The past week brought a relentless deluge of legal news for former President Donald J. Trump. It was all negative and partly came courtesy of judges he or former Republican President Ronald Reagan had appointed.
Judge Raymond J. Dearie, a Reagan appointee who serves as a special teacher to examine documents seized by the FBI during the August search of Trump’s Florida home, was suitably skeptical of the Trump team’s legal tactics and asked Tuesday that Trump’s lawyers back up some of Trump’s claims with evidence. Then, the next day, a three-judge appeals panel with two Trump-nominated judges overturned a previous ruling that had erroneously gone in Trump’s favor.
The past week brought a relentless deluge of legal news for former President Donald J. Trump. Everything was bad.
Nor does the above include the lawsuit filed by New York Attorney General Letitia James accusing Trump and the Trump Organization of civil fraud. That civil lawsuit threatens to undermine the tale that Trump is a successful businessman worthy of our trust as the leader of the free world. The criminal investigation into how the documents according to the Justice Department are sensitive and ended up in Trump’s Florida home could threaten the freedom of anyone involved. And Americans aren’t wrong to worry about how Trump stacking up the judiciary might come into play.
But the rulings related to the FBI’s search for Mar-a-Lago show that there is something in Chief Judge John Roberts’ statement: “We have no Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges who do their best to do the same right to those who appear before them. ” Roberts made that statement in 2018, in response to an angry Trump who rejected a ruling against his administration as if it came from a “judge Obama”.
Reader, I can hear you from here. You’re yelling at me that my argument is nonsense (you just won’t use that word) and that all we have to do is look to the Supreme Court to see how much Republican-appointed federal judges have shaped, often for the worse, ours. country. Remember, are you saying, when women had the constitutionally protected right to obtain abortion? I remember and agree that thanks in part to the three Supreme Court justices Trump appointed that right no longer exists.
But it’s also true that Republican-appointed federal judges don’t always pronounce themselves in ways that bring political victories to Republican politicians. In the aftermath of the 2020 election, Trump and his supporters filed unfounded lawsuits across the country. They were evenly rejected by judges from both political bands.
On Wednesday, at the US Eleventh Circuit Court of Appeals, a three-judge jury, consisting of two Trump-nominated and one Obama nominated, handed Trump a significant legal setback. The three judges unanimously applauded an extremely erroneous opinion written by United States District Judge Aileen Cannon, who had ruled that the Justice Department should suspend examination of confidential documents found in Mar-a-Lago. The three appellate judges concluded that, contrary to Cannon’s ruling, the Justice Department may continue to use documents marked classified that were found at Trump’s home and that the special commander did not need to review those documents.
Trump’s legal team had fared no better on Tuesday, the day before, during Dearie’s first hearing as a special teacher. It was Trump, of course, who asked for a special master to review the documents for attorney-client privilege matters (which the Department of Justice filter team had already done) and executive privilege matters (which cannot legally exist in this. scenario). Trump proposed two names of people to fill the role of special teacher and the Justice Department accepted Dearie. But given Dearie’s impartiality so far, Trump and his team may regret asking for a special teacher.
Once again, Dearie held his hearing the day before the 11th Circuit denied Trump access to FBI-obtained documents in Mar-a-Lago that were marked classified and allowed the Justice Department to continue. to use those documents in his investigations.
Out of court, Trump claimed that he was properly in possession of many of the documents found by the FBI because he had declassified them. But in the court documents, Trump’s team was careful to say only that Trump had the power to declassify the documents, not that he actually declassified the documents. In Dearie’s court on Tuesday, Trump’s legal team declined to provide any evidence that Trump declassified any of these documents. This prompted Dearie’s viral comment: “You can’t have your cake and eat it too.”
Of course, even if Trump declassified these documents, that wouldn’t necessarily save him from criminal liability if the Justice Department prosecuted the charges against him. Some documents need to be properly stored and managed, even if they have been declassified.
The Dearie order can best be described as a “hush or hush” time for Trump and his team.
Out of court, that is, not under oath, Trump claimed that the FBI may have placed the documents left at his home. Dearie has ordered Trump’s legal team to state in a court filing, which means under penalty of perjury, if the legal team thinks the FBI agents lied about the documents that were obtained in Mar-a-Lago. . The Dearie order can best be described as a “hush or hush” time for Trump and his team.
It’s hard to gauge which legal news was worse for Trump last week. But a big plus is that contrary to how Trump might have expected them to behave, the judges he or other nominated Republicans are not jumping on his side. Instead, in two different courtrooms, Republican-appointed judges handed Trump major legal setbacks. The 11th Circuit corrected part of Cannon’s erroneous legal ruling and allowed the Justice Department to use documents marked classified in its investigation. Dearie bitterly questioned Trump’s legal team and handled the case fairly. These are judges who follow the rule of law. Given Trump’s frivolous claims, this is bad for him.
Let’s not fool ourselves. Sometimes it matters whether or not a judge has been appointed by a Republican president or a Democratic president. And our suspicions of judges as partisan actors are validated. But not always, and not in all cases. Last week was a good reminder of this fact.
Jessica Levinson, a professor at Loyola Law School, is the host of the “Passing Judgment” podcast. She is also director of the Public Service Institute at Loyola Law School, director of the Journalist Law School in Loyola and former president of the Los Angeles Ethics Commission.
