The Roberts Court created this monster
Now lets see them fix it.
© 2020 El Salvador presidential press office via AP
Five or six years ago, I was in federal court on an evidence motion. I don’t remember the issue, the claim, or whether I was for or against the motion. What I do remember like it happened today is the exchange I had with the judge.
An attorney for the opposing side made an accusation about my client’s conduct in discovery, prompting Judge Ruben Castillo to ask me if what they just told him was true. But the way they worded it, whether it was true or not true depended on several variables- if this, then that, if that, then yes but still possibly no because blah blah blah. I wasn’t sure about all those moving parts, but I didn’t map them out in my answer, because Castillo had already communicated his impatience. Maybe he was irritated with my client, maybe it was our theory of the case, or maybe it was just me. I’ll never know. So I skipped the exposition, and responded as sparely as I could, being truthful while avoiding any statement of fact that might turn out to be false or at least ambiguous.
It was the wrong decision. At the end of my answer, Castillo glared at me, then turned his face away to study the paneling. After a pause that lasted a week, he dramatically sucked air through clenched teeth and emphasized every word. “That. Was. A. Very. Very. Careful. Answer. Ms. Haake.”
Feeling naked, I thought, of course it’s a careful answer. You’re a federal judge, and I need to keep my law license. I’d think you’d always prefer careful answers to bombast. But I didn’t say any of that. Chastised, reading his mood, I thought it was best to just take the hit.
The exchange wasn’t outcome determinative; in thirty years, I’ve never lost a jury trial or even a summary judgment. The point of the story is that members of the federal trial bar do not toy with federal judges without real fear. They do not get smart, evasive, or argumentative. Any question the judge deems relevant, you answer, whether you agree it’s relevant or not. To prepare for hearings- all hearings, any hearing you need to win- you try to anticipate questions the judge might ask, and if you don’t know the answer, you find out. If he asks an unexpected question you can’t answer, you respond with what you know, and you make very, very clear why you don’t know what you don’t know.
Trump lawyers are a different breed
Not so Trump’s DOJ lawyers. At a hearing last week about Trump’s deportation of Venezuelan immigrants to an El Salvador prison, Trump lawyer Abhishek Kambli refused to answer Judge James Boasberg’s entirely expected questions, and claimed that the president didn’t have to follow the judge’s order in any event. The DOJ argued in a court filing that, “there is no justification (for the court) to order the provision of additional information,” and that “the Government should not be required to disclose sensitive information bearing on national security and foreign relations.”
There was nothing classified about where the deportation flights went, who was on them, or why; Trump had made it a flashy PR stunt meant for mass consumption. Fox News repeatedly published footage of the flights, along with footage of prisoners’ heads being shaved, showing them degraded, cowered, chained, and bent over, and depicting the El Salvador slave-labor prison itself, including armed guards and prison staff. There is no alternative universe where what time the planes departed and who was on them could be deemed a “national security” secret after they landed.
In 30 years of federal litigation, I have never heard an attorney tell a federal judge that he didn’t have to answer his questions. On rare occasions when legitimate confidentiality issues arise, attorneys may answer the judge’s questions under seal, but they never tell the judge he can’t ask. Most members of the federal trial bar would likely agree that Kambli and every Trump lawyer who openly flouts judicial rules should be sanctioned under Rule 11; we don’t need scofflaws brandishing law licenses to mock the very foundation of the legal system to which we have dedicated our lives.
Lawlessness, served with a side of snark
By now it is obvious that the Trump administration disobeyed a direct order from a federal judge. History books will regard March 15 as the day American democracy retreated, not with a bang but with a whimper and a side order of snark.
White House Press Secretary Karoline Leavitt, with characteristic cluelessness about her own vapidity, wrote on X that a “single judge in a single city cannot direct the movements of an aircraft carrying foreign alien terrorists who were physically expelled from U.S. soil.”
Leavitt, who was a communications intern in Trump 1.0, is not a lawyer. That didn’t diminish her absurdly strident legal opinion that, “as the Supreme Court has repeatedly made clear — federal courts generally have no jurisdiction over the President’s conduct of foreign affairs… and his core Article II powers to repel a declared invasion.” Wrong again. Laughably wrong. The Supreme Court has repeatedly made clear, since Marbury v. Madison in 1803, that it is up to the Courts- not Trump or his spokes child- to determine what the law is. That federal law involves foreign relations has no bearing on that fundamental governance ruling.
The Supreme Court created this monster
Trump capped off the whole affair by demanding Judge Boasberg’s impeachment, posting on Truth Social that, “This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President… This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”
Trump isn’t just defying Judge Boasberg’s orders, which itself represents a Constitutional crisis. He is also trying to weaken the legal profession, by trying to put law firms who challenge his unlawful actions out of business.
Supreme Court Chief Justice John Roberts, checking the monster he created when he gave Trump the absolute power of criminal immunity, intervened in the matter, issuing a rare semi-rebuke telling Trump that, '“for more than two centuries,” the normal appellate review process has not included judicial impeachment.
A senior White House official said the deportations case is “headed to the Supreme Court. And we're going to win.” To ponder their certainty is to fall into a long dark rabbit hole dug by the corruption of Alito and Thomas.
The Supreme Court should try to correct its mistake
When a president manufactures a fake “invasion” under the Alien Enemies Act, a wartime law from 1798, to justify his unconstitutional actions, he is declaring that the law does not apply to him. It's a continuation of Trump TV’s lowest-common-denominator-pandering recklessness that will, sooner or later, lead to bloodshed as Trump expands his definition of ‘invasion’ to any conduct, speech or person he doesn’t like.
Here’s some free legal advice to Venezuelans caught up in Trump’s nightmare: Amend your complaint. File in state court. Get a state prosecutor to allege specific grounds supporting criminal liability against Trump, to give the Roberts court an opportunity to delimit its immunity ruling. Identify specific acts Trump has taken to harm you that cannot be construed as core executive functions. This will prompt Roberts to list some conduct that is—and conversely that can never be—a core executive function, to diffuse Trump’s notion that he can get away with murder. Hint: trying to impeach a federal judge is not, and can never be, a core executive function. Encouraging MAGA to murder a federal judge is not, and can never be, a core executive function. Lying to American citizens about a foreign invasion is not, and can never be, a core executive function.
Trump, who is clearly planning to stay in office past his expiration date, will likely disregard that opinion as well, but at least the nation will understand Trump’s lawlessness in plainer terms.
Anyone who is still naive enough to support what Trump is doing should put down the pipe. Democracy cannot exist without the rule of law. If there's no rule of law, flawed, corrupt men with the most money and power will seize control of all resources and they will stay in power by force.
We are dangerously close to that tipping point, and every single American needs to be on alert.
Sabrina Haake is a 25+ year federal trial attorney specializing in 1st and 14th A defense. Her columns are published in Alternet, Chicago Tribune, MSN, Out South Florida, Raw Story, Salon, Smart News and Windy City Times. Her Substack, The Haake Take, is free.
Thanks, Sabrina, for all you do and report to the citizenry. This retired physician/psychiatrist has recently seen footage of two late in the day interviews with DJT and saw clear evidence of a dementing process, aka "sundowner syndrome". He has a deteriorating dementing disorder: confabulation, perseveration, short-term memory loss, poor impulse control, neologisms/poor speech construction/slurring, loss of energy, confusion, etc., but he's slid into this state over time, so the casual observer just thinks he's "lying". Not so, he's sinking into Alzheimer's dementia. It can be seen in his presentation of himself with a different skin tone, hair color, affect daily. As we used to say about our aging elders: "he is failing rapidly now".
I was talking to my philosophy class about the appalling state of the world last week. A young woman spoke up saying that she was a final year law student. She said that she had totally lost faith in the legal profession seeing that most ground floor jobs were going to AI, the world was becoming more and more corrupt and climate change was taking her future. She said that her generation were continually being vilified for being lazy and uncommitted when the truth was that during the pandemic they all gained insights into what a sham the modern world had become. The have all become cynical and nihilistic and over half the class are being treated for anxiety and ADHD. None of them can focus enough to read a few pages of text but they aren't stupid. They know what's going on. The so-called adults in the room have completely betrayed whole generations of young people and Trump and his cronies are the betrayers in chief. They have no idea or interest in the harm they are causing to our future generations as they go about their plundering of the present. Thanks Sabrina for continuing to highlight the differences between mature, responsible adults and the ignorant, egocentric infants now in control.