U.S. District Judge Royce C. Lamberth, for example, in an otherwise routine sentencing memo for Jan. 6, 2021, participant James Little, castigated election deniers and Jan. 6 apologists. “The Court is accustomed to defendants who refuse to accept that they did anything wrong,” he wrote. “But in my thirty-seven years on the bench, I cannot recall a time when such meritless justifications of criminal activity have gone mainstream.”
Although Lamberth did not specify MAGA adherents, he condemned “distortions and outright falsehoods [that] seep into the public consciousness.” He continued: “I have been shocked to watch some public figures try to rewrite history, claiming rioters behaved ‘in an orderly fashion’ like ordinary tourists, or martyrizing convicted January 6 defendants as ‘political prisoners’ or even, incredibly, ‘hostages.’” (The latter came from the lips of MAGA flunkies, including Rep. Elise Stefanik of New York, a contender for vice president on Trump’s ticket.) Lamberth added that though such claims are “preposterous,” he fears that “such destructive, misguided rhetoric could presage further danger to our country.”
This was not a protest that got out of hand. It was a riot; in many respects a coordinated riot, as is clear from cases before me. … ‘Protestors’ would have simply shared their views on the election — as did thousands that day who did not approach the Capitol. But those who breached and occupied the Capitol building and grounds halted the counting of the electoral college votes required by the Twelfth Amendment.
The rioters interfered with a necessary step in the constitutional process, disrupted the lawful transfer of power, and thus jeopardized the American constitutional order. Although the rioters failed in their ultimate goal, their actions nonetheless resulted in the deaths of multiple people, injury to over 140 members of law enforcement, and lasting trauma for our entire nation. This was not patriotism; it was the antithesis of patriotism.
And the rioters achieved this result through force. … The First Amendment does not give anyone the right to enter a restricted area or to engage in riotous activity in the Capitol.
He conceded that his opinion wouldn’t stop the flood of lies, but he expressed hope that “a little truth will go a long way.” His extraordinary admonition (akin to former federal judge J. Michael Luttig identifying Trump and his supporters as a “clear and present danger”) speaks to the severity of the MAGA movement’s attack on the rule of law.
Likewise, in sentencing former Trump economic adviser Peter Navarro for contempt of Congress, U.S. District Judge Amit P. Mehta admonished: “I know you think it’s a political hatchet job. … [The House Jan. 6 committee] had a job to do, and you made it harder.” He called out Navarro’s attempt to play the victim as nothing but “chutzpah.” He lectured the defendant: “You are not a victim. You are not the object of a political prosecution. These are circumstances of your own making.” And he scolded Navarro that executive privilege was neither “magic dust to avoid a duty” nor “a get-out-of-jail-free card.” Every word of this would be equally applicable to Trump and his legion of enablers.
These rebukes serve as a long-overdue declaration from the judicial branch that piling lie upon lie won’t fly in the justice system. Facts matter in courts; miscreants cannot escape responsibility for lawbreaking. These judges refuse to let MAGA’s widespread contempt for courts and the Constitution be normalized; they remind ordinary Americans that Trump and his minions are not above the law.
Despite these efforts, judges can and must do more to confront law- and truth-defying Republicans. After the Supreme Court issued its opinion instructing Alabama to redraw its congressional districts to create a second majority-Black district, the Republican legislature and governor produced a new map that did not follow the court’s order. The Justice Department went back to court to direct Alabama to follow the high court’s order, but, regrettably, Alabama Republicans were not held in contempt. Their defiance did more than cost taxpayers additional money and court time; they set a troublesome precedent that they could defy courts to show off for their base without consequences.
Meanwhile, Texas Republican Gov. Greg Abbott intruded into the province of federal immigration authorities by installing life-threatening razor wire across the Rio Grande. He “seized” the border by putting the Texas National Guard in place, denying access to federal border agents. “The Supreme Court on Thursday granted a request from the Biden administration to allow federal Border Patrol agents to cut or move razor wire installed by Texas along a portion of the U.S.-Mexico border,” Scotus Blog reported. “Three migrants — a woman and two children — drowned on Jan. 12 near the disputed area, the Biden administration told the justices in a filing last week, while the Mexican government had to rescue two more who were suffering from hypothermia.”
Abbott announced that he will defy the Supreme Court’s order, thereby violating his oath to abide by the U.S. Constitution and other laws. The general counsel for the Department of Homeland Security wrote a letter to Texas Attorney General Ken Paxton (who sued, you might recall, to overturn the 2020 election), demanding access granted by the court. The standoff continues.
Just as troublesome, Speaker Mike Johnson (La.) and other House Republicans cheered Abbott’s attempt at nullification. They encourage blatantly lawless action when it serves their interests. (This echoes Johnson’s handiwork in rounding up more than 125 House Republicans to sign a brief seeking to disenfranchise millions of Americans and steal the election for Trump.)
If Abbott continues to flout the Supreme Court, the federal government should return to court to get a contempt order against him. If the executive branch and the courts do not put an end to states’ antebellum-like legal nullification, it will become the norm.
As we saw on Jan. 6, when elected leaders defy the law, they invite their followers to do the same. Chaos reigns, the courts become powerless, and mob rule (directed by an authoritarian leader) prevails. When Trump lambastes judges and prosecutors and promises to “weaponize” the Justice Department, judges must maintain a zero-tolerance policy for officials’ (and former officials’) defiance of laws and court orders and ignore their claims of persecution. Judges should continue to denounce the contempt for courts, the law and truth Republicans routinely display.
If courts do not mete out severe consequences for willful disregard of the law and attacks on the legitimacy of the courts, Trump will succeed in ripping up the foundation of our democracy. Judges simply must hold the line.
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