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Constitutional Law

Sep. 4, 2020

Who will defend the courts from attacks on the judiciary?

President Donald Trump’s constant attacks on the judiciary are a violation of the separation of powers set out in the U.S. Constitution. Article III of the Constitution created the judiciary. Article II of the Constitution defines presidential powers. When he bullies judges, jurors and the court system, he violates his constitutional oath to “preserve protect and defend the constitution.”

James J. Brosnahan

Sr Counsel, Morrison & Foerster LLP

425 Market St.
San Francisco , CA 94105


Jim is writing a book on President Trump and the Constitution.

President Donald Trump's constant attacks on the judiciary are a violation of the separation of powers set out in the U.S. Constitution. Article III of the Constitution created the judiciary. Article II of the Constitution defines presidential powers. When he bullies judges, jurors and the court system, he violates his constitutional oath to "preserve protect and defend the constitution."

The effect of Trump's browbeating, if unabated, will destroy the checks and balances of the Constitution. Countless articles (and tweets) document the intensity and repetition of Trump's attacks on the judicial system. He gains political power from his base, while bulling a co-equal branch of government. Judge Amy Berman called his attacks on jurors a, "risk of intimidation and harassment." Some judges have required additional security after a Trump attack. Here is a small sample of President Trump's attempted intimidations.

An Attack on a juror

Tweet, Feb. 25, 2020: "There has rarely been a juror so tainted as the forewoman in the Roger Stone case. Look at her background. She never revealed her hatred for 'Trump' and Stone. She was totally biased, as is the judge." He attacked that juror as she was testifying during a post-trial motion.

Attacks on judges

White House statement, April 25, 2017: "This San Francisco judge's erroneous ruling is a gift to the criminal gang and cartel element in our country ... putting thousands of innocent lives at stake."

The Atlantic, May 27, 2016: "What happens is the judge, who happens to be, we believe, Mexican, which is great. I think that's fine. ... I think judge Curiel should be ashamed of himself. ... They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace."

Attacks on the courts

CNN, Nov. 1, 2017: "We need quick justice and we need strong justice -- much quicker and much stronger than we have right now. Because what we have right now is a joke and it's a laughingstock. And no wonder so much of this stuff takes place."

Tweet, Jan. 10, 2018: "It just shows everyone how broken and unfair our Court System is when the opposing side of a case (such as DACA) always runs into the 9th circuit and almost always wins before being reversed by higher courts." (In June of this year, the Supreme Court reversed the attorney general's rescission of the Deferred Action on Childhood Arrivals program.)

Tweet, Nov. 22, 2018: "Judges must not legislate security and safety at the border. They know nothing about it and are making our country unsafe."

This nationally disseminated bombast is disrespectful, defamatory and usually factually and legally wrong.

The unitary executive theory imagines great power in the hands of the president. Law professors debate this theory. The movie "Vice" shows Vice President Dick Chaney discussing the extent of the unitary executive theory so he can increase his own power. The theory, in its boldest form, holds that no matter what the president does, it is legal. Academic theory is one thing, but in the hands of Trump, his erratic intrusions into judicial and congressional prerogatives are unconstitutional.

Trump's unceasing attacks on the judicial system have mostly gone unanswered, although impressive groups of alarmed lawyers have articulated what is the proper deference to the rule of law. The Congress often ignores the danger. Meanwhile the president has set a dangerous precedent.

In an October 2019 survey of 1,100 adults, 57% thought the Supreme Court is too involved in politics.

John Locke (1632-1704), and Charles-Louis Montesquieu (1689-1755), wrote about the separation of powers and its importance. They influenced Thomas Jefferson, John Adams and James Madison. Our founders created the separation of powers because they understood historical abuses committed by kings and queens. The principle of separation has lasted 233 years. However, it has taken only four years for there to be a serious attempt to put expanded power back in one person.

In July, the U.S. Supreme Court, by a vote of 7-to-2 upheld a criminal subpoena issued by a New York district attorney's office for records from Trump's accounting firm. In his majority opinion, Chief Justice John Roberts wrote a masterful history of subpoena enforcement. Trump v. Vance, 2020 DJDAR 7071 (July 9, 2020). In nine paragraphs, he described the 1807 treason trial of Aaron Burr, in which Chief Justice John Marshall, sitting as the trial judge, enforced a subpoena to President Thomas Jefferson.

Chief Justice Roberts seemed animated by the chance to quote his predecessor, Chief Justice Marshall. He set out the difference between a king, who could resist a subpoena, and a president, who cannot. Two recent trump appointees, Justices Brett Kavanaugh and Neil Gorsuch, concurred in Robert's opinion stating, "In our system of government, as this court has often stated, no one is above the law." Any rational reader would see those words as a warning to the president. There are established legal limits on presidential power.

In Federalist papers, #47, it is written, "Were the judiciary joined with the executive the judge might behave with all the violence of an oppressor." In 1974, Chief Justice Warren E. Berger wrote a unanimous decision that ordered President Richard Nixon to produce tapes of his conversations. In Baker v. Carr, the Supreme Court held that it was the courts job to decide which department of government had a disputed power.

How old is this rule that no one is above the law? Who dared tell the royal leader that law was above a king, and he was not the divine source of all law, and most treasonous of all, was subject to the law and therefore less powerful. The man who spoke those words to King James I was a pedantic judge with deep knowledge of ancient legal authorities others could not quite remember. He risked his life to save the common law. His name was Edward Coke (1552-1634). He was chief justice of England.

The judges and those that support the rule of law must act now. The unitary theory of presidential power is dangerous. The U.S. Supreme Court was correct: "No one is above the law." 


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