The D.C. Circuit Court of Appeals sounds an urgent warning about Trump

Federal appellate court decisions are never off the cuff. Every word is vetted, multiple times. In a case involving a former president currently under indictment, that vetting is even more intensive. There is not a word, not a citation, not a punctuation mark misplaced. And for the United States Court of Appeals for the District of Columbia Circuit—historically and traditionally regarded as a natural stepping stone to the Supreme Court—that vetting is doubly important.

I want to focus on one, singular word in the opinion. As an attorney, I think it speaks volumes and sends a clear message to the rest of the entire federal judiciary about the threat that Trump represents.

The word is “perverse.”

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The word crops up late in the opinion, after the court has already exhaustively set forth most of its reasons for modifying (in part) the gag order imposed by Judge Tanya Chutkan. It arises when the court addresses the apparent strategy of the Trump legal team, which is to delay the entire proceeding, both in the D.C court as well as—implicitly—in all of the other venues where Trump is currently a defendant, as long as possible. The implication is that, in the event Trump wins reelection, some unspoken measures, be they by fiat, willful disregard, or even by violence, will be taken to neuter the judicial process in all of the multiple proceedings currently pending against him.

The Circuit Court’s order can be found in its entirety here. Buried deep within the painstakingly crafted opinion, on page 47, is this sentence addressing Trump’s desire to postpone the trial until after the 2024 election, in which he will be the presumptive Republican nominee:

Delaying the trial date until after the election, as Mr. Trump proposes, would be counterproductive, create perverse incentives, and unreasonably burden the judicial process.

(emphasis added)

Here the court is sending a message not only to Chutkan, who must address Trump’s “delay, delay, delay” strategy firsthand, but also to the U.S. Supreme Court, which will have to consider Trump’s inevitable appeal. And more broadly, the Court of Appeals is sending a subtle signal to the entire judiciary, the third component in our constitutional system’s so-called separation of powers.

The word they choose to describe what Trump apparently intends by his delay tactics is “perverse,” and more specifically, “perverse incentives,” colloquially understood to be opportunities that, when taken advantage of, produce results exactly contrary (and often disastrous) to their original intent. 

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The court here acknowledges the “perverse incentive” of granting Trump’s continual and deliberate tactic of delaying his actual trial until after he is conceivably reelected, noting that “postponing trial would incentivize criminal defendants to engage in harmful speech as a means of delaying their prosecution.” But in the unique situation presented by a former president attempting to delay the trial until he once again attains office, the intended result is far more “counterproductive” and perverse” than simply implicating the court’s time management. Pursuing continued, unreasonable delays actually “incentivizes” a perversion of that constitutionally mandated separation of powers.

What the court seems to be communicating—to the Supreme Court and the rest of the federal judiciary—is that Trump, by delaying his trial until he presumably has the power to ignore or overrule any rulings against him, clearly intends to usurp the power of the judiciary. And they are implicitly challenging the judiciary not to ignore or discount that threat.

“Perverse” is not a word chosen lightly. “Perversion” in its strictest sense connotes distorting, twisting, or corrupting something into a form that is false and unrecognizable. The court, by referencing the “perverse incentives” for Trump’s delaying of his multiple trials—leading to an outcome that would refute or repudiate judicial oversight—is implicitly asking the rest of the judiciary, with whom it holds such affinity, if this is really what they want their institution to succumb to.

The judges are essentially laying it on the line for the Supreme Court. They ask the justices, “Do you want to risk having the institution of the judiciary supplanted and its constitutional functions neutered by this man?” Because that’s clearly what Trump intends to do, and once that is done, there is no going back. The judiciary will have seen its entire power disabled and delegitimized by the power of the executive branch. That is the perverse result that Trump seeks.

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The Circuit Court of Appeals has stated the threat that Trump represents. Now we simply have to wait and see if the rest of  the judiciary will respond.

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