Opinion: Justice beholden to power is no justice at all

Two centuries ago, Andrew Jackson had a contentious relationship with the courts, purportedly declaring that “John Marshall has made his decision, now let him enforce it.” Unfortunately, we seem to be there again today. This is how President Trump’s Justice Department, acting as the his functionary, is willing to engage with the courts. 

Before he left office, President Biden’s Justice Department indicted Gautam Adani, an Indian businessman extremely close to Indian Prime Minister Narendra Modi, on a gigantic fraud and bribery case. We cannot be sure exactly why the Trump administration now wants to dismiss the case, but we can guess.

Indeed, Adani, India’s wealthiest citizen, counseled by his attorney — who, coincidentally or not, is also Trump’s personal attorney — has offered to invest $10 billion in the U.S.  

And that is what is currently occurring in United States v. Adani, at the moment still pending in the United States District Court in Brooklyn, New York. The Justice Department has moved to dismiss the case. Senior U.S. District Judge Nicholas Garaufis has shown the temerity, in the government’s estimation, to ask why.

The government now claims that the no-nonsense Garaufis is engaging in a “judicial inquisition” by exercising his authority to assess the government’s motion. Curious, indeed, that the principal associate deputy attorney general, who signed the Justice Department’s filing to oppose the judge’s examination of the motion chose the word “inquisition” (used in its filing multiple times) with all its disturbing insinuations, rather than simply using the word “inquiry.”

Unsurprisingly, Garaufis hasn’t taken that bait. He has demanded that Adani go under oath to affirm that there has been no motivational mischief in terms of a quid pro quo underlying the department’s willingness to dismiss the indictment with prejudice.

Frankly, in the absence of proof of fraud or bribery that led to the decision to seek dismissal of an indictment, there is essentially no legal basis that authorizes a judge to stand in the way of the Justice Department’s decision to terminate a prosecution. 

We have seen that a number of times in recent years, for example, in the instances of former New York City Mayor Eric Adams and Trump’s first-term national security adviser, Michael Flynn. The judges sitting on those cases were displeased with the Justice Department’s dismissal motions, but they had no realistic option but to grant the department’s motions.  

We can bellyache all we like over this lack of authority, but it is largely useless. The more immediate concern here regards the disrespectful tone with which the Justice Department under Pam Bondi and now Todd Blanche engage with the courts.  

It is surely unsurprising, based on how the president speaks about judges or justices who rule against him, but it is frankly unheard of how Justice Department lawyers themselves are willing to address judges or their orders and decisions adverse to the administration or the president. It’s perfectly in line with precedent for Justice attorneys to claim, as they have now regarding the Adani case, that a judge’s particular order or decision could be “chilling” to the department’s course of conduct in representing the U.S. But using clearly offensive hyperbola such as “inquisition” to describe a judge’s effort to legitimately learn what truly pends before him was deliberately designed to please the president and show disrespect for the court.   

At the end of the day, Garaufis has now directed Adani to swear under oath whether he was aware of anything “promised, offered, sought, received, agreed to or accepted, by anyone in connection with the dismissal of the indictment.” Adani complied, essentially answering “No.” And that will more than likely be the end of it, no proof of bribery or fraud apparently being available.

As noted, the Adani case is of a kind we’ve seen before during both Trump terms. Notably, these instances are not limited to criminal prosecutions but have also extended to the civil docket. Just days ago, U.S. District Judge Kathleen Williams rendered a ruling in Trump’s suit against the Internal Revenue Service that excoriated Trump’s private counsel, the Department of Justice and acting Attorney General Blanche for their collusion in bringing an action for improper purposes. The sanctions levied by Williams will not be an option in the Adani case. But the pattern of contempt the administration evinces for federal judges is all too palpable.

In the end, these judges represent an independent, co-equal branch of government, and we submit that it is their duty to probe circumstances that to them may signal an abuse of the legal processes they have taken an oath to uphold. 

John E Jones III is the former chief judge of the United States District Court for the Middle District of Pennsylvania and is the president of Dickinson College. Joel Cohen practices white-collar criminal defense law at Ruskin Moscou Faltischek PC and is the author of “Blindfolds Off: Judges on How They Decide.”

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