Legal AF by MeidasTouch - Trump Melts Down as Federal Judges Defy His Attacks and Reign Him In

Episode Date: September 19, 2026

On a special Constitution Day Legal AF, Popok is joined by Article III Project leaders former Federal Judges John E Jones, III and Jeremy Fogel to brief our audience on what can be done to protect our federal judiciary from violent attacks that threaten the independence of the judiciary enshrined in our Constitution and in our Declaration of Independence. Subscribe: https://www.youtube.com/@LegalAFMTN?sub_confirmation=1 Become a member of Legal AF YouTube community: https://www.youtube.com/channel/UCJgZJZZbnLFPr5GJdCuIwpA/join Become a member of the Legal AF Substack: https://michaelpopok.substack.com/20off Follow Legal AF on Bluesky: https://bsky.app/profile/legalafmtn.bsky.social Follow Michael Popok on Bluesky: https://bsky.app/profile/mspopok.bsky.social Subscribe to the Legal AF podcast feed here: https://podcasts.apple.com/us/podcast/legal-af-by-meidastouch/id1580828595 Subscribe to the Intersection with Michael Popok podcast feed here: https://podcasts.apple.com/us/podcast/the-intersection-with-michael-popok/id1818863274 Subscribe to Unprecedented with Michael Popok and Dina Doll podcast feed here: https://podcasts.apple.com/us/podcast/unprecedented-by-legal-af/id1867023089 Subscribe to Court of History with Sidney Blumenthal and Sean Wilentz podcast feed here: https://podcasts.apple.com/us/podcast/the-court-of-history/id1867022920 Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to a special Constitution Day edition of Legal A.F. We're celebrating the Constitution, and just coincidentally, it was also the birthday for the Legal A.F. YouTube channel two years ago on Constitution Day. And when we talk about the Constitution and the rule of law, what we're seeing now in the last, at least the first two years of the second Trump administration is something we probably have never seen before, which is former and even current judges and federal judges. judges speaking out about what they see as a assault on the rule of law, on judicial independence, on the individuals that occupy the Article III office and where are the robes? And what is that doing to our democracy? What is that doing to our ability to hold a co-equal branch of government

in the presidency accountable? And I can't think of two better former federal judges to bring together here to brief our audience, then John Jones, former federal Judge Jones, the Middle District of Pennsylvania, the Bush appointee, who's now the president of Dickinson College in Pennsylvania, and Judge Jeremy Fogel, who had been a Clinton appointee in the Northern District of California and the director of the Federal Judicial Center, and now with a think tank affiliated with Berkeley. I'd like to bring you both together here. Welcome you to Legal A.F. Thank you. It's great to be here. So before we got on, kick it off with Judge Fogel, we were talking about Article 3 and Article 3 judges and the history of judicial independence. We talk about it a lot. We use that shorthand and that

vocabulary a lot here on Legal AF. Where did it come from? Why is it so ingrained in in our, are leaving England and forming a nation, a constitutional republic here in the United States. Well, thank you for that question because I think it's a really an important one. And it takes advantage of the fact that we are celebrating the 250th anniversary of the Declaration of Independence. And, you know, if you read the declaration from beginning to end, it's very interesting. What everybody remembers is the we hold these truths to be self. evident sentence, you know, the greatest sentence ever written. And that's what people remember.

And what that most people do not remember or even register is that after that sentence, that this is why we're doing this, we hold these truths to be self-evident. There are 37 specific grievances that the people who signed the declaration had against King George. And they listed all 37 grievances. And some of them relate directly to the judiciary. They called out the fact that the king basically could fire judges whenever he wanted to. He could decide not to pay judges just on a whim. If he didn't like a decision a judge made, he could just nullify it. In other words, the powers of judges were completely at the will or the whim of the king. And then they talked about some of the other abuses that flow from that, that you could send troops into a city and

nothing could be done about it, or you could station troops in somebody's house and nothing could be done about it. You could deport people and try them somewhere else for imaginary crimes. Nothing could be done about it. So when you look at what happens 11 years later in Article 3, one of the two or two of the really critical provisions in Article 3 have to do with the tenure of judges. So federal judges under Article 3 have life tenure, which means that the king or the president or Congress can't fire them unless they commit a crime or high crime or misdemeanor or treason or something like that. And you can't cut their salary. And why is that in there? Well, it's in there because that was something that the king had done. So the idea of Article 3 was

to make sure that those kinds of levers that the king had over judges were no longer there. And you were saying when somebody is appointed and confirmed as an Article III judge, they have life tenure unless they commit very serious crime for misdemeanors, and you can't cut their pay. And yet on that, Judge Fogel, we've seen Trump and his proxies to try to do both things. Yes. Well, just let's use Chief Judge Jeb Bosberg. in D.C. as an example.

Donald Trump's proxies in the Congress were moving to cut his budget. Right. And so not his paycheck, but his budget and try to impeach him and remove him. And I want to say something about impeachment in just a second, but I think it's important to see how the language in Article III ties directly to what happened in the declaration. And the language in the declaration is directly borrowed into the Constitution. some other things you'll see in the Bill of Rights that do the same thing. Now, with regard to Judge Bowesbury, a good example, in 1804, so there was a guy on the Supreme Court named Samuel Chase,

he was a, he was not the Chief Justice, but he was a justice of the Supreme Court of the United States. He was appointed by George Washington in 1796, and George Washington was a federalist president. And in 1800, the Jeffersonian, won the presidency, Thomas Jefferson became president, and in 1802, they won supermajorities in both houses of Congress. And Justice Chase, in addition to being a federalist, was kind of a loudmouth. He was very outspoken, and he didn't make any secret of his predilections. And, you know, today it's doubtful that he would last very long on a Supreme Court without getting heavily criticized for being partisan, but back then, I guess there was a little more room for that.

But in any case, the Republicans, the Jeffersonian Republicans wanted to get rid of him. And so they impeached him. And so in 1804, he was impeached by the House. And the articles of impeachment basically talked about his policies. He was favoring federalist policies, and they didn't want that. And so went to the Senate for trial. And the assumption was that he would be convicted and removed from office because the Jeffersonians had a supermajority in the Senate. And lo and behold, six members of the Senate, Jeffersonian members of the Senate, did not vote for conviction.

And so they fell short of the two-thirds and Justice Chase was not removed. And the precedent, the reason they gave for their vote was that we do not think that it's consistent with Article 3 to remove judges from office simply. because we don't like the rulings. We just don't think that's right, and so we're not going to vote for it. Now, you fast forward to about a year ago, and the calls to impeach Chief Judge Boasberg and some other judges who had made rulings with the current administration doesn't like, the Chief Justice actually made a public statement, and this is something he doesn't do very often. I mean, he gives a year-end report every year, but generally he doesn't do things like this.

and he made a public statement saying this is not a valid grounds for impeachment. And he went back and he said, this has been true since 1805 in Justice Chase. You know, so this, you know, there are such deep historical roots here. It's not just the declaration in Article 3, but, you know, in the very, very early years of our Republican, we're still figuring out what the judiciary does and doesn't do. You know, we had Marbury v. Madison, which talked about the right of judicial review. And right around that same period in time, we're still figuring out, But a year later, we had the unsuccessful effort to remove Justice Chase because of disagreement with his views. So that's how old this stuff is. This is not some new thing. This has been 239 years of history. Well, that's a great touchstone. Let me bring in Judge Jones on Constitution Day. I guess my first question for you, Judge Jones, is why do you think it's important for you in your position, your vantage point of being a former federal judge, Bush appointee? I mean, I never used to mention who appointed who back when I came out of law school 35 years ago, but it seems to be something we have to do these days. People want to know these days. But why is it important for you as a former federal judge to speak out when you see things that are unconstitutional or incorrect abuse of the rule of law? And my follow-up question is, would you have the courage to do it today if you were still on the bench? I mean, we've interviewed Judge Salas and Judge Bloom, who have come out and, you know,

within the parameters of what they feel comfortable in talking about in defending the judiciary. So talk about it from both vantage points. Sure. Well, I think in the first instance, to your first question, for Judge Fogel and myself, we're unfettered by the Code of Conduct that properly restricts what judges can do. As we frequently say, you know, judges can't get out on the court-house steps and have a press conference, no matter what the sort of loosening of some of the strictures are that probably isn't going to work and is going to get that judge. in some difficulty, but we can give voice to things that they can't say. We understand the business of judging, if you will, and we understand the dangers they're involved. And I think all of us feel passionately that we've got to stand up for our former colleagues who remain on the bench. And as you said, some of them have kind of dip their toes in the water of

speaking out. Others have not. I think, you know, Judge Bowes, you use it as an example. I really have used him again and again because there's a guy, you know, who convenes court on a Saturday, probably a lovely spring Saturday, ends up being lied to by the government's attorneys that it wasn't an emergency situation. They, the government defies his order that the plane should not take off. And, you know, where I came from, and I'm sure where Judge Fogel came from, it doesn't matter whether you issued it in writing. If you say it and it's in the record, it's to be obeyed. Lawyers know that.

Of course, you know that. And then he gets vilified as a cook, you know, a criminal and so forth. And then adding insult to injury, there's impeachment. So, you know, would I do that if I were on the bench today? I probably would speak out to the extent that I could. but we're still in a position we can speak out more than that. And, you know, playing off what Judge Fogel said, the interesting contrast is, you know, in the days of Samuel Chase,

you couldn't docks a judge, you couldn't find his home necessarily. You couldn't send a pizza, which is being done, as you probably heard, to judges across the country in the name of Danny Andrew, Esther Salas' assassinated son, all those things, you know, couldn't happen. So in this digital age, judges are at far larger risks than, you know, simply being criticized. And, you know, we're in a world of hurt today where our colleagues, our former colleagues, are not just in fear for their own safety. Some of them have said, as was cogently said by Judge Fogel in the recent article, they feel like there's bull's eyes on them. But worse, they're for.

families. And I think that's really, really beyond the pale. And how is that, and for both of you, we can put you both up on the screen, how is that impacting the quality of judicial decision-making? Is it, listen, I mean, let's be frank. We'd like to think that it's not having an impact, that the impact that Donald Trump and those around him wanted to have, but these are human beings that didn't sign up for this, nor did their families sign up for this. Is it having an impact where, you know, it's the preliminary injunction not entered? It's the motion to dismiss that's now granted. Do you think it's having an impact? Or is the, you know, I'm not challenging and don't, don't tell me about anything that you've heard directly from people on the bench. But is it having

an impact? Well, so that's a really important question. And I'm going to, you know, I talk to a lot of judges. I mean, being FJC director was one of the great experiences of my life and one of the things that made it so is I got to know judges all over the country. So a lot of a lot of relationships I still have. And I talked to you and we talk about this. And I think the federal judiciary actually has been incredibly resilient. I just, you would think what you're taught, I mean, I was a state court judge before I was a federal judge and we had elections, Right? And believe me, people thought about it. You know, I think they tried very hard to have integrity in their decisions, but a lot of times you don't know even whether you're being influenced by something. You know, you're not always conscious of what's influencing you. And I think, I think for state judges, like every four years or six years or whatever, you know, had to run for reelection, that was a constant worry. I think, you know, the wisdom of the founders in having life tenure for federal judges, you know, really, really is important because I I think people know that they're not going to lose their job regardless of how they rule.

Now, that's not the end of the inquiry because they might not lose their job, but they're going to get attacked and they're going to get threats and they're going to get all of this. And I have to agree with Judge Jones that has gotten way worse because of social media. You know, I mean, I had a case 20 years ago, probably the hardest case I ever had, was a very controversial issue in my home state. I got plenty of controversy about my decision. And the plenty of controversy kind of added up to about 300 nasty emails because there was no social media then.

Judge Jones had a very controversial case. He got a lot of blowback on. I mean, I don't know how many emails you got, John, but it wasn't millions, right? Well, you know, interestingly, the case that Judge Fogel was referring to was when I stopped the school district from teaching an alternative to evolution known as intelligent design,

And I got mail. Yeah. What's that, right? And, you know, so it quaint and sort of. But to your question, I am proud of the federal judiciary. I think they're standing up and doing their job. My fear is not that they won't do their job. They will.

But my fear is, and I've said this very starkly, somebody's going to get hurt or killed, you know, for doing the job. But there's something else. to that that I really worry about, and I'll bet Judge Fogel does as well. You know, because we've created this climate, it makes me wonder. You know, when I got on the bench in 2002, it was, and remains, you know, the great honor of my life to serve for almost 20 years. I wonder today. You know, we want to get our best and brightest on the federal court.

If you knew you were signing up for a job where, you know, basically you're going to put yourself and your family at risk and be looking over your shoulder all the time. Honor, though it may be, incredible honor. Do you want to do that? And, you know, that's the next step. Yeah, I really think that's right. And I think that we haven't seen that yet.

We haven't been, we don't have data. I don't know whether that's going to happen or not. But I certainly think it's true. I mean, I remember when I was interviewed for the district court in 1997, that I remember I got a question from the people that, DOJ, is the fact that you might get threats going to be a problem? And I said, no, you know, I mean, I've been a state court judge and I've gotten people mad at me for giving custody a different parent or something like that. So, I mean, I've been there. But I mean,

the question had a completely different context from what it has now. I mean, I wasn't worried about getting vilified on social media or getting threatened. And I think there's another dimension of this that I think people are doing doing their job and their, and their, They're trying to make the best and most forthright decision they can, regardless of all of the noise. But it's not that it doesn't affect them. It's not that it doesn't get internalized. It's not that they don't lose sleep. It's not that it doesn't affect their personal lives.

And I think, so it's not just people not wanting to be judges necessarily who might otherwise would. It's also people leaving early. And there's a guy I know who I don't want to do anything to identify, but he's taking. as soon as he becomes eligible to fully retire, he's going to fully retire. Yeah. Based on some controversies he's been involved in. Well, I've certainly seen it. You know, I've been a federal court practitioner for 35 years.

I've certainly seen it where judges cut their career short. You're like they're leaving the federal bench. That never retire on the federal bench. You don't become senior status. You don't leave and go back to private practice. And now you've got the federal bench getting the same pressure on it that the other two ranch is get. You know, there's people who don't run for the presidency because they don't want to put their family through, you know, that process, that that Gristmill and, of course, members of Congress.

But we never used to talk about that also happening to judges. But when you have the Trump administration, you know, the tone is set from the top, when you have Donald Trump himself, who's been through the court system, state and federal, civil and criminal all the way up to appeal and has some very definite ideas about how that is supposed to work and is not shy about talking about it, but now from the bully popet of the presidency, when you have him, then send out the message that it's fine for the General Counsel, the Department of Homeland Security, to put effectively targets on the back of a bunch of judges that he didn't agree with their position. It's one thing to criticize. You don't agree with jurisprudentially with how they got to a

decision. It's yet another thing to say, you know, target of the week or whatever the heck he was doing. Well, to that point, you know, I saw a stat recently on the confidence or lack of confidence that the public has in elections. And it's incredibly low. And there is no empirical data that would support, you know, that kind of lack of confidence in state's abilities to conduct elections. But it is this constant drumbeat and this narrative. And just like, you know, states don't use PR machines to talk about the integrity of their elections, neither does the federal judiciary have that. And this thing is, it's wearing on the federal judiciary, and you see what happened with the mail-in ballot case and the president's, you know, pronouncement about that. And, you know,

talking about his disappointment in his, as he describes them, justices, you know, who he nominated for the court. We've always known it's a result-oriented business, but it's become so deeply personal. And by the way, you know, this isn't just lower court judges. We've got, you know, Justice Coney Barrett getting swatted. We've got an assassination attempt against Justice Kavanaugh. I mean, this is all around. And that is. is entirely helpful, unhelpful, excuse me, that type of critique, pulling out justices by name. Think back, think back in our youth with Watergate at 1974. You know, Richard Nixon had to hate the decision that made him turn over the tapes.

Not one word from Nixon publicly at that time about a unanimous decision in the Supreme Court that ended his presidency, rail, though he may have in private. Boy, we've really crossed the Rubicon. We have a president that not only, as you said, not only attacks Supreme Court justices, birthright citizenship, mail-in ballots, tariffs, but drags their family into it. Oh, and their family is embarrassed by them, he has said before. Chris Cooper, a federal judge that's handling the Kennedy Center case, it's not just Judge Cooper. It's his wife doesn't carry his name.

embarrassed by. I mean, the low blows. And I can, I can tell you, there's two judges I think of in Washington. I know both of them. I suspect that Judge Bogle does too. Richard Leon and Chris Cooper. I know them both. I'm proud to say that Judge Leon's son is a graduate of my college. And they are great judges. I mean, really, really fantastic judges, you know, doing their job. And as is Judge Bowsberg, you know, to return to Judge Bowsberg again, and judges, judge, as we say sometimes in the profession of judging. And, you know, this, it isn't as if, you know, they're talking about incompetent people. These are real pros at the business of judging. And this is totally unwarranted.

And you invoke the family. As Judge Fogel said, I accepted when I got in the bench that, and I'm not a fatalist, but I accept that. that I could get threatened and things would happen. I did not sign up for a job, you know, where my kids and my wife were going to be exposed to that same arm. That's the climate we're in today. Let me ask both of you, Judge Jones and Judge Fogold, is the Supreme Court and its leadership doing enough to protect the federal judiciary?

I mean, I know I saw Amy Coney Barrett along with Kagan talking about security, her own personal security problems. And, you know, there was a one-liner in the annual report, you know, that Roberts did a couple years ago. But are they really doing enough? I mean, they even signal that, you know, they go after district court judges like senior judges in Boston and how dare you? You didn't follow our one paragraph, shadow docket ruling. And, you know, like, what are you even talking about? You're talking about my buddy, Judge Young, and you got to, but I mean, I'm just saying, you know, are they doing enough? This is, this is, in some ways it's in the eye of the beholder. I think, you know, I'll just talk about

the Chief Justice, who, you know, I worked closely with for seven years and who I have a lot of respect for, which has nothing to do with what our judicial philosophies are. I mean, I just respect him personally, and I was a good guy to work for. I think from his perspective, he's already done way more than he would have ordinarily done. I mean, he's made multiple public statements. I mean, he's called out people who are calling for the impeachment of judges for rulings. He's talked about threats. He gave a pretty, for him, emotional plea to stop, stop that kind of stuff the last time he spoke out. So I think given who the chief is, I think he's doing more than he's ever done before. There's still people out in the community who wanted to do more. I mean, I say the community,

I mean among judges who would like him to be more assertive and more visible, you know, go to Congress and say, we need more Marshall, we need more money. You know, this is a This is really affecting. That's not who he is. I don't expect him to do that. But I just think that's, I mean, there is certainly debate within the judiciary about that. I think what I heard from most of the people who saw it was that when Justice is Barrett and Kagan went to Congress, they gave a very good account of themselves.

And it was as close as you could get to a sort of a bipartisan message. I think the problem is if you start talking about specific cases, then people are, are going to start accusing you of being political. You know, and I think, you know, we try very hard on our coalition to avoid that kind of, you know, anything having kind of a partisan bent, you know, yes, we'll talk about President Trump, but when there have been Democratic presidents who have done things or Democratic office holders who have made inappropriate statements, we'll call attention to those. I mean, it's important.

It's important to do that if you want to have that credibility. But then you talk about specific cases. And that's why I just said, I mean, I really, I mean, I really like Judge Young and, you know, we're friends. And I thought it was very unfairly attacked, you know. And so I don't, I didn't. And I know Justice Gorsuch, too. And I, you know, had a friendly relationship with him before he got on the court. I didn't think it was fair of him to attack Judge Young the way he did, you know.

But, you know, when you talk about these things in, in a public context, if it's not private conversation. I mean, people inevitably think you're being political. And I think that's a real tough line we have to walk. You know, like, structurally, we need to understand what the judiciary does and what judges are about. And if they don't do judicial things, if they don't act in accordance with judicial principles, then it's fair to criticize them for that. It's absolutely fair to criticize them for that. But the personal attacks are, they demean everybody. They drag us all down. Yeah, Judge Jones, what do you think about this? Well, you know, I move to say that I don't agree with what Justice Gorsuch did with Judge Young either,

but there isn't of one of us that toiled on the district courts that didn't get a lash taken to us by the circuit court, if not. No kidding. You know, there's two kinds of reversals. I've said that to a lot of people. One is, you know, the learned trial judge labored over this case and unfortunately fell short. The other was, what are you thinking? What possible reasons to do for this? No, that's true.

You know, that's in the business of judging. But, look, Judge Fogle knows the chief so well. I only know him casually. I agree it's not in his nature. I think he's done more than he would, his instincts would tell him to do. He's a very smart guy. I think he's protected and stood up for his judges for all of his tenure. I'm proud of him, you know, for doing that.

So I would not criticize him. I think he knows and I sense he understands that if he gets his rhetoric dialed up more, he's just going to get in a back and forth with the President of the United States that's going to cheapen the prestige of the court. It's not for him necessarily. And I agree that Justice Kagan and Justice Kony Barrett really acquitted themselves well in front of Congress. The federal courts were not built to be a – a – in fact expressly not built to be a PR machine.

I mean, it's just not what we do at this point. Again, circling back, the Article III Coalition, we're trying to give voice to things that they can't do. And so I don't have a problem with the court. Let me end it this way, and thank you both for being here on our Constitution Day episode. if the other party gets the gavel for the Senate and House Judiciary Committees, I think it would be probably Senator White House and, of course, Jamie Raskin. What would you like them to do to help your cause of the things that we've outlined here

of the assault on the judiciary and the individuals who occupy those robes? Well, I just wrote a op-ed about this for the Hill. You know, and that the reason we placed it there was we really would like to see Congress do something more about judicial security. You know, actually strengthen the martial service, protection for judges, find some way to go after the people who've been doing the pizza doxing and the other things that have terrorized, and that's not too strong a word, have terrorized the families of judges who were just doing their job. I think the lack of attention to those things is really a scandal. And I hope that if power changes hands, that that'll be a priority. Yeah, I think that, and I fully agree with my colleague, I think more resources towards judicial security.

I served on the Judicial Security Committee a couple terms. And it's far worse than when I was in the committee. And the other thing is, you know, try to elevate the public, you know, debate and rhetoric about these things. I think there are a number of elected officials trying to do that, but we really need to reset the way we're talking about the judiciary today. And it's happened on both sides of the aisle without question. So, you know, if we have some thought leaders who are bold enough to come forward and, you know, talk honestly about the value of the third branch of government, of this co-equal branch that, you know, is taking so much income and fire. We are the least

dangerous branch in terms of how we can protect ourselves. And I would wish them to think about that if they take the gavel. Yeah, you know, I'd like to, I'd like to sometime after the Supreme Court makes a controversial decision, you know, whether it's one I agree with or not. I'd like to have some leader in Congress say I respectfully disagree with the decision. I think it's wrong. I think it's going to have very negative effects on the country. I really wish that they had decided the case differently, but we have a process and I respect the process. I'd like to hear somebody say that. Right. I don't think anybody has said that since Al Gore conceded the 2011. Yeah. And listen, I regularly, as you as our audience knows, I regularly have those leaders,

those thought leaders that you're talking about. I mean, as soon as you were all done here, I'm interviewing Senator Schiff. I've had Senator White House, Senator Booker, Jamie Raskin have all been on. And I'm happy to pose, you know, on your behalf, those kind of, this kind of questions to them to change the temperature, change the weather in the room and start being, you know, professional politicians again and and represent statespeople, the America. And look, that's what it's all, whether you're the Article III coalition or the rule of law society or the, you know, I just, I just interviewed Mike Lutig a little bit earlier today. You know, we all, regardless of our stripes or no stripes, and we all, I mean, those of us here who are patriots believe in our constitutional republic and the importance of the co-equal branches of government and me particularly in the Article III branch and its role. And, uh, That's it. We just have to get back to a place where we can have a good and healthy, coherent, respectful conversation and dialogue, but protect the judges because it's really happening. The attack on judges, it's really happening. And what we don't want is what Judge Jones has not predicted, but said, somebody's going to get killed or some family member is. And it's already happened in our recent memory. I mean, to hear Judge Salas talk about the month of July, which is very difficult. for her, both a wedding anniversary and the day that she lost her son is heartbreaking. I've sat next to Judge Salas when she's told the story. We did beat the press daily earlier in the summer, and it's all you can do to hold it together

when she tells the story, and I've heard her tell it under a number of different circumstances. It is gut-wrenching. In fact, gut-wrenching doesn't even describe it. That sums it up. Yeah. I appreciate you both being here, Judge John Jones and Judge Jeremy Fogel, now retired, but working hard for our democracy and protect our rule of law. Appreciate you both being here on Legal AF and briefing our audience. Thanks so much for us. Thank you. I'm Michael Popak. You're on Legal AF. Take a moment. It's our birthday today on Constitution Day.

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