Trump and His Jurist Sister: A Study in Contrasts
In a high-profile fraud case against a major corporation, a district judge faced a consequential dilemma: The defense was a former student. Would this alone be grounds for recusal?
The trial was fictional, but Judge Maryanne Trump Barry pondered the question seriously on a panel hosted by the Federal Judges Association in 1997. Barry, the older sister of Donald Trump, and at that time a U.S. District Court judge for the district of New Jersey, concluded that this relationship alone would not demand that she disqualify herself.
The moderator, Professor Charles Nesson of Harvard Law School, escalated the scenario: The defense had testified at the judge’s confirmation hearing. Barry would disclose that relationship to the prosecution, she said, but “not right away,” and she still would not step back from the trial.
“I don’t think it’s like the Dead Sea Scrolls,” Barry said of the new revelation.
What, then, would it take? Having presided over the defense’s wedding also would not meet the threshold, Barry said, nor would a glaring press spotlight on the trial. Finally, Nesson proposed a climactic scenario: A senator close to Barry, who had personally pushed for her confirmation, was speaking publicly about the outcome of the trial and held a vested interest in it. Complicating matters further, a news report was published about their relationship, resulting in a motion for her recusal that cited some untrue allegations.
Reluctantly, Barry conceded that here she would recuse, although she “would resent having to get out of that case.”
“But I think you have now gotten to the point ... that there is a greater good, and the greater good is the public’s confidence that justice be done,” Barry mused. “The public’s not going to know whether it’s true or whether it isn’t, and even if it’s not true, there is so much of it that there is an aroma, there is a stink around my handling the case.”
“Isn’t it also important that the public not believe that you are a corrupt judge?” Nesson volleyed.
“We don’t have an even playing field,” Barry concluded, the “we” encompassing her judicial peers. “We cannot fight back the way we would want to.”
Now, nearly two decades later, another Trump has come to ponder judicial best practices, albeit in a more public and confrontational manner. Donald Trump, the presumptive Republican nominee for president, has urged that District Court Judge Gonzalo Curiel recuse himself from fraud proceedings against Trump University, citing conflicts presented by Curiel’s political leanings and his ethnic heritage.
“I have had horrible rulings. I have been treated very unfairly by this judge,” Trump recently told CNN’s Jake Tapper. “Now, this judge is of Mexican heritage. I'm building a wall, OK? I'm building a wall.”
Trump has since retreated from this argument, having drawn ire from Democrats and Republicans alike, although he has not reversed his position. But he has meanwhile introduced another fundamental question, concerning separation of powers, by promising to use executive authority as president to “suspend immigration from areas of the world where there's a proven history of terrorism.”
“The immigration laws of the United States give the president powers to suspend entry into the country of any class of persons,” Trump said in prepared remarks Monday, in the aftermath of the mass shooting in Orlando. “It really is determined and to be determined by the president for the interests of the United States, and it's as he or she deems appropriate.”
As Trump has advanced this rhetoric, he has practically begged the question: What would his sister think?
“Given some of the comments he has made, it’s obvious she has a lot of teaching moments ahead of her with her brother and the role of the judiciary,” one former federal judge, Vaughn Walker, told Big Law Business this month.
The two siblings are unquestionably close. Trump has regularly attended events over the years honoring his sister and her work; and Barry has credited her brother’s influence with having helped her secure a seat on the bench in the first place.
If Barry has indeed counseled her brother during this election, however, it has remained far from the public eye. Barry described herself in a 2011 commencement address as a “very private person” — a sentiment echoed by a few of Barry’s former law clerks as they declined comment for this story.
But her long legal career — including more than three decades on the bench, first at the district level and now on the Third Circuit Court of Appeals — offers clues as to how Barry might rate her brother’s approach, and how her style and views differ from his.
In nominating her to the Third Circuit in 1999, the late Sen. Frank Lautenberg, a Democrat, praised Barry’s “command of the law, her professional demeanor, and her razor-sharp wit, which she does not hesitate to use when cutting short a particularly loquacious presentation.” Today, she remains broadly respected among other judges and attorneys, those who have observed her professionally say.
Barry “is a very active judge at oral argument, which is usually a sign a judge has already read the briefs and is very actively thinking about the case,” said David Fine, an appellate lawyer based in Harrisburg, Pa. “She is very polite in questioning and at the same time also direct.”
Her opinions, meanwhile, can reveal a methodical jurist who cautions against overreach by the branches of government, including the judiciary itself. But even while laying out sober legal arguments, she often stresses compassion for the individual.
“When you read her opinions, and I've read dozens of them, you see a judge who above all wants government to work right,” said Matthew Stiegler, an appeals lawyer in Philadelphia who writes a blog about the Third Circuit. “She wants lawmakers to write clear laws and appellate lawyers to make sound arguments.”
“Our society is growing increasingly polarized, and that is reflected in our courts, too,” Stiegler added, “but Judge Barry is a throwback to a less partisan time.”
This view is not universally held. One of Barry’s well-known opinions on the Third Circuit, in Planned Parenthood of Central N.J. v. Farmer in 2000, struck down a New Jersey ban on partial-birth abortions. Although Supreme Court Justice Samuel Alito, then also serving on the Third Circuit, sided with Barry, Sen. Ted Cruz raised the issue on the campaign trail earlier this year as evidence of judicial activism, labeling Barry “a radical pro-abortion extremist.”
Others, however, point to this decision in particular as a mark of Barry’s centrism.
“Her opinion was strongly worded, but I don't see even a hint about her views on abortion,” Stiegler said. “Instead, its core point was that the law was so badly drafted that the public couldn't know what was legal and what wasn't.”
Indeed, during her Senate confirmation hearing the previous year, Republican Sen. Bob Smith had pressed Barry for her personal views on abortion. But she stressed that her own beliefs, if she had any at all on abortion, were “not relevant.”
“My personal opinions on any subject are really not relevant, not important,” Barry said. “And to the extent that I might inject them, I am acting improperly as either a District Court judge or as an appellate court judge.”
In this presidential election year, some of Barry’s decisions regarding immigration have also assumed fresh meaning. As it happens, she has worked on some of them alongside Judge Julio Fuentes, the first Hispanic judge appointed to the Third Circuit. But one former Third Circuit clerk, speaking anonymously to Above the Law, said of Barry: “Frankly, if you watched her sit in an immigration-related case, you wouldn’t be surprised she shares the Donald’s DNA.”
On the other hand, many of her immigration-related decisions are notable for their clear breaks with Trump: in calling for limits on the executive’s authority, and in their explicit compassion for individuals.
As a District Court judge in 1996, Barry faced a case that, as she wrote in her opinion, could well have sprung from “a best-selling novel”: A Mexican political figure, Ruiz Massieu, under pressure from the Mexican government and receiving death threats after investigating his brother’s assassination, had traveled legally through the U.S. en route to Spain, only to be intercepted at Newark airport by U.S. authorities. After efforts to extradite Massieu to Mexico fell short through the normal channels, then-Secretary of State Warren Christopher unilaterally called for his deportation on foreign policy grounds.
But Barry found this to be unconstitutional.
“There can be no more graphic illustration of the exercise of unbounded executive authority than that seen in this case,” Barry wrote in her opinion. “In this case, the Secretary has determined that plaintiff is expendable for ‘foreign policy’ reasons which the Secretary need neither explicate nor defend, merely because Mexico wants plaintiff back.”
The case was overturned on appeal; however, when she submitted a questionnaire to the Senate Judiciary Committee during her nomination to the Third Circuit, Barry listed this case among her 10 most significant opinions.
Later, on the Third Circuit bench, Barry considered whether the government should be permitted to deport Malachy McAllister, who had fled persecution and political turmoil in Northern Ireland in the 1980s and ultimately sought asylum in the U.S. Beginning in 1999, however, immigration authorities sought to deport him.
The panel, including Barry, found that there were no legal avenues for McAllister and his family to remain in the country. But her opinion sought to highlight the humanity of the case and suggested that the law had fallen short.
“I refuse to believe that ‘Give me your tired, your poor, your huddled masses yearning to breathe free...’ is now an empty entreaty,” Barry wrote. “But if it is, shame on us.”
“I cannot find a way to keep the McAllisters in this country, and I have surely tried,” Barry added. “But the laws Congress has enacted, particularly those enacted in the wake of the September 11th horror, are bullet-proof, designed, as they should be, to combat terrorism. The problem here, though, is that Congress’s definition of ‘terrorist activity’ sweeps in not only the big guy, but also the little guy who poses no risk to anyone. It sweeps in Malachy McAllister.”
Barry’s perspective here might stem from her own family history. “Neither of my parents had English as a first language,” she noted at her 2011 commencement address at Fairfield University, a Jesuit institution in Connecticut. Her brother listened from the audience.
But Trump in particular has also presented a professional obstacle for Barry, with more than a dozen cases involving her sibling and his companies having passed through the Third Circuit while she has served there.
“We never had a conflict,” Trump told The New York Times recently. “She would recuse herself. I’d ask her not to, of course, but she would recuse herself.”
Unlike her colleague Judge Marjorie Rendell, the now-ex-wife of former Pennsylvania Gov. Ed Rendell, Barry apparently did not give public notice of the types of cases she would recuse herself from that involve her brother or his business interests. But in her time on the Third Circuit, Barry has not sat on the panel for any of these cases.
And as her brother has run for president, Barry has remained characteristically quiet and private. Trump has called her a “brilliant judge” on the campaign trail, and he said in an interview last year that she would make a “phenomenal” justice on the Supreme Court. (She was not ultimately included on Trump’s recent list of would-be SCOTUS picks, although he did name Judge Thomas Hardiman, a Third Circuit colleague.)
At the 225th anniversary gala last year for the New Jersey U.S. Attorney’s office, according to a report from Above the Law’s David Lat, U.S. Attorney Paul Fishman suggested another role for Barry.
“Some people want our next president to be a woman. Some people want our next president to be a Trump,” Fishman said. “Ladies and gentlemen, I present to you the next president of the United States: Judge Maryanne Trump Barry!”