A Most Injudicious Attack

Donald Trump’s administration has brought with it an unprecedented disregard for judicial independence, something which does not bode well for a healthy democracy, writes Features and Opinions Editor Killian Down

Stories pertaining to President Donald Trump’s administration emerged in an incessant flow during the first few weeks of his administration, as if shot from from a fully automatic turret positioned in the Oval Office itself. Betsy Devos, a portrait of educational ineptitude and inexperience, is appointed to the position of Secretary of Education; a rumoured clash between El Presidente and the Australian Prime Minister, Malcolm Turnbull, over America’s pledge to take in refugees currently being held in Australia; Press Secretary Sean Spicer’s insistence that overexposure to sun has left said Prime Minister incapable of realising his name is in fact Malcolm Trumble, not Turnbull as his birth cert so whimsically suggests. As it rightly should have, the story which took centre-stage in the first handful of weeks of the Trump presidency has been the maligned, and, according to the since-fired acting Attorney General Sally Yates, potentially unconstitutional travel ban on citizens from seven Muslim countries in the Middle East and North Africa.

The independence of the judicial arm of government, one of three such arms alongside the legislature and the executive, is treated as sacred in the normal course of events…

It is genuinely difficult to rifle through the ever-thickening news file on Trump’s administration and absorb every story as it emerges – the volume is just so great. It would have been easy, then, to overlook the aspect of the travel ban story which is almost as troubling to me as the ban itself: another attack by Trump (this his first as president), on a member of the judiciary, which represents an attack on the independence of the judiciary as a whole. Trump lampooned Judge James Robart, the federal court justice who originally blocked the executive order imposing the travel ban, referring to him as a “so-called judge” and labelling his judgment as “ridiculous” via that most presidential of mediums: Twitter.

The attack on Judge Robart was multi-pronged, however: friend of Australia, Sean Spicer, referred to the decision as being “outrageous”, while the Justice Department argued in its appeal filing that the President has “unreviewable authority” to suspend the entry of any class of citizen.

[A]n independent judiciary is a democracy’s most potent, and most pacifistic weapon against the potential of tyranny.

The independence of the judicial arm of government, one of three such arms alongside the legislature and the executive, is treated as sacred in the normal course of events, and so it should be. Judges play one of the most crucial and fundamental roles in society, through guardianship of a nation’s constitution where such a constitution exists (as it does in the United States), in administering justice through the decisions of the nation’s courts, and by acting as a counterbalance against a potential over-concentration of governmental powers in any one arm of the government. In simple terms, if the President is getting a bit big for their boots and whistling the tune of “How Much is that Dictatorship in the Window?”, the dusty white wigs step in with a stiff ruler rap on the knuckles. “NO, Donald, no! And don’t think I haven’t seen those dirty mags underneath your bed”.

The idea, then, that the President of the United States would so comment on a decision of the judiciary, particularly one ruling on the legality of his own executive order, is beyond extraordinary. That it should be done by a series of tweets, is more astonishing, still. The decisions of the judiciary are not open to the petulant rebuke of the executive; this compromises the very notion of the doctrine of the separation of powers and the fundamental logic of checks and balances which underpins the doctrine.

After all, an independent judiciary is a democracy’s most potent, and most pacifistic weapon against the potential of tyranny. When that independence is threatened, be it through admonishment of individual judges or decisions, or, for example, as has been threatened in Ireland, through cuts to judges’ salaries (which could be said to increase the likelihood of the passing of bribes, for example), democracy itself comes under threat. I may as well have lifted those last few words from a Tom Cruise script called A Nation No More, but this is the essential nature of judicial independence. It is an immovable fixture in the sub-title of A Dummy’s Guide to a Functioning Democracy.

Judicial independence simply, well, must be.

What is most startling to me, though, is those most Orwellian of words which emanated from the Justice Department’s appeal – “unreviewable authority”.

I am not naive enough, nor so ignorant of past performance, to suggest that I am surprised by the infantile outburst of the President. It was not so long ago that Trump called into question the impartiality of an Indiana-born judge presiding over a class-action lawsuit against that most reputable of institutions, the now-defunct Trump University, because Trump claimed he “happens to be, we believe, Mexican”. But these were the words of a Presidential candidate who was never going to make it past the caricatures adorning the pages of the New Yorker; back then there was never going to be a President Trump, other than in that now prescient episode of the Simpsons. Trump’s salvo on Judge Robart is a disparate assault in that it was no longer an attack by an individual, but an attack by the presidential office itself.

What is most startling to me, though, is those most Orwellian of words which emanated from the Justice Department’s appeal – “unreviewable authority”. The wordsmiths hammering away at the keys of a typewriter in Orwell’s 1984 would have cloaked the menace inherent in a phrase like “unreviewable authority” in disarming Newspeak; with Trump, the threat is explicit. There is no subtlety in the lexicon of the schoolyard bully. The Trump administration speaks only in imperatives.

It would be histrionic and plainly misleading of me to suggest that the democracy of the United States is in imminent peril because of abrasive comments made by the President and his cronies towards a judge. Of course it would. But the way that this administration has reacted early doors towards anything that could be considered an impediment to their distorted, deformed brand of progress is an indicator of their modus operandi.

Yes, Trump could resort only to slinging mud online and following due process through the making of an appeal when his executive order was halted by Judge Robart – other than castigation, he had no further powers. But what of Sally Yates, the acting Attorney General? To what lengths did President Donald Trump go when his hands were unbound, when he was free to throw his orange heft about in order to silence his naysayers? When Sally Yates instructed Justice Department lawyers to refrain from enforcing the travel ban executive order on the grounds of its potential unconstitutionality, she was removed from play. She was no longer fit for purpose. She stood as the iconic protester did in Tiananmen Square, resolute in the face of the oncoming tanks, daring to stand before the behemoth; this time, the tanks did not, would not stop.

The original executive order, as we know, has been quashed by an appellate court. The travel ban is, as of now, no more. One disaster averted, however, leaves a lingering fear of those disasters yet to come to pass. For now, we must wait.