Barb McQuade USAG
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President Donald Trump’s proposed law to “crack down on rogue judges” and his rhetoric toward judges who rule against him — such as calling them “criminals” and “a disgrace to our nation” — is a “breathtaking” danger to the Constitution, according to an expert.
“Demanding that the legislative branch enact laws that punish the judiciary is a breathtaking breach of the president’s oath to support and defend the Constitution, which creates our three separate — and coequal — branches of government,” lawyer and former US attorney Barbara McQuade wrote in a recent editorial for Bloomberg. “Trump’s recent attacks came after the Supreme Court struck down his tariffs, which he has used to wield economic power against foreign governments, last month. By a 6-3 majority, the Court held that the International Emergency Economic Powers Act did not authorize the president to impose tariffs, a power otherwise reserved for Congress. Among the justices joining the majority were two of Trump’s own appointees, Neil Gorsuch and Amy Coney Barrett.”
Trump, who said Gorsuch and Barrett “sicken” him because they dissented, is doing something “different” with his attempts to cower judges, McQuade wrote.
“His proposed legislation would target the judges themselves for punishment,” McQuade said. “It seems likely that Trump knows he will not get his wish. Even a Congress that has been largely submissive during his second administration would surely not go so far as to retaliate against judges based on their case decisions, a move that would wreak havoc on the separation of powers. But the president’s public statements nonetheless risk the independence of the judiciary, an essential pillar of democracy. By attacking judges and justices who rule against him, Trump is sending a message to the others: Rule my way or else you’ll be next.”
McQuade is not alone in criticizing Trump’s attacks on the judiciary. Earlier this month The New York Times reported that judges themselves are “quietly” saying that it is concerning how much “risk” is involved in speaking out against the president.
"Judges are turning up the volume" in their rulings against Trump, eschewing the judiciary’s traditional “restrained” tone in favor of "an emotive, populist approach" which permits them to give "full vent to the intensity of their concerns about cases flooding their dockets since President Trump returned to office."
The Times added, "One compared her district’s ballooning caseload to a demigod’s battle against a mythological monster. Another sought to buttress his argument against National Guard deployments to U.S. cities with a YouTube link to a 1970 protest song. A third compared the Trump administration’s rewriting of American history to the Ministry of Truth in George Orwell’s novel '1984.'"
Trump’s intimidation of the judiciary extends to the jurists he has appointed in his second term, many of whom have been required to avoid telling the truth about Trump losing the 2020 presidential election while under oath.
Senate Judiciary member Richard Blumenthal (D-CT) typically ended each hearing for a judgeship with the question, “Who won the popular vote in 2020?”
He always received variations on the same reply, namely that “President Biden was certified and served four years as president.” By using the word “certified,” they curry favor with the president who nominated them by refusing to flat-out say that Trump lost.
“There is a special peril when federal judges, who serve for life if confirmed, agree to demean themselves in this fashion,” legal analyst Jeffrey Toobin said at the time.
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During his first presidency, Donald Trump bitterly clashed with two conservative U.S. attorneys general he appointed: first Jeff Sessions, then Bill Barr — who drew a lot of criticism from Democrats for his handling of the Robert Mueller Report but infuriated Trump by refusing to go along with his efforts to overturn the 2020 presidential election results. However, U.S. Attorney General Pam Bondi, critics say, is crossing lines that Sessions and Barr wouldn't have dared to cross by using the U.S. Department of Justice (DOJ) as a tool of retaliation against Trump's foes.
In an article published on March 5, The Guardian's Peter Stone details the way in which Trump and Bondi are encouraging DOJ's rapid "politicization."
University of Michigan law professor and former federal prosecutor Barbara McQuade, a frequent legal analyst for MS NOW, told the Guardian, "The weaponization of the DOJ has been truly breathtaking. They are looking for crimes to pin on their political rivals. Investigations against (U.S. Federal Reserve Chairman) Jerome Powell, (Minnesota Gov.) Tim Walz and others seem to be efforts to intimidate them into submission. DOJ prohibits this kind of fishing expeditions to smear people without factual predication that a crime has been committed."
McQuade's "points," according to Stone, are "underscored" by an FBI search of an elections office in Fulton County, Georgia.
"The FBI raid followed a DOJ lawsuit against Fulton County in December seeking to obtain records, including ballot stubs and signature envelopes from the 2020 election," Stone notes. "Despite lacking clear legal authority, Bondi has sued 30 states, including five on 26 February, seeking their voter registration lists, which contain personal information, in moves that seem to overlap with Trump's bogus accusations of widespread voting fraud in many states…. In a blunt and revealing memo last February, Bondi wrote that all DOJ employees must 'zealously advance, protect and defend' the interests of Trump in his role as the nation's chief executive."
Conservative Donald Ayer, who served as deputy U.S. attorney general under the late GOP President George H.W. Bush, told The Guardian, "The president's scowling face over the door is a constant reminder of all that he has done to dismantle the Justice Department as the trusted custodian of fair and evenhanded justice."
Another DOJ alumni interviewed by The Guardian is Randall Eliason, now a George Washington University law professor.
Ex-federal prosecutor Eliason told the publication, "Trump has succeeded in completely politicizing the Justice Department. This Justice Department has been transformed into a political wing of the Trump Administration, using the power of the justice system to punish Trump's enemies and reward his friends with little regard for the law. Some say he has turned it into his own personal law firm, but that's too generous — even a law firm generally would follow legal rules, obey court orders and not bring frivolous cases."
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A federal judge appointed by Donald Trump has, for now, just effectively destroyed the main case against a January 6 defendant by ignoring the rulings of seven other judges – a move that “clouds the legal path of as many as 270 cases,” according to The Washington Post.
U.S. District Judge Carl Nichols “said late Monday that the Justice Department cannot charge Jan. 6 defendants with obstructing Congress’s certification of President Biden’s 2020 election victory unless the defendants tampered with official documents or records in the attack on the U.S. Capitol.”
By doing so Judge Nichols “broke with at least seven other U.S. trial judges in Washington who have ruled that prosecutors can use the obstruction charge in Capitol riot cases.”
Judge Nichols clerked for Supreme Court Justice Clarence Thomas. He has ruled against Trump allies in defamation cases brought by Dominion Voting Systems, but also temporarily blocked the State of New York from handing Trump’s tax returns to a top House committee.
Nichols’ ruling Monday is in the case of Garret Miller, of Texas, but defense attorneys in hundreds of other cases could point to it to slow down prosecutions of their clients or even force the DOJ to retry cases. DOJ can appeal Nichols’ ruling.
“This ruling, which seems contrary to the plain language of the statute & conflicts with other judges’ rulings,” warns noted formerU.S. Attorney Joyce Vance, “has serious implications if applied to yesterday’s indictment of the Proud Boy’s [Enrique] Tarrio. He’s charged with conspiracy under the same provision.”
Another noted U.S. Attorney, Barb McQuade, adds: “DOJ will likely appeal judge’s dismissal of obstruction charge, a decision that’s contrary to the plain language of the statute and prior decisions by 7 other judges, but the decision will delay DOJ’s work to hold Jan 6 defendants accountable.”
In a deeper dive, national security and civil liberties journalist Marcy Wheeler calls parts of Nichol’s ruling in the Miller case “far too clever,” noting he is “ignoring some language addressing issues he raises in his opinion."
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