Respected Conservative Judge Excoriates A.G. Barr and Draws a Line in the Sand
This is far more serious than the title implies.
Seventh Circuit Court of Appeals Frank Easterbrook is a widely respected jurist familiar to most attorneys. The Federalist Society member was Justice Antonin Scalia’s choice to replace him on the SCOTUS, which ought to give one an idea as to Easterbrook’s conservative bona fides and reputation. So when Judge Easterbrook takes A.G. Barr to the shed for a lashing, it the nation should pay attention because something is wrong.
Easterbook did tear into Barr and did so in a case, one that will forever be part of the caselaw of the country. The matter involves a case in which Barr declared in a letter that the court issued decision in an immigration case that was “wrong” or “incorrect,” and thus did not need to be followed. The ruling, Barr wrote, was “dispensable.”
The government then used Barr’s letter as justification for the Board of Immigration appeals (the agency adjudicatory body) to ignore the court’s ruling to not deport a man who had applied for a visa to remain the country.
Easterbrook, a 35-year veteran of the court, had had enough of the willful disregard for judicial authority.
“We have never before encountered defiance of a remand order, and we hope never to see it again,” Easterbrook wrote. “Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.”
That type of clap of thunder is rare in a judicial opinion. Judges generally don’t “freelance” and discuss matters not at issue between the parties. Clearly, the defendant in the matter had not asked for sanctions or a contempt order. Yet Easterbrook went out of his way to write – needlessly – that had they asked, he would hold the Board in contempt of court, a criminal charge. Had the litigants been held in contempt, the DOJ, which is Barr’s department, would be prosecuting people from DOJ, Barr’s department, and quite possibly Barr.
This is the direction we are moving, though. Further abrogation of constitutional norms leads the executive branch to no longer respect the judiciary and congress as co-equal branches.
Is anyone truly shocked that Barr believes he need not listen to judges anymore? What is going to happen? Will Barr be impeachment by Congress?
If Barr is held in criminal contempt, is there any chance that Trump won’t pardon him? They all believe they are untouchable, and perhaps they are right, for now.
Day by day, we see Trump using his newfound power coming out of impeachment and it is spreading throughout the DOJ, that they alone rule this nation, and do so without respecting the law, nor other institutions in government.
Easterbrook seems to well understand what is happening.
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