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Rhetoric against federal judges has reached unprecedented levels, with President Trump calling judges incompetent, crooked, USA, hating and monsters. US Attorney General Pam Bondi calling out individual judges who rule against the administration by name, and the administration filing an extraordinary lawsuit against all the federal district court judges in the state of Maryland. Along with the rhetoric, threats against
judges are surging. The US Marshall Service has investigated close to four hundred threats against federal judges in the first five months of this year alone. A group of more than forty retired federal judges appointed by both Republican and Democratic presidents see this landscape as attempts to intimidate and pressure judge just sway their opinions and shake the public's trust in the courts. So on Constitution Day they released an open letter warning that the Constitution and the judiciary
is under attack. My guests are two of those judges from the Keep our Republic's Article three coalition. Judge Andre Davis, formerly of the US Court of Appeals for the Fourth Circuit and the District of Maryland, and Judge Paul Michelle, formerly of the US Court of Appeals for the Federal Circuit, thanks so much for joining me. Judge Davis, I'll start with a question to you. Tell us why you and the other retired judges decided to write this letter.
Sitting judges, as you know, are bound by the Coote of Judicial Ethics, can speak only through their written opinions and from oral opinions from the bench, and so they are greatly limited, in fact prohibited really from responding to some of the more outrageous and extreme attack on the judiciary,
on individual judges. And so what my friend Judge Michelle and his colleague Bob Sindrich decided was that this election or community if you will, of retired federal judges, at this moment in our history, we're seeing the same thing, namely, an unprecedented and very dangerous attack on the judiciary, on the third branch of government in the United States, and putting at risk not just the rule of law and our democracy as we know it, but the actual lives
of judges and their family members. And so that's what prompted us to take what I think is an unprecedented step ourselves by coming together as a group of retired judges appointed by presidents from both parties to speak with one voice and call attention to the danger that is not just implicit but unavoidable in the times of rhetoric that are being used and the direct attacks on the
judiciary and the rule of law. And so we're speaking with one voice to one educate the public and to speak out in support of our colleagues who work day in and day out to do the people's work in dispensing justice.
Judge Michelle So. President Trump has verbally attacked judges who ruled against him. He's call them radical left lunatics, crooked. The US Attorney General Pam Bondi has called out judges by name who ruled against Trump's policies, also calling them similar names. What can you, as retired judges do to stop this criticism and this attack that's coming from the top of the executive branch.
Well, my hope is that if the the citizenry can be better educated about the proper function and duties of judges, they will see that the threat to judges is really a threat against their own rights being protected by courts. Courts have to be independent of political pressures, whether from the White House or the Justice Department or elsewhere, and
that is what's under attack now. And we think that we have unusual credibility because we're so nonpartisan, non political, or you could almost say bipartisan, because we have about half our judges appointed by Republican administrations and half by democratic administrations, and we're enormously diverse personally, but as Judge Davis rightly says, we're completely united and being horrified at the status quo, feeling like this is a moment of
grave danger for our country, our democracy, and the rule of law. When write down to it, at the end of the day, either the written law is going to control or what the executive wants is going to control. Is it the rule of law or the rule of
a king. That's what really is at stake here. And we think that the shrill attacks such as those who cite and quote can be discouraged by the media and the citizenry objecting loudly to that kind of language, whether it's from Congress persons calling for impeachment of a judge simply for doing his or her job and ruling on a case or coming from the White House or the Justice Department, and this is a moment of enormous danger for our country. One of the problems is the citizens
have been very much misled. Too many of them are not well versed in understandings of basic constitutional government procedures and structures in our country. So, for example, the most important certain things citizens need to realize is the job of a judge is not to promote the agenda of any president or any political party or any other political leader. The job of the judge is strictly to apply the written law, the precedents, and the statutes to the case
in front of him. And finally, I think the judiciary is that it's most valuable and most important when it serves as a check, just as the founder is expected checks and balances is the phrase we often use. So that if the executive does something that's unlawful, the judge puts a hal to it, and the courts say that can't continue, so they issue injunctions and the executive has to stop doing the illegal things, and of course they
can continue with all the things that are lawful. So that's really the bottom line here.
So the administration continually runs to the Supreme Court when lower courts hand in its agenda, and on more than a dozen occasions since the new administration came in, the Supreme Court has lifted an injunction issued by a trial judge who had said that the administration was at least probably acting illegally. And sometimes the court offers a few sentences,
sometimes nothing. And I'm wondering if that gives the average person a distorative view of what the lower courts are doing in limiting the administration and what the Supreme Court is doing in allowing the administration to move forward.
Well, you know, you've put your finger on something that's very, very frankly disheartening about the current legal landscape. The point is that every federal district judge, without exception, who has ruled against some policy of this administration, was acting in absolute good faith in his and her attempt to not just statutory law, not just constitutional law, but the Supreme
Court's own precedents. That's what the federal district judges around the country have been doing for the last seven or eight months. And in those instances, many of them, I would even say most of those instances where the administration has appealed those adverse decisions by federal district judges. In most instances, the federal appellate courts, of which there are thirteen, the federal appellate courts have largely left in place the
orders of the district judges. So what we see in the so called shadow docket, I'm sure most of your listeners are familiar with that term by now, is that the Supreme Court is reversing the decisions in large part without explaining how or why those decisions are being reversed.
And so that leaves, you know, in the mind of many lay people this very distorted vi somehow that the lower federal courts, the district judges, who hear from the parties, hear from the lawyers, consider the evidence, make a ruling which is then left in place by the intermediate appellate court, and the matter gets up to the Supreme Court, and the Supreme Court in one or two sentences, as you say,
reverse that decision. Well, a lot of people you know, on the street, not versed in the law, somehow are persuaded that the lower court judges are somehow against the administration.
And as Judge Michelle just very poignantly pointed out all the judges are doing is try their best to apply the law, and so it this serves justice in all honesty to leave in the minds of people that somehow the Supreme Court is protecting this administration from lower court judges, and that just feeds into this misinformation, this distorted view that so many in high office continue to create, that the judiciary is full of lunatics and activists, and nothing
could be further from the truth. So hopefully, in the fullness of time, hopefully not too far in the future, this landscape that's been created through the procedural and processes that have been employed will see the light of day.
And one of the things that the Article three Coalition is trying so desperately to do to continue to educate people about the role of judges, the role of the judiciary, how the judiciary works, the right to an appeal, and how reason judgment is the coin of the realm when it comes to j judiciary.
And Judge Michelle Justice Neil Gorsitz recently admonished lower court judges not to so called defy the Supreme Court, and Boston Federal Judge Allison Burroughs said that it was unhelpful and unnecessary to criticize district courts that are working to make sense of Supreme Court orders that are not models of clarity and have left many issues unresolved. And another judge said, I didn't understand that the orders on the
emergency docket were precedent. I mean, what about a Supreme Court justice calling out district court judges.
Well. One complexity that the public doesn't understand, but it's rather important, is that nearly all of the injunctions that have been issued by the district judges around the country, and these hundreds of suits challenging Trump administration actions, are very preliminary. They're actually called preliminary injunctions, and that's because there hasn't yet been a trial, there hasn't yet been
a final resolution of disputed facts. So these are truly preliminary in the sense that the district judge is making a prediction, a judgment that likely the challenger will win over the administration's defense. But it's a speculative judgment. I'm not defensive of the Supreme Court and the extent to which they've intervened, but it is important to recognize that they aren't saying the administration was right and the district
judge was wrong. What they're really saying is, we don't know for sure yet, so we're going to delay a remedy until there's been actual fact findings and what lawyers call a final judgment. But beyond that, it is it's certainly true that some of these orders have no reasoning coming down from the Supreme Court. Others are very terse
and sometimes unclear. I don't think it's helpful for Judge Burrows and the Supreme Court justices to get in a public shouting match in effect, although they of course he
did it in writing. But she has a point. The district judges are striving to apply the law faithfully and impartially, and I think usually they get it right, and particularly where they're upheld as has been true in a number of these cases by the Court of Appeals above them, the Supreme Court ought to be very hesitant to jump in and overrule both of the so called lower courts, as the constitution that calls them the inferior courts, which
are very unfortunate phrase because they're not inferior. But in terms of the admonition from judge courts, I don't know what he's talking about. I don't see any judge, including Judge William Young in Boston, has been defiant as refusing to follow some clear direction from the Supreme Court, So
I'm not quite sure what he's referring to. But it's not very helpful, and it's a further demoralization of the district judges, who do ninety percent of the work in the judicial system, and who should be respected and supported by the public and by the rest of the judicial establishment and not pilloried as if they're rebellious children or something because they're not.
Coming up next. The effect of all those six to three Supreme Court decisions on the emergency docket you're listening to, Bloomberg, I've been talking to retired federal judges Andre Davis and Paul Michelle about an unprecedented bipartisan statement from more than forty retired federal judges appointed by six different presidents across both parties, speaking out about how the constitution and the
judiciary is under attack. Judge Davis, I'm wondering about the effect of so many, perhaps most, of these Supreme Court emergency decisions coming down six to three down partisan lines, especially in this environment where judges are more and more being identified by the party of the president who appointed them, even at the district court level. So you'll hear well that judge is a Trump appointee, that judge is a
Biden appointee. It seems like people are talking about a judge's political affiliations more than ever before.
I think that's a very regrettable development in our legal ecosystem and in the media. The people apparently want to know that information, and of course that information is available, one hopes, and frankly, I believe as a judge appointed by two Democratic presidents, that is, presidents from the Democratic Party, one would like to think that no one would ever imagine, when I was an active judge that I made a ruling on the basis of the party identification of the
president who appointed me. And frankly, it borders on offensive to individual judges. I can share a very quick anecdote when I was on the district court early in my tenure, after having been appointed by President Clinton to the Federal District Court in Baltimore, I struck down the city's affirmative action plan as unconstitutional, and of course, while it was
still much rare, than now. I think the lead in the newspaper was Clinton appointed judge strikes down an affirmative action plan, and I think it might have said a black Clinton appointed judge. Well, I was following the law, and that's what judges do. No judge calls the president who appointed him or her to check in on how the case should come out. It's absurd, it's offensive, but
again you raise a good point. This is the system we seem to be swimming in these days, and I hope that one day soon that will fall out of favor.
Judge Michelle, So what can you do as retired judges? What do you plan to do?
Well?
We can explain so that the public and the media and community leaders, including the business community and other sectors of our society, have a better understanding and are in a position to fairly evaluate whether the complaints being made by high officials in the White House are accurate or not, and then to call out bad conduct by people who
are attacking judge just for doing your job. I couldn't agree more with Judge Davis about how hard every one of us tries the minute we take the oath to put behind us our personal opinions, our prior political affiliations, our party registration, our friendships, everything. Becoming a federal judge, it's almost a little bit like becoming a minister or
a priest or a rabbi. You're a part of a discipline based on written text, and you swear allegiance to that text, and you have to discipline yourself to not let other considerations enter into your decision making. And my impression, and I've sat with five different circuit courts, is that the judges do that very faithfully. I'd say ninety nine
percent of the time or more. The judges I sat with were not acting at all from a political standpoint, And I often couldn't even remember which party they were appointed under because it just didn't show up in anything
that they said or wrote or how they voted. So we've got a real problem in this country if the public continues to have the view that Judge Davis is a Democratic judge and Judge Michelle is a Republican judge, because it's totally false, where judges of the law, not of our political background, and people need to understand that.
And really it's the great strength in the system. It means that every citizen can depend on his or her rights being defended in court by impartial judges because they can't be pressured by politicians to rule a certain way. They're going to rule based on the settled law, the precedents, as lawyers call them. And that's a great comfort not only to every citizen in individual rights cases, but also
to every corporation. If the corporations can't depend on judges to treat them under the law fairly, they're going to stop taking risks, stop making investments, stop building factories if they can't count on getting a fair shake from the federal judges, if IRS comes after them, or the Securities
Exchange Commission or any other arm of the government. They have to be confident that they're not on an enemy's list in the White House, that they're going to be treated like any other company or individual by our judges. And the judges do a very good job, in my opinion and from my experience, at being completely impartial, particularly at every level of the court system, except the Supreme Court, which does look more political to me than the other two levels of the court system.
Judge Davis, just as Amy Coney Barrett, recently downplayed President Trump's criticism of federal judges, saying that US presidents have
a long history of criticizing the judiciary. But we talked before about how this administration, even when so far to sue the entire federal bench, all the district court judges in Maryland, is this administration different in the way it treats federal judges, and you know, even the way it appoints federal judges more looking for more ideologues than for you know, the what used to be considering you know, the ABA approved judges.
This administration, from top to bottom, absolutely treats the federal judiciary in ways that, frankfully, no administration before now has.
Ever treated the federal judiciary.
The appaminum attacks, the atuperative rhetoric, the name calling, the takeover of the Justice Department, which, for primary memorial, one of the pillars of our constitutional system, even though it's not written into the constitution. You know, there are a lot of norms that have come into play over these two hundred and fifty years that are very important, one of which is the independence not just of the judiciary, but the independence of the Department of Justice from the
White House. These are structural strengths in our system and
so yes. The attack by this administration on the judiciary as a whole, on individual judges, the name calling, the purposeful, wilful, intentional undermining of the rule of law itself is very dangerous, inimical to constitutional democracy, and I hope, I hope that with our voices as the Article three Coalition, with the voices of so many law firms and law organizations and other civic minded organizations, I hope this will stop and will return to a time when each branch of government
showed the respect that was due it from all the others.
To not just have one other thought. The vicious language that's been used against judges who've ruled in a way the administration doesn't like has to be understood as to its impact. It's not a question of the judge's feelings are hurt. We don't care about feelings when we're judges. We're not embarrassed to be criticized. We're criticized all the time. It's part of the job. We know that, we understand that.
But the problem now is that when the president or the Attorney General makes these vituperative attacks and social media that thousands of deranged, fanatical, unstable individuals out there in the blogosphere may take it into their mind that they have to save the country by going to get rid of Judge Michelle or Judge Davis because they've ruled in away. The President says, it's terrible. So now the attacks on judges are coming from from strangers. You can't even identify
who it might be. In the old days, it was usually a losing litigant who was upset with the judge, So the Martial Service could better protect us because they could see who the source of the threat was coming from. Now they have no way of knowing or predicting. It makes it much harder for the very able Marshal Service
to effectively protect judges. So this is a grave threat to the functioning of our democracy because if judges are terrified, no matter how brave they are, there's a danger that subconsciously it could influence their rulings and make them, so to speak, pull punches for fear of being the target of some deranged person who would try to kill them or harass their family or whatever. So it's not a question of hurt feelings from sharp criticism. It's a question of actual incitement to violence.
And the Marshal Service is fielding more online threats to judges than ever before. Four. Thank you both so much for joining me today. That's Judge Paul Michelle, formerly of the Federal Circuit Court of Appeals and Judge Andre Davis, formerly of the Fourth Circuit Court of Appeals. They're both part of the Keep Our Republic's Article three coalition.
State of Utah versus Tyler James Robinson. Could you state your name?
Tyler James Robinson.
Twenty two year old Tyler Robinson appeared in court for the first time on Tuesday, facing aggravated murder charges as prosecutors seek the death penalty against him for the fatal shooting of conservative activists Charlie Kirk. Utah County Attorney Jeff Gray explained the aggravating factors in his decision to pursue the death penalty.
The state is further alleging aggravating factors on counts one and two because the defendant is believed to have targeted Charlie Kirk based on Charlie Kirk's political expression and did so knowing that children were present and would witness the homicide.
Robinson is charged with seven counts in all, joining me is Bloomberg Legal reporter Madlen Mackelberg Madline tell us about this first appearance by Robinson.
K Tyler.
Robinson came before a judge for the first time this week, and it was a virtual appearance in a courtroom, which is pretty standard apparently for criminal cases in Utah County
where he was charged. And he appeared via zoom from the jail and the judge who will be presiding over the criminal case moving forward, read the charges allowed to him, informed him that there was a possible sentence of the death penalty associated with those charges, and he asked him if he had an attorney yet, and he does not
have a lawyer for him yet. The judge said, based on his financial status, one will be appointed for him, and that's something that we can expect to happen in the next few weeks here.
And from what I understand, it has to be an attorney that's rule a qualified, meaning an attorney who's qualified to deal with capital cases, so that limits the attorneys available. Did Robinson enter.
A plea, No, We're not going to see him enter a plea for at least a few weeks, the way that things work in Utah. The next hearing is also going to be virtual, meaning that Robinson will be zooming in from the courthouse and they'll be discussing whether or not he wants to waive his right to a preliminary hearing.
This is a hearing where they would talk about whether there's enough validity to the charges to move forward to an arraignment, which would be yet another hearing where he would actually enter a plea to the charges before him. So we along road to go before we get there, and from.
What authorities have said, he has not made a confession and he's not talking to investigators.
So Utah County Attorney Jeff Gray has been the public faith of the prosecution so far, and he's really declined to weigh in on exactly how much Robinson may or may not be cooperating with investigators. But we heard previously from law enforcement authorities that he has not been cooperative with them. There's no evidence so far that he's given
them any kind of confession or admitted to anything. Although I'm sure you saw prosecutors released a ton of evidence that they say they have against him, which include text messages where he's talking about the shooting, but they decline to say whether they can strue those as being a confession, and at this point we have no reason to believe that he's confessed to authorities or that he's even cooperating with them.
Well, let's talk a little bit about those text messages to his roommate and why prosecutors are highlighting them.
So, while he may not be cooperating with them, it's very clear that his family and people close to him are, or at least have been providing law enforcement with information regarding their communications with him leading up to the shooting
and following the shooting. Now, prosecutors say that he was in a romantic relationship with his roommate and that when he was on campus allegedly committing this act, he sent a message to his roommate telling them to look under his keyboard on his computer, and when the roommate checked under the keyboard, there was a note there that said, quote, I had the opportunity to take out Charlie Kirk, and
I'm going to take it. And what followed is a series of messages that are allegedly between the roommate and Robinson. You know, the roommate is expressing confusion shock, saying you're joking right, and Robinson apparently said to them, I'm not joking. The roommate says, you weren't the one who did this, right, Robinson says, I am, I'm sorry. They go back and forth in this exchange, and Robinson apparently is talking about how he attempted to hide his rifle, how police arrested
somebody at the shooting who was not him. I'm sure you remember those hours afterwards when police kept saying they had someone in custody, but they were not the suspect in this case. So I think the messages are significant because it clearly shows that Robinson was talking about doing this and explaining some of his thought process behind it, which is that he said, quote, I had enough of his hatred talking about Kirk.
Prosecutors didn't out and out state a motive, did they. I mean, I know that Gray had said Robinson was becoming more pro gae and trans rights oriented, but did they explicitly say here's the motive.
No, So they talked about the political elements of the situation here, but they have said that they're not talking about a motive at this point. They're only talking about the evidence that they have, which seems to include statements from Robinson's mother, who's the one who told investigators that in recent years her son had become more politically engaged with some of these left leaning causes and more pro
gae and trans writes focused. That's something that was in the charging documents that came forward, and that seems to be significant because his family said that they identify as being more conservative voters.
His parents turned him in, right, So, when.
They discovered and identified in the images that law enforcement released that the shooter resembled their son, apparently, they had some phone call conversations with him, had him come back to the house, and they spoke with a family friend who is a retired law enforcement official, and together they encouraged him to turn himself into local authorities where he's from, which is about four hours away from where the university is where Kirk was speaking when he was shot.
And prosecutors have some physical evidence DNA evidence.
Right, So, prosecutors say that they have DNA from the trigger of the rifle that they believe was used in the shooting and the towel that the rifle was found wrapped in when they recovered it from the scene. They say the DNA they collected their matches Robinson.
And what about his conversations on Discord. The FBI director said that they're investigating the people who were involved in those conversations.
Apparently Robinson was having conversations on Discord, which is a popular chat application that's used for people who play in stream video games. This is my understanding of it, but apparently he was having a conversation with a group of friends and making jokes about the shooting and connecting himself to it without admitting anything. And those conversations have been discussed by, as you say, the FBI director and some officials publicly, but they're not actually mentioned in the charging
documents that we saw filed from prosecutors. So we have to assume that'll be part of the evidence that they present against him at some point, but it hasn't been part of this initial charging.
Authorities consider him a sole actor here or are they looking for accomplices.
So at this point, prosecutors and law enforcements say that they are continuing investigating, they're leaving no stone unturned, but they've declined to answer questions of whether they believe he acted alone or this was a coordinated attempt. And so at this point nobody else has been named as a suspect, or even as somebody who has contributed to this in
a different way, and so the investigation continues. It's possible that we see future charges against another individual, but at this point there's no evidence to suggest that they have somebody else in mind.
Before Robinson was even arrested, Utah's governor said they would pursue the death penalty, but what did the prosecutors say? He decided to seek the death penalty.
So there's been a lot of talk about this. The Utah governor came out and said that he was planning
to pursue it. President Trump has said you need to pursue the death penalty, and when we heard from the county attorney this week, he said he made this decision independent of any outside influence and that while he spoke with both the governor and the president at least representatives for their respective administrations, he said he didn't receive pressure from them to make that decision and they didn't raise
it with him. So he's wanting to be clear that this is something he's pursuing based on the evidence that he has, and part of that is this idea that when the shooting occurred, there were children present, and there was also a risk of injury to other people that were there. So it wasn't a straightforward murder situation where it was just between two individuals. He was firing a shot across a crowd of people and there was a risk of injury to others who were there.
Did the prosecutors say where the political element of this fits in? Is he considering that this shooting was politically motivated?
Prosecutors noted in the charging documents that Robinson intentionally selected Kirk because of his perception regarding Kirk's political expression. So that's the mention that we've seen from prosecutors in the formal court documents that he was motivated by the political expression, but they haven't declared that as the official motive, but they've noted that that was part of why Robinson allegedly decided to shoot Kirk.
About half the states have the death penalty on the books. When was the last time Utah used it? So?
Utah is one of twenty three states in the US that currently allows for the death penalty to be imposed on an individual. Compared to other states, they have had less executions. Typically, when you're talking about the modern era of the death penalty, we look at executions since nineteen seventy six, which was when the Supreme Court said that it is legal as a form of sentencing, and so since then, Utah has executed eight people.
And what's the method of execution in Utah?
So, Utah Ya Like most states, every state that allows for the death penalty, their primary means of administering it is through lethal injection. But Utah is unique in that it's one of just five states that allows for a firing squad to be used in execution. But that's only in the situation where the state can't acquire the drugs that are required for lethal injection.
The last time the firing squad was used was in twenty ten, not so long ago. Are the Feds also considering bringing charges against Robinson?
I think that's certainly a possibility. We've heard people in the Trump administration say that that's something that they're looking at. Prosecutors in Utah County declined to answer questions about that as well. They said that's a decision that's totally up to the federal government. If they have charges that they want to pursue at a federal level. Nothing's been filed yet, but you know that's always possible.
And Madeline, you recently went to the campus where the shooting occurred. Tell us what it's like there now.
That's right. So campus has been closed since the shooting, but it reopened yesterday. Classes resumed and so there were multiple memorial sites set up at the university and they were encouraging members of the public and students to leave offerings and to have a moment of silence at the site of the shooting if that's something that was meaningful
for them. I spent a few hours there in the evening before classes resumed, and then again on Wednesday morning, and the mood was the same both days I was there. It was very somber, very quiet. People were incredibly emotional
and they were passing through leaving flowers, reading signs. There was chalk left out and people had scrawled different messages on the sidewalks, on the roadways and even on the side of some buildings, expressing support for Charlie and expressing, you know, mournful feelings but also hopeful feelings for the future, and saying things along the lines of this didn't happen in Vain. Your mission is going to continue. And people who visited the Amphitheater area where Kirk was actually shot.
The university had placed these metal barriers preventing people from walking in, but many people came and leaned against the edge of them and just kind of were reflecting silently as they looked on this area. But if you passing through, would stop and turn and look back up towards the building which you can see from there where the suspect
allegedly fired from. So there was a lot of interest, but most of it was coming from a place of mourning and wanting to find community and returning to the scene.
The next hearing is on September twenty ninth. Will see if we learn more then. Thanks so much, Madeline. That's Bloomberg Legal reporter Madeleine Mecklberg, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg