Deconstructing the Narrative of the Resistance Judiciary

If you're like me, anytime you hear or see a news story now that starts out with: "X number of such-and-such experts" or "former intelligence officials" or "retired military officers" or some such "sign letter saying Y," you've learned to discount it. We're supposed to be impressed by the appeal to authority and/or the number of those signing off on a proposition. 

We aren't. Not even when they're judges. 

Now, it pains me a bit to say that because I'm a firm believer in the judiciary and its having a critical role in our governance. And, as a recovering lawyer myself, one who practiced law in multiple courts before multiple judges over the course of almost three decades, respect for the bench is ingrained. I'm well acquainted with the fact that rulings often don't go the way we want them to, but primed to start from the premise that judges know what they're doing and get it right more often than not. They get that "wisdom of Solomon" deference, which, I realize, is often unwarranted. I'm simply acknowledging my default setting on this. 

So when I saw the story several days ago about "42 retired judges" having signed off on an "open letter" criticizing the Trump administration's indictment of former FBI Director James Comey, I semi-dismissed it. I knew not to put much stock in it — that it was likely a cohort of NeverTrump sorts being trotted out to sound impressive; that I'd probably disagree with their take; and that, in the whole scheme of things, it wasn't worth the ink or digital space used to create it. I wrote it off. 

But then, while listening to my favorite podcast ("America This Week") on Saturday, hosts Matt Taibbi and Walter Kirn fleshed it out a bit more, and I was stunned at the absolute absurdity of the portions of the letter they shared. 

So, I felt compelled to search it out myself and see if it was as dunderheaded as it sounded. Indeed, it was and is, so, as I did with the narrative of the left following Charlie Kirk's assassination, I now feel compelled to deconstruct this ridiculous letter authored/signed by what I am now referring to as the Resistance Judiciary™️.

SEE: Deconstructing the Narrative of the Left - Part 1: Fact vs. Opinion

Deconstructing the Narrative of the Left - Part 2: The Debate

First, a word about the signatories: Top of the list is Judge Michael Luttig, a former Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit. His name may sound familiar, as he is a frequent talking head on legacy media outlets sounding the alarm about the Bad Orange Man and such. Okay, that tracks. 

I actually didn't recognize any of the other names on the list — none were from Missouri; surprisingly few were from what we'd consider red states, even. Plenty of California, Massachusetts, and New York, though. Bearing in mind that these are all retired judges and thus, wouldn't be of recent vintage, the most charitable reading of political affiliation as to the judges and/or the executives who appointed them is that this list consists of a 75 percent Democrat, 25 percent Republican lean. And by charitable, I mean assuming that someone appointed by Ronald Reagan or George H.W. Bush is aligned with Donald Trump and the Republican Party of 2025. In other words, realistically, there may be two or three judges on this list who still vote Republican. 

That right there undercuts the "authority" this missive carries. We don't know, of course, how many former judges were contacted who opted not to hop on this bandwagon — and whether they did so due to ideological motivation, or out of second-hand embarrassment for the ones who did. 

Does it seem like I'm being harsh? Well, let's move on to the body of the letter and dissect it (main bullet points are the letter's language; sub-points are my commentary): 

• "The rights and liberties of Americans are protected by the Constitution and the Rule of Law."
  • Check. We are in agreement.
• "Those rights and liberties of every American are in grave danger today, as President Donald Trump continues to corruptly abuse the power of his office by directing the United States Department of Justice and the Federal Bureau of Investigation to target his critics and his perceived political enemies for investigation and criminal prosecution." 
  • There's a lot to unpack there. It's largely their opinion/characterization, but while I agree it sounds ominous, I'm left wondering why they never spoke up during the Biden or Obama administrations. Yes, this is whataboutism, but even if we take their characterizations at face value, they're willfully turning a blind eye to anything that happened prior to January 20, 2025. It also presupposes there is no legitimate investigation or criminal prosecution to be had. 
• "His every threat and every pretextual investigation and prosecution further corrupts America’s democracy and Rule of Law."
  • Again, this presupposes there's nothing to investigate or prosecute. And why do we always default to "America's/our democracy" with zero acknowledgment that we're a republic? 
• "In the United States of America, the Constitution forbids President Trump from ordering the unfounded prosecution of his perceived political adversaries and his critics."
  • Hold the phone here, yer honerz — I am absolutely certain the Constitution never once mentions "President Trump." Does it place limits on the scope of the president's authority? Yes. ALL presidents. 
• "While the Constitution does not prevent President Trump from firing federal prosecutors, no prosecutor should ever be fired for refusing to bring baseless charges against President Trump’s political adversaries and critics." 
  • Okay, again, they skip right past the acknowledgment of that which is within the purview of the president and right into prejudging the case against Comey and pronouncing the charges against him "baseless" and due to his criticism of Trump (like criticism of Trump is a rarity). 
• "Yet that is exactly what Donald Trump has done. He has fired his own prosecutors because they refused to pursue criminal charges against Americans for whom he harbors personal animus and then he has immediately installed handpicked replacements who have pursued the investigations or indictments that their predecessors declined to bring, despite reportedly having been told that there was insufficient evidence to bring charges."
  • I think this is a fair point to argue. This is their opinion and they're entitled to it, though, of course, one might question what they're basing it on.  
• "As a consequence of President Trump’s actions over the past nine months that he has been in the presidency, no American is safe from criminal prosecution, regardless of whether they have violated the law and regardless of their political or ideological views."
  • This is hyperbolic, to say the least. Are they contending that the Constitution no longer affords Americans protections? And weren't they just saying Trump was going after his political adversaries? But now it's just anyone and everyone, willy-nilly?
• "For the first time in American history, the bedrock First Amendment right of American citizens to disagree with their president and their government and to express their views and opinions on any matter they wish — including their president — is under unprecedented attack by the President of the United States."
  • So, I guess these fine folk were asleep during the Biden years? No familiarity with Missouri v. Biden/Murthy v. Missouri? No awareness of the Twitter Files? Or Google's recent admission that it took down YouTube accounts under pressure from the Biden administration? Or Facebook/Meta's acknowledgment of similar actions? 
  • More importantly, what on God's green earth does the First Amendment have to do with the charges against Comey? Are they contending that there aren't federal statutes that criminalize making false statements to Congress or interfering with congressional proceedings? That St. Comey is somehow immune from their application because he also happens to be a critic of Trump? He's not being charged for his criticisms of (or veiled threats against) Trump. 
  • Also, the Department of Redundancy Department is calling regarding the highlighted portions above. 
• "All Americans have an obligation as citizens of this great country to speak out against this unprecedented attack on our freedom of speech and to demand that Donald Trump’s attacks on our right to speak freely without fear of being persecuted and prosecuted by our government must stop now."
  • Again, how is Comey's prosecution an attack on freedom of speech? Are these former jurists genuinely contending that the First Amendment protects false statements in congressional proceedings? 
  • And again, I suppose it's nice that they decided to wake up and decide that government suppression of speech is a bad thing. Where were they circa 2021 and 2022? 
  • Lastly, what is it they're hoping to accomplish with this? Do they think this will gin up enough outrage and angry calls to the DOJ that it will just reverse course and decide to drop the case against Comey? Is that how they think the judicial system is supposed to work? Is that how they decided cases when they sat on the bench?

I don't know who drafted this letter. I don't know how closely those who signed it read it or how deeply they thought about it. I do know that other than giving a thrill up the leg of those who already agree with them, this is about the lamest virtue signal I've ever seen. And I am thoroughly embarrassed for the once vaunted judiciary. 

 Judges Statement on Comey  by  Susie Moore 

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