Perhaps President Donald Trump has crossed the line with his comments about court proceedings. Or perhaps he hasn’t. Let’s now consider the merits.
Regardless of this particular case, judges never have to put up with parties who publicly attack themselves, lawyers, witnesses or prosecutors with lies.
In criminal proceedings, the judges have a hammer to wield in the form of conditions of release. When the conditions are violated, the judge can take steps right up to locking the abuser in prison.
But it may be better to call the bully’s bluff instead.
Parties who attack judges for alleged bias can be put to the test. The judge assigned to a case can ask another judge to hold a hearing on whether the assigned judge should be disqualified. The new judge can ask the offending party: “If you claim the judge is biased, let’s see your proof.”
Then, if the claims aren’t meritorious, courts should punish the abusers.
Judges can offer similar hearings for attacks on prosecutors, witnesses, government agencies and the like. A court can offer parties a chance to be heard on a motion to dismiss the case. Again, the question should be: “Where is the proof?”
The important thing is for judges to confront lies immediately. Asymmetrical warfare in court is on the rise. People say things today about courts they never would have dared to previously. Sometimes it works. Some judges don’t want the hassle of hearing their case. The trial may be delayed. Many times, that’s the goal of the attacks. The case gets tossed from one judge’s chambers to another — like porcupines out of a balloon shop.
But that shouldn’t happen. The best way to halt this tactic is to catch it early and shut it down. If the misbehavior is caught early, it ensures that the case being considered gets a fair and orderly hearing. It also deters others from doing the same thing. In this age of blogs and chattering apps, the word gets around, for good or for ill.
The next thing is for the judge hearing the challenge to weigh the evidence, find the truth, and record it on the public record. It may be a matter of recording that all the public bluster was unsupported by so much as a scintilla of proof.
Once the hearing has been held and lies have been found, the judge can act forcefully. Lawyers are court officers, subject to ethical rules about what they can do and say in the media. Judges can discipline them for certain types of statements.
For the parties, a record proving lies puts the court on more solid ground under the First Amendment. They can order parties to stop making false out-of-court statements that may undermine in-court proceedings. Parties who disobey court orders can be fined and, in some circumstances, jailed.
As an alternative, in civil cases, a judge can order that the party loses the lawsuit or part of the lawsuit. The judge can tell jurors about the lies and advise them that they can consider those lies when deciding whether the party is lying to them.
In criminal court, judges can also move up trial dates, but often you can’t move the trial date up early enough to stop the abuse. It’s better to act against the misconduct. It’s faster, and it sends a message to the public that lies won’t be tolerated.
Legal proceedings should be solemn and be supported by public respect. Judges are charged with maintaining that respect. When judges let parties in a lawsuit undermine public trust with public lies, they rattle our entire republic.
Don’t forget that our government is a foundation resting on three legs. Judges have to hold their leg steady, even if it sometimes means putting their foot down.
Thomas G. Moukawsher is a Connecticut complex litigation judge. He is a former co-chair of the ABA Committee on Employee Benefits, and is author of the new book “The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It” (Brandeis, Sept. 2023).