Donald Trump’s attach on judges who ruled on his Muslim ban has sparked a sharp rebuke from two top legal scholars. (Photo; Getty)
Donald Trump’s attack on the judiciary following the setback of his Muslim ban in the Ninth Circuit Court of Appeals is unprecedented for a president and risks making him “an enemy of the law and the Constitution,” according to two noted legal scholars.
Martha Minow, dean and professor of law at Harvard Law School and Robert Post, dean and professor of law at Yale Law School, raised red flags over Trump’s actions in a scathing article published by The Boston Globe.
“By questioning the legitimacy and authority of judges, Trump seems perilously close to characterizing the law as simply one more enemy to be smashed into submission,” they wrote in the joint by-line article.
“At risk are the legal practices and protections that guard our freedom and our safety from the mob violence that destroyed democracies in the 1930s.”
It can’t go unnoticed that their reference is to the rise of Hitler in Germany.
The independence of German judges was guaranteed by the Weimar Constitution following World War I.
But the Nazi party launched a purge of judges after taking power. They also set up so-called “People’s Courts,” controlled by the party outside of the judiciary, to handle all “political” cases.
Defense counsel in these courts were limited to specially admitted attorneys and decisions could not be appealed. Later, people opposed to the regime were regularly imprisoned without a hearing.
Trump attacked U.S. District Court Judge James Robart on social media following his ruling to stay the ban on the likelihood it was unconstitutional.
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Trump Tweeted.
He continued his attack on the three-judge appeals court panel for upholding Robart’s order.
In another Twitter rant he called their ruling “disgraceful,” and questioned the court’s power to halt a presidential order. A “bad high school student would understand this,” he wrote.
Trump’s disdain for the judiciary is long-standing. Last year, he accused a judge of bias because of his Mexican heritage, even though it had nothing to do with the case–a Trump University fraud lawsuit–before him.
Post said he felt compelled to speak out because Trump’s actions were an “attack on the rule of law.”
Significantly the law school deans wrote:
“Now Trump is attacking anyone who calls him to account — senators, scientists, the civil service, the media, and the Democratic Party, to name a few. His approach divides the world between friends and enemies, vividly reminding us of the political philosophy of notorious theorist Carl Schmitt. Politics, Schmitt said, was an existential struggle for survival that requires us to destroy those who oppose us. It is no surprise, therefore, that Trump tells us that he is in a ‘running war’ with the media, and that Trump’s trusted adviser, Stephen Bannon, instructs the press to “keep its mouth shut and just listen for while.”
The evident goal of Trump’s ban was to maximize the political impact of the order while minimizing the reasonable restraints that a respect for law might impose,” the professors wrote.
“The executive order produced pointless confusion and massive heartbreak. It caused untold and needless suffering among the more than 100,000 affected by the administration’s secret revocation of already-granted visas,” the added.
Trump’s actions also feed into the “’clash of civilizations’ narrative used by Islamic radicals to recruit those, including disaffected American citizens, who would attack this country.”
American Bar Association president Linda Klein has also joined Trump’s chorus of critics. “There are no ‘so-called’ judges in America,” she said in a speech last week.
“There are simply judges, fair and impartial. And we must keep it that way,” she added.
Trump’s own Supreme Court nominee, Neil Gorsuch, called the president’s tweets attacking the court “disheartening” and “demoralizing.”
“If Trump believes he can make an enemy of the law and of the Constitution, then he has truly become a foe of the Republic, despite the oath he swore at his inauguration,” the law school professors wrote.