Let’s talk about a subject I know something about. After dealing with me for 37 years when I was a judge in this county, I’m sure the local bar will be hurrying to get to the next paragraph and find out what that might be.
I want to talk about our court system. Every day, this newspaper publishes another article about a federal court somewhere that has thrown out something the Trump administration tried to do. The list of their cockamamie failures grows faster than the dandelions in your backyard.
As disturbing as the greed and cruelty of this administration is, the most surprising aspect of it may be just how bad they are at it. There’s no subtlety, no nuance, not even a semblance of competence. For all their other flaws, the most amazing one may be their daily resemblance to Mack Sennett’s Keystone Kops.
Part of this is doubtless attributable to the exodus of experienced and talented attorneys from the Department of Justice. Being an assistant United States attorney (AUSA) used to be a prestigious job. Now talent and smarts have taken a backseat to political sycophancy.
As demonstrated by Benjamin Flowers (federal judgeship appointee) and Jay Clayton (Director of National Intelligence appointee) in Senate hearings, the main requirement for Trump appointees seems to be a willingness to deny the historical fact of Joe Biden’s election six years ago. Both of these men refused to say Biden won, knowing the importance of election denial to their appointment.
This requirement, and a disinclination to be part of Trump’s Vendetta Tour, has caused throngs of AUSAs, who would have stayed in the office because they were doing something right and good for their country, to leave to pursue private practice. Others have been fired for the same reason. And their replacements . . . well, to apply the old legal joke, they couldn’t indict a ham sandwich.
They’ve had grand jury after grand jury reject their efforts to indict people who protested Trump policies. The significance of this fact may not immediately occur to you if you don’t realize that before a grand jury, the defendant isn’t represented and doesn’t get to call witnesses. So all the grand jury hears is the government’s position. Failure to indict is the equivalent of being unable to score a touchdown without another team on the field.
They’ve found other equally unprecedented ways to fail. In one case, their subpoenas to the New York Times were dismissed because they had ignored the requirements of a well-known case. Their excuse: we didn’t know about that rule. Sadly, there was no punishment in that case because the judge believed the mistake was actually one of incompetence rather than malice. He believed they really were that clueless.
This is unlike cases in Minnesota and Washington D.C., where judges essentially found the Justice Department cheated and manipulated the grand jury. Take your choice: bad faith or ignorance. That’s all they’ve got.
And on the rare occasions when they’ve gotten an indictment to stick, it’s been thrown out. The most recent is Jeanine Pirro’s pathetic attempt to prosecute a former U.S. Olympian for vandalizing the reflecting pool. She was forced to back off this week because there is simply no evidence supporting the president’s oft-stated insistence that the pool was vandalized by anybody.
While he has maintained that position—with wildly varying descriptions of the vandalism itself (more incompetence meant to disguise the fact he authorized a no-bid contract for the work to one of his cronies)—her office went into court and dismissed the indictment. She couldn’t bring herself to show up and take the medicine herself, but she did sign the motion.
And she admitted what everyone, including her and probably the president (although it’s been hard to know of late what he knows and what he doesn’t know), already knew: that there was no evidence that anyone vandalized the pool. She said she had “just learned” that. After indicting the man. After libeling him in court documents and slandering him last month by saying she had “tremendous evidence” that he had committed a felony. Now she suddenly looks around and says, “Oh my goodness, nobody vandalized it.”
This is not surprising. Ms. Pirro was appointed to her position by the president because he liked her work on Fox News. Unfortunately for both of them, courts require more evidence than Fox News.
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I’ve been watching these people for two years now, and I can no longer keep quiet about it. I’m always reluctant to criticize another lawyer’s work, but this is truly beyond the pale.
The criminal defense bar, of course, has to be happy to see these Trumpista newbies showing up. I know that when I was a prosecutor, nothing brightened my day as much as finding an inexperienced, unqualified, or ill-equipped attorney on the other side of the counsel table.
So the defense bar has to be pleased that a bunch of mediocre tyros are now being leavened into the mix of outstanding prosecutors who have traditionally made up the U.S. Attorney’s Offices across the country. But even they have reservations.
As one of the county’s leading criminal defense attorneys put it to me, “Unfortunately, we are the china shop owners who invited this bull in, so we have only ourselves to blame for his damage. And even after we’ve barbecued the bull, there will be a lot of crockery to clean up.”
William W. Bedsworth was an associate justice of the California Court of Appeal from 1997-2024. Prior to that, he served as an Orange County Superior Court judge from 1987–1997.