Judges, Justice, and Donald Trump
[On the September 23, 2022 episode of The Bulwark’s “Beg to Differ” podcast, guest Ben Wittes, panelist Will Saletan, and host Mona Charen discuss two legal developments relating to former President Donald Trump: his latest defeat in the case involving the trove of classified documents stored at Mar-a-Lago and the New York state attorney general’s lawsuit accusing him and his family of fraud.]
William Saletan: I think this is a great decision by the Eleventh Circuit, and it’s a kind of a vindication of Trump judges. Mitch McConnell and the Republicans shoved through as many of these judges as they could on to the federal bench, on to the appeals courts, on to the Supreme Court. And people said, “Oh, my God, he’s packing the judiciary with Trumpists.” But it turns out that Trump judges are not monolithic, and they are not necessarily Trump loyalists. So we have at the district level in this case Aileen Cannon, and she is a manifestly incompetent or corrupt or something judge who obviously violated all kinds of precedent in the way that she handled this case. . . . However, two judges that Donald Trump put on the Eleventh Circuit, clearly voted correctly, overruling her. And I would remind everyone that the, you know, the Trump judges on the Supreme Court also did not go with Trump in his corrupt attempts to overturn the election. So there’s a difference between loyalist Trump judges or incompetent Trump judges and plain old Federalist Society judges who, when push comes to shove, uphold the Constitution and uphold precedent and that’s what these judges on the Eleventh Circuit did. . . .
Mona Charen: [New York Attorney General Letitia James] is demanding disgorgement of $250 million, but $100 million of that is based on the profit that Trump made from selling his hotel in D.C. and the profit is nothing like $100 million, and so some people think that she was really reaching with that number. Further, you know, a couple more things. I mean, she did campaign saying that she was going to sue Trump. She campaigned that way, which again, can cast a little bit of a cloud over the case, because it looks like she had already made up her mind. And also the use of that term, “the art of the steal”—maybe it’s a good line, but it, you know, a little less than perfectly professional and cool and detached. What do you make of those things?
Benjamin Wittes: So I was a critic of Letitia James at the time of her campaign. I thought her campaign on the basis of a promise to target a particular person was inappropriate, frankly, and raised some of the same issues in a pale sort of way that Trump’s own abuses of law enforcement and prejudgment of cases raised. I thought it was bad. I do think it taints the current case.
And at the same time, the case has to stand or fall on its own merits. And, you know, I am not actually qualified to discern under New York law or for that matter as a matter of accounting and economics, how one should count the profits from sales of Trump hotels or whether they count as fraudulently gained assets for purposes of disgorgement. I do think the volume of fraud involved in running the Trump Organization over a long period of time probably has given rise to a great deal of ill-gotten profits that will probably be recoverable through litigation like this.
The one caution that I would give other than that Tish James . . . has, to some degree, played in a somewhat Trumpy fashion, is that civil litigation takes a very long time. And the appeals associated with civil litigation also take a very long time. And so nobody should delude themselves that this is any kind of quick resolution, even if it ultimately does lead to a good place.
On the Eleventh Circuit matter, I would just add a note of caution to Will’s enthusiasm for Federalist Society judges. Judge Cannon’s ruling that this stay was slapped on was so outrageously wrong, that it actually is a simple matter of professionalism to put a stay on at the Justice Department’s request, which was a stay as to only 100 of the documents—is so manifestly reasonable and called for. So in a Lawfare piece a week and a half ago or so, I and a couple colleagues essentially wrote the Eleventh Circuit opinion, not that they were copying it from us, but that the answer to these questions was so clear that I think anybody who was not playing in overtly bad faith would have come to something very similar to the conclusion that the Eleventh Circuit came to.
And while I very much agree with Will that people shouldn’t assume that no Federalist Society judges can do their jobs—because in fact, they do every day and, you know, people of diverse politics can get together on legal issues and sort them out a lot of the time—I do think that’s a very low bar to clear before we celebrate the mainstreamness of the Trump judicial appointments.
Charen: Yeah, but Ben, the era in which we live is one where we have seen again and again people that we thought were institutionalists betray those norms and jump on to . . . the populist Trumpy bandwagon. . . . I remember thinking that Bill Barr, for example, was going to be—
Wittes: Well, I did too. And, you know, and there are people who remind me of that literally every day on Twitter, that I “vouched for” Bill Barr and Brett Kavanaugh. So I . . . look, I take your point. I do think if we ever come to the place where you can’t count on Article III judges to, in an apolitical fashion, reverse an opinion as outrageously wrong as Judge Cannon’s was, I think we will be in a worse place than we are.
And I do think it is a great thing that the Eleventh Circuit acted in a completely nonpartisan fashion, acted extremely quickly within 24 hours of getting the government’s last brief, wrote the opinion as a per curiam—that is, as an opinion of the court, not in the name of any judge. And also and quite deliciously, I hope everybody noticed that the opinion is captioned Donald Trump v. United States of America.