One month into the presidency of Donald Trump, a powerful, 31-year old White House aide named Stephen Miller made the Sunday morning talk show rounds.
On behalf of the administration, Miller stressed deep dissatisfaction over an appeal court decision keeping key parts of an executive order ban on immigration suspended: ‘I want to say something very clearly and this is going to be very disappointing to the people protesting the President and the people in Congress…who have attacked his lawful and necessary action. The President’s powers here are beyond question.’
Later that morning, President Trump’s senior policy advisor told another show, Face the Nation: ‘I think that this has been an important reminder to all Americans that we have a judiciary that has taken far too much power and become, in many cases, a supreme branch of government.’
Miller continued: ‘One unelected judge in Seattle cannot remake laws for the entire country… The end result of this though is that our opponents, the media, and the whole world will soon see as we begin to take further actions that the power of the President to protect our country are very substantial and will not be questioned.’
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One month into his presidency, Trump had already signed 12 executive orders. While several have attracted controversy, few have faced the sustained attention of his January 27 order suspending immigration from seven Muslim-majority countries for three months and barring refugees from all nations for 120 days.
The order has prompted a flurry of individual and group lawsuits, and on 4 February, a federal judge in Seattle ordered a temporary, nationwide restraining order saying the ban caused ‘immediate and irreparable injury’ to the state.
The restraining order was then upheld by the 9th Circuit Court of Appeals, which shot down the government’s emergency motion for a stay of Judge James L Robart’s order.
‘‘You don’t protect the personal integrity of the judges, and then also you may send out a chilling effect where judges become cautious in their rulings
Ian Seiderman, Legal and Policy Director, International Commission of Jurists
‘It's a political decision, we're going to see them in court, and I look forward to doing that,’ Trump told reporters after appeal ruling was handed down. When Robart issued his original decision, Trump said he had put the country in ‘peril’, tweeting: ‘If something happens blame him and court system.’
Such words have stunned legal observers, who fear the Trump administration’s attacks on the judiciary undermine rule of law and could send a ‘chilling’ message to lawyers and judges. Miller’s tone was described as ‘authoritarian’ by Ian Seiderman, Legal and Policy Director at the International Commission of Jurists.
‘He was very chilling in his tone, in his strong assertions,’ says Seiderman. ‘He was virtually suggesting the president has absolutely preemptory power – I don’t think we’ve ever heard this kind of statement before. The authoritarian tenor is very strong.’
The IBA has called on the President to stop ‘ ... undermining of the United States judiciary – and consequently the rule of law – through personal attacks on respected jurists’.
The IBA has emphasised the need for Trump to respect the fact that a hallmark of democratic societies is division of power between executive, legislative and judiciary.
The American Bar Association, meanwhile, issued a resolution calling on Trump to withdraw his order. It also launched an emergency website to help immigration lawyers in the wake of Trump’s order.
‘We are very proud of lawyers from around the nation who flocked to airports where immigrants were detained. It is important that lawyers represent their clients’ interests – even unpopular interests – without fear of retaliation or persecution,’ ABA President Linda A Klein said at a midyear House of Delegates meeting last week.
Some fear that the administration’s rhetoric regarding the judiciary, coupled with President Trump’s more personalised attacks on the judges themselves, send a signal to the public that attacks on judges are permissible.
Following Trump’s statements, there has been a spike in threats against judges involved in such cases, leading law enforcement agencies to provide them with protection.
‘The personalised nature of the attack on the judges… is really dangerous,’ Seiderman says. ‘You don’t protect the personal integrity of the judges, and then also you may send out a chilling effect where judges become cautious [in their rulings].’
And he adds: ‘Who knows how it will deteriorate if not pushed back against? It’s troubling.’ But he also suggests that such attacks may inadvertently ‘embolden judges’.
IBA Executive Director Mark Ellis suggests the appeal court ruling reflects the best aspects of the US system.
‘The US President, though not having received the decision of his choice, should be reassured that, despite unrelenting public attacks, a component of the US judiciary held true to the oath sworn to safeguard the rule of law; an example which legal professionals everywhere should seek to emulate,’ says Ellis.
Seiderman goes even further. ‘It should be an appropriate response of an independent judiciary to push back strongly … by making sure that they assert their authority,’ he says. China’s top jurists have taken aim at Trump’s attacks. Judge He Fan of the Supreme People’s Court – the country’s highest court – says that a president criticising judges is an ‘enemy of the rule of law’:
‘In a country claiming to be the most democratic and most based on rule-of-law, for a president to lead the charge in scolding judges... makes him no different from a bully without dignity.’