Reviews | Trump appointees jeopardize January 6 lawsuits — and our justice system

The judge who presided over Martin’s trial was Trevor McFadden, who was appointed to the court in 2017 after briefly serving as a senior official in former President Donald Trump’s Justice Department and, earlier in his career, as a prosecutor of line in the district. This is the same judge who has repeatedly raised questions about whether defendants on January 6 are being treated harsher than protesters in the wake of the 2020 killing of George Floyd, even though, overall, the accused of January 6 have been processed. relatively well in the context of the federal criminal justice system. He is also the same judge who recently handed down a split verdict in another misdemeanor case on January 6 after needlessly forcing the government – ​​despite fierce objections from prosecutors given the security implications – to reveal where in the Capitol Secret Service took Vice President Mike Pence. to protect him during the siege.

In the recent acquittal, McFadden rejected prosecutors’ claim that Martin should have understood he was not allowed into the Capitol during the riot. Citing a video shown during the trial, McFadden said, “People were walking by continuously and the officers made no attempt to arrest people.” I was not at trial to see the evidence presented, but McFadden’s position is very difficult to reconcile with the visible chaos at the Capitol complex on January 6, which should have led reasonably intelligent people to realize that they weren’t. were not, in fact, allowed to invade the field with thousands of others and move freely while Congress and the Vice President attempted to perform their constitutional duties to ensure the orderly transfer of presidential power .

McFadden isn’t the only Trump-appointed judge whose judgment was highly questionable in the Jan. 6 prosecution. Judge Dabney Friedrich presided over the first trial and barely let the government move forward on his central theory – that the defendant, Guy Reffitt, had bribedly obstructed the certification of electoral votes by Congress. The jury ultimately found him guilty within hours because, among other things, he brought a weapon onto the Capitol grounds and instigated a mob to catch up with a small number of Capitol police officers who were trying to hold them off – all of which was captured on video. During the trial itself, Friedrich repeatedly criticized the government for ludicrous reasons – complaining early on, for example, about the length of the trial even though several days had been swallowed up by the inefficient jury selection process. of the judge and the technological shortcomings of the courtroom.

Meanwhile, Judge Carl Nichols – who is also overseeing the contempt of Congress case against Steve Bannon – recently became the first (and so far only) district judge to dismiss the obstruction charge. Congress of the Ministry of Justice before the trial. His opinion – which concludes that the relevant statutory provision prohibits obstruction “only with respect to a document, record or other object” – is bordering on incomprehensible and is based on very strained interpretative inferences that Nichols would have drawn from the text and structure of the statute. The decision reads more like an opinion whose conclusion was predetermined than a careful and thoughtful legal analysis. (Perhaps not coincidentally, Trump’s legal defenders have used an equally narrow view of the same law to argue that Trump cannot be charged with obstruction of justice based on his actions to obstruct the Mueller investigation.)

In the Bannon lawsuit, Nichols recently ruled that Bannon could not rely on his attorney’s advice to defend against the contempt charge (based on compelling precedent in the Circuit Court of Appeals of DC), but before that he ordered the Justice Department to provide internal documents about the government’s decision to prosecute Bannon. Generally speaking, it is highly unusual for a judge to order prosecutors to provide information along these lines because, among other things, there are legal privileges and protections that insulate this material from disclosure and a policy to the contrary could chill good faith. , internal deliberations between government officials. If there was significant evidence that could support a serious claim of selective prosecution, that would be one thing, but Bannon has no such evidence.

There was a time when the job of a federal trial judge was seen as largely apolitical. Most trial-level cases — especially criminal cases, which are largely drug, gun, and illegal immigration prosecutions — are resolved using legal rules and principles. mostly established and uncontroversial. It wasn’t all that unusual, even during the Trump years, to see appointees from former Republican presidents come out against Trump on high-profile issues, like the district judge who was appointed by George W. Bush and spoke out against the administration’s efforts to end the Deferred Action for Childhood Arrivals Program, or the Bush appointee who ended the Trump administration’s family separation policy.

Recent and highly questionable decisions by Trump appointees in criminal cases stemming from Jan. 6 seem to confirm some of the concerns of many observers about the quality and intellectual independence of Trump’s appointments to federal trial courts. This points to a disconcerting possibility that we have entered a new era in which the judiciary, even at the lowest levels, operates in a politicized manner in important cases. On the Supreme Court, there is at least the veneer of a broad and (questionably) consistent conservative legal philosophy that underpins the decisions of Republican appointees. But the actions of the Trump appointees in these January 6 lawsuits seem to suggest that the outcome for the defendants at the trial level may in some cases depend less on the merits of the arguments and more on the political persuasion of the presiding judge – ​​which is, to say the least, very bad for the concept of equality before the law.

Unfortunately, there is no readily available solution to this problem. This may just be another unfortunate and potentially irreversible legacy of the Trump years. But we don’t have to pretend it’s just business as usual.