In my post about IRAP v. Trump, I focused on the Solicitor General urging the court to apply a “presumption of regularity” to the travel ban. Taking the opposite perspective was professor Dawn Johnsen, who urged a room full of Seventh Circuit judges to “adapt their screens of deference” for the Trump administration, due, in part, to “Russian interference in our democracy.”
I responded:
I appreciate Johnsen’s candor, as she admits what the ACLU and other Attorneys General tap-dance around. She is openly asking courts to consider a litany of political grievances to determine that Trump is not entitled to the usual deference other Presidents have been afforded.
Today, after James Comey’s firing, Joshua Matz offered a similar message, urging the judges of the Fourth Circuit to consider the propriety of Trump’s admittedly lawful termination of James Comey when ruling on the travel ban:
The President has the raw power to fire the FBI Director. But valid exercises of power can still create constitutional crises and threaten rule of law values, especially when our system depends heavily on norms and precedents rather than just a series of underlying formalisms. Having fired the man in charge of significant national security and intelligence policies—and having done so while that man led a criminal investigation involving foreign influence at the highest levels of the U.S. government—Trump has unquestionably forfeited any claim to a presumption of “regularity” or “good faith.”
I expect that the judges of the Fourth Circuit Court of Appeals, and their law clerks, are paying close attention to these events. Norms of judicial rhetoric likely wouldn’t permit any mention of Comey in an opinion. But it’s inconceivable to me that the Comey firing won’t frame their reaction to Trump’s insistence that presumptions of deference compel them to uphold his Muslim Ban.
Like with Johnsen, I appreciate Matz’s candor. Since the inauguration, judges in Seattle, Hawaii, and Maryland have abandoned the presumption of regularity for Trump. It didn’t take the firing of Comey to do so. His dangerous attacks on Judge Curiel last year were more than enough.
With that being said, I am profoundly troubled that judges have an on/off switch for the usual rule of law based on how egregious they think the President’s actions are. Trump, like any party before the court, is entitled to equal justice under law. If anything, as the President of the United States, he occupies a unique place in our republic. It is not for judges to decide, from their cloistered chambers, to put a thumb on the scale.
This colloquy between Acting Solicitor Jeff Wall and judges of the Fourth Circuit works just as well for Comey’s firing, as it does for the travel ban:
In this clip, Judge Floyd asks “if there is anything other than willful blindness that would prevent us from getting behind those statements.” Wall responds, “Respect for the head of a coordinate branch, and a presumption that officials act legally, which is to say, the ‘presumption of regularity.’” Chief Judge Gregory interjects, and asks about whether that presumption prevents courts from assessing the constitutionality of actions. Wall replies that it does not, but that the “only thing” plaintiffs have is to “reach back” to “what was in the President’s head.” He admits there are “different ways to read those [political] statements,” but insists that “respect for a coordinate branch and a ‘presumption of regularity’ require reading them in a way that is not most hostile to the President, but would render the actions lawful.”
Judge Wynn says that, far from regularity, with respect to President Trump “we are in uncharted territories.” In response, Wall counters that the district court’s opinion was in fact “unprecedented.”
I’ll reiterate a point I made on Lawfare:
This sort of analysis will suffice for the inferior courts, but will have a short shelf life. I strongly doubt the Supreme Court will wade into such muddy waters. Can you imagine five Justices assessing the necessary level of “Russian interference in our democracy” before jettisoning the “presumption of regularity” as applied to President Trump’s executive actions?
And make no mistake about this campaign of delegitimization. It doesn’t stop at Trump, but goes to all aspects of his government–even to his judicial appointments. Professor Glenn Reynolds writes about an email bouncing around on a faculty list serve, calling on other professors to “quarantine” 5-4 decisions where Gorsuch casts the deciding vote because they are “illegitimate.”
This rabbit hole goes down very, very far. Think before you leap.
Senate and House investigations, special prosecutors, and political pressure, provide ample means to address purported misconduct. The courts do not need to do their part.