Maybe Don’t ‘Both Sides’ Disappearing People To Foreign Gulags, OK?

Every so often, someone pings the tipster line and asks some variant of, “Why aren’t you more bipartisan?” Many times this is couched in a stream of expletives. Often it’s technically addressed to a guy that hasn’t worked here since before the pandemic. I don’t know if these people just don’t know that Elie Mystal left or if they find addressing their remarks to him provides a better hook for the racial slurs they want to drop.

In any event, even the comparably polite versions of this query are always delivered from anonymous burner accounts so there’s not even an opportunity to engage in an honest dialogue. Assuming that’s something they would welcome anyway. So let’s deal with this criticism here: why does Above the Law in 2025 mostly render scorn on the Trump administration and its Federalist Society minions?

There’s a lot to be said, but the short version is that — as writers and lawyers — we have dual ethical hangups about stopping mid-article to say, “But on the other hand, consider the upsides of disappearing citizens into foreign slave camps….”

The Onion, as usual, best captures the “debate” these people want — Historians: Quibbling Over Exact Definition Of Concentration Camp Sign Of Healthy Society.

As I often quote, Hunter S. Thompson said everything that needed to be said on the subject of objective journalism: “Don’t bother to look for it here—not under any byline of mine.” It’s not “neutrality,” it’s an invitation for bad actors to launder talking points under the guise of “balance.” Our job is to tell it as it is based on what we’ve learned, not give audiences competing press releases about what reality might be. And as lawyers we have obligations not to facilitate or effectuate efforts to undermine the rule of law. If a law school professor wouldn’t have entertained this shit on a final exam, why should we platform it in a news cycle?

That might be a lot of high-minded principled talk for an author who also writes about lawyers streaming porn in their offices, but I’d rather be making fun of lawyers going to hearings naked while grounded in these principles than being so adrift from any core value that I’d turn my pro bono practice over to the ever-one-upping whims of a tinpot dictator.

Look, when I started writing for Above the Law, there’s an argument that the two most thoroughly and reliably right-wing judges in the federal judiciary were the Fourth Circuit’s J. Harvie Wilkinson III and J. Michael Luttig.

Yesterday, Wilkinson threw a Molotov cocktail on the Trump administration’s deportation regime, not even waiting for the plaintiff to file papers before dropping a withering broadside against the head of the party that appointed him.

The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

Judge Wilkinson was the judge who saw no problem holding enemy combatants indefinitely without access to lawyers or judicial review — a ruling that Scalia and Rehnquist both considered wild executive overreach. The same guy wants to make it very clear that Trump’s policy shocks “the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

Luttig has gone even further! A judge who mentored a generation of hardline conservative clerks — including Solicitors General in both Trump administrations and coup-coup-ca-choo lawyer John Eastman — is now a go-to expert for the #resistance. He said this week: “The President of the United States of America is at war with the Constitution and the rule of law.”

Those were the furthest right-wing judges I could think of back in the day!

And it’s not just the judiciary. David Brooks is out here citing the Communist Manifesto and floating a mass uprising! Paul Clement is defending law firms against Trump’s authoritarian demands. The National Review — THE NATIONAL FRIGGIN’ REVIEW — is writing “A test of the rule of law is coming. It is not enough to write about this phenomenon with clinical detachment; it must be opposed.”

George W. Bush’s strongest warriors are talking tougher about stopping Trump than Chuck Schumer. The same folks who gave us Gitmo and WMD scavenger hunts are now the last line of defense for habeas corpus.

That’s your bipartisanship. That’s the “both sides” right now. They just happen to be all lined up against the same guy. If you’re still out here asking me to present “the other side,” you’re not interested in hearing from the intellectual opposition, you just want a platform for a paranoid, extralegal clown show careening toward despotism.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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