Bad Judgment
Why is the federal judiciary letting Trump get away with kidnapping and enforced disappearance?
Writing in 1913—in a prescient warning against the rise of a politicized judiciary in America—the historian Brooks Adams provided us with a cautionary tale from England.
When Charles II assumed the throne in 1660—following the restoration of the English monarchy—he set about dispatching everyone he perceived as a political enemy. To do so, he had to find a way to get around the traditional definition of treason at common law—which required the government to prove more than mere thoughts in opposition to the king, but an actual “overt act” (such as rallying troops to invade the kingdom), to find someone guilty.
In Brooks Adams’s telling—Charles II surmounted this obstacle by appointing a man named Jeffreys as his Chief Justice of the courts of England. Jeffreys—a creature of the monarchy—duly came up with a novel legal doctrine that solved the king’s difficulty for him. From now on, according to Jeffreys, “to write is to commit an overt act.” Thus—the mere expression in written form of thoughts critical of the monarchy became a capital offense.
Algernon Sidney and other critics of monarchical absolutism were promptly executed according to this new legal definition of “treason.”
Trump would obviously like for his path to be as clear as Charles II’s was to dispatching his own Algernon Sidneys. He spent the last week, after all, forcing out a federal prosecutor in Virginia for failing to bring charges against former FBI director James Comey, and publicly berating his own Attorney General on social media for not prosecuting his perceived enemies and critics fast enough.
Now, the clock on the statute of limitations may be about to run out on Comey’s supposed offenses, before anyone in the Justice Department manages to come up with a criminal charge to hang on him—let alone secure an indictment from a grand jury. (Meanwhile, in the real world—as the rest of us all remember—no other human being did more single-handedly to get Trump elected in the first place than James Comey, however pure his motives at the time may have been; but tyranny is nothing if not fickle.)
So, the U.S. legal system may not yet be quite as far gone as that of the Stuart monarchy. But we do have a disturbingly high and seemingly growing number of “Jeffreys” on our federal bench—all too willing to bend the rules in the government’s favor.
Too Many Jeffreys
Earlier this month, there was both good news and bad news from the Fifth Circuit Court of Appeals. The good news was that the court—one of the most conservative in the country—blocked the Trump administration from using the Alien Enemies Act to deport more people to a secret prison in El Salvador.
The bad news was that the decision was made by a mere 2-to-1 vote. Only one judge, then, cast the deciding vote that made the difference as to whether the court would uphold the most basic constitutional safeguards against people being kidnapped and involuntarily renditioned to indefinite confinement in a foreign gulag.
More good news: both a Republican and a Democratic appointee favored the move to block the administration from carrying out these deportations.
More bad news: the argument that carried the day with the Republican appointee could be vulnerable to future actions by the administration.
After all, the Republican-appointed judge said that the court would defer to any merely factual determination by the administration; even if it did not defer to their legal conclusions. And, on the facts the administration presented, the judge ruled that they did not meet the definition of an actual invasion or war, such as would justify the use of the Alien Enemies Act.
But this argument obviously leaves an opening for the administration to simply come back and assert new, bogus facts. Or even—to change the facts on the ground such that they suddenly have a more plausible case to declare a state of war.
Many legal observers fear, for instance, that the administration’s recent war games and illegal drone strikes on civilian targets near Venezuela may be partially intended to serve as a pretext to invoke the Alien Enemies Act against Venezuelan asylum-seekers on a new legal basis.
More bad news: the one judge on the panel of three who dissented did so by means of a very worrying dissent. His argument was the courts essentially had no business whatsoever second-guessing the president’s foreign policy decisions—even when they involve the abduction of people from U.S. soil and their enforced confinement without charge or trial—at the U.S.’s taxpayer expense—in a Salvadoran dungeon.
Who was that judge? That was Andrew Oldham. He is one of several judges on the federal bench who have given every sign in recent months of being an incipient Jeffreys.
Meet the Jeffreys
Emil Bove III is another good candidate to be the Jeffreys of our time. You may recall him from his stint as the Justice Department attorney who—in the mere months he served in the administration—managed to be at the center of every major scandal of corruption and defiance in which the department was embroiled, at the start of Trump’s second term.
He was the one who appeared to cut a deal with Eric Adams in New York so as to gain leverage over the mayor’s cooperation with Trump’s immigration policies—a decision that prompted the resignation in protest of several high-level career DOJ attorneys.
He was also the one who—according to one government whistleblower—told his underlings that they might have to “say fuck you to the courts” if the latter tried to block the administration from deporting people to the Salvadoran prison (which the courts did, in an order which Bove and his team immediately defied by keeping planes full of 250 innocent people in their air—so that they could be indefinitely jailed and brutalized at the hands of the administration’s paid captors in El Salvador).
For this inspiring, if brief, career in public service—Bove has now been rewarded with a lifetime appointment as a federal judge on the Third Circuit Court of Appeals. He assumed his new position at the start of this month.
But he’s not the only Jeffreys we have on the federal bench. There’s also Neomi Rao—a judge on the D.C. Circuit, who has gone out of her way to circumvent obvious legal principles in order to deliver a win every time for the Trump administration.
Andrew Oldham. Neomi Rao. What else do they in common? They are both on the short-list to be considered for Trump’s next appointment to the U.S. Supreme Court—should a seat open up while he is still president.
If you wonder why they seem so desperate to demonstrate their lack of integrity and willingness to shill for the administration—there’s your answer. They are auditioning before an audience of one.
Elect a sociopath to the White House, and pretty soon the sociopathy starts to trickle down through the whole legal system. You get a government that rewards sociopaths. And if some judges on the federal bench resist the trend—there will always be others who have their eye on the main chance and are willing to say: “pick me, Trump, I’ll do anything you say!”
Chief Jeffreys of the Supreme Court
But the Jeffreys aren’t confined to the appellate level. We may even have a few on the nation’s highest court. Five or six, by my count (the jury is still out on whether John Roberts will prove to be Chief Justice or Chief Jeffreys).
Let’s see—in recent months, the U.S. Supreme Court has allowed the Trump administration to fire heads of independent executive agencies (in violation of their own former precedent); to impound funds appropriated by Congress (in violation of federal statute and the constitutional separation of powers); to deport hundreds of thousands of people who previously had legal status in the United States based on flagrantly discriminatory and pretextual grounds; and to racially profile people in Los Angeles—arresting and detaining people based on their perceived ethnic identity or the fact that they speak Spanish.
More often than not, the Court has announced these decisions through temporary emergency orders with no legal reasoning. Thus, we get lengthy, 100+ page decisions from lower courts, duly applying the Supreme Court’s own precedents and the words of federal statutes to block the administration’s actions. And then, the Supreme Court’s conservative majority comes in and overturns these well-reasoned opinions without even explaining why.
Indefinitely Detained in Africa
Most bizarrely of all—the Court has been completely inconsistent in the way it approaches these cases. They (rightly) moved to stop the Trump administration from sending more people to El Salvador without at least offering them a chance to bring habeas petitions. But they did not make the same exception for people whom the administration is deporting to similar circumstances in Africa, without first offering them due process under the Convention Against Torture.
Right now—several men are being confined indefinitely in the small African kingdom of Eswatini, after being deported from the United States. One of the five people being jailed under these circumstances has since been repatriated to Jamaica—but four others remain under lock and key in the African kingdom.
Meanwhile, the administration also deported fourteen people to Ghana, several of whom already had received protections from U.S. immigration courts under the Convention Against Torture. These orders bar the government from removing people to places where they have demonstrated a reasonable fear of torture. But the Trump administration appears to have circumvented these protections by outsourcing their dirty work to Ghana.
While they were on the plane to Ghana, U.S. authorities allegedly told the fourteen men that they would be sent from there to their home countries—in violation of the Convention. After their arrival in Ghana, the 14 men were jailed in an outdoor detention camp—and several of them were removed to the very countries they originally fled, and from which U.S. immigration courts ostensibly promised them protection.
In short—much as with the forced removals to El Salvador—the Trump administration appears to be engaged in a pattern of abduction and enforced disappearance. That should be viewed as a crime. “This case has elements of what we call kidnapping or human trafficking, where you move people from one state or another without their consent,” as one human rights attorney recently told the New York Times.
Yet, the Supreme Court has so far allowed Trump to get away with this.
“Short of the King’s Command”
Defenders of the Court’s conservative majority often say: “they are picking their battles. They are biding their time. They are finding small ways to challenge the administration, while letting them get away with other parts of their agenda so as to avoid a constitutional crisis.”
As one Harvard law professor argued this summer: the Supreme Court is just playing the “long game.”
Another law professor made a similar point on a recent episode of the Ezra Klein podcast:
I think what you are seeing is this court has a fair deal of respect for the rule of law but also understands that it’s in challenging times. And it’s kind of trying to pick spots. They might not be picking the spots to the extent that you would like to see them or other critics of the court would like to see them. But I am struck by the fact that they have picked some spots.
This is quite similar to the defense that the historical Jeffreys made on his own behalf.
After the Glorious Revolution that ended the English absolute monarchy and established Britain’s modern constitutional order, Jeffreys ended up in the Tower of London.
From there, he protested in his own defense—in Brooks Adams’s telling—that “all the blood he had shed fell short of the King’s command.”
In other words, Jeffreys felt sure that he had “picked some spots.” As many murders as he had helped the King to commit—he maintained—at least he didn’t allow the King to commit even more.
I can’t help but feel that the Supreme Court is doing about as well as Jeffreys right now.
To be sure—just like Jeffreys—they could be doing even worse. They could have let Trump deport even more people to El Salvador—and who knows how many hundreds or thousands of other people might now be immured in CECOT on Trump’s orders—how many U.S. citizens, even, the administration might have kidnapped and sent there (which Trump repeatedly expressed a desire to do)—if the Court hadn’t intervened to stop him.
The blood that John Roberts has let Trump shed has thus been “short of the King’s command.”
But that answer does no good for the four men still stranded in a forever prison in Eswatini right now.
Or for the 14 men who were confined in an outdoor prison camp in Ghana, under threat of removal to the very places the U.S. government gave its word it would never send them.
For those crimes—we have not only to thank Trump; but also our modern-day Jeffreys on the federal bench: Emil Bove. Andrew Oldham. Brett Kavanaugh. Clarence Thomas. Samuel Alito. Neil Gorsuch. Even, it increasingly seems, Barrett and Roberts.
How many Jeffreys can one bench fit?
Let them enjoy their judicial prestige and power while it lasts. Let them taste the crumbs that fall to them from the table of their tyrant master. Like the historical Jeffreys, they have had their reward.
For—as the poet Edgar Lee Masters once wrote of his own fictional “Circuit Judge”—
[W]orse than the anger of the wronged,
The curses of the poor,
Was to lie speechless, yet with vision clear,
Seeing that even Hod Putt, the murderer,
Hanged by my sentence,
Was innocent in soul compared with me.