Another federal judge is coming down hard on the Trump administration, and this particular judge’s repudiation may well be the most devastating indictment delivered to date.
Federal judges are constrained by ethics guidelines that generally prohibit them from making extrajudicial statements or engaging in activities that might reflect negatively on the public’s perception of their impartiality. For at least one one senior federal district judge, however, the Trump administration’s blatant embrace of corruption has made adhering to those guidelines untenable. Senior United States District Judge Mark L. Wolf, of the District of Massachusetts, is tendering his resignation, solely to be free from the self-censorship demanded by judicial ethical guidelines preventing him from speaking out about that corruption.
While Wolf’s resignation might be viewed as a mere drop in the bucket amongst the federal judiciary, it will almost certainly be received by his colleagues as more than merely symbolic. Wolf, appointed to the bench in 1985 by Ronald Reagan, has a career and anti-corruption pedigree largely unmatched by any serving member of the federal judiciary, simply by virtue of his 40 years on the bench, his service in the Justice Department and his proximity to some of the most high-profile cases of governmental corruption and malfeasance during his career. Moreover, as he readily acknowledges in an essay just published in The Atlantic, that esteemed senior status also precludes Trump from nominating a replacement, because unlike more customary departures from the bench, his resignation does not result in a vacancy within his district. His “successor” was actually chosen over a decade ago.
As Judge Wolf explains in his essay:
My reason is simple: I no longer can bear to be restrained by what judges can say publicly or do outside the courtroom. President Donald Trump is using the law for partisan purposes, targeting his adversaries while sparing his friends and donors from investigation, prosecution, and possible punishment. This is contrary to everything that I have stood for in my more than 50 years in the Department of Justice and on the bench. The White House’s assault on the rule of law is so deeply disturbing to me that I feel compelled to speak out. Silence, for me, is now intolerable.
Wolf’s departure here is emblematic of the tension that now exists between a thoroughly corrupt Executive Branch and a federal judiciary that now finds itself completely under siege, tasked with blocking a rogue president’s embrace of corruption in his pursuit of unchecked power. Wolf, who was mentored and served as Special Assistant under Attorney General Edward Levi during the Gerald Ford administration, recalls the latter’s admonishment to Levi that his job was to “protect the rights of American citizens, not the President who appointed him.” Following this philosophy, Wolf won more than 40 consecutive corruption cases over his four year tenure at Justice. For this he received the Attorney General’s Distinguished Service Award, and as a result was appointed a federal judge, by Ronald Reagan. His record has been nothing short of stellar.
As Wolf writes:
I decided all of my cases based on the facts and the law, without regard to politics, popularity, or my personal preferences. That is how justice is supposed to be administered—equally for everyone, without fear or favor. This is the opposite of what is happening now.
As I watched in dismay and disgust from my position on the bench, I came to feel deeply uncomfortable operating under the necessary ethical rules that muzzle judges’ public statements and restrict their activities. Day after day, I observed in silence as President Trump, his aides, and his allies dismantled so much of what I dedicated my life to.
His litany of the corruption exhibited by Trump and his complicit DOJ is instructive and devastating. Nor does he spare implicit criticism of the Supreme Court, whose conservative majority now operates behind the cloak of an insidious “shadow docket,” artfully sidestepping any need for the Court to provide a full explanation for its decision-making. He notes how this irregular and opaque process has placed the federal judiciary — sworn to support and apply the law — in an unfair and untenable bind, and concludes that if he stayed on as judge he would have had to cope with the same opacity. Rather than succumb to such suspect and inexplicable edicts in support of Trump’s actions, he has chosen to speak out. And he notes that he is not alone among the judiciary in feeling that way.
Others who have held positions of authority, including former federal judges and ambassadors, have been opposing this government’s efforts to undermine the principled, impartial administration of justice and distort the free and fair functioning of American democracy. They have urged me to work with them. As much as I have treasured being a judge, I can now think of nothing more important than joining them, and doing everything in my power to combat today’s existential threat to democracy and the rule of law.
Wolf cites the arbitrary prosecutions coming out of DOJ — prosecutions seemingly based on little more than the vindictive whims of Donald Trump — as examples of the corruption now apparently routinely weaponized by the Department of Justice. He specifically cites the harassing prosecutions of James Comey, Letitia James and (now apparently) Sen. Adam Schiff as examples.
Wolf also directly references Trump’s firing of 18 inspectors-general at DOJ; the dismantling of anti-corruption groups within the FBI and DOJ; the deliberate disregarding of ample evidence pointing to Trump’s own corrupt dealings with corporate executives in exchange for monetary largesse; Trump’s “Crypto” investments timely coupled with his dismantling of DOJ’s cryptocurrency enforcement unit; and possible illegal donations to the Trump family businesses by foreign agents. He also cites Trump’s “Border Czar” Thomas Homan’s purported acceptance of a $50,000 payment as detailed in an FBI investigation, and DOJ’s seeming blithe dismissal of Homan’s apparent criminality in doing so.
Finally, he notes the multiplicity of Trump’s Executive Orders, a number of which have appeared to be illegal on their face, and the administration’s insouciant tactics in responding to court rulings limiting or invalidating those orders. With respect to the courts themselves, Wolf notes the proliferation of threats emanating from the administration and its allies which have resulted in a climate of fear surrounding the judiciary and even its staffers, a state of affairs he likens more to kleptocratic dictatorships rather than purportedly functional democracies.
Judge Wolf has no illusions that he himself can alter the trajectory this administration has brought upon the system of justice in this country, but he plainly states that he feels he has no other choice but to act now, supporting litigation and working “with other individuals and organizations dedicated to protecting the rule of law and American democracy.” He also intends to speak out for those judges who, constrained by their ethical obligations, cannot fairly or effectively do so while still sitting on the bench.
I am reminded...of what Senator Robert F. Kennedy said in 1966 about ending apartheid in South Africa: “Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope.” Enough of these ripples can become a tidal wave.
His resignation essay in the Atlantic really should be required reading by every law school in this country. It will certainly be read by most, if not all, among the federal judiciary.
