Judge Trump’s bad decision could do some good


A federal judge’s Monday ruling granting former President Donald Trump’s request for an independent review of the FBI’s seizure of documents at Mar-a-Lago last month has sparked an unusually violent backlash within of the legal community. It’s not just partisan analysts who react with dismay; criticism of Judge Aileen Cannon’s decision was widespread.

I’ll leave the specifics of the decision that fell short to the lawyers. But as much to say that there were many. The good news is that the judge’s decision was so widely criticized that it may encourage the media to resist the common temptation to hear “both sides” of the argument when one side is so obviously flawed. The ruling could also motivate some Republican justices to avoid sweeping rulings to avoid being branded as partisans, meaning apologists for their party and Trump.

“Neutral” media – media that sees itself as neutral and strives to ensure that its coverage reflects it – has many real biases, and one of them is a strong tendency to deal with conflict between the two main political parties as having two reasonable interests. the sides on which reasonable people differ, the job of the media being to present both sides equally.

Sometimes a different tendency comes into play, a “dominant” bias, in which one side is presented as clearly wrong. This bias is healthy as long as one side is wrong.(1) This is how the media talk about politicians convicted of crimes, for example. The media also adopted this framing in coverage of the January 6 attack on the Capitol. This has allowed many neutral media outlets to clearly state that Trump’s continued claims regarding the 2020 election are false, rather than portraying the claims as disputed.(2)

But the tendency to assign equal weight to “both sides” is strong. For example, when President Joe Biden last week called out Trump and those who reject election results and use or threaten violence as a threat to democracy, there was a strong tendency in media coverage to balance the measured words of Biden with Trump’s continued demonization of anyone who stands in his way.

What usually pushes the media away from “both camps” is either the validation of the experts or, even better, that of the leaders of the two political parties. If the signal from them is strong enough, it serves as permission to call something simply wrong or wrong. It’s one of the reasons why former Attorney General William Barr’s comments last week defending the actions of the Federal Bureau of Investigation in the documents case received widespread coverage, even s didn’t say anything that many experts haven’t already said.

The more these credentialed experts argue that the actions of Trump, and in this case the actions of a Trump-appointed judge, are truly extraordinary, the more likely the media will accept this framing in their reporting and reject the temptation of “both sides “. And that, in turn, may matter to voters who prefer Republican ideas on many public policy issues, but who also strongly support democracy and reject Trump’s turn against the rule of law. Of course, this is only one case, but every element counts.

It’s not just about the media. Within the legal community, a strong reaction to Justice Cannon’s decision could have ripple effects. Some Republican judges are very comfortable and may even seek contempt from the traditional bar. But others will be far less willing to be seen as mere partisan hacks, and a strong public reaction to Judge Cannon’s decision could influence their own approach going forward.

I don’t want to exaggerate this; it’s not like even Republican judges who care about such things would suddenly adopt the positions taken by Democratic judges. But we saw Chief Justice John Roberts, despite being a very conservative judge, opposing extreme positions even though he probably agreed with the general direction. Others might do the same. There is a difference, after all, between being a very conservative judge and being merely partisan.

Moreover, if the reaction from the mainstream legal community is strong enough, it could cause law societies to be more aggressive in seeking sanctions against lawyers who (for example) bring outlandish lawsuits that still contest the 2020 election – and yes, it’s always happening.

None of this is guaranteed. But we shouldn’t discount the possibility of a significant and consequential reaction to Justice Cannon’s decision. A lot of lawyers care deeply about judicial standards and legal ethics, and that absolutely includes a lot of Republican lawyers and even Republican judges.

More other writers at Bloomberg Opinion:

Do “Trump judges” exist? We’re about to find out: Noah Feldman

DeSantis’ attack on ESG repudiates his superior returns: Matthew A. Winkler

Goodbye to Anthony Fauci, unlikely avatar of polarization: David A. Hopkins

(1) It’s not always healthy; for example, consider how LBGT people were treated when they were seen as excluded from the mainstream.

(2) They are wrong! But it takes a lot for the mainstream media to simply say so or label such statements as lies. And that’s not always a bad thing. This avoids certain types of errors. But being too careful to call something true or false can cause even bigger errors. This calls for some tough judgments, and it’s no surprise that many news outlets would rather find experts to defer to than state it as their own conclusion.

This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and politics. A former political science professor at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.

More stories like this are available at bloomberg.com/opinion

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