As the federal government faces a possible shutdown, observers are eyeing potential impacts on a breadth of civil and criminal cases across the country. Notably among these, are criminal cases involving former President Trump. However, any notion that a government shutdown could be utilized to stall such litigation could be fundamentally flawed, thanks to the Public Access to Court Electronic Records (PACER).
Some have speculated that starving the judiciary of funds could implicitly delay Trump’s criminal cases until the next presidential election, effectively leveraging the power of a presidential pardon. Yet, this notion assumes a total halt in the federal courts system, an outcome unlikely to manifest given the financial resilience of the courts, largely thanks to PACER.
PACER, an online court document database, has earned its reputation for outdated infrastructure yet substantial charges. Despite downward trends in the cost of hosting websites, federal courts continue to charge per page fees on public court document access, a questionable practice in a digitally fluent age.
The judiciary had previously argued maintaining PACER costs around $2 billion, a figure largely refuted on the basis of the apparent disconnect between the cost of digital storage and PACER’s price points. Despite the controversy over these fees, which were ostensibly earmarked to keep PACER operational, the judiciary has been using these funds rather liberally. As one federal judge described, the money often ended up financing office redecorations or similar extravagant detours.
Eventually, Congress intervened, and steps were taken to end PACER fees in most situations to promote public access to court records. However, the initiative was subsequently undermined.
And so, as the potential governmental shutdown looms, the efficacy of PACER’s revenue model proves its resilience. Like the fable of the grasshopper and the ant, the courts have saved for the budgetary winter, while other agencies have largely used their respective budgets for annual expenses.
As a result, it appears that the strategic gambit of sparking a government shutdown to starve federal criminal cases of resources has a deeply embedded flaw.