After the 2020 presidential election, the judiciary did more than any other branch of government to defend American democracy. In a remarkable display of legal consensus, according to the Washington mailAt least eighty-six federal and state judges have dismissed Donald Trump’s claims of widespread voter fraud. They included judges appointed by Republicans and Democrats, and others who were elected. In all, at least 38 Republican-appointed justices somehow rebuffed Trump’s attempts to overturn the results in states won by Joe Biden.
Many of those judges were appointed by Trump. Steven D. Grimberg, a federal judge in Georgia nominated by Trump in 2019, flatly rejected a request to block the certification of Biden’s victory in that state, ruling that it “has no basis in fact or law.” (The Supreme Court, which includes three Trump appointees, also rejected the former president’s claims.) One of the most scathing legal repudiations came from Wisconsin State Supreme Court Justice Brian Hagedorn, a Republican who previously served as chief legal counsel to Governor Scott. Walker, when Walker was in office. in a three page sentence, issued in December 2020, Hagedorn called the petition to throw out all votes cast in that state “unprecedented in American history,” “woefully flawed,” and based on “weak” evidence that “didn’t come close” to Their case. The long-time Conservative’s ruling included a warning: “What is at stake, to some extent, is faith in our system of free and fair elections, a fundamental feature of the enduring strength of our constitutional republic.”
On Monday, a Trump-appointed federal judge in Florida issued a jarringly different kind of ruling. in a twenty four page decision In a legal and political victory for the former president, Judge Aileen M. Cannon ordered a neutral third party, or “special master,” to review the Justice Department’s seizure of thousands of documents, hundreds of them labeled classified, of the Trump Sea. -a-Lake house and hotel. While the judge cited “the appearance of justice” as her main goal, the ruling served to reinforce Trump’s constant claims that he is the victim of nefarious plots. (On Saturday, at a political rally in Pennsylvania, he had called FBI agents “vicious monsters.”) Following the decision, he spread conspiracy theories on your social media platform, alleging that hidden forces, not his own refusal to return the documents, had forced the Justice Department to act. He wrote: “Many sinister and evil outside sources are pushing you to do bad things.”
Legal experts found the ruling alarming for other reasons. Cannon ordered the Justice Department to stop “reviewing and using seized materials for investigative purposes” until the special master’s review is complete. Court battles over who should serve as a teacher and, later, whether that person’s review will have been fair could drag on for weeks, delaying the Justice Department’s investigation. Prosecutors, who have apparently not yet decided whether to charge Trump with mishandling classified information, likely planned to step up their investigation over the next few weeks. As they would in any criminal case, prosecutors would seek to identify people close to Trump who also face legal risk, such as attorneys who signed statements saying all classified documents had been returned to the government when, in fact, they were not. So. Prosecutors could subpoena those attorneys and force them to testify under oath before a grand jury. His testimony could implicate Trump or the lawyers themselves in misconduct. Investigators are also likely to try to determine whether Trump showed the classified documents to any visitors at Mar-a-Lago. If they found out that Trump did it, they would also ask those people to testify before the grand jury, a step that would strengthen a potential criminal case against the former president. However, all of those investigative steps appear to have been delayed by Cannon’s ruling.
In a separate finding, Cannon argues that Trump may have the power to block prosecutors from filing certain documents in court because they are protected by executive privilege. Legal experts argue that previous Supreme Court rulings show that the power to assert executive privilege exists only with the current president, not previous ones. William Barr, who served as Trump’s attorney general but broke with him over his false 2020 voter fraud claims, criticized the ruling as “incorrect.” “It is deeply flawed in several ways. I don’t think the special teacher designation will hold up,” Barr said, in an interview on Fox News. “The government has very strong evidence that it really needs to determine if the charges are appropriate: government documents were taken, classified information was taken, and it was not handled properly. And they are investigating, and there is some evidence to suggest, that they were misled.” However, Barr added that he believes Trump should not be impeached because of the impact impeaching a former president would have on the country. “I hope they don’t,” she said.
Others questioned a statement in Cannon’s ruling that Trump deserves special consideration because he is a former president. “Based on Plaintiff’s prior position as President of the United States, the stigma associated with the seizure in question is in a league of its own,” Cannon wrote. “A future indictment, based on whatever degree to which the property should be returned, would result in reputational damage of a decidedly different order of magnitude.” Ryan Goodman, professor of law at New York University, said to Times that Cannon had gone too far in defending the president who had appointed her. “Judge Cannon had a reasonable path that she could have taken: appoint a special master to review the documents for attorney-client privilege and otherwise allow the criminal investigation to proceed. Instead, she chose a radical path.”
Justice Department officials must now decide whether to appeal Cannon’s decision to the Atlanta-based Court of Appeals for the 11th Circuit. Six of the eleven active judges on that panel were appointed by Trump. If the department loses there, it could appeal to the Supreme Court, where three Trump-appointed justices were among the five-member conservative majority that overturned Roe v. Wade, the fifty-year ruling that established the right to abortion. For years, Trump referred to judges as servants of the presidents who appointed them, not servants of the public, denouncing “Obama judges.”
A growing concern is that Trump’s false claims about the judiciary are steadily undermining public opinion of judges as neutral, nonpartisan arbiters. Trump’s cynicism fuels a public cynicism about the fairness of the American justice system and democracy. What is so pernicious—and successful—about Trump’s approach is his shamelessness in concocting the worst possible explanations for judges’ rulings, in ways that play into the prolonged disruption of government for many Americans. His goal appears to be to neutralize the credibility of the branch of government that most openly challenged him in 2020.
After the judiciary rejected Trump’s false claims of voter fraud, Charles Gardner Geyh, a law professor at Indiana University, told the Washington mail, “The judges are, in a way, the last wall.” On Tuesday, Geyh told me that Trump’s tactics are reminiscent of those of Viktor Orbán, Hungary’s populist leader who has discredited and circumvented judges whose rulings he doesn’t like. Geyh added that, in this country, “public support for the courts remains precarious,” particularly in the case of the Supreme Court, which is seen as increasingly political. Gallup polls found that public confidence in the Court has dropped from 40 percent last year to 25 percent this June. He said, “The Supreme Court is the flagship of the federal judiciary, and if public confidence in the Supreme Court is waning, my fear is that support for the courts in general will be dragged down.”
Hagedorn, in his 2020 ruling, warns other judges against using their powers in overtly political ways. “This is a dangerous path we are being asked to follow,” he wrote, referring to Trump’s request to reverse the election results. “The loss of public confidence in our constitutional order resulting from the exercise of this type of judicial power would be incalculable.” If Trump somehow returns to the Oval Office with the help of partisan court rulings, the damage to our constitutional order may prove irreversible. In 2020, the judges stopped Trump. Two years later, one, at least, is complicit in his attack on democracy. ♦