[Image: Joe Biden hogtied from video on Donald Trump's Truth Social account.]
Donald Trump, former president, under criminal indictment in four separate jurisdictions, has reveled in attacking his perceived enemies, including members of both political parties, and particularly folks associated in his mind with his criminal and civil court cases. This week Judge Juan Merchan, presiding over the New York hush money case, slapped a gag order on Trump. While Trump's attorneys claimed the presidential candidate had the First Amendment right to unfettered criticism of his political opponents, the judge observed regarding Trump's previous screeds:
Yet these extrajudicial statements went far beyond defending himself against "attacks" by "public figures". Indeed, his statements were threatening, inflammatory, denigrating, and the targets of his statements ranged from local and federal officials, court and court staff prosecutors and staff assigned to the cases, and private individuals including grand jurors performing their civic duty. The consequences of those statements included not only fear on the part of the individual targeted, but also the assignment of increased security resources to investigate threats and protect the individuals and family members thereof. Such inflammatory extrajudicial statements undoubtedly risk impeding the orderly administration of this Court.
Judge Merchan's gag order did not include himself, the prosecutor, or their families; Trump then posted a series of posts attacking the judge's daughter.
Step back to consider: a former president is attacking the daughter of a judge on social media. (Examples: one, two, three. It's hardly a surprise that the basis of the attacks is questionable.) She has, of course, nothing to do with the case. The ranting aims to divert attention from the former president's own culpability and to discredit the judiciary. And Trump's unhinged rhetoric has proven to put people in danger with real world threats and actual violence from folks under the MAGA spell.
On Friday, U. S. District Judge Reggie Walton (appearing on CNN) spoke out about his concerns regarding Trump's attacks, explaining that "it’s very disconcerting to have someone making comments about a judge. It’s particularly problematic when those comments are in the form of a threat, especially if they’re directed to ones family. I mean, we do these jobs because we’re committed to the rule of law and we believe in the rule of law. And the rule of law can only function effectively when we have judges who are prepared to carry out their duties without the threat of physical harm."
Judge Walton (appointed to the federal bench by both George H.W. Bush and George W. Bush) has experienced threats in the past. (They have increased dramatically since January 6 cases began landing in his court.) Once a threat to himself was followed the next day by a threat to his daughter, by name, and mention of his home address -- so someone "had done some research" -- though no physical harm came in that instance. He noted that other judges, whose children and other family members have been killed by litigants, were not as fortunate.
I think it’s important in order to preserve our democracy that we maintain the rule of law. And the rule of law can only be maintained if we have independent judicial officers who are able to do their job and ensure that the laws are in fact enforced and that the laws are, you know, applied equally to everybody who appears in our courthouse. And I think it’s important that as judges we speak out and, you know, say things in reference to things that conceivably are going to impact on the process – because if we don’t have a viable court system that’s able to function efficiently, then we have tyranny. And I don’t think that that would be good for the future of our country and the future of democracy in our country.
The same day, former federal judge J. Michael Luttig (appointed to the Court of Appeals for the Fourth Circuit by Bush the elder) assailed Trump's attacks on X/Twitter: "The Nation is witnessing the determined delegitimization of both its Federal and State judiciaries and the systematic dismantling of its system of justice and Rule of Law by a single man – the former President of the United States." He continued:
In the months ahead, the former president can only be expected to ramp up his unprecedented efforts to delegitimize the courts of the United States, the nation’s state courts, and America’s system of justice, through his vicious, disgraceful, and unforgiveable attacks and threats on the Federal and State Judiciaries and the individual Judges of these courts.
Later on MSNBC, Judge Luttig elaborated on the institutional harm brought by Trump's attacks:
We all have to understand that the first time that the former president began his attacks, vicious attacks on the federal courts and the state courts and their individual judges, his objective was to delegitimize those courts. So that when and if they ruled against him in the various matters that he’s been charged with, then at least his followers, if not a good part of the nation, would dismiss those rulings against him as having been politically inspired and motivated.
In particular, in most of these instances, politically inspired by President Joe Biden and his administration, and Merritt Garland and the Department of Justice. That led into what we have today, which is the fact that the former president is now actually campaigning for the presidency again on the delegitimization of America’s institutions of democracy and law. Now he’s the only one at the moment claiming that those institutions are no longer legitimate. But many of his followers believe it today. And they will cast their votes in favor of Donald Trump in November on the basis that our institutions of law and democracy are no longer functioning.
That’s the tragedy. That’s the tragedy that the nation faces right now. We’ve acquiesced in that to date. Acquiesced meaning no one, not one single person in a position of responsibility to address this issue has done so. For want of courage and want of will. And until and unless we as a nation address this issue, then we’re careening toward the effective end of the rule of law in America.
Judge Luttig acknowledged that Trump has already done great damage to the nation: "As I’ve said over the past month, Donald Trump has largely succeeded in delegitimizing both America’s democracy and elections, as well as its Constitution and rule of law."
Former Republican Congresswoman Liz Cheney also spoke out this week, warning of the danger of a second Trump term, which she suggested would be much different than his first:
I think it’s important for people to remember is the kinds of people that he will appoint. One of the things that we learned in the select committee was how often it was good and responsible, good and responsible Republican officials at the state level, also around Donald Trump, who stood up to him and said, No. And … who told him again and again, What you’re saying about these elections, what you’re saying about fraud, what you’re saying about the election having been rigged – It’s not true. They told him repeatedly and with specificity.
Those kinds of people won’t be around him again in a second term. And I think that’s also important for people to understand. He will appoint people who will do his bidding. He will appoint people – and if they are nervous about doing his bidding, he’ll offer them pardons. And he won’t, he won’t leave office. I mean, just think about – we know he tried once not to leave office. And he will have no incentive to guarantee a peaceful transfer of power and to leave office if he’s elected again.
Ms. Cheney, who served in the House leadership beside Kevin McCarthy and watched him rehabilitate Trump after initially condemning him for the violence on January 6, explains the dynamic that led elected Republicans to embrace -- and enable -- a lawless, autocratic leader.
You have some elected Republicans who believed that he would just disappear. Who thought, you know, we don’t have to speak against what he did. We don’t have to actually stand up to him because, you know, certainly he will fade away. And obviously that didn’t happen.
And I think when people look back at this time, at the history of this time, those elected officials who know the danger that he poses, who know that what he’s saying is a lie, who know that he threatens fundamentally our democratic system, but yet have enabled him and have gone along, you know they will be judged very harshly by history. Because he can’t succeed without them. And the role that they’re playing is very irresponsible and reckless and dangerous.
The elected leaders' actions convinced the Republican base. (This represents the critical failure of the Republican Party, as described by Levitsky and Ziblatt, leading to erosion of our country's democratic institutions. "Put simply, political parties are democracy's gatekeepers." The GOP didn't push back to close the door to lies and threats of violence.) Exit polls from Super Tuesday reveal 58- to 65-percent of Republican voters believed that Trump won the 2020 election. Cheney again:
I think that what we saw happen was sort of this notion Republican elected officials excused the behavior, enabled the behavior. And by doing that it sort of, it created a situation where I think voters thought, Well, you know it must not be that he’s that dangerous. Because if he were then, you know, you would have more people saying so.
And, look, I think the Republican Party leadership itself had to make a choice. Many times they were faced with a choice between, you know, doing what was right, between furthering democracy and the Constitution, or embracing Donald Trump. And they chose Donald Trump. And it’s that, that is situation that we haven’t, we have not seen before in the history of the country.
In November the country will choose. It will choose between a small-d democratic candidate, committed to the Constitution and the rule of law, and a man who has based his campaign on lies, celebrations of violence, and repudiation of our democratic institutions.