It might seem like another era, but in the runup to Election Day 2024, Donald Trump invested a fair amount of time condemning those who criticize judges. Such criticisms, the Republican said in August, are “probably illegal.” Two weeks later, he went a little further, adding that judicial criticisms should be “illegal.”
In case that wasn’t quite enough, Trump, who’s spent years publicly chastising judges, went so far as to declare, “These people should be put in jail the way they talk about our judges.”
Such comments, of course, came before the election. Now that the president has returned to power, it appears he and his White House have changed their perspective.
The latest dispute began in earnest early on Saturday morning, when a federal judge temporarily restricted Elon Musk’s Department of Government Efficiency from accessing the Treasury Department’s payment systems. As The New York Times reported, the jurist concluded that there was a risk of “irreparable harm.”
The Trump administration’s new policy of allowing political appointees and “special government employees” access to these systems, which contain highly sensitive information such as bank details, heightens the risk of leaks and of the systems becoming more vulnerable than before to hacking, U.S. District Judge Paul A. Engelmayer said in an emergency order. Judge Engelmayer ordered any such official who had been granted access to the systems since Jan. 20 to “destroy any and all copies of material downloaded from the Treasury Department’s records and systems.”
The jurist, who was appointed to the federal bench during Barack Obama’s presidency, also ordered the Trump administration to restrict access to the systems, blocking “political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department.”
Predictably, the White House was not pleased. Musk, for example, called for the judge’s impeachment. In a Fox News interview, the president described the ruling as “crazy.”
JD Vance, however, went considerably further.
On Saturday, the vice president amplified a social media message from legal scholar Adrian Vermeule, who argued, “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.” A day later, the Ohio Republican made a related pitch in his own words.
“If a judge tried to tell a general how to conduct a military operation, that would be illegal,” Vance wrote. “If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.”
As the vice president — who graduated from Yale Law School — really ought to know, judges have repeatedly intervened on matters of military policy and prosecutorial discretion, as well as the reach of the executive branch.
But the problem wasn’t just Vance’s apparent confusion about legal basics. Making matters far worse were the implications of his claims: The vice president seemed to suggest that court rulings need not be seen as legally binding.
To be sure, Trump and his team are already creating new and terrifying threats to our political system, seizing powers and expressing a general indifference to legal limits. But NBC News reported, “Legal and constitutional experts warned Sunday that the United States could be headed toward a ‘constitutional crisis’ or a ‘breakdown of the system’” after Vance suggested judges don’t have jurisdiction over the president’s powers. Quinta Jurecic, a fellow at the Brookings Institution and a senior editor at Lawfare, told the Times that Vance’s argument “opens the door to a potentially dangerous path. … What Vance’s wording suggests here, without directly saying it, is that the executive could potentially respond to a court order by saying to the court, ‘You’re unconstitutionally intruding on my authority and I’m not going to do what you say.’ “At that point, the Constitution falls apart.” Complicating matters further, this isn’t an altogether new argument from Vance. As regular readers might recall, when the then-senator was effectively auditioning to be Trump’s 2024 running mate, he suggested — not for the first time — that presidential administrations need not honor “illegitimate” court rulings. For his part, hours after the vice president published his broadside, the president told reporters during an Air Force One Q&A that judges shouldn’t be “allowed” to make the kind of ruling handed down on Saturday morning. Three weeks ago, Trump and Vance swore an oath to “preserve, protect and defend the Constitution of the United States.” There’s fresh reason to wonder whether they meant it.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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