Trump Melts Down as Federal Judges Defy His Attacks and Reign Him In

0:00Michael Popok:Welcome to a special Constitution Day edition of Legal AF. We're celebrating the Constitution, and just coincidentally, it was also the birthday for the Legal AF YouTube channel two years ago on Constitution Day. And when we talk about the Constitution and the rule of law, what we're seeing now in the last, at least the first two years of the second Trump administration, is something we probably have never seen before, which is former and even current judges and federal judges speaking out about what they see as a assault on the rule of law, on judicial independence, on the individuals that occupy the Article III office and wear the robes.

0:40Michael Popok:And what is that doing to our democracy? What is that doing to our ability to hold a co-equal branch of government in the presidency accountable? And I can't think of two better former federal judges to bring together here to brief our audience. Then John Jones, former federal Judge Jones, the Middle District of Pennsylvania, the Bush appointee, who's now the president of Dickinson College in Pennsylvania, and Judge Jeremy Fogel, who had been a Clinton appointee in the Northern District of California and the director of the Federal Judicial Center, and now with a think tank affiliated with Berkeley.

1:23Michael Popok:I'd like to bring you both together here and welcome you to Legal AF. Thank you. It's great to be here. So before we got on, kick it off with Judge Fogle, we were talking about Article 3 and Article 3 Judges and the history of judicial independence. We talk about it a lot. We use that shorthand and that vocabulary a lot here on Legal AF. Where did it come from? Why is it so ingrained in our leaving England and forming a nation, a constitutional republic here in the United States? Well, thank you. Thank you for that question, because I think it's really an important one. And it takes advantage of the fact that we are celebrating the 250th anniversary of the Declaration of Independence.

2:13And, you know, if you read the Declaration from beginning to end, it's very interesting. What everybody remembers is the we hold these truths to be self-evident sentence, you know, the greatest sentence ever written. And that's what people remember. And what most people do not remember or even register is that after that sentence, this is why we're doing this, we hold these truths to be self-evident. There are 37 specific grievances that the people who signed the declaration had against King George. and they listed all 37 grievances and some of them relate directly to the judiciary. They called out the fact that the king basically could fire judges whenever he wanted to.

3:01He could decide not to pay judges just on a whim. If he didn't like a decision a judge made, he could just nullify it. In other words, the powers of judges were completely at the will or the whim of the king. And then they talked about some of the other abuses that flow from that, that you could send troops into a city and nothing could be done about it. Or you could station troops in somebody's house and nothing could be done about it. You could deport people and try them somewhere else for imaginary crimes. Nothing could be done about it. So when you look at what happens 11 years later in Article 3, one of the two or two of the really critical provisions in Article 3 have to do with the tenure of judges.

3:47So federal judges under Article 3 have life tenure, which means that the king or the president or Congress can't fire them unless they commit a crime or a crime or misdemeanor or treason or something like that. And you can't cut their salary. And why is that in there? Well, it's in there because that was something that the king had done. So the idea of Article III was to make sure that those kinds of levers that the king had over judges were no longer there. And you were saying when somebody is appointed and confirmed as an Article III judge, they have life tenure unless they commit very serious crime for misdemeanors, and you can't cut their pay.

4:31Michael Popok:And yet on that, Judge Fogle, we've seen Trump and his proxies try to do both things. Let's use Chief Judge Jeb Boesberg in D.C. as an example. Donald Trump's proxies in the Congress were moving to cut his budget, not his paycheck, but his budget, and try to impeach him and remove him. And I want to say something about impeachment in just a second, but I think it's important to see how the language in Article 3 ties directly to what happened in the Declaration, and the language in the Declaration is directly borrowed into the Constitution. And there are some other things you'll see in the Bill of Rights that do the same thing.

5:14Now, with regard to Judge Boesburg, a good example, in 1804, so there was a a guy on the Supreme Court named Samuel Chase. He was a, he was a chief, he was not the chief justice, but he was a justice of the Supreme Court United States. He was appointed by George Washington in 1796. And George Washington was a, was a Federalist president. And in 1800, the Jeffersonians won the presidency. Thomas Jefferson became president. And in 1802, they won super majorities in both houses of Congress. And Justice Chase, in addition to being a Federalist, was kind of a loudmouth. He was very outspoken and he didn't make any secret of his predilections.

6:02And today it's doubtful that he would last very long on the Supreme Court without getting heavily criticized for being partisan. But back then, I guess there was a there was a little more room for that. But in any case, the Republicans, the Jeffersonian Republicans wanted to get rid of him. And so they impeached him. And so in 1804, he was impeached by the House. And the Articles of Impeachment basically talked about his policies. He was favoring Federalist policies, and they didn't want that. And so they went to the Senate for trial. And the assumption was that he would be convicted and removed from office because the Jeffersonians had a supermajority in the Senate.

6:44And lo and behold, six members of the Senate, Jeffersonian members of the Senate, did not vote for conviction. And so they fell short of the two-thirds and Justice Chase was not removed. And the precedent, the reason they gave for their vote was that we do not think that it's consistent with Article 3 to remove judges from office simply because we don't like the rulings. We just don't think that's right. And so we're not going to vote for it. Now, you fast forward to about a year ago and the calls to impeach Chief Judge Boasberg and some other judges who had made rulings that the current administration doesn't like.

7:24The chief justice actually made a public statement. And this is something he doesn't do very often. I mean, he gives a year end report every year, but generally he doesn't do things like this. And he made a public statement saying this is not a valid grounds for impeachment. and he went back and said, this has been true since 1805 and Justice Chase. So there are such deep historical roots here. It's not just the Declaration and Article III, but in the very, very early years of our republic, and we're still figuring out what the judiciary does and doesn't do, we had Marbury v. Madison, which talked about the right of judicial review.

8:01And right around that same period in time, about a year later, we had the unsuccessful effort to remove Justice Chase because of disagreement with his views. So that's how old this stuff is. This is not some new thing. This has been 239 years of history.

8:16Michael Popok:Well, that's a great touchstone. Let me bring in Judge Jones on Constitution Day. I guess my first question for you, Judge Jones, is why do you think it's important for you and your position, your vantage point of being a former federal judge, Bush appointee. I mean, I never used to mention who appointed who back when I came out of law school 35 years ago, but it seems to be something we have to do these days. People want to know these days. But why is it important for you as a former federal judge to speak out when you see things that are unconstitutional or incorrect, abuse of the rule of law?

8:55Michael Popok:And my follow-up question is, would you have the courage to do it today if you were still on the bench? I mean, we've interviewed Judge Salas and Judge Bloom, who have come out and, you know, within the parameters of what they feel comfortable in talking about in defending the judiciary. So talk about it from both vantage points. Sure. Well, I think in the first instance, to your first question, for Judge Fogland and myself, we're unfettered by the code of conduct that properly restricts what judges can do. As we frequently say, you know, judges can't get out on the courthouse steps and have a press conference, no matter what the sort of loosening of some of the strictures are that probably isn't going to work and it's going to get that judge in some difficulty.

9:45But we can give voice to things that they can't say. We understand the business of judging, if you will, and we understand the dangers that are involved. And I think all of us feel passionately that we've got to stand up for our former colleagues who remain on the bench. And as you said, some of them have kind of dipped their toes in the water of speaking out. Others have not. Take Judge Boesberg, you used as an example. I really have used him again and again because there's a guy who convenes court on a Saturday, probably a lovely spring Saturday, ends up being lied to by the government's attorneys that it wasn't an emergent situation.

10:35The government defies his order that the plane should not take off. And, you know, where I came from, and I'm sure where Josh Fogle came from, it doesn't matter whether you issue it in writing. If you say it and it's in the record, it's to be obeyed. Lawyers know that. Of course, you know that. And then he gets vilified as a kook, you know, a criminal and so forth. And then adding insult to injury, there's impeachment. So, So, you know, would I do that if I were on the bench today? I probably would speak out to the extent that I could, but we're still in a position where we can speak out more than that.

11:17And, you know, playing off what Judge Fogle said, the interesting contrast is, you know, in the days of Samuel Chase, you couldn't dox a judge. You couldn't find his home necessarily. You couldn't send a pizza, which is being done, as you probably heard, to judges across the country in the name of Danny Andrel, Esther Salas' assassinated son. All those things, you know, couldn't happen. So in this digital age, judges are at far larger risk than, you know, simply being criticized. And, you know, we're in a world of hurt today where our colleagues, our former colleagues, are not just in fear for their own safety.

12:02Some of them have said, as was cogently said by Judge Fogle in a recent article, they feel like there's bullseyes on them. But worse, they're families. And I think that's really, really beyond the pale.

12:16Michael Popok:And how is that, and for both of you, we can put you both up on the screen, how is that impacting the quality of judicial decision making? Is it, listen, I mean, let's be frank. We like to think that it's not having an impact, that the impact that Donald Trump and those around him want it to have. But these are human beings that didn't sign up for this, nor did their families sign up for this. Is it having an impact where, you know, it's the preliminary injunction not entered? It's the motion to dismiss that's now granted. Do you think it's having an impact? Or is the, you know, I'm not challenging and don't tell me about anything that you've heard directly from people on the bench, but is it having an impact?

13:03Well, so that's a really important question. And, you know, I talk to a lot of judges. I mean, being FJC director was one of the great experiences of my life. And one of the things that made it so is I got to know judges all over the country. And so a lot of relationships I still have. And I talked to people and we talk about this. And I think the federal judiciary actually has been incredibly resilient. I just, you would think what you're talking about. I mean, I was a state court judge before I was a federal judge. And we had elections, right? And believe me, people thought about it. You know, I think they tried very hard to have integrity in their decisions.

13:45But a lot of times you don't know even whether you're being influenced by something. You know, you're not always conscious of what's influencing you. And I think I think for state judges, like every four years or six years or whatever, you know, had to run for reelection. That was a constant worry. I think, you know, the wisdom of the founders in having life tenure for federal judges, you know, really, really is important because I think people know that they're not going to lose their job regardless of how they rule. Now, that's not the end of the inquiry because they might not lose their job, but they're going to get attacked and they're going to get threats and they're going to get all of this.

14:22And I have to agree with Judge Jones that it's gotten way worse because of social media. You know, I mean, I had a case 20 years ago, probably the hardest case I ever had. It was a very controversial issue in my home state. I got plenty of controversy about my decision. And the plenty of controversy kind of added up to about 300 nasty emails because there was no social media then. Judge Jones had a very controversial case. He got a lot of blowback on. I mean, I don't know how many emails you got, John, but it wasn't millions, right? Well, you know, interestingly, the case that Judge Fogle was referring to was when I stopped the school district from teaching an alternative to evolution known as intelligent design.

15:05And I got mail. Yeah. What's that, right? You got mail. And, you know, so it quaint is sort of. But to your question, I am proud of the federal judiciary. I think they're standing up and doing their job. My fear is not that they won't do their job. They will. But my fear is, and I've said this very starkly, somebody's going to get hurt or killed for doing the job. But there's something else to that that I really worry about. And I'll bet Judge Fogle does as well. You know, because we've created this climate, it makes me wonder, you know, when I got on the bench in 2002, it was and remains, you know, the great honor of my life to serve for almost 20 years.

15:52I wonder today, you know, we want to get our best and brightest on the federal court. If you knew you were signing up for a job where, you know, basically you're going to put yourself and your family at risk and be looking over your shoulder all the time, honor though it may be, incredible honor, do you want to do that? And that's the next step. Yeah, I really think that's right. And I think that we haven't seen that yet. We haven't been, we don't have enough data to know whether that's going to happen or not. But I certainly think it's true. I mean, I remember when I was interviewed for the district court in 1997 that I remember I got a question from the people at DOJ, is the fact that you might get threats going to be a problem?

16:39And I said, no. I mean, I've been a state court judge and I've gotten people mad at me for giving custody to a different parent or something like that. So, I mean, I've been there. But I mean, the question had a completely different context from what it has now. I mean, I wasn't worried about getting vilified on social media or getting threatened. And I think there's another dimension of this, that I think people are doing their job and they're trying to make the best and most forthright decision they can, regardless of all of the noise. But it's not that it doesn't affect them. It's not that it doesn't get internalized.

17:14It's not that they don't lose sleep. It's not that it doesn't affect their personal lives. And I think so it's not just people not wanting to be judges necessarily who might otherwise would. But it's also people leaving early. And there's a guy I know who I don't want to do anything to identify, but he's taking – as soon as he becomes eligible to fully retire, he's going to fully retire. Yeah. Based on some controversies he's been involved in.

17:43Michael Popok:Well, I've certainly seen it. I've been a federal court practitioner for 35 years. I've certainly seen it where judges cut their career short. You're like, they're leaving the federal bench. That never – you retire on the federal bench. You don't, you become senior status. You don't leave and go back to private practice. And now you've got the federal bench getting the same pressure on it that the other two branches get. You know, there's people who don't run for the presidency because they don't want to put their family through, you know, that process, that gristmill and, of course, members of Congress.

18:15Michael Popok:but we never used to talk about that also happening to judges. But when you have the Trump administration, you know, the tone is set from the top. When you have Donald Trump himself, who's been through the court system, state and federal, civil and criminal, all the way up to appeal, and has some very definite ideas about how that is supposed to work, and is not shy about talking about it, but now from the bully pulpit of the presidency, when you have him then send out the message that it's fine for the general counsel of the Department of Homeland Security to put effectively targets on the back of a bunch of judges that he didn't agree with their position.

18:54Michael Popok:It's one thing to criticize. You don't agree jurisprudentially with how they got to a decision. It's yet another thing to say, you know, target of the week or whatever the heck he was doing. Well, to that point, you know, I saw a stat recently on the confidence or lack of confidence that the public has in elections. And it's incredibly low. And there is no empirical data that would support, you know, that kind of lack of confidence in states' abilities to conduct elections. But it is this constant drumbeat and this narrative. And just like, you know, states don't use PR machines to talk about the integrity of their elections, neither does the federal judiciary have that.

19:41And this thing is it's wearing on the federal judiciary. And you see what happened with the mail-in ballot case and the president's pronouncement about that. And, you know, talking about his disappointment in his, as he describes them, justices, you know, who he nominated for the court. you know, we've always known it's a result-oriented business, but it's become so deeply personal. And by the way, you know, this isn't just lower court judges. We've got, you know, Justice Coney Barrett getting swatted. We've got an assassination attempt against Justice Kavanaugh. I mean, this is all around. And that is entirely helpful, unhelpful, excuse me, that type of that type of critique, calling out justices by name.

20:34Think back in our youth with Watergate in 1974. You know, Richard Nixon had to hate the decision that made him turn over the tapes. Not one word from Nixon publicly at that time about a unanimous decision in the Supreme Court that ended his presidency, rail though he may have in private. Boy, we've really crossed the Rubicon.

21:02Michael Popok:We have a president that not only, as you said, not only attacks Supreme Court justices, birthright citizenship, mail-in ballots, tariffs, but drags their family into it. Oh, and their family is embarrassed by them, he has said before. Chris Cooper, a federal judge that's handling the Kennedy Center case. It's not just Judge Cooper. It's his wife doesn't carry his name. She's embarrassed by it. I mean, the low blows. And I can tell you there's two judges I think of in Washington. I know both of them. I suspect that Judge Bogle does too. Richard Leon and Chris Cooper. I know them both. I'm proud to say that Judge Leon's son is a graduate of my college.

21:44And they are great judges. I mean, really, really fantastic judges, you know, doing their job. And as is Judge Boesberg, you know, to return to Judge Boesberg again, it judges judge, as we say sometimes in the in the profession of judging. And, you know, it isn't as if, you know, they're talking about incompetent people. These are real pros at the business of judging. And this is totally unworn. And you invoke the family. As Judge Fogle said, I accepted when I got on the bench that, and I'm not a fatalist, but I accepted that I could get threatened and things would happen. I did not sign up for a job, you know, where my kids and my wife were going to be exposed to that same harm.

22:30That's the climate we're in today. Let me ask both of you, Judge Jones and Judge Fogel, is the Supreme Court and its leadership doing enough to protect the federal judiciary?

22:40Michael Popok:I mean, I know I saw Amy Coney Barrett along with Kagan talking about security, her own personal security problems. And, you know, there's a one liner in the annual report, you know, that Roberts did a couple of years ago. But are they really doing enough? I mean, they even signal that, you know, they go after district court judges like senior judges in Boston. And how dare you? You didn't follow our one paragraph shadow docket ruling. And, you know, like, what are you even talking about? You're talking about my buddy, Judge Young, and you got to. But I mean, I'm just saying, you know, are they doing enough?

23:13This is this is in some ways it's in the eye of the beholder. I think, you know, I'll just talk about the chief justice who, you know, I worked closely with for seven years and who I have a lot of respect for, which has nothing to do with what our judicial philosophies are. I mean, I just respect him personally, and he was a good guy to work for. I think from his perspective, he's already done way more than he would have ordinarily done. I mean, he's made multiple public statements. I mean, he's called out people who are calling for the impeachment of judges for rulings. He's talked about threats.

23:48Michael Popok:He gave a pretty, for him, emotional plea to stop that kind of stuff the last time he spoke out. So I think given who the chief is, I think he's doing more than he's ever done before. There's still people out in the community who want him to do more. I mean, I say the community, I mean among judges who would like him to be more assertive and more visible, go to Congress and say, we need more Marshall, we need more money. This is really affecting. That's not who he is. I don't expect him to do that. But I just think there is certainly debate within the judiciary about that. I think what I heard from most of the people who saw it was that when Justices Barrett and Kagan went to Congress, they gave a very good account of themselves.

24:34And it was as close as you could get to a sort of a bipartisan message. I think the problem is, if you start talking about specific cases, then people are going to start accusing you of being political. And I think we try very hard in our coalition to avoid that kind of anything having kind of a partisan bent. Yes, we'll talk about President Trump, but when there have been Democratic presidents who have done things or Democratic office holders who have made inappropriate statements, we'll call attention to those. I mean, it's important. It's important to do that if you want to have that credibility.

25:15But then you talk about specific cases, and that's why I just said, I mean, I really like Judge Young, and we're friends, and I thought it was very unfairly attacked. And so I don't, I didn't, and I know Justice Gorsuch too, and I had a friendly relationship with him before he got on the court. I didn't think it was fair of him to attack Judge Young the way he did. But when you talk about these things in a public context, if it's not a private conversation, I mean, people inevitably think you're being political. And I think that's a real tough line we have to walk. Structurally, we need to understand what the judiciary does and what judges are about.

26:00And if they don't do judicial things, if they don't act in accordance with judicial principles, then it's fair to criticize them for that. It's absolutely fair to criticize them for that. But the personal attacks, they demean everybody. They drag us all down.