Fragile Times

Donald Trump didn’t believe the CIA and NSA and all the rest. He believed Putin. There was no Russian interference in anything. Now he believes Crown Prince Mohammed bin Salman. That fellow said he had nothing to do with anything. That’ll do. What do experts know anyway? That’s large intuitions and big government talking. Who needs that? During the 2016 campaign Donald Trump said he knew more about ISIS than all the generals. The next year it was health care. He’d looked into the issues. No one before him had ever realized it was so complicated, not one person, but now he knew more about the healthcare system and healthcare policy than anyone else in the world. It’s the same with trade. It’s the same with immigration, and medicine, and perhaps auto repair and competitive yodeling. He knows. Donald Trump knows everything, and large intuitions and big government know nothing. And the courts are really useless. He knows better than all the intuitions of government, so of course he knows better than the courts.

The courts disagree, and the New York Times’ Adam Liptak tells that tale:

Chief Justice John G. Roberts Jr. defended the independence and integrity of the federal judiciary on Wednesday, rebuking President Trump for calling a judge who had ruled against his administration’s asylum policy “an Obama judge.”

The chief justice said that was a profound misunderstanding of the judicial role.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

That blunt statement may represent a turning point in the relationship between the heads of two branches of the federal government, which until Wednesday had been characterized by slashing attacks from the president and studied restraint from the chief justice.

This had been one-sided. Trump shouted and whined. No more. Roberts had his say. It was his time:

The arrival last month of Mr. Trump’s second appointee, Justice Brett M. Kavanaugh, thrust the chief justice into the court’s ideological center, a spot that had long belonged to Justice Anthony M. Kennedy, who retired in July.

That change gives Chief Justice Roberts, 63, extraordinary power and responsibility, and it may have helped spur his unusual statement, issued in response to a request for comment from The Associated Press.

Roberts stepped up, which may have been a bad idea:

Some legal experts said Chief Justice Roberts may rue his decision to tangle with the president.

“Ultimately, I think this sort of statement will backfire,” said Josh Blackman, a law professor at South Texas College of Law in Houston. “Trump will always have the upper hand to escalate his attacks on the judiciary. Roberts will invariably be criticized for staying quiet. In the end, the court comes out weaker in this sort of struggle.”

Roberts should know that, and once did know that:

Until his statement, Chief Justice Roberts had avoided direct confrontation with Mr. Trump. He was silent during the presidential campaign, when Mr. Trump called him “an absolute disaster” and accused another federal judge of bias because of his family’s Mexican heritage. At Mr. Trump’s inauguration, Chief Justice Roberts administered the oath of office cordially, and when the president visited the Supreme Court for the investitures of his two appointees, the chief justice welcomed him warmly.

That’s over now:

Breaking his silence on Wednesday, Chief Justice Roberts responded to rambling remarks from Mr. Trump the day before in which he complained about a decision from Judge Jon S. Tigar, of the United States District Court in San Francisco, who ordered the administration to resume accepting asylum claims from migrants no matter where or how they entered the United States.

Mr. Trump’s legal analysis of the ruling consisted of the observation that Judge Tigar was “an Obama judge.”

That was Roberts’ dilemma:

The chief justice has passed up other opportunities to respond to Mr. Trump’s attacks on judges. He said nothing about Mr. Trump’s 2016 attack on Judge Gonzalo P. Curiel of the Federal District Court in San Diego, who was overseeing a class-action lawsuit against Trump University.

“They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace,” Mr. Trump said, adding that the judge, who was born in Indiana, had a conflict of interest because his family was of Mexican heritage. Mr. Trump settled the case after the election.

In early 2017, after losing a round in the travel ban litigation, Mr. Trump called the judge who had ruled against the ban, Judge James Robart of the Federal District Court in Seattle, a “so-called judge.”

When Justice Neil M. Gorsuch, Mr. Trump’s first appointee to the Supreme Court, called such attacks “demoralizing” and “disheartening” during his confirmation process, Chief Justice Roberts did not join in. Justice Gorsuch’s comments caused Mr. Trump to consider rescinding his nomination, the Washington Post reported last year.

Now he had to join in:

Chief Justice Roberts was called on to address unfocused remarks from Mr. Trump lashing out against the United States Court of Appeals for the Ninth Circuit, based in San Francisco. Mr. Trump said courts in the Ninth Circuit always ruled against his policies, and his main point seemed to be that he did not like losing.

“You go to the Ninth Circuit and it’s a disgrace,” he said. “And I’m going to put in a major complaint because you cannot win if you’re us.”

“That’s not law,” Mr. Trump said. “That’s not what this country stands for.”

Renewing his attack on Twitter on Wednesday, Mr. Trump quoted from Chief Justice Roberts’s statement.

“It would be great if the 9th Circuit was indeed an ‘independent judiciary,'” he wrote, “but if it is why are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking.”

In a follow-up tweet, he mused about breaking up the Ninth Circuit into two or three circuits, a move that would require legislation.

That’s never going to happen:

The Ninth Circuit hears appeals from federal courts in nine western states, including two on the Mexican border, California and Arizona. The circuit has a reputation for being frequently reversed by the Supreme Court, but its reversal rate is only a little higher than average and not as high as that of some other circuits.

The Ninth Circuit is fine, because the institution is fine:

Stuart M. Gerson, a former senior Justice Department official in both Republican and Democratic administrations, said Chief Justice Roberts’s statement was part of a clash between two conceptions of the judicial role.

“The chief justice’s comment punctuates the fact that the administration is doing very poorly before judges appointed by Republicans and Democrats,” Mr. Gerson said, “most of whom are acting, not as politicians in robes, but as independent agents of the rule of law.”

Ah, but the day before it was this:

President Trump told the White House counsel in the spring that he wanted to order the Justice Department to prosecute two of his political adversaries: his 2016 challenger, Hillary Clinton, and the former FBI director James B. Comey, according to two people familiar with the conversation.

The lawyer, Donald F. McGahn II, rebuffed the president, saying that he had no authority to order a prosecution. Mr. McGahn said that while he could request an investigation, that too could prompt accusations of abuse of power. To underscore his point, Mr. McGahn had White House lawyers write a memo for Mr. Trump warning that if he asked law enforcement to investigate his rivals, he could face a range of consequences, including possible impeachment.

That’s a bit scary:

The encounter was one of the most blatant examples yet of how Mr. Trump views the typically independent Justice Department as a tool to be wielded against his political enemies. It took on additional significance in recent weeks when Mr. McGahn left the White House and Mr. Trump appointed a relatively inexperienced political loyalist, Matthew G. Whitaker, as the acting attorney general.

It is unclear whether Mr. Trump read Mr. McGahn’s memo or whether he pursued the prosecutions further. But the president has continued to privately discuss the matter, including the possible appointment of a second special counsel to investigate both Mrs. Clinton and Mr. Comey, according to two people who have spoken to Mr. Trump about the issue. He has also repeatedly expressed disappointment in the FBI director, Christopher A. Wray, for failing to more aggressively investigate Mrs. Clinton, calling him weak, one of the people said.

Harry Litman, a former United States attorney and a former deputy assistant attorney general, finds that a lot scary:

Tuesday’s revelation that the president had ordered his White House counsel to prosecute Hillary Clinton and James Comey illustrates the fragility of even apparently bedrock political norms in the Age of Trump.

The story prompted a new level of stunned outrage among Trump critics, even those already jaded by the president’s weekly onslaughts against the rule of law. Former Department of Justice Officials in particular responded with variants of “He’s got to be kidding.” But others claimed that the idea, which was shot down by Don McGahn, the White House counsel, shows that the system is working.

It’s working for now:

Mr. Trump’s attempted move here was positively Putinesque, using the legal system, and the executive branch’s extensive legal power, to punish his enemies. What kept him from getting away with it was not the laws on the books – Russia’s legal protections are no less extensive and high-minded than ours, but they don’t prevent Vladimir Putin from laying waste to his political opponents – but shared political norms developed and stabilized over time.

Mr. McGahn apparently was able to dissuade Mr. Trump from issuing the order to prosecute political enemies by telling him that the plan was so antithetical to American political values that it could trigger impeachment proceedings. (One sympathizes with Mr. McGahn trying to get his head around the order in the first place and attempting to explain to his boss, with the patience due an errant schoolchild, how profoundly out of line he was.)

Mr. McGahn is hardly a Lincolnesque figure, but he is sufficiently steeped in American legal and political culture, and sufficiently experienced, to be able to rebuff the president.

So, shared political norms developed and stabilized over time saved the day, or fear did the trick, or both, but there’s this:

The screaming question here is what could have happened – or might happen in the near future – if the order had been issued to Trump crony Matt Whitaker, now the acting attorney general, through the incoming White House counsel, Pat Cipollone, a far more callow figure than Mr. McGahn. After all, both Mr. Cipollone and Mr. Whitaker were most likely chosen in large part for their moral malleability – a quality Mr. Trump has repeatedly and loudly demanded from his branch’s lawyers.

I hope and believe that the order to prosecute – without even a predicate of criminal activity – would have prompted a raft of resignations at the Department of Justice. But not everyone would have left, and if the attorney general commanded it, it probably would have been put in motion.

The system is fragile:

The principle that the president may not simply prosecute political enemies is part of the DNA of American political culture, but Mr. Trump is the heedless radioactive force indifferent to the nature of the bonds he is breaking.

And it’s not just the president. Mr. Whitaker, the acting attorney general, has evinced a similar threat to first principles in his idiotic dismissal of Marbury v. Madison, the source of the Supreme Court’s power of judicial review and arguably the most important and influential judicial decision ever rendered. Mr. Whitaker has called Marbury one of the worst decisions in the Supreme Court’s history.

The crazy and terrifying lesson is not that our legal norms can withstand a despot; rather, it’s that within a matter of months we can find ourselves praying that they hold, and with little recourse if they don’t.

Harry Litman is frightened, but Slate’s Dahlia Lithwick sees this:

Because they happen so frequently, it’s almost impossible to keep track of all the massive and consequential rulings against this president and his administration that are logged every week and rarely viewed in the aggregate. But let’s try: Late Monday night, a federal judge issued a temporary restraining order blocking the president’s Nov. 9 rule that barred migrants from applying for asylum unless they made the request at a legal checkpoint. The judge’s order applies nationally. Last Friday’s decision – by a Trump-appointed judge – to side with CNN against the White House in a dispute about revoked press credentials is only the most recent iteration of a near-constant drip-drip of legal losses. Even with a bench now containing almost 1 in 6 Trump appointed judges (and these are not your President Bush–edition conservative judges), Trump mainly loses, and then loses some more.

There’s this too:

On Nov. 9, a federal judge in Montana temporarily blocked construction of the Keystone XL pipeline, ruling that the Trump administration had failed to comply with the Administrative Procedure Act, which requires “reasoned” explanations for government decisions and reversals. (The president immediately decried the ruling as “political” and “a disgrace.”) Indeed, this is just the most recent in a line of environmental cases Trump keeps losing in the federal courts. One recent tally shows the Trump administration has actually lost in all but one of the legal challenges it’s brought in its efforts to undo Obama-era regulations. The government has either lost or ditched its position in 18 others. As a recent Brookings roundup notes, this 5 percent “win rate is far below the normal agency win rate, which averages 69 percent across eleven studies.”

So, there is reason to think Trump cannot bring down all of the nation’s institutions:

This is not because these are all a bunch of demented “judicial activists,” as former Attorney General Jeff Sessions once attempted to argue. Nor are they the “judges of the Resistance” – a phrase that obscures more than it illuminates. A good many of these jurists were appointed by Republican presidents and in some cases Trump himself. No, the Trump administration is still managing to lose a tremendous amount of its lawsuits despite the fact that the judicial branch has changed dramatically in the past two years and the Supreme Court itself now tilts to the political right.

Trump loses so much at least partially because his administration must often contort itself into absurd postures to justify policies enacted by random tweet (as was the trans ban) or by vengeful tantrum (as was the sanctuary cities policy) or without proper procedures (the asylum changes). When agencies make abrupt and ill-considered policy changes, then send lawyers into courts to defend them, even the most conservative judge is apt to be frustrated.

Trump also loses whenever courts take his tweeting or offhand comments into account, because they often undermine or even contradict stated legal arguments. As we saw last week in the CNN litigation, Trump loses when pretextual claims about Jim Acosta assaulting a White House intern are exposed as the pretextual – that means false – claims they are. Judges tend to find all this less amusing than you might think.

Regardless of inclination or ideology, most judges still prefer facts to alternative facts, and reasoned discourse to free-flowing policy by hissy fit. And regardless of inclination or ideology, most judges still don’t like lies or liars. And regardless of inclination or ideology, most judges favor sobriety, stability, and the integrity of the judicial branch to nihilist attacks on everyone and everything that is fact-based.

That’s a good sign, but on the other hand there’s this:

Is everything perfect? No. As long as Mitch McConnell draws breath, more and more unsuitable Trump judges will be mashed through the Senate and confirmed, regardless of qualifications. And the Supreme Court, we must recall, ended up reversing the lower court rulings on the travel ban, deciding it was in no position to question the president’s integrity or motivations. The Supreme Court could stymie many of the important legal reversals noted above as well, but it’s worth remembering that it only hears about 70 cases a year. It doesn’t want to be in the business of rubber-stamping every crazy idea Trump bleats out, not if it cares about its own public approval and that of all the courts below. Even the Supreme Court, even this Supreme Court, doesn’t want to go all in on all of it. And the losses are adding up.

That’s good, but Lithwick says that’s not enough:

People who knocked on doors last month to protect democracy could continue that same work by expressing their support for Mueller and demanding a qualified attorney general. And the same reasoning can apply to the need to stand up for the judicial branch every time the president threatens, dismisses, or insults a judge or ruling. It’s also worth keeping in mind that all of these institutions depend on public support, and few of them punch back when the president attacks them.

We need to support an independent judiciary for all the same reasons we have often failed to notice how effectively it has held Trumpism at bay – because, despite being smacked around like a tetherball for two years, the courts have, to a large degree, acted soberly and with restraint. That’s not because judges have all, en masse, joined the “Resistance.” It’s because we still have a judiciary that resists that which is apparently still unlawful.

But will that last? The whole system – the traditions and institutions and norms – really is fragile. And this president despises all of it. Things won’t get better.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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