‘Infuriated’ Former Judges Take on Trump

Judges retain a special status even after they hang up their robes. Addressing them in a 2020 article, an American Bar Association official, Marla Greenstein, wrote that “the public will forever view you as a living representative of the judicial system.”

In recent months, coalitions of retired judges have drawn on their distinctive positions to file forceful briefs supporting challenges to what they said was lawless conduct by the Trump administration.

Such briefs are in one sense nothing new. It is not unusual to see, for instance, a friend-of-the-court brief from a handful of retired judges concerned about a miscarriage of justice in a criminal case. But ones featuring scores of former judges taking issue with presidential initiatives seem to be on the rise.

Such briefs have attracted critics, who say it is unseemly for retired judges to trade on the prestige of their former positions. But there is reason to think the recent filings have been influential.

On Friday, a federal judge in Florida took a motion from 35 former federal judges very seriously. She ordered President Trump to respond to their request that she reopen a case the administration had used as a vehicle to create a $1.8 billion fund to compensate his allies and to shield him from tax audits and liabilities.

The former judges said the asserted settlement of the case was the product of collusion and fraud. That argument has been made far and wide, but it may have taken on special force coming from people who, as they put it in their motion, “have dedicated their professional lives to the administration of justice.”

It is possible, of course, that the judge overseeing the case, Kathleen Williams of the Federal District Court in Miami, would have taken similar actions without outside prompting or spurred by someone else’s filing. But she seemed to welcome a motion from her former peers.

‘The Federal Judges Are Infuriated’

Even larger groups of former judges have filed supporting briefs in other cases.

In a Supreme Court case on protections for immigrants, more than 175 former judges filed a brief in March arguing that the court’s emergency orders do not count as precedent binding lower courts if the justices did not give reasons. Recent emergency orders have tended to come with explanations.

In May, more than 100 former judges urged the federal appeals court in Boston to address what they called a pattern of abuse by Customs and Immigration Enforcement officials, including moving detained immigrants around the country to thwart court challenges and “a broader pattern of disrespect by ICE for judicial process and orders.” The case is pending.

Harold Koh, a professor and former dean of Yale Law School, is among the lawyers for the former judges in the Boston case.

“I thought we’d get about 20 judges, which is still impressive, and instead we got 135,” he said, adding that the surge of interest was driven by a threat to the rule of law.

“This is no longer about ICE versus the detainees,” Professor Koh said. “It’s about ICE versus the courts. The federal judges are infuriated.”

Perhaps the most prominent of the retired judges, Michael Luttig, signed all three of those briefs. Judge Luttig was appointed to a federal appeals court by President George H.W. Bush, served for 15 years and was considered for a seat on the Supreme Court by President George W. Bush.

He is now a harsh critic of the Trump administration, and he said current and former judges must speak up.

“The courageous voices of the federal and state judges of the United States,” he said, “are the only voices that can and have been heard above the deafening din of partisan political rancor that is literally threatening our nation.”

Asked about the role retired judges should play in general and in the challenge to the $1.8 billion fund, Abigail Jackson, a White House spokeswoman, responded by criticizing sitting judges.

“President Trump has faced a historically unprecedented number of injunctions by liberal lower-court judges, the same judges who would rather push their own policy schemes and undermine the administration’s lawful agenda,” she said in a statement.

Todd Blanche, the acting attorney general, told lawmakers on Tuesday that the administration was withdrawing plans for the fund but would continue to shield Mr. Trump from I.R.S. audits. Mr. Trump’s response to the retired justices’ brief is due June 12.

Rejecting Briefs From Former Judges

The role of retired judges in the legal system has not attracted much scholarly attention, though it was the subject of a thoughtful 2023 article by Carson Jones Lacy, then a law student at Baylor University. It was called “Retired Judges: No Longer Friends of the Court?” and concluded that such briefs should generally be allowed.

Most courts, including the Supreme Court, are receptive to filings from former judges.

But there is one notable exception, and it provides an instructive window into how some sitting judges view such filings. In 2006, a federal appeals court in Washington told seven former federal judges that their views were not welcome. Two former chief judges of the court, the D.C. Circuit, were among those rebuffed.

The former judges had wanted to urge the court to allow Guantánamo detainees to challenge their detentions. In an unsigned decision, Judges David Sentelle and Raymond Randolph said they had violated a 1982 advisory opinion from a committee of the Judicial Conference of the United States, which is the administrative and policy-making body of the federal court system.

“Judges should insure,” the advisory opinion said, “that the title ‘judge’ is not used in the courtroom or in papers involved in litigation before them to designate a former judge.”

Judge Judith Rogers dissented. She said the advisory opinion was meant to address situations in which former judges were acting as lawyers. Allowing them to be called “judge” in those circumstances, she wrote, could confuse people and improperly influence juries.

Supporting briefs from former judges, she added, pose none of those risks.

The judges in the majority were appointed by Republican presidents. The two former chief judges on the rejected brief, Abner J. Mikva and Patricia M. Wald, were appointed by President Jimmy Carter, a Democrat.

Judge Mikva, who died in 2016, told me in 2006 that the rejection of his brief was not based on politics or even the facts of the case but was motivated by unrelated personal animus. “This was clearly aimed at me,” he said.

The judges in the majority were furious with him, he said, because he opposed allowing judges to accept free trips to resorts for seminars sponsored by private groups.

Whatever the reason, there was precedent for rejecting a brief from a judge. In a 1994 libel case, a panel including Judges Mikva and Wald rejected a supporting brief that Kenneth Starr, a former judge on the court, had sought to file on behalf of several news organizations.

Judge James Ho, who is frequently mentioned as a potential Supreme Court nominee should Trump get another chance to fill a vacancy, has also weighed in on whether briefs from judges should be accepted.

“Reasonable minds can disagree,” he wrote in a 10-page order in 2021 allowing three retired judges to file a brief in his court, the Fifth Circuit. But he added that “we can judge the brief on its merits — there is no need to exclude it from these proceedings altogether.”

Other Things Worth Knowing About

• The Supreme Court is in its homestretch and is set to release more than 20 decisions in argued cases in the next month or so, including major ones on birthright citizenship, transgender athletes and presidential power. This handy tracker will help you stay up to speed.

• “Prosecuting Contempt,” by Samuel Bray and Aditya Bamzai, who make the case that federal judges need not rely on the Justice Department to prosecute criminal contempt of court and may appoint outside prosecutors to do so.

Mailbag

Citizen Suits

Do citizens have any rights to bring legal challenges, or to leverage other mechanisms, to challenge this abuse of presidential authority? — Susan Scher

Only people who have suffered a direct injury from a government action can challenge it. It is not enough, the Supreme Court has said, to object to how the government spends the taxes it has collected.

As the court put it in 1923, the harm caused by having tax money spent on something a person finds objectionable “is shared with millions of others” and is “comparatively minute and indeterminable.” The court later recognized an exception for some religious claims and has since substantially narrowed even that exception.

Many legal expert say the general rule, denying taxpayer standing, would makes it very difficult to challenge, say, the $1.8 billion fund in court.

You also asked about “other mechanisms.” Congress can address the matter, and lawmakers are sensitive to public outrage, particularly in an election year. And then there are the elections themselves.

I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at the-docket@nytimes.com.

The Math of Trump’s I.R.S. Suit

The Internal Revenue Service had plenty of defenses to the lawsuit from Trump that gave rise to the $1.8 billion fund. Among them: It seems to have been barred by the statute of limitations.

But perhaps not enough attention has been paid to the math in Trump’s lawsuit, in which he argued the I.R.S. was to blame for harms he suffered when a contractor leaked his tax information. His suit claimed the damages owed were $10 billion, which is roughly equal to the agency’s annual budget.

His lawyers relied on a federal law that allows damages of $1,000 per unauthorized disclosure. The contractor had disclosed tax records to The Times and ProPublica, and those outlets published news articles about them.

Trump’s theory was that each time someone read one of those articles he was entitled to $1,000. As support for this idea, he cited a 2006 decision from the Eighth Circuit that said “direct disclosures to multiple persons multiplies the harm to the taxpayer.”

But Trump’s lawyers failed to take account of another part of that ruling. “The proper limitation of liability is the initial act of disclosure, not secondary disclosures made by others such as the media,” the appeals court said, citing a 1995 decision from the Ninth Circuit.

In that second decision, not cited in Trump’s suit, a woman whose tax return information was provided to a Los Angeles Times reporter sought $1,000 for each of the about 180,000 copies of the newspaper that carried the resulting article.

The plaintiff wanted more than $180 million. The court said she was entitled to $1,000.

“We are confident,” the court said, “that Congress did not intend the bizarre remedy sought in this case.”