Helpful commentary on the constitutionality of Syrian airstrikes

Despite the relative popularity of the President’s use of airstrikes last week in Syria, the argument continues as to whether the President’s action was constitutionally problematic.  The Congress has not debated, much less approved, a new authorization for force in Syria, whether against the Syrian government or ISIL (and it is notable that we have now taken hostile action against both sides of the conflict there).  And there is no question that the President could not rely upon the existing AUMFs for last week’s airstrikes.  Therefore, his only reservoir of power for this action is Article II of the Constitution.  The President’s report to the Congress pursuant to the War Powers Act is here.

The folks at Lawfare have typically excellent commentary on the matter.

John Bellinger’s piece on the War Powers Report is here.

Andrew Kent’s piece is here (with a good discussion of originalist views on war powers allocation).

Jack Goldsmith’s piece is here.

If the President has a longer-term military strategy in Syria, his ability to engage there without approval from Congress is, legally, probably substantially limited.  But because a federal court is unlikely to police the allocation of constitutional war powers, it is for Congress to defend its own prerogatives.  Even without seeing a plan from the President, Congress should long ago have been debating the American military role in the Syrian conflict, or, at a minimum, the scope of presidential powers to attack ISIL.  As long as Congress remains silent, however, it will continue to send a signal to this and other Presidents that it acquiesces in any military action.  It is possible that members of Congress are reluctant to take a position on the use of force abroad, fearing being stuck with their vote if the mission goes poorly.  But the use of American military force — and the blood and treasure of the American people — is not a matter on which the legislative branch should be perpetually silent.

 

Is Russia an “enemy”?

The NYT posted an intriguing opinion piece by Nicholas Kristof this week, comparing the Trump-Russia controversy with the controversy over revelations that President Nixon tried to sabotage diplomatic efforts to end the Vietnam War.  Kristof explores the Trump campaign’s Russia connections, conceding that no smoking gun yet exists but piling up the circumstantial evidence as he makes the case for a robust investigation.  He asks, straightforwardly: “Was there treason?”  He ends by quoting historian Douglas Brinkley, who recently said, “There’s a smell of treason in the air.”

Let’s concede that the matter is still wide open, and that no direct evidence of criminality or collusion has yet been made public, if it exists.  But let us take the theory in its current incarnation: operatives associated with the Trump campaign, the theory goes, may have colluded with Russian operatives to obtain and disseminate information about Hillary Clinton that would weaken her candidacy and strengthen Trump’s chances of winning (or, to be more precise, strengthen Clinton’s chances of losing, which is what Russia really wanted).  This may have been done on Trump’s own orders, or with his knowledge (or, at a minimum, his willful blindness).  It may have even involved complicity in broader Russian efforts to affect our political system.  In other words, this theory of the case goes, the Trump campaign may have colluded with agents of an adversarial foreign power to win an election and assist that foreign power in getting the result it desired.

If this theory — and it is as yet only conjecture — plays out as true, then Kristof’s question is a compelling one.  Is this treason?  I have written before that treason is an oft-used epithet, often describing conduct that is serious and compromises American security or values in some way, but is not — legally speaking — treasonous.  Recall that Article III of the Constitution tells us that American treason consists only of levying war against the United States, or adhering to its enemies, giving them aid and comfort.  Although one can argue about the ways in which modern warfare has changed, as a matter of original understanding of the Constitution, I think it unlikely that we would say this kind of collusion constitutes “levying war.”  The only other option then, is what I have called “Adherence Treason,” the giving of aid and comfort to the enemy, with the intent to betray the United States.

Let’s assume, purely hypothetically, that Trump, or someone from his team, provided assistance to the Russians in their efforts to influence the presidential campaign.  And let us assume that they did so with the intent to betray the United States, presumably by undermining the processes of American democracy to the benefit of a private individual (Trump) and of the Russian government, whose leadership despised Clinton and did not want Clinton to win the presidency.  This leaves a critical problem if “treason” is the right description of what occurred: is Russia an enemy of the United States?

Aiding a foreign power may violate some other law, but it is not “treason” unless the aid is given with an intent to betray the United States and the foreign power is an “enemy.”  My current research is exploring this problem, though I confess that when I began exploring it, I did so in the context of the Islamic State and al Qaeda, wondering whether the original understanding of “enemy” in the Treason Clause included non-state actors or those against whom no formal declaration of war has been issued.  We have not formally declared war against ISIL.  Indeed, we have not even debated (much less passed) a new authorization for the use of force to target ISIL (we should do that).  But we have engaged in hostile action against ISIL, and it has engaged in hostile action against us.  Perhaps that is enough to make ISIL an “enemy” and to prosecute for treason those with allegiance to us who give aid and comfort to ISIL.

But what about Russia?  We have had a diplomatic relationship with Russia (though that relationship has recently been a frosty one, it seems) and are not engaged in military violence or other hostilities against the Russians.  Yet senior American law enforcement, intelligence, and military leaders confirm that Russia is an “adversary” of the United States.  Defense Secretary James Mattis made such an observation earlier this year (see here), before he joined the cabinet.  Just this past week, at the House Intelligence Committee hearing during which FBI Director James Comey and NSA Director Admiral Mike Rogers testified, both men acknowledged that Russia is an adversary of the United States.  The critical question for purposes of the Treason Clause, though, is whether an “adversary” is the same thing as an “enemy.”

The modern dictionary makes these two words synonyms, as does Samuel Johnson’s Dictionary of 1755 (see here). But does the Constitution?  Are armed hostilities necessary to make a foreign power an “enemy”?  Does the Constitution account for the modern ways in which non-violent action by a foreign power can corrupt and harm American persons and institutions?  Perhaps this is an example of how the original public meaning of a word, as of 1787, can still apply to contemporary problems.

I sympathize with those wishing to further explore the Trump campaign’s relationships with the Russian government, or with private individuals working under the influence of the Russian government.  I also think such an investigation should fully explore the intelligence, military, diplomatic, and criminal law consequences of any such relationships that are uncovered.  Of course, maybe there is no there there.  But even if there is, whether such conduct would constitute treason depends upon satisfying the constitutionally-defined elements of that offense.  To make it treason, we must be prepared to identify Russia not just as an adversary, but as an “enemy,” as that term is understood not just in common parlance but in the Constitution.  I suspect that many Americans and American political leaders are prepared to say this.  But is the Trump Administration?

 

Would the Speech or Debate Clause protect a sitting Senator in confirmation hearings for a Cabinet post?

With the news that at least one poll shows a majority of Americans believe that Attorney General Jeff Sessions committed perjury and should resign, the question of General Sessions’s criminality has not yet entirely died, though it has weakened significantly since the President’s tweet about being “wiretapped” by President Obama.  As I explained previously here, I am confident that no prosecution will result.  Still, the lingering question about whether he lied to Congress and what his answers meant raises — as I mentioned last time — another interesting issue: because he was a United States Senator when he met with the Russian Ambassador, and when he testified at his confirmation hearings, would the Speech or Debate Clause of Article I, section 6 protect him from prosecution arising from his confirmation testimony?

To be clear, I think he is safe from prosecution, but for other reasons.  So here is my admittedly quick and ugly Speech or Debate Clause analysis.  Steven Calabresi has a very good piece here at The Hill, and Michael Stern has a characteristically thoughtful piece here at Point of Order.  I could be wrong about this particular constitutional problem, so, as always, I welcome other wisdom.

The Speech or Debate Clause says that for “any Speech or Debate in either House,” a Representative or Senator “shall not be questioned in any other place.”  It covers more than floor speeches, but it only protects “legitimate legislative activity,” according to the Supreme Court.  Activities beyond floor speeches, “must be an integral part of the deliberative and communicative processes” by which Senators and representatives fulfill their constitutional functions.  See Hutchinson v. Proxmire.  It is arguable that when then-Senator Sessions met with the Russian Ambassador in Cleveland, this was not a legislative act protected by the Clause.  That, of course, might depend upon what they discussed, which we do not know.  But a stronger argument exists that the meeting in Sessions’s Senate office was covered by the Speech or Debate Clause to the extent that it related to his work on the Armed Services Committee or otherwise to American foreign policy.  Of course, as the Court said in Gravel v. United States, not every act that is performed by a Senator or Representative, even in his official capacity, is a protected act.  See also United States v. Brewster.  But let us assume for the sake of this piece that each meeting was within the sphere of legitimate legislative activity covered by Article I, section 6.

Then there is the question of his testimony: would his testimony before the Judiciary Committee be protected?  I think not, because his testimony before the committee did not constitute an integral part of his legislative functions as a Senator.  So while his questioners would be protected because they were fulfilling their constitutional role of advice and consent, Sessions’s statements before committee were unrelated to his constitutional role as a Senator and therefore not “legitimate legislative acts.”

So here’s the problem: the Sessions controversy does not concern a prosecution for the meetings themselves; it concerns his testimony about those meetings.  Could it be, then, that as long as an activity is within the scope of the Speech or Debate Clause, a Representative or Senator does not have to truthfully answer questions about that activity under oath in a congressional committee?

It’s a complicated issue.  First, the Clause is essentially a separation of powers provision.  It protects the legislative branch against vindictive or abusive prosecutions by the executive branch.  See Gravel.  It also constitutionalizes a testimonial privilege, id., so that even the judiciary cannot compel a Senator or Representative to give over testimony or evidence arising from his or her legitimate legislative acts.  But in the Sessions case, the questioning was not done by the other branches.  It was done by the Senate itself.  Not only do the words “any other place” suggest that the Clause does not forbid questioning by the legislative branch, the separation of powers concerns underlying the Clause also suggest that the Clause should be read to limit only the executive and judicial branches from questioning members of Congress.

So one plausible reading of the Clause, based on both text and history, is that it does not forbid a Senator from questioning another Senator about his or her legislative acts and using those answers as a ground for decision-making.

This raises the next problem: while it is true that the initial questioning was done by the legislative branch, a perjury or false statements prosecution would be done by the executive, and would use his answers about a legislative act as evidence.  Is that forbidden?  This is much trickier.

The Court has said that the Clause would be undermined by admitting against a Senator or Representative evidence that references a past legislative act.  See United States v. Helstoski.  Still, if my premise above is correct, then one could argue that the evidence of Sessions’s alleged criminality derives from a proceeding in which he lacked the protection of the Speech or Debate Clause.  Again, using this line of argument, he had no testimonial privilege under the Clause when answering either Senator Franken’s question or Senator Leahy’s.  Therefore, on this line of argument, his answers to those questions — quite apart from the substance of his meetings with the Ambassador —  should be admissible against him.  I confess, though, this is a harder problem because it means using evidence (his testimony) concerning a presumptively (for these purposes) legislative act, which the Supreme Court has expressly forbidden.  If his meetings with the ambassador were legislative acts, then there is a good chance, as others have argued, that the Clause would forbid the Justice Department from using any evidence about those meetings, even derivative use.

A final question arises, though it is a different one than I have addressed above: can the Speech or Debate Clause protection be waived?  If his activities were protected, did Sessions waive the privilege by voluntarily testifying about those activities?  The Supreme Court assumed, without deciding, in Helstoski, that the Clause could be waived.  But the Court said even if a waiver is appropriate in this context, it requires “explicit and unequivocal renunciation” of the Clause’s protection.  See Helstoski (also describing the standard as “clear and unambiguous”).

In Attorney General Sessions’s case, if the above analysis is correct, it might be unnecessary to decide whether he waived the privilege because, at least in the Judiciary Committee, he did not have its protection in the first place (and thus there was nothing to waive).  But in an ordinary legal proceeding in which he was subject to questioning (under oath or not), or investigation, what would such a waiver look like?  Based on the language in Helstoski, it would seem not encompass implied waivers (such as in the Miranda context; in fact, the standard is more like invocation, rather than waiver, in the Miranda context).  So if, arguendo, Sessions had the protection of the Clause, merely agreeing to answer questions would not be adequate for a waiver of Speech or Debate protection.  He would have to offer a clear and unambiguous statement that he was not relying on the protections of Article I, section 6.

Still, the threshold question is the most important one: were Sessions’ meetings with the ambassador legitimate legislative acts?  To know that, in this context, we would have to have evidence of what was discussed.  Barring testimony from someone else, or some other evidence, it is almost as if, to establish protection under the Clause, Sessions would have to agree to reveal the substance of the meetings.  In other words, Sessions would have to agree to waive the Speech or Debate privilege in order to assert its protections.  To avoid this dilemma, it might be better to simply start with the presumption that the meetings were covered by the Clause — but nothing in the Supreme Court’s cases suggests that such a presumption applies to any and all acts by a sitting member of either house.

Again, this problem is of mostly academic interest, for now.  Still, given the frequency with which members of Congress are nominated for Administration posts, it is a problem worth considering in future confirmation hearings.

The Sessions controversy, or, why mens rea is so important in the criminal law

What had the potential to be a corner-turning week for the President was marred late Wednesday, and for the last few days, by revelations that Attorney General Jeff Sessions, while a Senator, met on two occasions with the Russian Ambassador during the 2016 election.  This was newsworthy because first, there is concern that perhaps Sessions had conversations about the campaign, the election, or a future Trump foreign policy; and second, Attorney General Sessions had claimed during his Senate testimony, and in written responses to questions, that he did not have any contact with Russian officials during the campaign.  While General Sessions has now recused himself from certain Russia-related investigations, some Democrats are calling for his resignation.  Others are saying he may have committed a crime.  Before Democrats savor the opportunity to chant “Lock Him Up!,” consider the applicable criminal laws more closely.

Is it a crime to give false or misleading testimony to a congressional committee?  Yes, and no.  Two statutes are relevant.  One is the general perjury statute, 18 U.S.C. 1621, which prohibits “willfully” giving a statement under oath that the witness “does not believe to be true.”  It is punishable by up to five years in prison.  The other statute is the false statements statute, 18 U.S.C. 1001.  Section 1001 provides that whoever, “in any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal Government “knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement or representation” or “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry” commits an offense punishable by up to five years in prison.

So, to be precise, it is a crime to give a false statement to a congressional committee (whether or not under oath), but only where the statement is made knowingly and willfully.  Statements made with a faulty memory, or when the witness is confused about what is being asked, or that are simply mistaken, are not criminal.  See United States v. Dunnigan (with respect to perjury).  That is why the context and circumstances in which these statements are made matter a great deal, because they bear directly on Sessions’s state of mind and thus the mens rea elements of the statutes.

General Sessions appears now to be claiming that he believed that the questions he was asked referred only to whether he met with the Russian Ambassador about the campaign — that is, other than in his capacity as a Senator and a member of the Armed Services Committee.  General Sessions has claimed that he could not recall the substance of the conversations (strange, given the other details he seemed to remember; and if he cannot recall the substance of the conversation, how does he know he did not discuss the campaign or the election?).  Still, if his assertion now is made in good faith, that would likely be enough to negate the mens rea of the perjury and false statements statutes, meaning those provisions could not be proven beyond a reasonable doubt.

That is probably the likely result here.  It is not unusual for a witness to give statements before a congressional committee, or during a government investigation, that may be misleading or incomplete.  Giving the witness an opportunity to walk back, and explain, the statement more fully should usually be sufficient to satisfy the investigating entity in Congress, unless some intervening harm has been done by the earlier statement (and that does not appear to be the case here).    It is therefore exceedingly rare that someone will be prosecuted for lying to Congress.  That is typically less true when applying section 1001 in the context of a criminal investigation being conducted by a law enforcement agency, and section 1001 is often used as a basis for prosecution.  Moreover, as the Supreme Court held in Brogan v. United States, section 1001’s text does not leave room for an “exculpatory no.”  Still, federal prosecutors must consider the strength and plausibility of the defendant’s explanation of what he believed he was being asked, in light of all of the surrounding circumstances.  And in many cases — including this one — the explanation will not be an implausible one.

One may not accept General Sessions’ after-the-fact explanation as being truthful, but if it is, he is not guilty of a crime.  Of course, there are two very distinct possible explanations here: is it that, at the time, Senator Sessions did not remember his meetings with the Ambassador, or that he remembered but did not think those meetings were covered by the questions asked?  Either explanation could serve as a basis for avoiding criminal liability.  But note that those are very different explanations, and both cannot be true.

One other issue has arisen, though it would be relevant only if we are seriously talking about a federal prosecution here (which, again, I think is highly unlikely).  Would then-Senator Sessions be protected in committee by the Speech or Debate Clause of Article I, section 6 of the Constitution?  More on that in a subsequent post.

It seems unlikely that Sessions is at the heart of the Russia-contacts controversy.  Making him a target may be satisfying to those who did not want him to be AG in the first place, but it likely will not yield much.  A better rabbit hole to explore might be this: did anyone in the campaign or the Trump transition instruct, command, induce, or request that staff and officials deny contacts with the Russians if they are ever asked?  If so, the range of potential criminality with in the Administration could greatly expand.  Will an investigation pursue that question?

Suspected thief turns out to be felon in possession, but gun turns out to be inadmissible

Sometimes a federal gun possession crime results from an investigation specifically directed at the gun offense.  Sometimes, however, gun crimes result from investigations that have nothing to do with guns.  Just ask Phillip David Hernandez, who had an encounter with police as he walked next to a construction site that was located in a high-crime area and that was known for being the target of thieves interested in the construction materials there.  Did the police encounter turn up any stolen construction materials?  Nope.  It turned up a gun – which, as a convicted felon, Hernandez was not permitted to possess.  His case raises the question: was he “seized” for purposes of the Fourth Amendment when police questioned him from their patrol vehicle as he walked near the construction site?  If not, then the gun is admissible against him because the encounter is a “consensual” one, and does not implicate the Fourth Amendment.  But if it was a seizure, then the police have to demonstrate reasonable suspicion for the stop.  Can they?

According to the Tenth Circuit’s opinion in United States v. Hernandez, in October 2014, Denver police spotted Hernandez walking next to the construction site.  He wore all black clothing and carried two backpacks.  The site had been the subject of recent thefts of various materials, including sheet metal and copper piping.  Police suspected Hernandez might be serving as a lookout for thieves, though there was no one else around.  The officers also found it odd that Hernandez did not use the sidewalk on the other side of the street, but instead walked next to the construction area, essentially in the street.

When the officers pulled alongside him, Hernandez kept walking, and the officers followed along in a moving vehicle.  They did not display weapons nor raise their voices.  When asked where he was going and where he had been, Hernandez said he was at his grandmother’s and was headed home.  He then said, upon being asked, that he could not remember his grandmother’s address.  When asked if he would stop walking and talk to the officers, Hernandez complied.  When asked, he gave his real name but a false birthdate.  The officers pulled up his information on their computer, and it showed Hernandez’s mug shot and that he had violated parole, for which there was an active warrant.  He was informed of the warrant and approached by the officers on foot, and he began to walk away.  He reached for his waistband and an officer asked if he had a gun.  He said “yes,” the officer grabbed his arm, and a revolver fell to the ground.

Hernandez was indicted for being a felon-in-possession, 18 U.S.C. 922(g)(1), and filed a motion to suppress, which the district court granted.  The Government appealed.  The Tenth Circuit affirmed the suppression of the gun.

Was Hernandez seized?  Yes, this was a seizure that required reasonable suspicion, according to the court.  While this began, as do many police encounters on the street, as a consensual encounter that required no justification, it became a seizure when the officers asked Hernandez to stop walking and talk to them.  This was the point at which a reasonable person would not have felt free to terminate the encounter and continue on his way – considering that that it was dark, there were no other people around, and the request to stop was made by two uniformed officers who had been following him.  As the court put it, “a reasonable person would have believed that compliance with the ‘request’ was not optional.”

Now that we know he was seized, was there reasonable suspicion that would have justified the seizure?  No, the court said.  The police stop of Hernandez was, rather, based on “inchoate suspicions and unparticularized hunches,” the court wrote.  They had no evidence specific to Hernandez that he had committed any crime, and the mere fact that he was walking next to a location that had been the subject of previous criminal activity is not enough to make their suspicion of him reasonable.  Neither was the fact that he was in a “high-crime” area, or that he wore all black and had two backpacks, or that he chose not to use the sidewalk.

What about the fact that he could not recall his grandmother’s address?  The court found that the Government had not relied upon this argument previously, and should not be able to rely upon it now on appeal.  Still, that fact would not be entitled to much weight, the court said.  When each officer testified, neither relied upon this fact to establish their suspicions about Hernandez, “which,” the court said, “is understandable because ordinary experience tells us that a grandchild who knows the familiar way to his grandmother’s house may well not know her exact street address.”

A final aspect of this case is notable.  Could the Government have argued that the finding of the gun was sufficiently attenuated from the initial unlawful stop, given the existence of the active warrant for Hernandez, a la Utah v. Strieff?  Recall that in Strieff, the Court applied the attenuation doctrine to hold that the discovery of an untainted warrant breaks the link to an unlawful Terry stop.  As it happens, Strieff was decided after briefing and argument in Hernandez.  But the Government never relied on attenuation in the district court, and so had waived that argument on appeal.  Before Strieff had been decided, the Tenth Circuit noted, two other circuits followed the same rule that was ultimately recognized by the Supreme Court in Strieff.  So the attenuation argument was available to the Government, but the Government did not pursue it.

Query whether, had the attenuation argument been properly before the Tenth Circuit, Strieff would make the gun admissible.  Applying the Brown factors, as did Strieff, the Government would have had a persuasive argument that the discovery of the warrant here was an intervening circumstance that makes the gun admissible.

The constitutional education of America, and of its President

The Ninth Circuit has ruled that President Trump’s Executive Order could remain subject to a stay issued by the District Court in Seattle.  The opinion is here.  This is not a ruling on the merits, though the emergency relief standard was applied and the Court concluded that there was not a likelihood that the Government would succeed on the merits of the case.  The court’s holding was, in my view, a dubious one, though not an unreasonable one.

Regardless of one’s position on either the wisdom or legality of the Order (and I believe the arguments for its legality are far stronger than the arguments for its wisdom), the entire episode has served as a kind of civic education for the American people.  Americans are confronted with serious questions about the scope of presidential power, of constitutional rights, of the place of religion in the scheme of law and policy, and of the role of courts in cases where rights and security intersect.  We have had other such moments in our history.  But it is difficult to think of a time in recent memory when so many valuable questions of constitutional government arose over a single official act.

Americans, regardless of party or viewpoint on the Order, should take time to carefully consider these matters and what they mean for the Republic.  That does not mean that they should all crack open a copy of The Federalist Papers (though we could all do much worse than to spend a few moments with Publius these days), or study The Steel Seizure Case by the fireside with a glass of chianti.  It does mean, though, that Americans ought to savor the opportunity to reflect on what it means to live under a rule of law and a venerable Constitution that diffuses government power.  They should reflect on what it means to have limited government, to have checks that prevent presidents from simply acting at will and checks that prevent judges from ruling as philosopher-kings.

One hopes, too, that the President will savor the same opportunity.  His actions for the past two weeks (nearly two years!) have created serious questions about his commitment to the rule of law and to constitutionalism, questions I raised during the campaign and that have persisted despite my dim hope that his authoritarian tendencies might be tempered by institutions, by an appreciation of history, and by the sheer weight of his office.  The one bright spot in this period was his nomination of Judge Gorsuch.  But as I said during the campaign, it is not enough that Presidents appoint judges who are constitutionalists.  The President himself must demonstrate that same fidelity.

Presidents can be critical of the courts.  The judiciary is not immune from criticism, nor should it be.  Lincoln, before his presidency, thoughtfully criticized the Dred Scott decision.  FDR’s tussles with the Supreme Court were so tense that he proposed packing the Court with Justices who would approve his economic recovery programs.  President Bush respectfully criticized the Supreme Court’s war on terror decisions that disfavored his expansive view of presidential power.  President Obama criticized the Court’s Citizens United opinion during the State of the Union Address.  It is fair, and proper, that political leaders disagree with judges from time to time.  But criticism that seeks not merely to disagree with, but rather to de-legitimize, courts and judges does violence to the separation of powers and a politically independent judiciary.  This is, unfortunately, President Trump’s modus operandi.  He prefers to de-legitimize a critic or opponent, often ad hominem, rather than contest them on the merits.  It is the last refuge of a man who is out of his element on substance.

So, rather than make any one of the credible substantive arguments he could have made in defense of the Order, naturally the President chose instead to personally insult Judge James Robart as a “so-called judge” (never mind the judge’s unanimous confirmation by the Senate).  And perhaps worst of all, he then asserted that federal judges who opposed the Order would be held responsible for a terrorist attack – it is hard to think of a more insidious presidential assertion about the judiciary.

To worsen things, he also fired Acting Attorney General Sally Yates for her refusal to enforce the Order.  This was admittedly a somewhat more complicated matter.  Yates’s directive to the Justice Department would have been stronger had she set forth more precisely her legal arguments against the Order, arguments that almost surely would have been vindicated in the 9th Circuit’s opinion (though surely she could have articulated grounds for the Order’s defense, as well).  And there is no question that the President had the power to relieve her of her duties.  But firing her on the spot did little to inspire confidence in his judgment; it was a rash display of raw power that sent the wrong message and failed to consider the longer-term consequences.  Imagine now how Attorney General Sessions must feel.  General Sessions has been placed in an untenable position, and one that diminishes his capacity for independence from the President.  Even the most ardent defender of the Unitary Executive must shudder at the thought of an Attorney General who may have to choose between defending the Constitution and losing his job.

To some extent, the President’s constitutional schooling of late may include a lesson on a truth that his critics repeatedly noted during the campaign: words matter.  Lately, the President has been reminded of his disgraceful pander that called for a “complete and total shutdown of Muslims” entering the country.  But the problem goes even deeper.  The Government’s claim in litigation that the President should be entitled to great deference in matters of national security is a sound, if imperfect, claim.  But when giving deference to Presidents, it may well be that courts generally trust that the President is knowledgeable and credible on those matters, that his judgment is worthy of deference because he has thought seriously about the problem and vetted his decisions through the collective expertise of the military, intelligence, and security communities.  This President, by contrast, is the one who said he knows more than the generals about ISIS, appeared to suggest that the CIA was using the same tactics as the Nazis, heaps bizarre praise on Russia’s ruling dictator while heaping scorn on genuine American heroes like John McCain and John Lewis, and said our military leaders had been “reduced to rubble.”  And it is becoming increasingly clear that the vetting of this Order was shoddy, at best.   Is it any wonder, then, that informed jurists would be reluctant to defer to this President’s judgments?

Does all of this make the Trump Presidency hopeless?  It does not.  On the Executive Order, the Government retains considerable arguments in favor of its constitutionality – or at least in favor of substantial deference to the President’s national security decisions, in light of the limits on the judiciary’s expertise in such matters – though the prudent course may be to scrap the Order altogether and start over.  Judge Gorsuch will likely make an outstanding Supreme Court Justice.  Tax reform is a real possibility.  And this President may be able to play to his strengths in securing a major infrastructure package on a bipartisan basis.

But the President needs to right this ship in a hurry.  The collection of rash, impulsive, and even bitter statements over the past two weeks has created a portrait of a President who views his official powers as a one-way ratchet.  He has created the impression that the law must bend to his will, lest a tantrum follow.  Of course, Americans should have seen some of this coming.  But the people, through their representatives in the Electoral College, elected him anyway.  Perhaps, then, it is fitting to be reminded of Madison’s admonition in Federalist 51 on the importance of separated powers: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Judge Gorsuch and the “mainstream”

There is plenty of commentary on Judge Neil Gorsuch, the President’s nominee for the Supreme Court.  I won’t repeat it here.  The President has had a rough couple of weeks, but last night he stopped the bleeding, even if only temporarily.  Judge Gorsuch appears to be an excellent, if rather conventional, choice.  Chalk one up for the hated Establishment.

Now the fun part begins.  Democrats are already promising a filibuster, which will no doubt prompt Republicans to consider the Nuclear Option against which they so aggressively argued in the past.  Hypocrisy will be alleged on each side.  We have seen this movie repeatedly.

But be on the lookout for the following term: “mainstream.”  Democrats will likely say that they are concerned with whether Judge Gorsuch’s views and decisions are outside of the “mainstream.”  And this will become a convenient rhetorical tool for opposition on the merits.  But, “mainstream” as compared to what?  As compared to the views of Liberals?  As compared to the decisions of William Brennan or Ruth Bader Ginsburg?  As compared to all circuit judges?  As compared to other judges on his circuit?

Federal appeals court judges do not have the same law development function that Supreme Court Justices do.  Except when addressing issues of first impression, federal appeals court judges are typically bound both by Supreme Court precedent, and the precedent of their circuits.  Moreover, circuit precedent can vary from one circuit to another.  What is the accepted rule of law in one circuit may not be the rule followed in another circuit.  There is no question that Judge Gorsuch has reached results with which the Left will disagree.  But that cannot possibly be the test of whether a judge’s views are extremist or radical.  Very often legal precedent dictates, or at least points strongly in the direction of, a result that will be contrary to the preferred views of the legal Left.  So if the “mainstream” is important (and, as I say, we must determine what that means), then it is important to ask, among other questions, whether Judge Gorsuch’s work is within the “mainstream” of existing decisional law from the Supreme Court and his own circuit.

Furthermore, this hardly seems like a standard that Senate Democrats would follow faithfully.  For example, Thurgood Marshall held the view that the death penalty was in all circumstances cruel and unusual punishment. That view was so far outside of the mainstream of American legal thought, only one other Justice in the history of the Supreme Court at the time actually agreed with it (Brennan).  Of course, over time, the view has gained greater adherence, but is still a minority view in the judiciary.  Are we to believe that Senator Schumer, for example, would have opposed Thurgood Marshall’s nomination to the Court?

Other Democrats may oppose Judge Gorsuch as simple revenge for the Republican-controlled Senate’s failure to consider Merrick Garland last year.  I covered that ground after Garland’s nomination, here and here and here. Of course, Democrats may forget that it was their Party that was complicit in a similar act earlier in the Court’s history.  Justice Robert Trimble died in 1828, and President John Quincy Adams nominated Whig U.S. Attorney John Crittenden to replace Trimble.  But before Crittenden could be confirmed, Adams lost re-election to Democrat Andrew Jackson, and the Jackson supporters in the Senate refused to confirm Crittenden during the lame-duck period.  Instead, President Jackson eventually filled the seat in 1829 with Postmaster General John McLean (and to add insult to injury, removed Crittenden as U.S. Attorney; McLean would later write a famous dissent in Dred Scott v. Sandford).  That historical note aside, however, it is hard to see how one can oppose Judge Gorsuch now simply by arguing that the seat should have been filled by Judge Garland last year.  And if the result on this nomination process angers Democratic voters, perhaps they will remember that the next time they have to decide whether to get to the polls on Election Day.

Finally, beware the “Robert Bork’s America” attack.  This refers to Senator Edward Kennedy’s notorious slander of Judge Bork on the Senate floor, and represents a now all-too-conventional method for opposing a nominee: recite a hyperbolic litany of horrific results for vulnerable people if the nominee is confirmed, not the least of which will be a return to “back-alley abortions.”  (Of course, it is hard to see how the “back-alley abortions” claim works here, as there would still be a 5-vote majority on the Court for abortion rights; Justice Scalia’s death did not affect the Court’s alignment on that issue).  This kind of rhetoric is among the lowest forms of political dissent from a nomination, and it is this kind of rhetoric that should be considered out of the mainstream.  But don’t count it out this time.

Given the anger and impressive mobilization of the political Left in light of President Trump’s ascendancy, Senate Democrats will likely slouch toward any argument they can muster to oppose Judge Gorsuch, who surely knows of the bloody battle that is coming.  None of it is his fault, and he is likely to survive it anyway.   But “out of the mainstream”?  Hardly.