What Judges Can Do for the Rule of Law Under Trump

President-elect Trump recently threatened to lock up political foes, like Liz Cheney, as well as members of Congress who investigated his role in the Jan. 6 attack. “For what they did,” he said, “honestly, they should go to jail.”

On the campaign trail, Mr. Trump said repeatedly that he would encourage the Justice Department and the F.B.I. to go after his enemies. His picks for attorney general (Pam Bondi) and F.B.I. director (Kash Patel) have echoed these remarks. Mr. Patel even compiled an enemies list, which includes Christopher Wray and retired Gen. Mark Milley.

This impulse could reach beyond leadership and may well trickle down in significant part to the 94 federal district courts around the nation. Each United States attorney will have been appointed by Mr. Trump and will be subject to his whim — meaning their potential firing if he does not approve of their performance.

If these confirmed public servants can’t stand up to the pressure from above to serve not an individual person but justice as a principle, who will? It will have to be the judges.

Judges simply can’t be blind to what Mr. Trump, Ms. Bondi and Mr. Patel have said. They can’t ignore their words if the Justice Department under Mr. Trump or the F.B.I. goes after those on an enemies list who have committed no crime beyond opposing the president-elect.

Suppose a federal district judge is asked to sign off on an eavesdropping warrant under Title III of the federal criminal law. He or she will receive one-sided (“ex parte”) submissions from prosecutors applying for search warrants (for a physical search or a wiretap), an application that the target’s attorney will not know about nor have the ability to contest.