In a piece published yesterday, I documented how anti-Trump activist Judge James Boasberg was assigned a series of “Trump cases” in the early weeks of the second Trump administration. He then blocked and stalled part of the president’s first wave agenda.
So, how did one left-wing judge get assigned so many sensitive cases? Part of the answer is the legal tactic known as “judge-shopping,” which was patented by lawfare general and activist attorney Marc Elias.
In an exclusive interview I conducted as part of my research for Breaking the Law, President Trump has called out the practice and warned that “judge-shopping is rampant at levels never seen before. You know the outcome of a case as soon as the judge is picked.”
“And the radical left is using this, their final weapon, to take down America,” the president told me.
Judge-shopping is a straightforward idea: A politically interested party will bring a case to a court with mostly favorable judges to make it likely they get their desired outcome. For example, some courts have only one judge, so it can be easy to anticipate how a judge will rule if you bring the case to that judge’s court. Other powerful courts, such as the D.C. District Court, is composed of mostly of judges who appear to be ideologically on the left. The venue rules for federal cases (28 U.S.C. § 1391) make it so that virtually every case brought against the federal government can be filed in that court since it is often where the defendant resides or where the relevant events occurred.
Breitbart News Senior Contributor Peter Schweizer credits Marc Elias, a high priest of lawfare if there ever was one, with popularizing the venue-shopping tactic. According to Schweizer, Elias was able to swing the highly contested 2008 Minnesota senate race for Democrat Al Franken over Republican Norm Coleman by finding a specific court to legitimize over a thousand ballots that had previously been rejected because they had potentially been cast by convicted felons.
Marc E. Elias of Perkins Coie LLP poses for a portrait in front of a projected map of the United States on April 11, 2016, in Washington, DC. (Matt McClain/ The Washington Post via Getty Images)
The recount and trial lasted six months, the longest re-count in American history; and in the end, the former Saturday Night Live actor won a narrow victory. According to Schweizer, Elias engineered this feat by venue-shopping for a favorable court. A subsequent study suggested that many felons did in fact illegally vote in the race, which may well have tipped the election to Franken. That race gave the Democrats a filibuster-proof 60-vote majority in the Senate, which allowed then-President Obama to pass enormous pieces of legislation such as Obamacare.
Though many courts assign cases to judges at random, some courts are small and more predictable. Others are stacked with judges with similar judicial philosophies, so a smart lawyer keen on venue-shopping can hope to match a simpatico judge to his case. Attorneys will also file similar or identical claims in multiple jurisdictions. For example, when Trump tried to end birthright citizenship, four judges blocked him. Judges in Boston, New Hampshire, Seattle, and Maryland—all deep-blue areas—issued injunctions.
Attorneys also file cases at times when they believe that a specific judge is most likely to get assigned the case. This appears to have happened in the Alien Enemies Act case. Boasberg was the judge who “happened to be available” first thing Saturday morning to take the case, despite the fact that he was “away” that weekend. A charitable view of the court transcripts indicate that Boasberg was tipped off that the case was coming. A more cynical take: He may be part of a grand conspiracy to rig cases.
All of this is manipulative, against the spirt of judicial impartiality, and highly effective.
James Boasberg, chief judge of the U.S. District Court of the District of Columbia, on March 13, 2023. (Valerie Plesch/Bloomberg via Getty Images)
The left has used Elias’s tactic to great effect, politicizing the courts and ensuring there is no equal justice under the law for political conservatives.
It is imperative we move to end judge and forum-shopping immediately. The damage a politicized judge can do goes beyond injunctions and TROs. These judges decide the rules of the court, who and what goes in and out, what decisions juries can and can’t make, etc. As was the case in Judge Juan Merchan’s courtroom, the jury instructions and other peculiarities of a particular judge’s courtroom can determine the outcome of the case.
Judge Juan Merchan poses for a picture in his chambers in New York City on March 14, 2024. (AP Photo/Seth Wenig)
What replaces judge shopping will need serious thought and deliberation. This could be a complicated web to untangle, and I offer some ideas in Breaking the Law.
Yet, if we want to restore equal protection under the law for American citizens, that deliberation has to begin now.
This article was adapted from portions of Breaking the Law.
Breaking the Law: Exposing the Weaponization of America’s Legal System Against Donald Trump, which has been hailed by President Trump as a “must read” book, is available in hardcover, eReader format, and as an audiobook read by the author himself.
Alex Marlow is the editor-in-chief of Breitbart News, a three-time New York Times bestselling author, and the host of “The Alex Marlow Show” podcast produced weekdays by Breitbart News and Salem Podcast Network. You can subscribe to the podcast on YouTube, Rumble, Apple Podcasts, and Spotify. You can follow Alex on Facebook, Instagram, and X at @AlexMarlow.
