A New “TrumpLaw” May Be Taking Hold; But Only at Mar-a-Lago and With Trump Judges
An Alternative Version Of TrumpLaw
WASHINGTON, D.C. (September 13, 2022) – An alternative version or definition of “TrumpLaw” may be taking hold, at least at Mar-a-Lago and with Trump judges, says public interest law professor John Banzhaf, who helped call attention to the original version of TrumpLaw which was coined and used during President Donald Trump’s early days in office.
In both usages it refers to lawless actions by judges, motivated by strong personal feelings for or against Trump, rather than by legal precedent and ordinary judicial restraint.
Originally used to describe the tendency of many judges - those opposed to Trump and his unusual if not outrageous actions - to bend the law as far as possible to thwart him and his proposals.
The term TrumpLaw is now beginning to be used as a criticism of Trump-appointed judges, including Judge Aileen Cannon who seems to be bending the law to favor the person who appointed her to the bench. Here's how Banzhaf first explained the original use of the word.
There was growing concern and recognition - even among Trump detractors, and liberal papers such as the New York Times - that courts appeared to be adopting a new jurisprudence called "TrumpLaw" aimed uniquely at this President.
A method of judging cases which is aimed specifically at countering some of the practices of President Trump, even if this development means creating new legal principles and/or overlooking (or at least minimizing) other established ones.
Even more alarming is that even those in favor of this new approach to deciding cases appeared concerned not only that it will extend too far and possibly hobble his successor, but that the new legal principles being developed could create precedents which would carry over and adversely affect other presidents, and even agency heads, in the future.
For example, the New York Times described this new TrumpLaw method of deciding cases as "a set of restrictions on presidential action that only apply to Donald Trump.
This president cannot do things that would be perfectly legal if any other president did them, under this standard, because the courts will rule against his past demagogy rather than the policies themselves."
While hardly in favor of the President's so-called Muslim bans, the Times was nevertheless worried that the various court decisions staying the bans establish "a precedent that would further politicize an already-partisan judiciary, by licensing judges to constantly look beyond the law for excuses to rule against politicians (liberal or conservative) they dislike."
David French of the National Review, who has been described as a NeverTrumper, nevertheless warned early on about this "strange madness [which] is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump."
A Radical Departure From Existing Law
In his words, "when existing precedent either doesn't apply or cuts against the overriding demand to stop Trump, then it's up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the 'right' result'."
"An otherwise lawful order is unlawful only because Donald Trump issued it... All this adds up to TrumpLaw, the assertion by the federal judiciary of the legal authority to stop Trump."
Law Professor Paul Horwitz defines it as "about lower courts developing a form of what some critics call 'TrumpLaw,' law responding to and designed especially for the Trump administration" and "may be seen as a radical departure from existing law and in effect a lawless set of actions."
He writes that in some instances "it constitutes utter resistance to the Trump administration and its policies," although "one might argue that the worse and more dangerous the administration's actions are, the more necessary it is to resist them per se."
Attorney Scott Greenfield argued regarding TrumpLaw that: "the exercise of authority going forward will be subject to judicial approval of the president's 'bona fide' intent behind facially constitutional exercises of authority.
Every act, every burp, despite its being completely within a president's power, will be subject to a judge's post hoc approval of her underlying intentions. All one would need to stop the president from doing her job is a district court judge who finds her secret, hidden purposes improper. And by improper, it means different than the judge's sensibilities."
Law Professor Todd Henderson sums it up simply: "This is @realDonaldTrump-specific law, which is lawless."
The new definition of TrumpLaw which is now emerging was recently described on Yahoo this way. "Trump gets legal advice from people like [Trump attorney Alina Habba who opined that the crimes of espionage and obstruction of justice were "mundane."]
They practice TrumpLaw, which is a variety of alternative law" [perhaps somewhat like "alternative facts"]. "Unfortunately, it is not recognized outside of Trump resort properties and the Tucker Carlson show."
The respected legal website, AboveTheLaw, reported that even former Attorney General Bill Barr, who was appointed by Trump and strongly supported him, has been "repeatedly telling Fox News viewers that the screaming from Trumpland is utter bullshit." He also called it "a crock of shit."
The majority of legal scholars seemingly agree that Judge Cannon has bent the law, perhaps even beyond its breaking point, to support and protect Trump; perhaps because of her admiration for him, arguably coupled with a feeling that he is being unfairly picked upon.
For example, Paul Rosenzweig, a Department of Homeland Security official under former President George W. Bush, said: “I think it’s a corrupt decision. I think it is a special law just for Donald Trump by a Trump appointee, and it is unmoored from precedent, insupportable in law, will not be approved of by anybody who isn’t a Trump fanatic.”
Similarly, Bradley Moss, a lawyer who specializes in national security issues, said that Cannon's decision is “not well-founded in any law or legal theory.”
Tim O’Brien, author of TrumpNation, says that Cannon's decision "reeks of politics. . . . Does this send a signal to other Trump appointees that you should carry the bag for your handler? . . . if the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them.”
Others call the decision "untethered to the law,” "utterly lawless," “a political conclusion in search of a legal rationale,” “deeply problematic,” “laughably bad," and even "lawless partisan hackery."
Slate notes that the new TrumpLaw - the practice of favoring and trying to protect Trump at all costs - is probably not confined to this individual judge. It said:
"So the problem is not just the extreme and heinous flaws in Cannon’s ruling. It’s also the Trump-shaped world in which Cannon operates, with impunity, which we will all have to endure for the foreseeable future. It’s the brutal reality that we may face a steady stream of depraved decisions like Cannon’s for the rest of our lives.
And the pain of hearing from every quarter that nothing can be done to remedy it" - because Trump appointed such a large number of federal judges, including appellate judges, and they all serve for life, Banzhaf adds.
As another headline explains, "Trump-Appointed Judge Provides Further Proof That Donald Trump Is Above the Law."
Infecting Other Judges
A detailed report on how TrumpLaw appears to already be infecting other Trump judges has just be provided in Politico's "TRUMP JUDGES ARE ON A TEAR - The Former President's Appointees to the Bench Have Been More Partisan and Often Rule in Trump's Favor." The piece provides the following examples:
- A Trump appointee in Arkansas ruled in February that the Voting Rights Act can’t be enforced by private individuals or groups, despite more than five decades of such litigation.
- Another Trump appointee in Florida canceled scheduled arguments in a challenge to the federal mandate for mask use in transportation, then rushed out a decision striking down the requirement just days before it was set to expire.
- Also in May, a Trump-appointed federal judge in Texas blocked the Biden administration from lifting pandemic-related immigration restrictions which Trump had imposed in 2020.
- A Trump appointee in North Carolina shut down state-level proceedings to disqualify Rep. Madison Cawthorn (R-N.C.) from reelection on account of his support for efforts to overturn the 2020 presidential election results. [reversed]
- A Trump-appointed judge in Louisiana issued a highly unusual ruling last week requiring President Joe Biden’s White House to turn over communications with social media companies about alleged objectionable content.
- Judge Trevor McFadden delivered the lone acquittal of a Jan. 6 defendant, seeing it plausible that he believed police had authorized him to enter and remain in the Capitol.
- Judge Carl Nichols became the lone judge in the district to rule that obstruction charges facing several defendants should be thrown out.
The Politico piece raised this provocative question: "Those envelope-pushing rulings have fueled questions about whether Trump’s judicial picks are more conservative or more partisan than those of previous Republican presidents and whether decades of unorthodox decrees from those judicial picks lie ahead." It also quoted Prof Banzhaf, reporting:
"But even some scholars who criticized that trend as establishing a unique kind of 'TrumpLaw,' now say the term can be applied to some of the recent rulings favoring Trump’s legal positions.
'This stuff is completely way out and, unfortunately, Cannon has tended to go along with it,' said George Washington University law professor John Banzhaf. 'She’s applying a kind of reverse TrumpLaw: anything Trump wants, I’ll take the most ridiculous argument and I’ll fly with it.'”
But judges should not bend or corrupt the law to punish or protect any person, even former president Trump, argues Banzhaf, who notes that those who in the past may have approved of a special corrupting brand of law and legal reasoning to punish Trump [the original TrumpLaw] may be hard pressed to complain now when other judges similarly adopt a special corrupting brand of law and legal reasoning to protect him [the new TrumpLaw].