Last Friday Justice Ruth Bader Ginsburg gave an interview to BBC News in which she indicated her support for the press in its struggle against President Trump's unprecedented obstruction. She also communicated her feelings about his Administration (that it was not the "best times" because "[s]ome terrible things have happened.")
These remarks become less cryptic when read alongside the interview she gave to the New York Times in the summer before the election: "I can’t imagine what the country would be—with Donald Trump as our president . . . . For the court, it could be—I don’t even want to contemplate that.”She noted that should the unthinkable come to pass, her late husband would say "Now it's time for us to move to New Zealand."
These remarks come after Trump launched what had previously been a one-sided war of words with the judiciary (although the justices have not lacked defenders, such as the Deans of Harvard and Yale Law). As Trump attempts to torch the remains of the rule of law, Ginsburg's response prompts us to answer the question of whether it warrants fighting fire with fire, or with water.
To the BBC, Ginsburg referred to the press' role in Watergate. It might have been better to consider the judiciary's role. In United States v. Nixon, the Supreme Court ordered Nixon to comply with a court order that would give Congress the evidence it needed to proceed with impeachment. The court rejected Nixon's argument "that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment."
The Justices struggled mightily to craft a unanimous opinion, to avoid any suggestion that the decision was politically motivated. In the end, Justices with views as diverse as William Brennan, Warren Burger, and Thurgood Marshall signed off (thankfully, William Rehnquist was forced to recuse himself, as he had been Nixon's chief legal advisor) on the document that memorializes the court's finest hour.
It's been a long sixteen years since the Supreme Court's lowest ebb of the post-Watergate era -- the decision in Bush v. Gore, a nakedly partisan fiasco. Multiple justices (including the Chief Justice and Sandra Day O'Connor) should have recused themselves, as they had commented publicly that they wanted to retire in the near future --but only under a Republican president (both in fact were succeeded by the nominees of the president whose administration the Bush v. Gore decision secured). Justice Scalia's defence of his failure to recuse himself in Cheney v. United States District Court for the District of Columbia foreshadowed his incredible cynicism in granting the stay of the Florida Supreme Court's decision that stopped the counting of the ballots and set the stage for the Court to hand Bush the presidency.
It is impossible to overstate the damage to the judiciary--and to the rule of law--done by Bush v. Gore. According to Jeffrey Toobin, Justice Souter nearly retired in protest, as "He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues' actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore."
As Washington v. Trump wends it way to the Supreme Court, it is evident that the Court would be forced play a critical role in any process leading to impeachment. Like Nixon, however, Trump will attempt to fight a scorched-earth battle with any branch of government that opposes him. He has already indicated how he intends to sideline the judiciary: he plans to label them as nakedly political actors who cloak their ideological biases behind black robes.
It is unclear how Ginsburg's rhetorical support for the press might outweigh the possibility that she would be asked to recuse herself if Trump stands before the Court. What is worse, it is hard to imagine how her public comments could possibly overcome the damage that would be caused by Trump's arguments about the validity of the court's judgments if she does not recuse herself (not one to avoid a catastrophic constitutional crisis, he!)
The op-ed written by the Deans of Harvard and Yale Law defends the judiciary as an essential bulwark of the rule of law owing to its neutral and measured application of non-ideological principles. Ginsburg is clearly not signing from the same hymnbook, and the dissonance is jarring. If the Justices are not even capable of pretending that they are interested in the rule of law (rather than a rule that allows them to select the best man, as in Bush v. Gore), they may lose their audience.
Last week the Deans of the Harvard Law School and the Yale Law School wrote a "blistering" joint op-ed for the Boston Globe denouncing President Trump's recent statements about judicial opinions (including those in Washington v. Trump), which also criticized members of the judiciary. Speaking on behalf of the American legal academy, Deans Post and Minow characterized Trump's comments about "so-called judges" as threats to the democratic political order and American values. While the target of their attack is clear, what it defends is not obvious.
In the rousing conclusion of the op-ed, Post and Minow invoke the rule of law, around which they encourage the American people to rally. Despite according it the highest value, the Deans do not define the rule of law, although they appear to equate it with adherence to a legal order in which "official, publicly justified sanctions [are substituted] for animosity and enmity". It is also cast as the opposite of tyranny, a state of affairs in which a "so-called president" can presumably pursue vendettas without restriction.
Despite vague allusions to a whole range of American values, the deans' vision of the rule of law is surprisingly thin; it could just as easily be called legality, or legalism. It seems strange, however, to say that whatever a judge would opine should be above criticism merely because of their status as the guardians of the laws, as if the content of the laws does not matter. However, this empty formalism and "the legitimacy and authority of judges" may be all that the American legal profession has to defend.
Trump purported to suspend the entry of hundreds of thousands of immigrants and refugees. His full-throated cry for unfettered control received the response from the judiciary (and now the professioriate) that one would expect. However, President Obama made the same argument repeatedly, although more quietly and successfully. In Kiyemba v. Obama, twenty-two Uighur detainees--who had never been labelled enemy combatants--argued that they should be released from Guantanamo Bay. Despite being granted habeas corpus, the government's lawyers argued that no court had the power to admit them into the United States (as this belongs to the executive exclusively), even if this was done to bring the detainees into the presence of the court adjudicating their petitions.
When the Supreme Court refused to uphold the grant of the writ, it struck a dagger into the heart of the rule of law. It allowed the government to prevent courts from giving relief to those that the government detained illegally, even while it admitted they were factually innocent. The Deans of Harvard and Yale penned no op-eds about Kiyemba, just as they held their silence when a court upheld the targeted killing of an American citizen, wherein it concluded that while "[T]he plaintiff asks this court to . . . assess the merits of the President’s (alleged) decision to launch an attack on a foreign target . . . [that] happens to be a U.S. citizen, the same reasons against judicial resolution of the plaintiffs’ claims . . . apply with equal force."
For fifteen years, American courts used smooth language to justify handing unreviewable powers to the executive with no complaints from the nation's law deans. Now that Trump is asserting that he can use these powers as he pleases, they label his statements as a danger to the rule of law. Unfortunately, the op-ed presents Trump with ample opportunities for a counter-attack. The deans fail to understand that Trump attacks judicial decisions as politically biased, and driven by the political affiliations of the justices. In condemning Trump's order banning refugees from the country but not Obama's order barring Guantanamo detainees seeking justice, the Deans exemplify the legal profession's tolerance for executive power during the Obama administration. Trump's appeal is closely related to his disdain for elite hypocrisy: the deans should have been more careful not to provide him with an opportunity to deploy one of his favourite rhetorical weapons.
There are other indications that the theoretical basis for Minow's attack on Trump is not as solid as it should be, leaving them exposed to counter-attacks. They invoke the "political philosophy" of the Nazi jurist Carl Schmitt as a forerunner of the President's belligerent approach, while failing to note that within their own law schools numerous professors have--for decades--held up Schmitt's work as a persuasive rebuttal of classical arguments about the rule of law and the reality of a division between law and politics. It would bring a cynical smile to the face of anyone who studied jurisprudence in an elite American law school to see Schmitt being deployed as a bogeyman, as his work was routinely cited with approval by numerous leading legal scholars.
If the president's party (or ideology) defines his critics' stance on executive power and the parameters of the rule of law, then these Deans are right to throw their weight against criticism of the "authority and legitimacy of the judiciary", as its ethos serves as the last remaining justification for a role for the legal profession in the American state. However, one might hope that within the American legal academy there are still scholars who can demonstrate that one's defence of the constitutional order can be principled and consistent.
The same week that the 9th Circuit released its opinion denying a stay in Washington v. Trump (see last post below) that court released an opinion that disposed of a momentous case brought against the government. The fact that the stay order received so much attention and the final order in Saleh v. Bush says much about the failure of the judiciary to protect the rule of law in any meaningful way.
The plaintiff in Saleh was an Iraqi immigrant who, along with other members of a class who sought to bring claims against high officials of the Bush Administration for what they suffered during and after the American invasion. He claimed that Donald Rumsfeld and others had planned an illegal war and used the panic that ensued after the 9/11 attacks as an excuse to put the plan in motion. (There is ample evidence for this, but one need only point to the Bush Administration's consistent insinuation that Saddam Hussein sponsored the attacks.)
Despite the defendants admissions, and the reports of multiple official inquiries conducted into the illegality of the Iraq War that concluded that the United States had committed the "supreme international crime" of waging aggressive war, the case was dismissed. The plaintiffs were not even permitted to present the shocking evidence against Rumsfeld et al. that they had compiled. The courts concluded that former government officials were (or would be) immune from suits alleging that they had committed war crimes.
American courts have acknowledged that there are certain offences that are so serious that that those who commit them are the common enemies of mankind, who can be prosecuted in any court. The Nuremberg defence that a war criminal was "only following orders" and doing what was not illegal in a foreign country has been categorically rejected. However, the judiciary has not allowed suits against American war criminals to proceed; Saleh was dismissed because these former high officials were immune from prosecution in American courts. It is not the nature of the crimes that mattered, but the status of the defendants.
No American has been prosecuted for violating the most fundamental set of rights while conducting the "war on terror". Those who tortured detainees were immunized by act of Congress, while those who planned that torture (including Donald Rumsfeld, again) were protected with the doctrine of qualified immunity or Westfall Act (which require the implicit conclusion that planning war crimes was part of their official duties),while the whistleblowers who revealed these crimes were locked up.
As I detail in my book, wherever a possibility remained to bring actions against US officials, the courts went out of their way to tell the legislature how to take action to eliminate it. In Saleh, the opinion concludes--gratuitously--that Congress could immunize executive branch officials from all claims for violation of jus cogens norms (including torture, slavery, and genocide). (If this seems far-fetched, one should remember that in 2003 Congress passed the American Service-Members Protection Act, which authorizes the President of the United States to invade the Netherlands if any American is put on trial in the Hague for war crimes.)
The Saleh opinion was released on a Friday, so that it might pass through the news cycle unnoticed, while the (ultimately insignificant) denial of the stay in Washington v. Trump was released to great fanfare. The latter waxed poetic about the rule of law to no significant effect, while the former landed a muted but devastating blow. How can there be a rule of law if there is no forum where the executive can be held accountable?
The short answer is that without courts willing to hold the executive responsible for violations of the most fundamental rights, there is no rule of law (this is my book's main argument, by the way). This really should surprise anyone familiar with the history of our constitutional tradition, which emerged as a response to the argument that no one had the right to hold the executive accountable. The world's leading human rights lawyer (Geoffrey Robertson) detailed this history in The Tyrannicide Brief. As every schoolchild used to know, King Charles I, when put on trial, spoke only once, at the outset of the proceedings. He began his infamous speech by challenging the court's power to judge him:
"I would know by what power I am called hither ... I would know by what authority, I mean lawful."
The only answer to this question is the rule of law. If governments are permitted to re-empower the executive to plead in the same manner as Charles I and the defendants at Nuremberg, we have abandoned the idea of a government of laws, and not of men. One might as well allow the president to wear a crown, or let his assistants carry fasces.
The first rebuke to Trump's initial flurry of Executive Orders came from the courts, in the form of a Temporary Restraining Order suspending (inter alia) the U.S. Refugee Admissions Program, and a refusal to stay that Order. Many lawyers are cheered by these rulings --and rightly so. It's also important to understand their significance, so as to not lose sight of the real goals of a struggle to restrain a domineering presidency: We should be looking for deeds, not just words.
The denial a stay was a positive step, but it shouldn't be overstated as it is purely preliminary. There was already a call by one of the judges on the circuit for rehearing en banc, which signifies division on the 9th Circuit's bench about the decision. Also, in some form or another, the matter is headed to the Supreme Court (and for reasons I will explain in later posts, one shouldn't be sanguine about the chances of a 4-4 split among the Justices). Many challenges to the executive brought by the ACLU and other organizations were initially successful, but ultimately fruitless owing to later reversals. More often than not, they were stymied by the use of procedural evasions that courts use to avoid addressing the heart of the matter.
That said, many people forget the ultimate ruling, but remember the lofty language. In Washington v. Trump, the opinion includes a resounding defence of the rule of law. What rings false are the court's many citations to Boumediene v. Bush as a source for that principle. In Boumediene, The Supreme Court opined that the prisoners subjected to the horrors at Guantanamo were entitled to a reasonable opportunity to challenge their detention. The rhetorical rebuke to the executive yielded nothing, however. The D.C. Circuit gutted--and openly derided--the Supreme Court's instructions; the Supreme Court refused to end that defiance, or even to address it. Nevertheless, much attention was paid to Court's fine-sounding phrases about the constitution and very little was given to its failure to implement its plan to restore the bare minimum required by the rule of law. This leads many who opposed the assault on the constitution to a skewed view of the role the courts could and would play in defending it.
Trump's order asserted an unreviewable authority over immigration. It denied the courts any role in enforcing the constitutional rights of those affected by the misuse of that authority, even when they have well-defined rights (especially green card holders). In Boumediene and other war on terror cases, the Supreme Court refused to accept that diminished role. Unfortunately, the Court was often willing to limit the right to challenge the executive to the point that it became meaningless --as would be the case here if the courts are limited to examining whether the policy to bar refugees has no rational basis or is unsupported by any evidence. That of course is Trump's backup argument: if you won't let me have the final word in theory, at least let me have it in practice. The rule of law requires more.
Everyone remembers Brown v. Board of Education. Very few remember Brown II. When I clerked for the late Judge Robert L. Carter (an architect of Brown) he told me that his greatest disappointment was the inclusion of the phrase "all deliberate speed" in Brown II, which allowed cities to avoid desegregating their schools for years, and destroying the momentum of that phase of the civil rights movement. Lawyers must keep their eyes on the prize --court rulings that have real life effects, like United States v. Nixon. That ruling was possible because the presidency was under fire from all sides; the court was not required to play the leading role in the resistance.
Lawyers should celebrate the courts' rhetorical defence of the rule of law, but be alert to the possibility that this may not extend to real restraints on the executive's abuses. Guantanamo Bay is still open nine years after Boumediene; Bush was never impeached. Don't expect the courts to take the lead, but cheer them on when they rally.
I submitted the manuscript for this book on Election Day, November 9, 2016. I had asked my publisher for an extension, as I wanted to write an afterword that would establish the continued relevance of what had occurred during the previous two administrations. I had a considerably more hectic day than had anticipated.
The task I had set for myself was to demonstrate that the precedents that were generated during the Bush and Obama Administrations for the boundaries of executive power (which I had demonstrated were largely consistent) would set the parameters for the new presidency. Little did I know that what I had warned about--handing expansive powers to a strongman with no commitment to the rule of law--was come about not in the distant future, but the immediate present.
Dick Cheney was asked (by a commentator with a misplaced sense of schadenfreude) about his legacy after President Obama's victory in 2008. He responded that he was proud that he left the presidency stronger than he had found it. (This had in fact been his goal since he served as Ford's Chief of Staff, decrying the post-Watergate restrictions on the executive).
Barack Obama could certainly have said the same, and would likely have done so with pride had Hilary Clinton secured the presidency. This is not merely because of his reliance on Executive Orders to push through social policy measures on issues like health care and immigration. He also developed and refined Bush-era policies of executive supremacy over "national security", as exemplified by David Barron and Martin Lederman's secret White Paper establishing the constitutionality of a drone strike on an American citizen.
Trump now has control of these extensive presidential powers. He can also rely on a number of precedents, which will put Congress in the courts in a difficult position if they seek to challenge them. Interesting times, as the curse says. I'll do my best to chronicle these in an illuminating manner here.