vindictive, racist, or misogynistic, they do not wholly capture the political essence of Donald J. Trump. “Fascist” clearly does.

What are the classic hallmarks of fascism? The analyses of several historians and other experts, such as Ruth Ben-Ghiat (Strongmen), Timothy Snyder (On Tyranny), Jason Stanley (How Fascism Works) and Umberto Eco (“Eternal Fascism,” 1995 article in the New York Review of Books) describe fascism as including these features: mythologizing the past; persecution of racial, religious, or ethnic minorities and celebrating violence against them; pseudo patriotic and militaristic spectacles; big business capture of government; suppression of civil liberties, including free speech; white supremacy, combined with a sense of victimhood; and male dominance.

Without any doubt, Trump and his regime qualify as fascist, or at the very least, incipient fascist.

Only recently, the Trump regime issued a memorandum (NSPM-7) in which Trump directs his officials to investigate supposed incidents of “anti-Americanism, anti-capitalism and anti-Christianity.” Trump falsely claims that leftists and other “antifa” activists use violence to accomplish their political goals. The memorandum facilitates Trump’s threat to go after “the enemy within” — which is anybody who opposes his policies or toxic rhetoric.

The “enemy within” designation was widely used by Hitler’s Nazi regime to denigrate Jews. The similarities between the propaganda and legal distortions of that regime and those of the Trump administration are chilling. (See, Hitler’s Justice: The Courts of the Third Reich, by Ingo Müller). Trump has also announced that he will use the military to enforce the criminal laws throughout the country — despite the prohibitions contained in the Posse Comitatus Act of 1878.

What hope can we have that the Supreme Court of the United States will put the brakes on Trump’s fascist policies?

The starting point toward venturing an answer to this question has to be the court’s 2024 decision in Trump v. United States, in which it held that a president has absolute immunity for “official acts” taken in the performance of his presidential duties.

That shocking decision constituted not only a “get-out-of-jail-free” card for Trump in the prosecutions the court was then reviewing; it also cloaked him with immunity for any crimes he might commit in the future as president. As a practical matter, that immunity will probably include any US murder charges that might have been brought for his having ordered alleged drug smugglers to be killed on boats in the Caribbean, since he was arguably acting as commander-in-chief of the armed forces when giving the orders. (International jurisdictions might not go along with the Supreme Court’s immunity grant).

With the exception of the April 2025 decision which the Supreme Court issued in the deportation case of Kilmar Albrego Garcia, (holding that the government had violated the immigrant’s due process rights by deporting him to El Salvador, and that the government had to “facilitate” his return to the US), the court has given the country sparse assurance that it will push back on Trump’s unique claims of expansive presidential powers.

In its emergency (“shadow”) docket rulings during Trump’s second administration, the Supreme Court has granted stays or reversals in the vast majority of cases in which the administration has appealed against US district court decisions that had slapped down various unprecedented power claims asserted by Trump. When those cases are eventually decided on their merits, the court may well embrace the “unitary executive” theory upon which many of the administration’s claims have rested. Should that come to pass, Trump’s descent into fascism may well be accelerated. Unfortunately, there is no space to elaborate on those shadow docket decisions here.

Most recently, Trump threatened on social media six Democratic members of Congress with “execution” and “death” for alleged “sedition,” that is, their having had the nerve to make a video reminding military officers and enlisted personnel that they have the right, and in some cases, the duty, under the Uniform Code of Military Justice, to refuse obedience to illegal orders. Those threats inspired at least hundreds of anonymous death threats against those Democrats in the ensuing days. That was one of Trump’s most crazy and reckless capers. It was also one of his most fascistic.

Trump’s placement of incompetent sycophants into top positions of the Justice Department and his directing them to prosecute his political rivals and critics is one of the most destructive of American norm-busting actions undertaken by Trump. Will the Republican majority on the Supreme Court — embracing the unitary executive theory — eventually approve of Trump’s twisted and vindictive use of political prosecutions to silence his political foes? Nobody knows, but the prospects are not very encouraging.

The resistance to Trump’s fascism must come from us.

Robert S. Rivkin, author of GI Rights and Army Justice, is a retired San Francisco lawyer who specialized in military law.

This honest Reagan judge resigned under Trump — his explanation will floor you

Today I want to share with you a statement by former federal judge Mark L. Wolf explaining why he resigned from the federal bench in early November. I found it sobering and troubling. The statement appeared in The Atlantic.

By way of background, Wolf served in Gerald Ford’s Justice Department at the same time I did, under Attorney General Edward Levi, who had been president of the University of Chicago. (I was assistant to the solicitor general; Wolf was special assistant to then-Deputy Attorney General Laurence Silberman — later a federal appeals court judge — and Edward Levi.) It was a time when Levi and the department struggled to recover public trust after the Watergate scandal.

Wolf went on to lead the public corruption unit at the U.S. attorney’s office in Boston, securing more than 40 convictions, including of officials close to Democratic Mayor Kevin White. Ronald Reagan named Wolf to the federal bench in 1985. He has been considered a conservative jurist.

***

Why I Am Resigning

By Mark L. Wolf

In 1985, President Ronald Reagan appointed me as a federal judge. I was 38 years old. At the time, I looked forward to serving for the rest of my life. However, I resigned Friday, relinquishing that lifetime appointment and giving up the opportunity for public service that I have loved.

My reason is simple: I no longer can bear to be restrained by what judges can say publicly or do outside the courtroom. President Donald Trump is using the law for partisan purposes, targeting his adversaries while sparing his friends and donors from investigation, prosecution, and possible punishment. This is contrary to everything that I have stood for in my more than 50 years in the Department of Justice and on the bench. The White House’s assault on the rule of law is so deeply disturbing to me that I feel compelled to speak out. Silence, for me, is now intolerable.

When I accepted the nomination to serve on the U.S. District Court in Massachusetts, I took pride in becoming part of a federal judiciary that works to make our country’s ideal of equal justice under law a reality. A judiciary that helps protect our democracy. That has the authority and responsibility to hold elected officials to the limits of the power delegated to them by the people. That strives to ensure that the rights of minority groups, no matter how they are viewed by others, are not violated. That can serve as a check on corruption to prevent public officials from unlawfully enriching themselves. Becoming a federal judge was an ideal opportunity to extend a noble tradition that I had been educated by experience to treasure.

My public service began in 1974, near the end of Richard Nixon’s presidency, at a time of dishonor for the Department of Justice. Nixon’s first attorney general, John Mitchell, who had also been the president’s campaign manager, later went to prison for his role in the break-in at the Democratic headquarters at the Watergate complex and for perjury in attempting to cover up that crime. His successor, Richard Kleindienst, was convicted of contempt of Congress for lying about the fact that, as instructed by the president, he’d ended an antitrust investigation of a major company after it pledged to make a $400,000 contribution to the Republican National Convention. The Justice Department was also discredited by revelations that FBI Director J. Edgar Hoover had obtained and disseminated derogatory information about political adversaries, including Martin Luther King Jr.

I joined the Department of Justice as a special assistant to the honest and able Deputy Attorney General Laurence Silberman. Soon after, in 1975, President Gerald Ford named Edward Levi as attorney general to restore confidence in the integrity of the department. Levi, then the president of the University of Chicago, had a well-deserved reputation for brilliance, honesty, and nonpartisanship. Ford told Levi that he wanted the attorney general to “protect the rights of American citizens, not the President who appointed him.”

I organized Levi’s induction ceremony and was there when he declared that “nothing can more weaken the quality of life or more imperil the realization of the goals we all hold dear than our failure to make clear by word and deed that our law is not an instrument of partisan purpose.” For the next two years I served as one of Levi’s special assistants, working closely with a man who was always faithful to this principle.

With Levi as my model, in 1981 I became the deputy United States attorney and chief federal prosecutor of public corruption in Massachusetts. In about four years, my assistants and I won more than 40 consecutive corruption cases. Many convictions were of defendants close to the powerful mayor of Boston at the time. As a result, I received the Attorney General’s Distinguished Service Award and was appointed a federal judge.

Some of the cases over which I presided as judge involved corruption and were highly publicized. Most notable was the prosecution of the notorious Boston mobsters James “Whitey” Bulger and Stephen “the Rifleman” Flemmi. Both, it turned out, were also FBI informants. Agents in the bureau, I discovered, were involved in crimes and egregious misconduct, including murders committed by Bulger and Flemmi. I wrote a 661-page decision detailing my findings. This led to orders that the government pay more than $100 million to the families of people murdered by informants whom the FBI had improperly protected. Their FBI handler was convicted twice and sentenced to serve a total of 50 years in prison.

I also presided over a six-week trial of a former speaker of the Massachusetts House of Representatives. After he was convicted of demanding and accepting bribes, I sentenced him to serve eight years in prison.

I decided all of my cases based on the facts and the law, without regard to politics, popularity, or my personal preferences. That is how justice is supposed to be administered — equally for everyone, without fear or favor. This is the opposite of what is happening now.

As I watched in dismay and disgust from my position on the bench, I came to feel deeply uncomfortable operating under the necessary ethical rules that muzzle judges’ public statements and restrict their activities. Day after day, I observed in silence as President Trump, his aides, and his allies dismantled so much of what I dedicated my life to.

When I became a senior judge in 2013, my successor was appointed, so my resignation will not create a vacancy to be filled by the president. My colleagues on the United States District Court in Massachusetts and judges on the lower federal courts throughout the country are admirably deciding a variety of cases generated by Trump’s many executive orders and other unprecedented actions. However, the Supreme Court has repeatedly removed the temporary restraints imposed on those actions by lower courts in deciding emergency motions on its “shadow docket” with little, if any, explanation. I doubt that if I remained a judge I would fare any better than my colleagues.

Others who have held positions of authority, including former federal judges and ambassadors, have been opposing this government’s efforts to undermine the principled, impartial administration of justice and distort the free and fair functioning of American democracy. They have urged me to work with them. As much as I have treasured being a judge, I can now think of nothing more important than joining them, and doing everything in my power to combat today’s existential threat to democracy and the rule of law.

What Nixon did episodically and covertly, knowing it was illegal or improper, Trump now does routinely and overtly. Prosecutorial decisions during this administration are a prime example. Because even a prosecution that ends in an acquittal can have devastating consequences for the defendant, as a matter of fairness Justice Department guidelines instruct prosecutors not to seek an indictment unless they believe there is sufficient admissible evidence to prove guilt beyond a reasonable doubt.

Trump has utterly ignored this principle. In a social-media post, he instructed Attorney General Pam Bondi to seek indictments against three political adversaries even though the officials in charge of the investigations at the time saw no proper basis for doing so. It has been reported that New York Attorney General Letitia James was prosecuted for mortgage fraud after Deputy Attorney General Todd Blanche, one of Donald Trump’s former criminal-defense lawyers, questioned the legal viability of bringing charges against James. Former FBI Director James Comey was charged after the interim U.S. attorney who had been appointed by Trump refused to seek an indictment and was forced to resign. Sen. Adam Schiff (D-CA), the third target of Trump’s social-media post, has yet to be charged.

Trump is also dismantling the offices that could and should investigate possible corruption by him and those in his orbit. Soon after he was inaugurated, Trump fired, possibly unlawfully, 18 inspectors general who were responsible for detecting and deterring fraud and misconduct in major federal agencies. The FBI’s public-corruption squad also has been eliminated. The Department of Justice’s public-integrity section has been eviscerated, reduced from 30 lawyers to only five, and its authority to investigate election fraud has been revoked.

The Department of Justice has evidently chosen to ignore matters it would in the past have likely investigated. Some directly involve the president. It has been reported that at a lavish April 2024 dinner at Mar-a-Lago, after executives from major oil companies complained about how the Biden administration’s environmental regulations were hurting their businesses, Trump said that if they raised $1 billion for his campaign he would promptly reverse those rules and policies. The executives raised the money, and Trump delivered on his promise. The law may be unclear concerning whether Trump himself could have been charged with conspiracy to bribe a public official or honest-services fraud. In addition, Trump himself may have immunity from prosecution if similar payments for his benefit continued after he became president. However, the companies that made the payments, and the individuals acting for them, could possibly be prosecuted. There is no public indication that this matter has been investigated by Trump’s Department of Justice.

As a prosecutor and judge I dealt seriously with the unlawful influence of money on official decisions. However, Trump and his administration evidently do not share this approach. After Trump launched his own cryptocurrency, $TRUMP, his Department of Justice disbanded its cryptocurrency-enforcement unit. The top 220 buyers of Trump’s cryptocurrency were invited to a dinner with Trump. Sixty-seven of them had invested more than $1 million. The top spender, Justin Sun, who was born in China and is a foreign national, reportedly spent more than $10 million. Sun also reportedly spent $75 million on investments issued by a crypto company controlled by Trump’s family. It is illegal for people who are not U.S. citizens to donate to American political candidates, and the most that anyone can donate directly to one candidate is $3,500. Ordinarily, the Department of Justice would investigate this sort of situation. There is, however, no indication that any investigation has occurred. Rather, a few months after Sun started purchasing tokens from the Trump-family cryptocurrency company, the Securities and Exchange Commission paused its fraud suit against Sun and his companies pending the outcome of settlement negotiations. (Sun and his companies have denied any wrongdoing.)

Trump is not the only member of his administration whose conduct is apparently shielded from investigation. In September of last year, Tom Homan, who became Trump’s “border czar,” reportedly was recorded accepting $50,000 in cash in return for a promise to use his potential future public position to benefit a company seeking government contracts. The FBI had created the fictitious company as part of an undercover investigation. Typically, an investigation of that sort would have continued after Homan became a Department of Homeland Security official, with the FBI seeking any additional evidence of bribery. However, after Trump took office, the investigation was shut down, with the White House claiming there was no “credible evidence” of criminal wrongdoing. Weeks after the FBI investigation was reported, Homan denied taking $50,000 “from anybody” and has said he did “nothing criminal.” An honest investigation could reveal who is telling the truth.

There is also the matter of Trump’s executive orders. A good number are, in my opinion, unconstitutional or otherwise illegal. For example, contrary to the express language of the Fourteenth Amendment, one order declares that not everyone born in this country is a U.S. citizen. Trump’s administration also has deported undocumented immigrants without due process, in many cases to countries where they have no connections and will be in great danger. Although many federal judges have issued orders restraining the government’s effort to implement those executive orders, some appear to have been disobeyed by members of the Trump administration. Trump has responded by calling for federal judges to be impeached, even though the Constitution permits impeachment only for “high crimes and misdemeanors,” such as treason and bribery.

Trump’s angry attacks on the courts have coincided with an unprecedented number of serious threats against judges. There were nearly 200 from March to late May 2025 alone. These included credible death threats, hundreds of vitriolic phone calls, and anonymous, unsolicited pizza deliveries falsely made in the name of the son of a federal judge, who was murdered in the judge’s home in 2020 by a disgruntled lawyer.

Over the past 35 years I have spoken in many countries about the role of American judges in safeguarding democracy, protecting human rights, and combatting corruption. Many of these countries — including Russia, China, and Turkey — are ruled by corrupt leaders who rank among the worst abusers of human rights. These kleptocrats jail their political opponents, suppress independent media that could expose their wrongdoing, forbid free speech, punish peaceful protests, and frustrate every effort to establish an independent, impartial judiciary that could constrain these abuses. These kleptocrats have impunity in their countries because they control the police, prosecutors, and courts.

In my work around the world, I have made many friends, young and old, who have been inspired by the example of American judges, lawyers, and citizens. They have suffered greatly for trying to make their countries more like ours. Among them are impartial judges who have been imprisoned in Turkey, a brilliant young Russian lawyer who was alleged to be a spy and forced into exile, and a Venezuelan law student who almost lost sight in one eye while protesting his country’s oppressive government. They courageously share what have historically been our nation’s convictions. These brave people inspire me.

I resigned in order to speak out, support litigation, and work with other individuals and organizations dedicated to protecting the rule of law and American democracy. I also intend to advocate for the judges who cannot speak publicly for themselves.

I cannot be confident that I will make a difference. I am reminded, however, of what Sen. Robert F. Kennedy said in 1966 about ending apartheid in South Africa: “Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope.” Enough of these ripples can become a tidal wave.

And as Nobel Laureate Seamus Heaney wrote, sometimes the “longed-for tidal wave of justice can rise up, and hope and history rhyme.” I want to do all that I can to make this such a time.

The reason for these Trump failures would be funny — if it weren't so alarming

Kak·i·sto·cra·cy- (kakə̇ˈstäkrəsē): a government by the least suitable or competent citizens of a state

A kakistocracy is a system of government where the most unfit, incompetent, and unscrupulous individuals are in power. Such a system does not reflect rational decision-making. Instead, Trump’s kakistocracy is emerging as the consequence of systemic failures (by Donald Trump’s design), corruption (ditto), and societal dynamics (manipulated, but not wholly created, by Trump).

Malevolence may also be a factor. Outside his naked lust for power, profit, and retribution, Trump has shown little interest in governing. After DOGE trashed most federal services, the only departments left fully operational are Trump’s well-funded instruments of power and control: ICE/DHS, FBI, DOJ, DOD, Federal Bureau of Prisons, and the US military.

But as Trump seeks to grossly expand his reach through these entities, it is gratifying to watch his hand get slapped back, largely due to his and his administration’s incompetence, by federal courts insisting on the rule of law.

Sheer incompetence led to the dismissal of Trump’s pet prosecutions

On Monday, Judge Cameron McGowan Currie threw out Trump’s cases of political retribution against James Comey and Letitia James, after a parade of incompetence.

The cases were dismissed without prejudice when Currie ruled that Lindsey Halligan, Trump’s interim U.S. Attorney for the Eastern District of Virginia, was acting without authority when she obtained the Comey and James indictments. This slap came not for Halligan’s career-ending errors, like failing to present the complete indictment to the complete grand jury, misstating the law to jurors, or for doing Trump’s illegal partisan bidding, but because her appointment as the interim U.S. Attorney was unlawful under both federal law and the US Constitution.

The arcana of judicial appointment procedure may seem boring, even inconsequential, but what Trump tried to do with Halligan demonstrates that it is anything but. Judicial appointments are governed by the article II of the Constitution, and 28 U.S.C. § 546. Under these authorities, a president gets to appoint interim U.S. attorneys for a 120-day appointment. When that 120-day period runs out, the authority to fill the position then shifts to the federal judiciary, not the president acting through his Attorney General.

That shift is enormously consequential. It was designed to block rogue actors from appointing one interim US attorney after another, running through a roster of unethical lawyers willing to break the law by pursuing cases based on politics rather than law.

That is exactly what happened with Halligan.

Trump tried to install a revolving door of lawless sycophants

Judge Currie held that the initial 120-day appointment clock began in January with Trump’s appointment of Erik Siebert, the previous interim U.S. Attorney. Seibert’s 120-day interim period expired on May 21 but the district court judges, following federal law, reappointed him to serve until the vacancy was filled. Trump then nominated him for the full-term position, so he continued to serve.

However, in September, Siebert refused Trump’s request that he pursue criminal charges against Trump’s political enemies, Comey and James. Trump loyalists claimed James falsified property records to receive better loan terms, and that Comey made a false statement to Congress, despite the lack of evidence. Seibert spent five months investigating but ultimately determined there was not enough evidence to proceed with either case. (When Fair Housing officials agreed in internal memos that James committed no crime, they were dismissed.)

Because Seibert refused to pursue unethical and unsupported indictments, Trump wanted to fire him, but Seibert beat him to the punch and resigned. At that point, AG Pam Bondi backdoor-installed Halligan as Seibert’s replacement, but that decision was up to the courts, not Trump. Because Halligan was not legally appointed to serve as interim US attorney, the court ruled that she had no authority to pursue the Comey and James indictments and threw them out.

Trump’s legal clowns keep dropping balls they shouldn’t be juggling

When Seibert said no, he wouldn’t risk his law license to pursue Trump’s wet dream prosecutions unsupported by law, he wrote a “declination memo,” a standard memo outlining the reasons why. That memo featured prominently in a related hearing that revealed yet another lawless DOJ move.

DOJ counsel refused to answer another judge's simple “yes or no” question about whether Seibert wrote such a memo. When Judge Michael Nachmanoff got irritated by the DOJ lawyer’s cagey responses, he pressed until the lawyer finally admitted the reason for his reticence: Because Todd Blanche, Trump’s Deputy Attorney General, instructed him not to admit the declination memo existed.

Federal trial attorneys know that lying by omission to a federal judge, or a lack of candor in response to any judge’s inquiry, if proved, is grounds for disbarment. I’ll go out on a limb here and predict that many of Trump’s DOJ lawyers will find alternative careers when Trump leaves office.

In the meantime, these dismissals are gratifying because they prove that evil intent can be thwarted — trumped, if you will, by vast incompetence.

As a 30-year litigator, I know it is unseemly — unprofessional, even — to enjoy seeing a strident lawyer with more confidence than competence get her comeuppance for acting unethically.

But in this space, I’m a political writer suddenly laughing at the realization that authoritarianism can’t prevail here because it requires competence. It’s funny as hell and the schadenfreude is delicious.

Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.