Exposed: The Federal Judges Using Lawfare to Block the Trump Agenda
Seven federal judges consider themselves the phalanx against the sitting president and his policies.
This report originally appeared in Restoration of America News and is reprinted with permission.
Democrats have had a very public political implosion after the public spoke by electing President Trump. Desperate for a way to derail the mandate he got from the voters, Democratic-appointed federal judges have attempted to intervene to stop the executive actions of a duly elected president.
So far, these exercises have hit three crucial areas of Trump’s constitutional populist project: DOGE’s government firings, Defense Department readiness preparations, and ICE’s deportations of illegal immigrants. Seemingly, seven federal district court judges are responsible, all appointed by Clinton, Obama, and Biden: James Bredar, William Alsup, Theodore Chuang, Tanya Chutkan, Ana Reyes, Leo Sorokin and James Boasberg.
Though each of the cases raises specific legal questions, within the context of the Constitution their significance is simple: judges are using specious interpretations of the law to interfere in another government branch’s clearly delineated authority. And, despite some conservative commentary calling the judges radical leftists, the jurists making this power play are harder than radicals to see and identify. Instead, they are insiders raised up by a legal establishment which increasingly functions as a hedge against constitutional democracy.
Approximately 630 federal district court judges currently serve full-time in the United States, and approximately 520 more have taken senior status, which means they continue to rule but with a reduced caseload. All told, these judges handle, combined, just over 300,000 cases a year. By contrast, federal appellate courts, which can overrule federal district decisions, handle just over 50,000 cases a year; and the Supreme Court, which has the final word, handles 70 to 80.
This means that 250,000 cases are decided, decisively, at the federal district level. It also means that a handful of federal district judges can stop the national executive’s agenda in its tracks. They can do this for two reasons. The first is because in almost every case the appeals process from a district ruling takes time. The second is the 30 year rise of “nationwide injunctions,” in which a federal court extends its ruling to apply to the entire nation not just its district. It does this on the justification of stopping the federal government from enforcing an order it believes will cause immediate and widespread harm, but the result is that the efficient rollout of Executive policy can rest on the diktat of a single judge.
The Legal Issues at Play—and the Questions They Raise
Drilling down to the underlying arguments in these cases suggests serious problems with the judges’ legal perspective—and raises questions as to why they hold it.
The more difficult cases involve questions over DOGE’s power to fire civil servants, based on the fact that the executives carrying out the firing must have been confirmed by the Senate. In the estimations of Judges Bredar, Alsup, Chuang and Chutkan, Elon Musk is the executive carrying out the order and he has not been confirmed, since his role at DOGE is an “advisory position.” Thus, in the judges’ view, the firings violate the appointments clause of the Constitution which helps make Congress a check on the President.
It's true that Elon Musk has been out front when it comes to the work of DOGE. But the Department’s recommendations have been carried out and approved by duly confirmed cabinet secretaries, and Musk is obviously an agent of Trump, who supports DOGE’s recommendations. In this context, judges derailing DOGE-recommended actions looks less like careful legal analysis and more like relying on fine print to stop the executive from exercising practical authority over the Executive agencies. What’s more, in recent years the appointments clause these judges are using to derail Trump’s action has become an overtly political weapon. Indeed, just a year ago, Democrats took the opposite side of the appointments issue to preserve Special Prosecutor Jack Smith’s appointment by the Attorney General without congressional consent for the cases he was making against Trump.
The cases not involving the appointments clause are simpler. They involve Trump’s authority over the defense department and migrant deportations, straightforward issues of national security over which the executive has constitutional authority. Using mostly procedural objections, Judges Reyes, Sorokin, and Boasberg are effectively undermining this authority on issues where, as polls show, the public clearly elected President Trump to protect the nation from what it sees as foreign enemies.
Why might these judges commit to empowering the Courts at the expense of the President? They have a good reason to try to redefine how popular government works. They’ve all benefited from a legal system stacked since the 1950s to create a legal elite separated from the pressures and realities of democracy and daily life. In fact, their career arcs amount to a comprehensive look at how institutions capture their most powerful operators: in this case to create an insulated, deep state-dependent, anti-constitutional elite.
Sorokin and Bredar: The Public Defenders Pushing Restorative Justice
Leo Sorokin and James Bredar work the nonprofit and identity angles to increase Washington power.
Both relatively older judges and Obama appointees, they are recognizable players from the Obama-Biden political playbook: former public defenders who tend to have graduated from the lower tier of elite law schools (not Harvard or Yale), then make their careers off of racially-oriented nonprofits funded, directly and indirectly, by Washington, D.C.
Bredar made part of his earlier career with the Vera Institute of Justice, which has as its mission to “disrupt and end racist systems.” This mission includes advising District Attorneys’ offices how to use Restorative Justice: a method to “reintegrate” and “reform” often violent criminals. Sorokin, too, has been singled out for his work bringing Restorative Justice to the federal bench. According to his alma mater, Columbia, in a complimentary article on the subject, “Sorokin says the idea of restorative justice should be integral to the criminal justice process.”
Restorative Justice’s disruptive and sometimes deadly consequences have become regular news items since it began its spread, and Restoration News has reported on them extensively. Restorative Justice’s spread has come at the hands of legal clinics at elite law schools, and that its overall result is to take control away from law enforcement professionals on the ground and hand power to DC-backed psychologists, lawyers, and administrators.
Reyes and Alsup: Woke Corporatists with Foreign Connections
William Alsup and Ana Reyes traffic in identity politics and multinational corporate conglomeration. This synthesis has made their careers, even as it has come to define the Democratic Party and hurt ordinary Americans.
They are appointees of Clinton and Biden respectively, and graduates of Harvard Law who went on to high-level Supreme and appellate court clerkships. Then they became woke corporatists. This means they embraced identity politics and pro bono cases on behalf of the obviously dispossessed while making their living representing clients who are systematically hurting the working and middle class through corporate cronyism and outsourcing.
After his Supreme Court clerkship ended in the early Seventies, Alsup made his career in San Francisco, which was just then beginning to be the site of technological innovation from Stanford and Berkeley from intensive funding by the federal government. Not surprisingly, given that Silicon Valley start-ups had a built-in interest in rising off government funding then swallowing smaller competitors, law firms like Alsup’s, Morrison Foerster, have come to specialize in defending these start-ups from antitrust claims. Alsup was an antitrust specialist at Morrison Foerster, and he then served for one year, 1998, in the Clinton Justice Department advising on antitrust. This was the very period that the Department made a showy antitrust case against Microsoft while allowing for unprecedented financial mergers that drove the 2008 Financial Crisis.
Reyes is the product of a decade at a corporate law firm, the Democratic-leaning Williams and Connelly, where she specialized in defending big pharma against class actions. She also “focused on international litigation, representing foreign governments, foreign government officials, and multinational companies.” A repeat client was the government of Spain; others include Serbia and a Caribbean holding company that seems to specialize in offshore accounts. This international focus makes sense, since, before her time at the firm, Reyes had attended the Paul H. Nitze School of International Studies: a seeding ground for deep state plays since the beginning of the Cold War.
Publicly, Reyes is better known for her media-friendly quirks as well as her identity-based and humanitarian appeals. These include a dog she takes to work; being an LGBT groundbreaker in her field; and work on behalf of asylum seekers. Not surprisingly, these glosses tend to distract from Reyes’s real identity: an ambitious operator at the intersection of corporations, foreign interests, and quite possibly the deep state.
Boasberg and Chuang: the National Security Links
Then there are James Boasberg and Theodore Chuang, who are directly involved in the maintenance of the deep state—and whose careers and family ties show how national security lawfare intersects with identity-based lawfare.
Boasberg, the son of a civil servant who helped implement Lyndon Johnson’s Great Society programs, graduated from Yale Law and then clerked for Judge Dorothy Wright Nelson, a Carter appointee, on the Federal Court of Appeals for the Ninth Circuit. He then became a federal prosecutor in Washington, D.C. before being appointed to the Superior Court of the District of Columbia by George W. Bush and then to the U.S. District Court for D.C. by Barack Obama.
Chief Justice Roberts appointed Boasberg to the Foreign Intelligence Surveillance Court in 2014. Since 1978, the FISA Court is responsible for approving, in secret, the government’s requests for wiretaps, and Roberts has the authority to appoint all of its eleven judges. This authority matters because Chief Justice Roberts, unlike some of his conservative Supreme Court colleagues, is a believer in both Executive authority and also in the legal community’s role as impartial arbiter “calling balls and strikes.”
In Boasberg, Roberts found an ideal pick: someone who consistently rules for whatever side increases Washington’s power, whether of judges or bureaucrats in the Executive branch. This makes sense given Boasberg’s background. He was not only a member of Skull and Bones at Yale (famously the incubator of generations of intelligence agents), but
his wife runs an abortion clinic and his daughter works at a nonprofit criminal justice advocacy group focused on "holistic" and "equitable outcome-based" public defense. Boasberg and his family, then, are direct and constant beneficiaries of the deep state.
So, too, is Chuang, who graduated from Harvard Law; then, like Boasberg, clerked for Dorothy Wright Nelson; and then, also like Boasberg, served in the Clinton Justice Department. A decade later, Chuang served as General Counsel to the Department of Homeland Security for President Obama from 2009 to 2013, and then at the State Department in 2014. During this time, he was accused by Republicans of stonewalling congressional investigations into the Benghazi terrorist attacks. In fact, according to Senator Chuck Grassley, this blocking of the work of a duly-elected Congressional majority was the entire purpose of Chuang’s State Department position. In 2017, Chuang stonewalled a duly-elected leader again, this time as a federal judge in favor of a different group of bureaucrats: stopping Trump’s travel ban, a decision later overturned by the Supreme Court.
Like Boasberg, Chuang’s family connections also make him a creature of the deep state and its outgrowths. Chuang’s wife, Jacinta Ma, made her career in the DC nonprofit world, first at the Asian American Justice Center and then at the National Immigration Forum. Eventually she served in the Biden Administration: at the Equal Employment Opportunity Commission (EEOC). There, she was a colleague of Jocelyn Samuels: one of the two most instrumental operators in pushing Restorative Justice into schools; and one who recently “spoke out” against the Trump Administration for firing her from the EEOC.
Chutkan: The Public Defending Woke Corporatist with National Security Ties
All of these categories intersect in Tanya Chutkan. She served for nine years as a public defender in Washington, D.C., then went on to work for Boies, Schiller, and Flexner, a major supporter of woke corporatism and plays related to national security, on antitrust law.
Boies Schiller is famous because its principal and founder, David Boies, is a major Democratic Party power player. Boies sponsors identity causes (gay marriage cases) even as he represents government-linked conglomerates and corporations and attempts to meddle in foreign elections. Tellingly, Boies Schiller is a boutique firm, which means that it’s high-powered but intimate: lawyers like Chutkan sign on knowing exactly what they’re getting. Equally tellingly, since her time at Boies, Chutkan has followed the firm’s playbook: pushing woke identitarian policies while siding with government-backed conglomerates and the national security state.
In one case, when a public interest website posted specific safety tips taken from several nonprofits, Chutkan ruled that it had stolen the intellectual property of the nonprofits. This ruling, straight from the playbook of anti-antitrust, was so sweeping that an appellate court later overturned it. Meantime, throughout her time on the bench, she has ruled consistently on behalf of pro-equity policies in schools, anti-death penalty plaintiffs, and refugees. Finally, beyond her pro-corporate and pro-woke rulings, she took a deep state line on national security when she presided over 38 cases regarding the events at the capitol of January 6, 2021. Federal judges were not known for their leniency in these cases, but, even in this context, Chutkan made a mark. According to The Hill:
Collectively, two dozen judges, including Chutkan, have sentenced nearly 600 defendants for their role in the Jan. 6 insurrection, but more often than not, the judges have issued more lenient punishments than what prosecutors recommended…But Chutkan has either matched or exceeded what prosecutors wanted — and in four of the cases, prosecutors weren’t seeking jail time.
Are the Judges Talking to Each Other?
Many of these judges sit on different circuit courts, but they come from the same small elite legal world of nonprofit fundraisers and legal society benefits, academic conferences and cocktail parties. They also read each others’ rulings, and there’s a possibility that they tee them up for each other: preparing the ground for each other’s rulings while keeping up a fiction of judicial impartiality.
A possible example comes with Chutkan, who in February denied a request to halt DOGE’s firings because plaintiffs had failed to show these rulings cause immediate harm. This made Chutkan look like a careful judge who assesses each case without an agenda, but a sentence in her ruling is worthy of note. Namely, according to reports, she“expressed sympathy for the states’ case, saying they ‘legitimately call into question what appears to be the unchecked authority of an unelected individual.’”
This is exactly the logic Chuang used a month later to stop DOGE’s work with reference to the appointments clause.
The Problem of the Judges
In this large context, treating the judges ruling against Trump as objective legal arbiters is a harmful fiction. Instead they are symptoms of a bigger problem. Namely, for the past eighty years, under the fiction of being “umpires”—impartial interpreters of the law—judges have expanded their power and taken over portions of American political life.
The causal trends are clear.
The numbers of federal judges have climbed, federal clerkships have multiplied, and “public interest” lawsuits have proliferated, replacing democratic contestation with judicial diktats on issues ranging from the environment to gay marriage.
The nonprofits pushing the public interest lawsuits have taken to “forum shopping”: finding sympathetic judges who will issue nationwide injunctions, which have skyrocketed in the past thirty years.
Government-connected corporate conglomerates have followed public interest practitioners’ lead: hiring law firms staffed by future judges to protect their interests in Court.
National security agencies have expanded, and so have purported checks on these agencies. These “checks” are administered by judges like James Boasberg via the FISA court, because politicians don’t want to handle the political perils of national security decisions so they pass legislation creating courts like FISA instead.
These are the trends that helped shape the careers of the judges ruling against Trump.
Conservatives, of course, have their judges, too, who work their way up through academia and associated clubs. But conservative originalists, who dominate Republican-backed law, believe in reducing the judiciary’s power in the name of representative government. They seem to be the only legal players left who do. Admittedly, there are thoughtful critics of progressive-liberal Democrats on the Left: proponents of democracy who agree with conservatives that an extra-Constitutional assumption of power by a legal elite is a problem. But, tellingly, they both want the Courts to rule against Trump and, eventually, to reduce their power. This is a case of having one’s cake and eating it, too, and it’s unlikely this approach will lead to an end to judicial supremacy.
How to Fix It
How can this problem be fixed? Here are six possible solutions, from the most indirect and long-term to the most direct and immediate.
Fix immigration policy. Some of these judges—Chutkan, Chuang, Reyes—are immigrants, from Jamaica, Taiwan, and Uruguay respectively, and in at least two cases their parents were high-skilled white-collar professionals. The issue with this isn’t that the judges are multi-ethnic, which is welcome. It’s that immigration policy prioritizing high-skilled immigrants since 1965 has created a class of highly diverse new arrivals with very little experience of most Americans’ lives on the ground. When they take this perspective into elite legal circles, the result is a judiciary that, unlike in the past, does not have experience of the realities (communities broken by illegal immigration, stifling federal dictates) experienced by the majority of American voters who elected Trump.
Curtail or abolish senior judgeships. Alsup and Bredar fall in this senior judge category, which means that they can stay out of the public eye, employ up to four law clerks like full-time judges while doing 50 percent of the work, and weigh in regularly on national affairs. If federal judges aren’t working full time and not facing the concomitant scrutiny for their decisions, they shouldn’t be making them. Abolishing senior judgeships may also reduce the caseloads of these courts, which will reduce their influence.
Reduce Federal Funding for Law Schools and Courts. The top 14 “elite” law schools, from Yale to Georgetown, are the feeders for the legal elite. They gain funding and prestige from federal funds, direct and to the universities of which they are parts. Across-the-board cuts to federal funds will reduce their power.
Stop giving district courts the power to issue national injunctions. On Thursday, President Trump asked the Supreme Court to do just that.
Impeachment. Target specific judges with glaring conflicts-of-interests when it comes to family employment for impeachment.
Encourage Peaceful Protests. Despite The New York Times reporting on purported threats to judges on Wednesday, federal district judges have largely escaped pushback from their rulings. Conservative activists have not shown up to picket them and cast them in the spotlight the way Liberals and progressives did from 2021 to 2023. Conservatives should change that pattern: promoting peaceful protests outside the judges’ homes that make them accountable for the human costs of their rulings.
An eighty-year-old legal-judicial gridlock on constitutional democracy cannot, of course, be broken in a few months or a year or even four. But if the Trump Administration adopts some or all of these recommendations, it may be able to free its agenda from the vise of an unaccountable legal elite—and to help future duly-elected presidents and congresses do the same.