Judges deserve to be defended from Donald Trump
The US President’s attacks on and insults against the judiciary are deeply concerning, writes Andrew Stevenson
James Boasberg is the chief judge of the US District Court for the District of Columbia. He is also a Shakespeare enthusiast and a good sport. Both these attributes are evidenced by his having participated as a prosecutor at a mock murder trial of Prince Hamlet, who pleads insanity. Presided over by now-retired Justice Anthony Kennedy of the Supreme Court, the event took place at a theatre in Washington DC in 2018. It shows another of Boasberg’s qualities; he is a fine orator.
On March 24, he granted an order akin to that of interim interdict against the deportation of alleged Venezuelan gang members. On March 15 President Trump had issued a Proclamation that Tren de Aragua, a violent criminal organisation, had committed an invasion or predatory incursion of the United States. Thus, under the Enemy Aliens Act 1798, the government could immediately deport its members. Concern was felt that this legislation conferred extraordinary powers supposed to be used only in times of war. It had never actually been used other than in times of war. This is not a fanciful supposition. Consider when the Act had previously been invoked; during the Anglo-American War of 1812, (during which, incidentally, the United States invaded and tried to annex Canada) and in both World Wars when deployed to intern those of German, Japanese or Italian origin.
As Judge Boasberg’s thorough and lucid 37-page interlocutor states, the 1798 Act was “last invoked in the wake of Pearl Harbour”. It authorises the President summarily to remove “natives, citizens, denizens or subjects” of a “hostile nation or government” where there is “declared war” or where there is the fact, attempt or threat of an “invasion or predatory incursion”. The judge felt too that the Venezuelans “must be given the opportunity, if they so choose, to contest” inter alia, that they were members of the gang. By any standards, that was not unreasonable.
As detainees of Guantanamo Bay will attest, the US has form for treating foreign nationals pretty abominably while respecting the rights of its own citizens. In this sense, the US is a bit like ancient Rome. This differentiates it from the UK where the Human Rights legislation compels our government to act with respect for the rights of those whose lives its actions affect regardless of their nationality.
Matters have taken a sinister turn in the reaction of the Trump administration to Judge Boasberg. Anyone who witnessed the boorish and bullying treatment of President Zelensky whilst a guest at the White House knows the current American regime lacks manners. However, whereas Zelensky was an importunate foreigner in khaki fatigues, Boasberg is an elegant and urbane American. Also, as a judge, he is entitled to courtesy from politicians. However, instead of respecting the judgment Mr Trump resorted to his own social medium to call for the judge to be impeached. This in turn led to the remarkable intervention of the Chief Justice of the Supreme Court who told the government that if it disagreed with the decision its remedy was to appeal it.
President Trump’s attacks on and insults against the judiciary are deeply concerning and have all the hallmarks of autocracy. Calling Boasberg “a radical left lunatic of a judge, a troublemaker and agitator” is unbefitting of an American President. The Constitution does not give unfettered power to any incumbent of that office. There are checks and balances, although the courts appear to be the only effective one, so far at least.
Andrew Stevenson is Secretary, Scottish Law Agents’ Society
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