Why Trump’s Attacks On ‘His’ Judges Will Backfire
The president targets the one conservative institution that can still punch back.
More remarkable developments from Ukraine this morning, which just carried out a third strike on one of Vladimir Putin’s pet projects: the bridge connecting Russia to occupied Crimea. Meanwhile, Russian war bloggers have identified the man they believe to be the mastermind of the drone attacks on military targets across Russia this weekend: former Ukrainian DJ Artem Timofeev. Hey, it’s important for guys to have hobbies. Happy Tuesday.
Get Away From My Face, You Leopard!
by Andrew Egger
Donald Trump’s breakup with the conservative legal movement was a long time coming. Most presidents would commit unspeakable acts to get the sort of home-field advantage Trump enjoys in the courts—most notably, a 6–3 conservative Supreme Court, a full third of whom he nominated himself. But Trump has long felt this arrangement entitles him to a certain standard of living: a world where he can operate more or less without judicial oversight. When “his” Supreme Court failed to abet his attempt to steal the 2020 election, he raged that they hadn’t had the “courage” to do what was necessary.
Four-plus years later, the pressure is still mounting, and not just at the Supreme Court level. Republican appointees on court after court have enraged the president as they worked to stymie Trump’s lawless actions.
The broader break with judicial conservatism came last week. On the heels of a 3–0 decision at the U.S. Court of International Trade straitjacketing his tariff authority—a decision that starred one of his own judicial nominees—Trump apparently decided he’d had enough. In a baggy, rambling 500-word post to Truth Social1, he trained his rhetorical fire on judicial conservatism’s ideological home base, the Federalist Society, and its co-founder, former longtime vice president, and current board co-chairman Leonard Leo.
“I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges,” Trump fumed, calling Leo a “real sleazebag” with “his own separate ambitions.” “I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!”
I can’t deny there’s a certain “I never thought the leopards would eat my face” schadenfreude to this. Trump’s openly transactional 2016 embrace of the Federalist Society helped soothe the consciences of a lot of skeptical Republicans: How lawless and megalomaniacal could he REALLY be, if he shares our commitment to originalism and judicial restraint? And the Federalist Society types were perfectly content to let Trump slingshot them into the judiciary by the truckload.
But as he now lashes out in pique, Trump stands to hurt himself more than the Federalist Society. As a confederation organized more around a shared judicial approach than personal loyalties, there may be no group in Republican politics less susceptible to simply being bullied into submission. Instead, Federalist Society-sympathetic judges are likely to perceive Trump’s attack for what it really is: a rejection of the notion that even friendly judges should be able to restrain him at all, and a pledge to appoint nothing but unprincipled lickspittles in the future.
As things stand, there is a plethora of ways his attacks could come back to bite the president. They will only accelerate the growing sense among Federalist Society types already wielding significant judicial power that the president’s lawless actions are less an opportunity for testing out novel legal theories than a danger requiring immediate restraint. A Trump who played nice with the conservative legal movement was a Trump who got goodies like a new and expansive SCOTUS-approved definition of “presidential immunity.” Just eleven months after that ruling was handed down, it’s growing harder to imagine the Court deciding that case in the same way today (not that at least two of the justices wouldn’t try to find a way).
Trump also may find that his attempts to more aggressively shape the judiciary according to his whim result in him getting fewer opportunities to shape it at all. As our friend Gregg Nunziata of the Society for the Rule of Law points out, judges are rational actors who are less likely to retire if they feel they’ll be replaced by presidential toadies.
“Many judges who are eligible to retire or take senior status have been watching to see what they can expect from the White House,” Nunziata told Bloomberg News this week. “These are ominous signs for them.”
Already, we’ve seen other ways in which the legal profession has demonstrated some backbone. Trump’s lawfare campaign against America’s law firms seems to be sputtering out. While the courts have come to the defense of firms that wouldn’t bow to his blackmail, some of the ones that did are paying an unexpected price. The Wall Street Journal reports:
Support for the law firms that didn’t make deals has been growing inside the offices of corporate executives. At least 11 big companies are moving work away from law firms that settled with the administration or are giving—or intend to give—more business to firms that have been targeted but refused to strike deals, according to general counsels at those companies and other people familiar with those decisions.
Yesterday, JVL wrote about what’s becoming a key split screen of Trump 2.0: While official channels start to stiffen their spines against him, he continues to push the envelope anywhere he is permitted to move freely. This is most obvious when it comes to his jubilee of indefensible pardons for allies and his shocking use of federal law enforcement and the military, including the growing deployment of masked plainclothes officers and a purge of top brass thought to be insufficiently “loyal” to Trump himself.
All this is intensely alarming—and if you keep reading below, Bill will alarm you some more. But it would be worse if Trump weren’t finding it tough sledding with civil society and the courts.
Skate to Where the Puck Will Be
by William Kristol
In a talk yesterday, I happened to point out, in a matter-of-fact way, that we were less than 10 percent into the second Trump term. (It’s actually 9.17 percent, but who’s counting?)
This prompted a surprising number of gasps and exclamations from the audience. I said that I really wasn’t trying to be contentious or provocative. It’s just a mathematical fact.
But it is a fact worth a brief comment.
In his newsletter yesterday, JVL made an important point: that while Trump may be losing on some areas of policy and law, he’s winning on power.
Trump, he writes, “is in the process of transforming federal law enforcement into an explicitly political force.” He’s “already made extensive use of the pardon power to reward his allies—including people convicted of using violence in support of his goals,” thus creating “an incentive structure to encourage people to take illegal actions on Trump’s behalf.” And Trump’s secretary of defense has begun to work on purging the military leadership of flag officers who place loyalty to the Constitution over loyalty to Trump.
All of this is . . . not normal in our democracy. Trump may be losing in some courts. His administration is in some disarray. But his authoritarian project is clearly advancing.
The question is: How much more “progress” will that authoritarian project have made a year from now? Three years from now?
The Justice Department has already been weaponized to an extraordinary degree. What will the DOJ look like in a couple of years when far more holdovers and career people have left, and it’s Trump loyalists all the way down? What about DHS and DOD? What do other parts of the federal government look like when Schedule F has been implemented and the number of political appointees, whom the president can hire and fire at will, has increased tenfold? And how habituated will the public be by then to personalized, politicized, autocratic governance? To a regime of reward and punishment and even threats of violence?
We don’t know. Perhaps the authoritarian “progress” will stall or even be reversed in some areas. But it’s wishful to expect a kind of overall reversion to normalcy. We’re more likely than not still to be moving—perhaps at a slower rate, perhaps haltingly, perhaps not—in the authoritarian direction we’re going.
And so, defenders of liberal democracy will need not only to think ahead but to think ahead dynamically. We face an assault on our institutions and norms that, just 10 percent in, is already powerful and likely to get more so. We need to contest this assault as much as we can right now. But we also need to prepare for where we may well be in a couple of years.
As Wayne Gretzky put it, we need to be ready to skate to where the puck is going to be, not where it’s been. We can hope that the puck will just get harmlessly batted around in the neutral zone for the rest of Trump’s term. But it’s more likely that a couple of years from now, we will be under sustained attack from an authoritarian power play, in a contest in which penalties will only be called against one side.
And we can’t count on Wayne Gretzky magically showing up to save us.
AROUND THE BULWARK
Most Corrupt Ever… The most effective way to counter Trump’s patrimonialism? A relentless, focused campaign highlighting Trump as the most corrupt president in American history (which he is). JONATHAN RAUCH explains on The Mona Charen Show.
Trump’s New Pardon Spree… The danger of favoritism for fraudsters and clemency for contributors, writes KIM WEHLE.
A Farewell to The Michael Steele Podcast… Good news and bad news. The good news: Our friend MICHAEL STEELE is cohosting a weekend show on MSNBC! The bad news: His podcast hosted on The Bulwark is coming to a close. But it’s going out with a bang. A dual live-show event with favorite guests. Come remember and send off Michael!
Deporting Someone They Know… SARAH and JVL preview Tuesday’s Triad newsletter with a discussion about the folks in a small, rural Missouri town who are shocked—shocked!—to discover that the Trump administration is deporting someone from their community who they like.
Tech Bros Worship This Weirdo... TIM MILLER chats with WILL SOMMER on Bulwark+ Takes about the New Yorker’s wild profile of Curtis Yarvin, the bizarre internet philosopher influencing MAGA elites, tech billionaires, and the next generation of GOP leaders.
Quick Hits
A TOTAL MYSTERY: As Donald Trump waxes with mystification about why Vladimir Putin would continue to push further into Ukraine on his watch, Russia isn’t taking its foot off the gas in the slightest. Dmitry Medvedev, deputy chairman of Russia’s Security Council, said in an overnight Telegram post that ongoing peace talks “are not for striking a compromise peace on someone else’s delusional terms but for ensuring our swift victory and the complete destruction of the neo-Nazi regime,” a reference to Ukraine’s government under Volodymyr Zelensky.
The comment came on the heels of short, largely unproductive peace talks between the two nations, which lasted barely an hour in Istanbul Monday. Russia continues to demand that Ukraine relinquish control over the territory Russian forces now hold and some more besides, while insisting Ukraine abandon all plans to join NATO and accept limits to the size of its military. These are all proposals Ukraine has flatly rejected.
In a pair of posts last week, Trump lamented that “something has happened” to Putin, who has “gone absolutely CRAZY” and is “needlessly killing a lot of people.” “He’s playing with fire!” he went on to say. As Russia and Ukraine both stepped up their military operations over the weekend, Trump remained silent. Perhaps the best indication of how the Trump administration is now perceived in this entanglement was that Ukraine reportedly declined to give the United States advance notice of Sunday’s major drone operation.
DELAY, DENY, DEFEND: After weeks of explosive developments, the White House’s conflict with judges determined to rein in the president’s lawless, no-process deportation regime is no closer to a resolution. The New York Times reports:
Over and over, officials have either violated orders or used an array of obfuscations and delays to prevent federal judges from deciding whether violations took place.
So far, no one in the White House or any federal agency has had to pay a price for this obstructionist behavior, but penalties could still be in the offing. Three judges in three different courthouses who have been overseeing deportation cases have said they are considering whether to hold the administration in contempt.
The proceedings surrounding the deportation of Kilmar Abrego Garcia to El Salvador are a case in point:
In a sternly worded ruling in Federal District Court in Maryland, Judge Xinis instructed the Justice Department to tell her what steps the White House had taken, and planned to take, to free the man, Kilmar Armando Abrego Garcia, from Salvadoran custody. And she wanted answers quickly, declaring that her inquiry would take only two weeks.
That was seven weeks ago, and lawyers for Mr. Abrego Garcia say they are no closer now than they were then to understanding why their client was sent to El Salvador or what the government has done to fix what officials have acknowledged was an “administrative error.”
The lawyers described the White House’s strategy as “a pattern of deliberate delay and bad faith refusal to comply with court orders,” adding that “the patina of promises by government lawyers to do tomorrow that which they were already obligated to do yesterday has worn thin.”
FROM BAD TO WORSE: Conditions continue to grow more desperate for starving civilians inside the Gaza Strip. After two months of near-total blockade of food, water, and humanitarian aid entering Gaza, Israel over the weekend began permitting some daily distributions from a controversial, U.S.-backed organization: the Gaza Humanitarian Foundation. That organization’s standing up of distribution sites have been marred by reports of violence. Gaza’s Hamas-run Health Ministry and international nonprofits operating in the region claimed gunfire erupted outside two distribution centers on Sunday, reportedly killing dozens and injuring many more. Israel denied that its soldiers fired on civilians beyond “warning shots.”
Cheap Shots
Like most of us, Trump turns out to have benefited from the artificial post-length constraints of old Twitter.
There is a reason why folks like Russ Vought and Leonard Leo have such tremendous influence in the Trump Administration. It's because, for all the cult believes Trump is some indefatigable champion of the forgotten man who works ceaselessly on their behalf all hours of the day, in reality, Trump is an indolent ignoramus who is content to outsource every bit of work and cognitive overhead required of the job of the presidency. Vought said he would make all the personnel decisions so Trump wouldn't have to, and that's a great deal to someone as stupid and lazy as Trump. It was why anyone who found credible Trump's disavowals of Project 2025 during the campaign is a person who hasn't been paying attention. Leo offered Trump vetted judicial candidates by the dozens; Trump had to do nothing but bask in the credit of appointing hundreds of judges. No work, lots of adulation, an irresistible deal for a lazy narcissist who really wants people to think that he's actually working very hard. The degree to which so many people seem to have no idea who Trump really is, a lazy, corrupt, ignorant, corner-cutting, cheating sleazebag, it's really hard to navigate a world with this many willfully blind people.
Why is anyone surprised that Ukraine didn't consult the US about this weekend's strike? When we cut off aid, we also cut off our influence. Surely the folks who are restoring our greatness were aware of this.