Protecting Fair Courts

How the Trump Regime Can Threaten Them and What We Can Do About It

Since Donald Trump ‘s inauguration and flurry of chaos producing executive orders (or “dis-orders, as I call them), over ninety lawsuits have been filed, challenging them, generally speaking as unlawful power grabs. Federal workers, watchdog groups, Attorneys General of about half the states in the union and concerned organizations that represent people, are utilizing one of the most important independent guardrails against abuse of power that protects corruption of our government – our independent court system.

These cases demonstrate that our federal judges are independent arbiters, even as these cases continue to wind their way through the court system. The Trump administration has been losing many of these cases in their early stages. From the reckless spending freeze, which endangered free school lunches for hungry kids and medical care for pregnant women, to Trump’s radical executive order demanding that the federal government violate the constitutional command of birthright citizenship, judges have temporarily blocked implementation of Trump’s chaos to consider the cases before the harm is done. There have also been some early victories for the new regime. The Trump appointed CIA Director, for example, has been allowed to fire employees who worked on Diversity, Equity and Inclusion and Chief Justice Roberts has paused an order directing the federal government to make good on some foreign aid contracts.

We shouldn’t be surprised to see the early signs of another page from the authoritarian playbook - an attack on the independence of courts. The Trump regime has already been accused of defying some court orders. So far, this has not mushroomed into explicit refusal to accept the check and balance of a court order. For example, after the presumptive, but unconfirmed, nominee to head of the Office of Management & Budget, dramatically and brazenly froze a large amount of federal spending authorized by Congress, apparently to go on a witch hunt for “diversity” programs, a federal judge entered a temporary order to stop the freeze. Within a few weeks, the judge found that the Trump administration had not restored all the spending as ordered. The plaintiffs had receipts – examples of funds still not flowing. The federal judge agreed, citing the White House Press Secretary’s public statement that they were continuing to freeze spending. The judge wrote that the evidence showed “transparent efforts to evade” the court’s oversight.

The good news here is that the Trump administration felt it had to claim compliance. That is an acknowledgement of the power of the courts over the actions of the regime. But at the same time his Vice President and his other acolytes went to work on undermining trust in the courts. J.D. Vance suggested on social media and suggested that the courts were blocking the administration from doing what it has the power to do. That’s like a thief lying that a stolen wallet was his. In this case courts are blocking actions judges believe the President or agencies do not have the power to take. To be clear, the examples that led a judge to say, “hey, you’re ignoring my order” was not simply a matter of the administration leaning into President’s policy priorities. It was a direct refusal to implement spending Congress mandated. It also ignores that courts have sided with the regime at times, when judges find the actions are within the bounds of the law. Elon Musk, whose proximity to the President smacks of corruption, called a federal judge “evil” and said he should be “fired” because the judge, appointed by a Republican President, ordered health data to be restored on federal websites. (Note: In our system, federal judges have lifetime appointments and Presidents can’t fire them. They can only be impeached and that is very rare.)

Leaders who want to solidify their authoritarian regimes look for ways to bring the court system to heel. In Turkey, after a faction of the military attempted a 2016 coup against President Recep Erdogan, he purged the courts of over twenty thousand judges. When Venezuelan President Hugo Chavez was facing a referendum about his Presidency, he packed the country’s Supreme Court, expanding its membership from twenty to thirty-two, because it might rule on the referendum outcome. The Hungarian regime, for example, lowered the retirement age for judges with claims of standardizing across the public sector. In Bolivia, the authoritarian regime converted almost half of all judges’ tenure to temporary positions. Some authoritarians passed laws to reduce the scope of judicial authority.

Article III of the US Constitution, establishes “one supreme Court” and “such inferior courts as the Congress may from time to time ordain and establish.” That means, this Congress, if a majority in the House and Senate agree to do the bidding of President Trump, could try to pass laws calculated to rid the federal bench of independent judges and to capture the courts as the Supreme Court became captured in the first Trump administration.

Then there is the escalation of what we are already starting to hear: The Trump administration just ignores a judge’s order. The bully-pulpit of the presidency, and of the on-line disinformation systems can spread lies about the fairness and legality of a court’s ruling. Conspiracies can spread, foreign governments like Russia, China and Iran can flood the internet and social media platforms with lies as they did in our election cycles. All of this can produce threats against judges and their staff, threating literally and figuratively our independent judiciary.

None of these things are inevitable, but nor should we fail to be prepared for the possibility of Congressional action, Presidential bullying and bad-mouthing, rampant lies and the Executive Branch refusing the checks and balances an independent judiciary is responsible for providing.

Before we even get to this point, judges can and should find the federal government in contempt of court and can include its attorneys and agency heads in appropriate instances. If that fails, and if the federal agencies the Trump regime has worked hard to capture, do not do their jobs to support court orders, we have an irrefutable constitutional crisis.

There are three primary ways to prepare: 1. Tell people what could come to “pre-bunk” what will later need to be debunked; 2. Monitor so that the alarm bell can sound loudly; 3) and be prepared to mobilize when and where necessary, peacefully and with the purpose of protecting neutrality and the constitutional power of the courts. Non-profit organizations and ordinary citizens alike in countries like Poland, India and elsewhere have faced these challenges and we can learn from them. We are a country rich in advocacy for justice, civil and constitutional rights, and the rule of law. That gives us an advantage and we must prepare to use it as we also work to ensure that we don’t have to.