Paul M. Collins, Jr.

This article is republished from The Conversation under a Creative Commons license. Read the original article here. In democratic systems, the courts are a vital check on a leader’s power. They have the ability to overturn laws and, in Donald Trump’s case, the executive orders he has relied on to achieve his goals. Since taking office, Trump has targeted the judiciary with a vengeance. He has attacked what he has called “radical left judges” and is accused of ignoring or evading court orders. The Supreme Court has already handed the Trump administration some key wins in his second term. But several cases now before the court will be pivotal in determining how much power Trump is able to accrue – and what he’ll be able to do with it. As Paul Collins, a Supreme Court expert from the University of Massachusetts Amherst, explains in episode 4 of The Making of an Autocrat: It’s all about presidential power. And that’s really significant because it’s going to enable the president to basically inject a level of politics into the federal bureaucracy that we frankly haven’t really seen before in the US. Listen to the interview with Collins at The Making of an Autocrat podcast, available at Spotify, Apple, or wherever you get your podcasts.

This article is republished from The Conversation under a Creative Commons license. Read the original article here. Former FBI Director James Comey pleaded not guilty to two criminal charges in a federal court in Alexandria, Virginia, on Oct. 8, 2025. The charges allege that Comey lied to Congress in September 2020 when he stood by earlier testimony that he did not authorize a leak of an FBI investigation involving Hillary Clinton. Numerous legal commentators on both the left and right have argued that Comey’s indictment is little more than the Trump administration seeking vengeance on one of the president’s perceived enemies. They allege that the president has it out for Comey, who investigated Russian interference in the 2016 presidential election and was fired by Trump in 2017. The president’s own words support the idea that the Trump administration is targeting Comey. In a social media post on Sept. 20, 2025, Trump directed Attorney General Pam Bondi to move forward with prosecutions against Comey, Democratic U.S. Sen. Adam Schiff and New York Attorney General Letitia James: “They’re all guilty as hell, but nothing is going to be done. …JUSTICE MUST BE SERVED, NOW!!!” If the case against Comey is exceedingly weak – and little more than a political prosecution – then, in my view as a scholar of the U.S. legal system, it should result in the dismissal of charges by the judge or a not guilty verdict by the jury. But even when an individual is not convicted, the process of defending against charges can itself be a form of punishment, as renowned legal scholar Malcolm Feeley pointed out almost 50 years ago. Here’s how the criminal justice process punishes even innocent people. The criminal justice process The criminal justice process is complex. After a grand jury returns an indictment at the request of a prosecutor, the accused appears in court for their arraignment. They are informed of the charges against them and typically enter a plea. During what’s called “discovery,” the prosecution and defense investigate the evidence the other side plans to rely on. There are also pretrial motions in which the parties ask judges to dismiss charges and accept or exclude evidence. The defense and prosecution may also meet to discuss a plea bargain, wherein the accused may plead guilty in exchange for a lesser sentence or reduced charges. If there is no plea bargain, then the case moves to trial, which is itself a complicated process. If a defendant is found guilty, they can mount an appeal to higher courts in an attempt to have their conviction overturned. To help navigate this process, criminal defendants typically hire a lawyer. And good lawyers don’t come cheap. Money and time Indigent defendants, who do not have the financial resources to pay their own legal fees, can rely on public defenders paid for by the government. But individuals who can afford to pay for their own lawyer face a substantial financial burden for attorney services and court fees. An experienced criminal defense lawyer can charge more than US$1,000 per hour, with fees quickly adding up. This means that mounting a legal defense can easily cost tens of thousands of dollars. On top of this, it takes a great deal of time to prepare for a criminal case. While lawyers and their staff do much of the legwork for trial preparation, a client works with their attorneys to help formulate a defense. As a result, criminal defendants lose one of the most precious commodities in the world: their time. And this time can come at a tangible cost in the form of lost wages, which harms their day-to-day lives. Put simply, every hour spent preparing for trial is an hour defendants could spend working or enjoying their lives. Stress and embarrassment It’s not pleasant being charged with a crime. The criminal process, which typically lasts months, takes a toll on one’s mental health. This is largely driven by the uncertainty surrounding the outcome of a criminal trial and the possibility of losing one’s freedom if convicted. In addition, there is a social stigma that comes with being accused of a crime. This can result in reputational damage, anxiety and embarrassment. The Trump administration appears to recognize this reality. Several media outlets have reported that FBI leadership had planned a public perp walk for Comey. According to a CBS News report, this was to have included “‘large, beefy’ agents … ‘in full kit,’ including Kevlar vests and exterior wear emblazoned with the FBI logo.” Apparently, the plan was aborted after several FBI supervisors refused to cooperate, viewing it as inappropriate. One agent was disciplined for insubordination after refusing to go along with the plan to embarrass Comey in this way. Not all criminal defendants suffer the same The extent to which criminal defendants experience the criminal justice process as a form of punishment varies from person to person. For high-status people like Comey, lost wages and attorneys’ and court fees may not be that big of a deal. But these costs may be incredibly significant for other people who have been, or are likely to be, targeted by the Trump administration. The high costs of lawyers’ fees are well known to the president. For instance, his political action committee spent millions of dollars on attorneys’ fees in an unsuccessful effort to defend Trump from criminal charges in New York. In addition, people no doubt experience the psychological stress and stigma of a possible criminal conviction differently. But regardless of one’s wealth, the lost time spent preparing a criminal defense is something that cannot be replaced. The recognition that the criminal process is itself a form of punishment is one of the reasons that the Department of Justice has maintained independence from the president. By violating the tradition of staying out of politics, the Justice Department in the Trump administration has opened the door for the president to seek retribution on his perceived political enemies. The mere act of putting them through the criminal process ensures that they suffer, regardless of their guilt or innocence.

This article is republished from The Conversation under a Creative Commons license. Read the original article here. President Donald Trump’s nomination of his former criminal defense attorney, Emil Bove, to be a judge on the United States Court of Appeals for the 3rd Circuit, has been mired in controversy. On June 24, 2025, Erez Reuveni, a former Department of Justice attorney who worked with Bove, released an extensive, 27-page whistleblower report. Reuveni claimed that Bove, as the Trump administration’s acting deputy attorney general, said “that it might become necessary to tell a court ‘fuck you’” and ignore court orders related to the administration’s immigration policies. Bove’s acting role ended on March 6 when he resumed his current position of principal associate deputy attorney general. When asked about this statement at his June 25 Senate confirmation hearing, Bove said, “I don’t recall.” And on July 15, 80 former federal and state judges signed a letter opposing Bove’s nomination. The letter argued that “Mr. Bove’s egregious record of mistreating law enforcement officers, abusing power, and disregarding the law itself disqualifies him for this position.” A day later, more than 900 former Department of Justice attorneys submitted their own letter opposing Bove’s confirmation. The attorneys argued that “Few actions could undermine the rule of law more than a senior executive branch official flouting another branch’s authority. But that is exactly what Mr. Bove allegedly did through his involvement in DOJ’s defiance of court orders.” On July 17, Democrats walked out of the Senate Judiciary Committee vote, in protest of the refusal by Chairman Chuck Grassley, a Republican from Iowa, to allow further investigation and debate on the nomination. Republicans on the committee then unanimously voted to move the nomination forward for a full Senate vote. As a scholar of the courts, I know that most federal court appointments are not as controversial as Bove’s nomination. But highly contentious nominations do arise from time to time. Here’s how three controversial nominations turned out – and how Bove’s nomination is different in a crucial way. Robert Bork Bork is the only federal court nominee whose name became a verb. “Borking” is “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification,” according to Merriam-Webster. This refers to Republican President Ronald Reagan’s 1987 appointment of Bork to the Supreme Court. Reagan called Bork “one of the finest judges in America’s history.” Democrats viewed Bork, a federal appeals court judge, as an ideologically extreme conservative, with their opposition based largely on his extensive scholarly work and opinions on the U.S. Court of Appeals for the District of Columbia Circuit. In opposing the Bork nomination, Sen. Ted Kennedy of Massachusetts took the Senate floor and gave a fiery speech: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.” Ultimately, Bork’s nomination failed by a 58-42 vote in the Senate, with 52 Democrats and six Republicans rejecting the nomination. Ronnie White In 1997, Democratic President Bill Clinton nominated White to the United States District Court for the Eastern District of Missouri. White was the first Black judge on the Missouri Supreme Court. Republican Sen. John Ashcroft, from White’s home state of Missouri, led the fight against the nomination. Ashcroft alleged that White’s confirmation would “push the law in a pro-criminal direction.” Ashcroft based this claim on White’s comparatively liberal record in death penalty cases as a judge on the Missouri Supreme Court. However, there was limited evidence to support this assertion. This led some to believe that Ashcroft’s attack on the nomination was motivated by stereotypes that African Americans, like White, are soft on crime. Even Clinton implied that race may be a factor in the attacks on White: “By voting down the first African-American judge to serve on the Missouri Supreme Court, the Republicans have deprived both the judiciary and the people of Missouri of an excellent, fair, and impartial Federal judge.” White’s nomination was defeated in the Senate by a 54-45 party-line vote. In 2014, White was renominated to the same judgeship by President Barack Obama and confirmed by largely party-line 53-44 vote, garnering the support of a single Republican, Susan Collins of Maine. Miguel Estrada Republican President George W. Bush nominated Estrada to the Court of Appeals for the District of Columbia Circuit in 2001. Estrada, who had earned a unanimous “well-qualified” rating from the American Bar Association, faced deep opposition from Senate Democrats, who believed he was a conservative ideologue. They also worried that, if confirmed, he would later be appointed to the Supreme Court. However, unlike Bork – who had an extensive paper trail as an academic and judge – Estrada’s written record was very thin. Democrats sought to use his confirmation hearing to probe his beliefs. But they didn’t get very far, as Estrada dodged many of the senators’ questions, including ones about Supreme Court cases he disagreed with and judges he admired. Democrats were particularly troubled by allegations that Estrada, when he was screening candidates for Justice Anthony Kennedy, disqualified applicants for Supreme Court clerkships based on their ideology. According to one attorney: “Miguel told me his job was to prevent liberal clerks from being hired. He told me he was screening out liberals because a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro-gay-rights decision in a case known as Romer v. Evans, which struck down a Colorado statute that discriminated against gays and lesbians.” When asked about this at his confirmation hearing, Estrada initially denied it but later backpedaled. Estrada said, “There is a set of circumstances in which I would consider ideology if I think that the person has some extreme view that he would not be willing to set aside in service to Justice Kennedy.” Unlike the Bork nomination, Democrats didn’t have the numbers to vote Estrada’s nomination down. Instead, they successfully filibustered the nomination, knowing that Republicans couldn’t muster the required 60 votes to end the filibuster. This marked the first time in Senate history that a court of appeals nomination was filibustered. Estrada would never serve as a judge. Bove stands out As the examples of Bork, Estrada and White make clear, contentious nominations to the federal courts often involve ideological concerns. This is also true for Bove, who is opposed in part because of the perception that he is a conservative ideologue. But the main concerns about Bove are related to a belief that he is a Trump loyalist who shows little respect for the rule of law or the judicial branch. This makes Bove stand out among contentious federal court nominations.