In rebuffing legally dubious propositions advanced by the Trump administration, several federal judges have provided eloquent reaffirmation of first principles of American democracy, as well as lessons in history and civics. Lest we forget.
That honorable company includes two United States District Court judges in Vermont, William K. Sessions III and Geoffrey W. Crawford, and one, Beryl A. Howell, in the District of Columbia. (Citations of case law have been omitted from the quotations below.)
Sessions ordered the release from government custody of Rumeysa Ozturk, a doctoral candidate at Tufts University who was abducted off the street near her home in Somerville, Mass., by masked U.S. Immigration and Customs Enforcement agents and shipped via New Hampshire and Vermont to a Louisiana detention facility pending deportation proceedings.
Ozturk claimed violation of her First Amendment and due process rights, arguing that the government’s action constituted unlawful retaliation for an op-ed supporting the Palestinian cause that she co-authored in the student newspaper.
“The First Amendment’s protection of the right to free speech is often considered the cornerstone of our vibrant American democracy,” Sessions noted. “As Benjamin Franklin famously wrote in 1737, ‘Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved.’ ”
Citing precedent, Sessions observed that, “As a general rule, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ Furthermore, First Amendment protections have long extended to non-citizens residing within the country.” Of which Ozturk, a Turkish national, is one.
In addition to violating her rights, Sessions said, Ozturk’s detention also potentially “chills the speech of the millions and millions of individuals in the country” who, like her, are not U.S. citizens.
Crawford presided over the case of Mohsen Mahdawi, a legal permanent resident of the United States who lives in the Upper Valley. Mahdawi was targeted by the government for participating in protests against the war in Gaza at Columbia University, where he is a student, and detained while attending a citizenship interview in Colchester, Vt.
In granting Mahdawi’s release under a habeas corpus petition challenging his detention, Crawford noted “the extraordinary setting of this case and others like it. Legal residents — not charged with crimes or misconduct — are being arrested and threatened with deportation for stating their views on the issues of the day. Our nation has seen times like this before, especially during the Red Scare and Palmer raids of 1919-1920 that led to the deportation of hundreds of people suspected of anarchist or communist views.
“… Similar themes were sounded during the McCarthy era in the 1950s when thousands of non-citizens were targeted for deportation because of their political views. Again, the fever passed … The wheel of history has come round again, but as before these times of excess will pass. In the meantime, this case … is extraordinary in the sense that it calls on the ancient remedy of habeas to address a persistent modern wrong.”
Howell heard the complaint of Perkins Coie LLP, a law firm targeted by an executive order making extortionate demands because of the firm’s representation of clients disfavored by President Trump. In finding the order unconstitutional, Howell wrote:
“No American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies but, in purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers.’ … Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.”
“The importance of independent lawyers to ensuring the American judicial system’s fair and impartial administration of justice has been recognized in this country since its founding era,” Howell noted. “In 1770, John Adams made the singularly unpopular decision to represent eight British soldiers charged with murder for their roles in the Boston Massacre and ‘claimed later to have suffered the loss of more than half his practice.’ …
“Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints … is contrary to the Constitution. … Simply put, government officials ‘cannot … use the power of the State to punish or suppress disfavored expression.’ That, however, is exactly what is happening here.”
We are not as confident as Judge Crawford that the excesses of the Trump era will pass into history without doing permanent damage to democratic ideals. But if they don’t, courageous judges will deserve a lot of the credit.