The other day, I queried what newly appointed SDNY United States Attorney, Danielle Sassoon, would do when ordered to surrender her office’s independence to former Trump criminal defense lawyer, Emil Bove’s, demand that she dismiss the prosecution against New York City mayor, Eric Adams, as a purely political gesture. In her letter in response, Sassoon made clear that she would rather resign than be complicit in Bove’s, Bondi’s, and ultimately Trump’s, corruption of the Department of Justice. She was not alone in her choice.
Jeffrey Toobin’s new gig is at the New York Times, where he tries his best to blunt the rigid positions taken by the ethical enemy.
In the shambling Democratic response to the onslaught of changes wrought by President Trump in the first weeks of his second term, there has been one bright spot. Democrats control the attorney general’s office in 22 states, and they have filed the most important — and, so far, most successful — cases against controversial Trump administration initiatives.
Just as Bove’s view of the legal system is merely a tool to be used in furtherance of political ends, Toobin’s grasp is no less cynical. The attorneys general haven’t turned to the courts because they believe they have friends on district court benches who will do their bidding, but because one of the judiciary’s purposes is to determine whether the actions taken by the executive branch violate the law and Constitution.
The courts may not be the only guardrail for abuse of power, but they are an intentional hurdle. Since the Republicans in Congress have chosen to forsake their constitutional duty to oversee the functioning of the executive branch under the misguided view that it’s their job to rubber stamp whatever the president wants to do, the legislative branch has forfeited its role in our tripartite scheme. That leaves the judicial branch to do the heavy lifting. It might be a lot to put on the shoulders of judges, but that’s the job.
Toobin then does the Democratic version of what the worst twitter trolls like to do, and what Linda Greenhouse preciously did with a vengeance before them. Toobin makes it all about party.
Simple necessity has led Democrats, who are shut out of power in Washington, to rely on their attorneys general, but this strategy has its limits. Even these initial victories face uncertain futures in a federal judiciary dominated by Republican appointees, and, more to the point, liberals have often placed undue emphasis on achieving political change through the courts.
Does Toobin suggest that only judges appointed by Democrats are competent, fair and ethical? Can Republican appointees to the bench not be trusted to apply the law fairly, without fear or favor, even if it means that they enjoin the actions of a pseudo-Republican president or hold his wild changes to be unlawful or unconstitutional? Yes. Yes he does.
Liberals love lawyers. The first-term resistance, for example, fell hard for Robert Mueller, who as a special counsel in the Justice Department led an investigation into Mr. Trump’s ties to Russia. (There were “In Mueller We Trust” T-shirts and Mueller action figures.) Notwithstanding the hopes invested in Mr. Mueller as a dragon slayer, the political effects of his investigation turned out to be modest at best. Mr. Trump’s current adversaries have now passed the heroic mantle to the state attorneys general.
Putting aside that the “#resistance” wasn’t liberal, but progressive, and that everybody loves/hates lawyers according to what ends they seek, Mueller was not a judge, but a special prosecutor. That crazed partisans wanted Mueller to do their bidding by taking down Darth Cheeto has little to do with what is happening in the legal system now. Mueller still offers a useful analog by his executing his duties ethically, even if that meant he fell short of the resistance’s expectations that he would be their hero. He had a job to do and he did it, and no more. Whether you think he did his job well or poorly isn’t the point. He did not exceed his mandate despite the million pink-hatted partisans wishing and hoping he would.
There is little doubt that Danielle Sassoon had the shiniest of Republican bona fides. She was no RINO as the Trumpkins say to dismiss any conservative who won’t drop to their knees upon command. But what Sassoon was, to their fury, was a conservative whose ethical compass precluded her selling her honor to the likes of Emil Bove and his masters.
The federal judiciary is made up of judges appointed by Democrats and Republicans. Contrary to what too many groundlings believe, most are quite conservative, having backgrounds in the United States Attorneys office and Biglaw, where they catch a senator’s eye. But contrary to Toobin’s assumption, there is no reason to believe that they will be any less ethical, less honorable, less dedicated to the faithful administration of the law than Danielle Sassoon. Sure, they are Republicans, but they are judges first and they know what their duty is, even if Toobin does not.
If it turns out the the attorneys general prevail in their actions against Trump, it’s not because of friendly judges, but because their legal arguments are meritorious. And should the attorneys general lose, it should not be assumed it’s because they suddenly ran head first into Republican appointed judges, but because their arguments fell short.
