Trump's legal strategy: If you can't win in court, threaten the judge
When an associate reported to Cohn that the law was against their client, Cohn famously retorted, 'F— the law, who's the judge?
Cohn saw judges not as prelates of a logical system of ethical ideals, nor as keepers of our sacred right to justice, but as politicians in robes — vulnerable to coercion, denunciation and threats. Trump was well-schooled in how to do it at the feet of the master.
Remember Judge Gonzalo Curiel? He was the Obama-appointed federal judge in California who oversaw the Trump University fraud case, which Trump settled for $25 million in 2016 just 10 days after his election. Trump launched a $1 million counterclaim for defamation (a favorite Cohn gambit) to pressure the plaintiff class representative to go away. Under a state law that aims to protect individuals from lawsuits intended to silence or intimidate them for exercising their rights to free speech, Curiel dismissed the counterclaim and awarded the plaintiff $1 million for her trouble.
Curiel went on to certify the class, which had alleged that Trump University was a fraudulent endeavor, then denied Trump summary judgment and ordered the case to trial.
Trump retaliated with a series of racist attacks on Curiel. He told Fox News that Curiel was personally biased against him because he wanted to build a wall on the U.S.-Mexican border. Trump told the Wall Street Journal that the Indiana-born Curiel could not preside because of his 'Mexican heritage.' He said he had a judge who was a 'hater of Donald Trump, a hater' and referred to Curiel— a graduate of the same law school as Mike Pence — as a 'Mexican.' He further suggested taking some action against the judge. Vintage Roy Cohn!
Trump's despicable attacks on the judiciary have persisted during the first 100 days of Trump 2.0. He has oozed the bile of pure hatred towards judges who have ruled against him, calling for their impeachment. House Republicans are following his lead, seeking to impeach at least six judges who have ruled against parts of Trump's agenda.
Trump's statements earned him a shocking rebuke from Chief Justice Roberts. Without mentioning him by name, Roberts thundered in March that 'for more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.'
The rare statement from the Chief Justice came just hours after a social media post from Trump, who described District Judge James E. Boasberg as an unelected 'troublemaker and agitator,' and a 'radical left lunatic' after Boasberg had blocked deportation flights that Trump claimed were authorized in wartime by the 18th-century Alien Enemies Act.
Top Trump advisor Stephen Miller has also railed against a cabal of 'Communist' judges who are determined to keep 'terrorists' in the country, while Elon Musk in a post on X said judges who defy the president should be impeached.
The threats have also been delivered through physical means. Several judges have faced a slew of 'intimidation tactics' sending the message that their home addresses are publicly known. A New Jersey judge, for example, received a pizza addressed to her murdered son.
Earlier this month, a Wisconsin County Court judge was arrested by the FBI in her own courthouse and led away in manacles after allegedly helping an undocumented immigrant evade arrest. Other judges who defied the administration have faced bomb threats and threats of physical violence.
One Supreme Court justice is now speaking out more forcefully. Justice Ketanji Brown Jackson received a standing ovation at a conference of judges in Puerto Rico last week after denouncing the administration's 'relentless attacks' on federal judges, seeing in them a threat to the rule of law (but again without mentioning Trump by name).
Jackson said, 'Across the nation, judges are facing increased threats of not only physical violence, but also professional retaliation just for doing our jobs … And the attacks are not random. They seem designed to intimidate those of us who serve in this critical capacity.'
'The attacks are also not isolated incidents,' Jackson told the assembled judges. 'That is, they impact more than just individual judges who are being targeted. Rather, the threats and harassment are attacks on our democracy, on our system of government and they ultimately risk undermining our Constitution and the rule of law.'
'A society in which judges are routinely made to fear for their own safety or their own livelihood due to their decisions is one that has substantially departed from the norms of behavior that govern a democratic system,' she stated. 'Attacks on judicial independence is how countries that are not free, not fair and not rule-of-law oriented, operate.'
'Other judges have faced challenges like the ones we face today, and have prevailed,' she said, pointing to similar attacks on judges who issued controversial rulings during the Civil Rights Movement and the Watergate scandal.
Her 18-minute denunciation is the strongest statement yet by any member of the Supreme Court during Trump's second term. It is hard to believe that her prepared remarks were not approved by the Chief Justice.
Judges have few avenues to fight back ethically against unprincipled personal attacks. Lawyers are supposed to speak out on their behalf, but we now know that Big Law is afraid of reprisals from Trump that might affect their billion-dollar revenues.
Judge Curiel mildly jabbed at Trump in court papers stating his derogatory comments about him had 'placed the integrity of these court proceedings at issue.' He was forbidden from further public comment because of ethical rules about commenting extrajudicially on pending cases.
Roy Cohn knew this, and so does Trump. Bullies lash out at the defenseless. We are living in trying times.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York's Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
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