An ex-judge has put out a serious warning about the Trump administration’s “creeping” defiance of federal judges. According to the retired jurist, President Donald Trump’s officials are edging perilously close to open insubordination, with court cases they seem set to pursue even after the bench told them to halt.
Jeremy Fogel, a former federal judge and part of the Article III Coalition’s bipartisan membership, voiced his concerns in an interview with Charlie Sykes on the To the Contrary podcast.
When asked whether the administration would flatly refuse a court order, Fogel said that sort of outright defiance has not materialized, as some feared. Yet he sees the administration putting its limits to the test.
“They’re getting closer and closer,” he said. “It is a creeping tendency of sorts.”
One example is the dispute over Trump’s intentions to rework the East Potomac Golf Course in Washington. A judge called for prior notice before any major alterations were made. Government workers felled more than 400 trees all the same, and a court hearing got very heated.
Fogel saw the administration’s handling of it as indicative of the issue at hand. The officials zeroed in on the exact phrasing of the judge’s directive instead of what the court was meant to be averting.
“You know what the court’s intention is and you ignore it and proceed. It is not outright defiance, but it is clear enough,” he said.
The administration has put in an appeal of the most recent ruling, contending the tree removal had nothing to do with the president’s redevelopment scheme.
Then there is Minnesota, where federal judges have voiced frustration with Justice Department types not seeing to immigration orders in a timely fashion. The department has since lodged a misconduct complaint with the judges who made the matter public.
Such run-ins are wearing down a relationship built on trust, in Fogel’s view. In his 20 years on the federal bench, he remembers government attorneys as professionals who did their duty come what may from the White House. These days he speaks of an “incredible erosion in trust.”
At a get-together in September of some 120 or 130 federal judges, Fogel asked them how many had been threatened in a manner that they took seriously, and over half put up a hand. He quickly said the exercise was hardly a scientific survey, but the strain on the judges and their families is no less.
What keeps Fogel up is the prospect of an administration coming to regard court orders as optional.
“The courts can’t enforce their own orders without the other branches’ assistance,” he said.
And as for restoring trust, he cautioned that a new administration will not be enough.