by Lev Tsitrin
Colorado Supreme Court’s bumping Trump from off the Colorado ballot proved — as was to be expected — a bonanza to the talking heads; New York’s so-called “public” radio station WNYC, for instance, dedicated to it a full third of its morning politics show. The host, Brian Lehrer, invited his favorite legal analyst Elie Mystal to split hairs over a bunch of legal aspects of the decision — state versus federal jurisdiction, originalism versus Living Constitution, self-executing Constitutional amendments versus those requiring Congressional action, the legal definition of the Officer of the United States for the purposes of immunity versus the purposes of disqualification for sedition, the political wisdom of the decision versus its legal rightness. And so on, and so forth — an endless flow of passionate words interrupted by questions from Brian, and from the callers.
Naturally, I also called in; though two of my phone numbers — as well as my email addresses — are blocked by WNYC (all listeners are equal, but some are less equal than the others), one phone number isn’t. I passed on to the screener a childishly naive question — at least compared to the sophisticated issues that were made simple, to the admiration of the listeners, by Mr. Mystal’s legal erudition and logic. The judicial branch, as I learned from suing a bunch of federal judges for fraud, had given itself a right to act from the bench “maliciously and corruptly” (in Pierson v Ray) — thus granting legality to judicial illegality. But given that all branches of the government are coequal — i.e. the executive is no different in terms of rights from the judiciary, this principle should equally apply to the executive branch, too. So doesn’t it follow from Pierson v Ray that Trump, even if he engaged in sedition, is not subject to the constitutional amendment blocking him from office? Judges’ right to be “malicious and corrupt” renders what is illegal, legal, and given that co-equality of branches renders Trump’s rights coequal to judges’ rights, it makes Trump’s illegal actions legal — it absolves Trump, just as it absolves judges from the consequences of judicial swindling, even while acknowledging it.
All questions aired on WNYC being equal, some questions are less equal than others — so Brian, as is his habit, didn’t take mine.
But this does not mean that Trump’s lawyers shouldn’t use this argument in court — the legal question being, are all branches of government coequal, or not? If the answer is “yes,” than guess what — it follows with inexorable logic that Trump cannot be punished for the events of January 6, irrespective of his level of engagement.
And if the answer is a “no” — than one branch is more coequal than the other two. Let’s than see how the public takes it. That will be a very interesting segment, Brian Lehrer and Elie Mystal. May be you will even take my call?
Lev Tsitrin is the author of “Why Do Judges Act as Lawyers?: A Guide to What’s Wrong with American Law”
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5 Responses
Judicial independence is one of the most elementary principles of modern jurisprudence. If you believe a ruling is incorrect then the solution is to appeal it to a higher court. You can also, in cases of egregious misconduct, sbumit a complaint to a higher judge or other body which can mete out appropriate punishment (a good example of this ishere). And (depending on jurisdiction) you can campaign for a judge not to be re-elected. But in the entire history of the United States, nobody has ever proposed suing a judge as the appropriate solution to an incorrect ruling.
Somebody else has already explained all this to you. They’ve explained that your understanding of Pierson v. Ray is completely mistaken, and that if judges could be sued by disgruntled litigants then this would impact their impartiality – the ever-present fear of a lawsuit hanging over their heads would impact their rulings and less people would be willing to become judges. And how that “malicious and corrupt” line you keep repeating ad nauseum is actually talking about protection from accusations of such behavior, not giving free rein than behavior.
If you don’t want to accept the facts then that’s your problem, but I think when you contact all these journalists, legal experts and press outlets and you’re met with deafening silence every single time, then that might be the world’s way of telling you, in the nicest way possible, that what you’re saying isn’t worth listening to.
Judicial independence, Orange Koolaid? Yes, independence from law, facts, logic, procedure is “judicial independence” — but what good does it do?
As to your example of “egregious misconduct” — it has nothing whatsoever to do with judging, and is simply n/a.
You should also note that I am not talking of “incorrect rulings” but of “fraudulent rulings” — rulings in which judges adjudicate not parties’ argument, but the bogus argument of their own concoction. So you know, fraud and error are two very different things indeed.
As to “someone else’s explanation” of my misreading of the meaning of Pierson v Ray to which you provided a link, the very link you provided offers a reply that explains why my reading of it is exactly right — given that Pierson v Ray does the exact opposite to its presumed intention — it gives free rein to “corrupt and malicious” judicial behavior while claiming to be a protection from such behavior.
And finally, the “deafening silence” from “all these journalists, legal experts and press outlets” you cite simply means that they are afraid to handle the subject of judicial fraud, that’s all.
Its not very complicated, Orange Koolaid. When it comes to the subject of the judiciary, you are utterly clueless, I regret to say.
Friend, your notion that judges have the freedom to whip up their own arguments instead of havin’ to follow the law is downright comical. Quit foolin’ yourself, partner, this is the land of Liberty, and the only reason why in a nation of three hundred million you can’t rustle up a single soul to ride this trail with you is ’cause what you’re sayin’ don’t make a lick of sense.
I’m not sure V S whether you are being ironic or not in calling America “the land of Liberty” — for liberty (i.e. free speech) can only be practiced in the US if corporations (backed by government) let you. What is “comical” in ” judges hav[ing] the freedom to whip up their own arguments instead of havin’ to follow the law”? May be it “don’t make a lick of sense” to you that judges should have to follow the law rather than being monarchically arbitrary — but apparently your view of democracy is that it is a monarchy, which is outright schizophrenic. So may be you are just laughing at the Kafkaesque American reality — it claiming to be a republic while actually being ruled by lawless oligarchs, federal courts being their chief protector — and are fully on board. If so, I appreciate you comment. If not, I don’t understand it. But thanks for reading.
Lawyers opining upon the legal aspects of what currently passes for our judiciary is like the news commenting on the “Biden Administration”. My goodness, the fellow can’t even find his way to the mic and back without help. Judicial activism has stretched the law beyond any facsimile of legal sense. We all know this.