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By Thomas G. Moukawsher
Retired Judge and Author
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These days, the White House looks like Mad Max meets Monty Python—recently featuring a cage fight that is a spoof of Donald Trump’s preposterous presidency. Whether Trump had a right to use the People’s House to make money off a blood sport on his birthday is a question that symbolizes the struggle between Trump and the law: every time the courts kick back, Trump doubles down with some new outrage.
Think about what this latest assault on the law shows. It’s the president using the White House to make money for a company he invested in and to sell Trump-branded merchandise. Yes, all presidents have shown forms of hospitality at the White House to their donors and supporters. But surely you can see the difference here? It’s one thing to engage in politics in a political place. It’s another thing to repeatedly line your personal pockets using the political position the people put you in.
So, what did the judiciary do? It went down for the count, refusing to issue a ruling in time to stop the fight night. That doesn’t mean this for-profit spectacle was legal. It likely reflects something more sinister: Trump has done so many things so illegally and so quickly that the courts have become punch drunk.
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You can always tell when a court wants to duck an issue. One of the biggest is for the court to find some procedural flaw—the wrong people brought the lawsuit is a favorite. That was the main ground in the UFC fight case. The Supreme Court similarly used a technicality, in this case about injunctions, to brush off the original challenge to Trump’s attack on birthright citizenship—and the Court continues dithering with the citizenship issue as its term draws to an end.
Courts are likely worrying that they’re losing credibility by repeatedly ruling against Trump. His score stands right now at 67 losses and seven wins. After each loss, Trump rails against the courts calling them demented, political and corrupt. Why are they picking on him, he demands?
Al Capone could have asked the same question. If you keep breaking the law, the courts are supposed to hold you to account. Judges of all stripes have agreed about this in Trump’s cases. There has been little difference in rulings among judges thought to be conservative, centrist or liberal.
So, it’s time for judges to take off the gloves and put on the robe for battle. If there’s anything that experience with Trump has taught us—from tariffs to Tehran—is that Trump TACOs whenever someone smacks him on the snout instead of dodging, weaving and rope-a-doping him like the cowardly media tycoons and foolish law firms that handed him cash and services in the vain hope that he would go away.
What does standing up to Trump look like? It looks like the rulings of Judge William Young as opposed to the temporizing, trembling, tentative rulings of the United States Supreme Court. Young warned that the president is a lawless bully. Supreme Court justices, on the other hand, have thrown the carcasses of a few cases into his hungry maw in the hope that he will leave them alone—or at least be less scathing when they occasionally challenge him.
What explains the difference between Young and the Supreme Court? Young was appointed by Ronald Reagan. He’s 85 years old. His days in the ring are almost over. He has no reason to throw a fight here and there in the vain hope of becoming a contender. But some members of the Supreme Court may still nourish such hopes—hope that one of them might someday be chief justice, for instance.
But they’re making a mistake. Someday soon—it happened after Nixon—America may be looking for public officials, including judges, who have put fidelity to the law—integrity in office—over love of self-advancement. Standing up against Trump may become the measure of a judge’s merit.
So, regardless of motive, judges should fight back. No more bobbing and weaving. No phony delays and evasions. Crisp clear rulings adhering to the rule of law—until one day this black blot on our backsides is obliterated and American writes a new chapter of fidelity to law and order.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former leader within the American Bar Association. He is the author of the book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It*.*
The views expressed in this article are the writer’s own.
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