On Tuesday, the White House demonstrated the very disdain for the truth that has come to characterize this administration. The press secretary actually proclaimed that it would be “wrong and misleading” to say that Gorsuch had been referring to the president in condemning “disheartening” and “demoralizing” remark. Of course Gorsuch did just that.
Worse, later in the day Trump vowed to keep criticizing judges. “The courts are not helping us [fight terrorism], I have to be honest with you. It’s ridiculous. Somebody said I should not criticize judges. Okay, I’ll criticize judges.” To begin with, it is not the courts’ job to help Trump. It is to make sure he does not violate statues or the Constitution of the United States. Moreover, Gorsuch specifically said that people have First Amendment rights to criticize courts and that judges need to have a thick skin. “We have to accept criticism with some humility,” he said. He reiterated, “People can speak their mind.” What Gorsuch said was beyond the pale was calling into question the “integrity or honesty or independence” of a judge.
And so we should consider what should occur if Trump once again smears judges who rule against him by besmirching their character. A court might take up Blumenthal’s suggestion and perhaps, in the interests of civic education, hold the president in contempt the next time he attempts to smear a judge. However, a judge is restrained in some respect in defending himself. As one lawyer writing in the American Bar Association journal put in when commenting on Trump’s attack on Judge Gonzalo Curiel’s ancestry and Curiel’s decision to remain silent:
[A] judge facing unfair criticism has much more to lose than to gain by publicly responding. A response risks injecting the judge personally into the controversy, framing the judge as an interested party in a process in which the critical goal of an impartial adjudication, both in actuality and in perception, can only suffer. And so almost every judge stays silent, in furtherance of duty and decorum and in deference to the objective of fair judicial administration.That leaves to us, the lawyers, the task to speak up on behalf of judges unfairly accused.
The legal commentator quoted an ABA guidebook for lawyers to respond to just such attacks. The guidebook “urges preparation by state and local bar leaders of ‘a rapid response team of knowledgeable and accessible individuals who are authorized to determine whether a response is appropriate and, if so, determine the extent of the response.’ The guide emphasizes the critical need to respond to attacks in the same news cycle.” Judges and lawyers have echoed the call for defense of judge(s) whose impartiality is impugned. In the case of Curiel, rebukes were widespread and severe, from lawyers and politicians including the speaker of the House. However, with the Muslim ban cases, the bar should have spoken more loudly and collectively to rebuke the president.
Here the Justice Department has some responsibility as well. DOJ lawyers are officers of the court with special responsibilities. Although they are in the executive branch, they represent the United States and not the president. They certainly cannot make such attacks impugning the courts themselves nor should they defend the president’s. The ABA model rules of professional conduct plainly state: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” As such, if asked about the attacks — either by a court or the press — their professional obligation should require them to disclaim such remarks and in fact apologize to the courts.
To sum up, Trump runs the risk of being held in contempt for further attacks on the integrity of the courts. But what is required here is that the legal profession, including other judges, rebuke the president if he goes down this road again. That obligation extends to the DOJ as well, and lawyers who come before the Senate Judiciary Committee for confirmation to political positions should be required to do just that. They cannot remain silent nor defend the indefensible.