Secret Proceedings Stymie President Trump

by Judge James Troupis, Retired Circuit Court Judge

            How can the lowest Court in the Federal Court system enter an Order against the President of the United States without even hearing from the President? On Friday evening that is precisely what happened in the back hallways of a New York Court. Judge Paul Engelmayer Ordered President Trump’s people to stop looking at Treasury Department records—strange indeed, but stranger still because the Judge did not walk down the hall to the U.S. Attorney Office, or place a simple phone call, and ask them to participate. (U.S. Attorneys are obligated by law to represent the President in all lawsuits against him as President and U.S. Attorneys customarily have offices in the Courthouse, staffed 24/7.) So, while the bruhaha that followed has focused on the very idea such an Order could be entered (it will be overturned at some point), as a former Judge, I am even more appalled at how it happened.

                  When a judge is sworn in, that judge is sworn in with an ancient oath of fairness. Nothing is more sacrosanct in Western Law, and its Judeo-Christian origins, than an obligation to provide ‘blind’ justice. Justice that is open for all to see, rendered without regard to the social, religious or economic standing of a party, is our essential heritage. Recall the Passion of Jesus Christ where three separate accounts take pains to note there must be ‘public’ sworn accusations and the defendant (Jesus) was given a chance to respond to the charges.  John 18:28-33, Matthew 27:11-14 ((Pilate to Jesus)”Do you not hear how many accusations they make against you?”), Mark 14:53-65 (“Now the chief priests and whole council were looking for testimony against Jesus to put him to death, but they found none….Some stood up and gave false testimony….”)

                  I was blessed by many wonderful mentors, and one of those, Mr. Justice Howard Ryan (former Chief Justice of the Illinois Supreme Court) once told me, “With great power, comes great responsibility. The hardest thing you will face as a judge is learning when NOT to exercise that power.” Years later, Judge John Shabaz (former United States Federal District Court Judge) echoed those exact words during the years my name was often mentioned for various judicial positions. And on the day I was sworn in as a Circuit Court Judge, the then Chief Judge of the Circuit reminded me that no system of justice will be trusted that does not honor its limitations and does not let people be heard.

                  So, while I was certainly disappointed by Judge Engelmayers’s substantive ruling about Elon Musk’s efforts, that ruling will fade away or will be reversed. The real damage is irreparable. A ruling was made secretly, behind closed doors, without public scrutiny. That ruling was made without so much as hearing from the other side—the President of the United States. If they can do this to the President, what chance do the rest of us have in such a system?

                  Our system cannot survive in secret! Yet, that is precisely what that New York District Court judge did in this case. All of us, and particularly EVERY lawyer, know that was wrong. Judges who enter such orders in any State Court will face swift discipline either from their fellow judges or from the public at a subsequent election. At a time, when there is grave distrust of our Courts, such behavior by this judge was inexcusable.

                  And this whole sorry episode is made even worse because it involved nineteen (19) State Attorneys General. No private lawyer who improperly asks for a “secret” order would go unpunished. When a private lawyer goes to a judge’s chambers and asks for an order without notifying the other party (the defendant and counsel) that lawyer always faces a grilling by the Judge. “Have you called or attempted to contact the Defendant? Have you called or attempted to contact the other side’s attorney? If not, why not?”

                  The answers to those questions better be very clear, very precise and must demonstrate either a.) To contact that person would cause grave and immediate danger (think domestic violence, bomb threat, etc.) or b.) I did everything possible to make contact but could not and the matter is an emergency (think “my client will die without an order,” etc.). And, even in those grave circumstances, if there is a lawyer who can be called, the judge will insist that lawyer be called and told in advance of the hearing (often the opposing lawyer will be put on the phone right there in the judge’s chambers).

                 Ask all the lawyers you know, they’ll confirm this and they will confirm the fear they would have about losing their license to practice law if they failed to meet these high standards.

                  This makes the conduct of those nineteen Attorneys General (all Democrats) genuinely improper. Surely, they could have called the U.S. Attorney from chambers. Surely they knew exactly how to contact the President and Elon Musk. This was not merely “judge shopping,” a topic covered ad nauseum elsewhere, this was grossly improper conduct by the Attorneys General—the highest-ranking legal officers of their respective States. To stoop so low and act so beyond the pale is shameful. Anyone hoping that times would change, that the tactics of the Biden era would pass, has had their hopes dashed just two weeks into Trump 47.

                  One can speculate as much as they would like about the reasons for all of these shenanigans, but it is beyond dispute that this was pure shenanigans. It was a shot-across-the-bow to any who thought the evil use of the law and misuse of the Courts would come to an end. Worse, it was yet another stain on all attorneys and courts. At a time when there is such deep distrust by the public of our legal system caused by a politicized judiciary, this midnight Order, obtained in a secret proceeding, by a New York Federal Judge, may well be one of the worst.

Judge Jim Troupis

Retired Wisconsin Circuit Court Judge. President Trump’s attorney in 2020. Speaker, columnist, talk radio guest, father, grandfather and fisherman.