President Donald Trump’s attack on the federal judiciary last week came off to many as just the latest in his pattern of insults du jour, lobbed against anyone daring to defy the White House’s designs. The outcry, from congressional Democrats, law professors, and even, if Sen. Richard Blumenthal is to be believed, Supreme Court nominee Neil Gorsuch, was predictable. Gorsuch reportedly called the president’s remarks “demoralizing” and “disheartening.”
Underlying the ritual furor, though, is a set of deeper concerns. Constitutional experts worry that the president’s comments reveal an authoritarian chief executive who may prove unwilling to be checked or balanced by the judiciary. By scorning norms of comity and respect for a coequal branch of government, Trump’s comments also strike at the bedrock of America’s global leadership, which is grounded in the rule of law.
By disrespecting the court and spurning the authoritativeness of judicial interpretations of the U.S. Constitution, Trump has cast doubt on whether he will willingly submit to limitations on his power. For a nation that since World War II has argued that power should always be conferred and confined by law, Trump’s latest remarks are damaging not just at home but around the world.
The president has said the following about the courts and judiciary over the last two weeks in the context of two unfavorable rulings on his immigration ban: He called Seattle-based District Judge James Robart a “so-called judge” and dubbed his opinion in the immigration case “ridiculous.” He then tweeted that the judge’s “terrible decision” would be to blame if “very bad and dangerous people” poured into the country. He commented that even a “bad high school student” would understand that he, Trump, has the authority to limit entry to the United States. And ahead of a ruling by the 9th Circuit Court of Appeals, he remarked: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!” The president called the 9th Circuit’s judicial proceedings “disgraceful” and described the courts as “so political.” In the wake of his insults, threats from Trump supporters directed at the judges involved in the case have led federal authorities to provide them with round-the-clock security protection.
Insulting courts is not the same as dissing, say, Nordstrom, Chicago, Mexico, BuzzFeed, the New York Times, or CNN. No matter how ill-considered and damaging, those aspersions are unquestionably protected by the First Amendment and comparable international legal protections. But the law treats certain types of invective toward the judiciary differently, recognizing that speech can dangerously undermine a branch of government whose authority vests in proceedings, opinions, and orders rather than in force. The judiciary can overturn the actions of Congress or the president yet must rely on enforcement powers controlled by the other branches to put its judgments into effect. That intricate interdependence is at the core of the rule of law, and the system has laws in place to insulate against efforts to subvert it.
In the United States, insult and defiance toward the court are addressed by laws of contempt, which can punish disrespectful and insulting comments made in a courtroom setting. The American Bar Association (ABA) has defined criminal contempt to include “any conduct, verbal or non-verbal, that embarrasses or obstructs the court, derogates from the court’s authority or dignity, [or] brings the administration of justice into disrepute.”
While the First Amendment has led U.S. courts to be more circumspect than those in Europe about punishing contempt of court that occurs out of a judge’s earshot, that, too, may qualify as contempt depending on the circumstances. Just last month, a New Orleans prosecutor was brought up on contempt charges for “insolent, inappropriate and disrespectful” text messages directed toward a judge.
While no one has dared propose that Trump be held in contempt, were he not the president of the United States it is conceivable that one of the judges whom he has insulted could pursue a contempt order, which can lead to fines or jail time, in response to his statements — indeed, experts have begun to debate whether and how a court judgment might be enforced against him. (Though of course, when contempt occurs out of earshot of the court, the accused is entitled to notice and a chance to defend himself.)
Around the world, attacks by political leaders against the judiciary are treated as a serious incursion on the rule of law and a reflection of weakness in democratic systems. In 2015, South Africa’s chief justice, Mogoeng Mogoeng, took the matter head on, scheduling a meeting with President Jacob Zuma to discuss attacks by top African National Congress officials accusing provincial courts of being biased against the government and taking bribes. “We want to meet with President Jacob Zuma over unfair attacks on the courts. Judges are open to criticism, but it should be fair, specific. General, gratuitous criticism is unacceptable,” he stressed.
Just last month, the prime minister of Guyana, Moses Nagamootoo, publicly scolded his own attorney general and minister of legal affairs for attacking the judiciary over a pending case testing presidential term limits, saying: “Our government does not encourage attacks on the legislature and the judiciary. It is not government’s policy or decision to besmirch the character of any judicial officer.” Of note, in both cases the criticisms against the judiciary came from lower-ranked officials, making it possible for the head of state to step in and reject them. Not so when it comes to President Trump.
Trump’s comments have not gone unnoticed around the world. The chair of Ireland’s bar council dubbed them “sinister,” commenting that “we have an executive head of state attacking judges who are required to act independently without fear or favor because he disagrees with their interpretation of the law.”
Martin Solc, the president of the International Bar Association, representing 190 bar associations in 160 countries, said: “The rule of law, the centuries-old legal principle that law should govern a nation, is something that is being chipped away at each time President Trump publicly attacks and disrespects a judge. … It damages public confidence in the judicial system.”
For the U.S. president to be accused on the international stage of so brazenly undercutting the rule of law threatens the country’s credibility as a promoter of legal norms around the world. In 2006, the ABA launched its World Justice Project, aiming to establish a broadly accepted definition for the rule of law globally. Both Republican and Democratic administrations have invested billions of dollars to strengthen the rule of law around the world, including more than $1 billion to build the judicial, corrections, and legal systems in Afghanistan.
The premise behind these investments is that rule of law is the best defense to prevent countries from descending into bloodshed and corruption. Embassies around the world have “rule of law” advisers who work to build the legitimacy and expertise of local lawyers, judges, and lawmakers. All of this effort rests on the notion that, despite serious flaws, the American system of government and legal rule is among the world’s strongest and most stable. Whether American advisers can still, with a straight face, counsel international counterparts on respect for the judiciary in the face of Trump’s remarks remains to be seen.
“Rule of law” as an underpinning of American power globally goes beyond international development, human rights, or nation-building efforts. Allies in Europe, Asia, and elsewhere want the friendship and protection of a powerful Washington because they trust the United States to uphold international norms that preserve their sovereignty and autonomy. The same cannot be said of Russia and China, whose assertions of power are generally greeted more warily. If the United States can no longer be trusted to be rule-bound at home, others will expect the same to be true abroad. Trump’s comments about dismissing treaties and international instruments compound the problem.
The premise of rule of law is that rules and their means of enforcement must be stronger than the ability of any single individual, even a head of state, to thwart them. “Rule of law” was designed precisely to deal with the problem of Donald Trump: a ruler who would arrogate to himself an unfettered ability to remake society according to his will. The decision rendered by the 9th Circuit thus provides an important measure of assurance. At least for now Trump is being checked, like it or not.
But rule of law is not inviolable. If Trump can convince a significant portion of Americans that judges and the law don’t merit respect, courts will find it harder to stop him. Already some customs officers have reportedly defied court orders in implementing the immigration ban. It is essential that standard-bearers for the rule of law unite and visibly resist the president’s incursions on the legitimacy of the judiciary.
The most worrying silence has come from those members of Congress who have failed to forcefully defend a coequal branch of government. This is both morally and strategically shortsighted. For now the president is going after the courts, but attacks on the credibility of Congress cannot be far behind.
For its part, the ABA, after a rocky start that involved pulling a report that warned of Trump’s potential to become a “libel bully,” is beginning to find its voice in the Trump era. While the association’s president criticized Trump’s remarks about Judge Robart, the body should go further in uniting the legal profession across party lines to condemn attacks on judges and courts. U.S. Supreme Court Chief Justice John Roberts serves as chairman of the Judicial Conference, a highly influential body charged with promoting the role and needs of the federal judiciary. The Judicial Conference has in the past addressed attacks on judges and the need for security.
While avoiding partisanship, Roberts, in his role as chief justice, should use his authority to condemn statements and attitudes that threaten the legal system he oversees. His predecessor, Chief Justice William Rehnquist, did just that in 1996 when both the White House and Sen. Bob Dole suggested that a federal trial judge be impeached for leniency on drug cases. In a speech at American University, Chief Justice Rehnquist delivered a stirring defense of judicial independence that silenced talk of retaliation against the judge.
The U.S. system of rule of law is being shock-tested by a president who does not believe the rules should apply to him. It falls to Congress, the legal profession, and the judiciary itself to prove that our system of government is stronger than the will of any one man. If that doesn’t prove true here in the United States, it’s hard to imagine it will continue to mean anything anywhere else.
Nossel is executive director of the Pen American Center and was formerly deputy assistant secretary of state for international organizations at the State Department.