It was an accident of history that the Donald Trump administration defended its travel ban before the full en banc panel of the 4th U.S. Circuit Court of Appeals on the same day Sally Yates testified before a Senate judiciary subcommittee and also on the same day Donald Trump released his first list of nominees for the federal bench. If ever one could magic up a teachable still life on the ghosts of Trump lawyers past and the nightmare of Trump lawyers future, this would be it. Judges, justice, courts, law—they all still matter. And try as the administration may to separate Trump’s personal recklessness and contempt for the rule of law from the work of his Justice Department, it is clear that what the 4th Circuit called the “taint” of Donald Trump’s words and intentions not only poisons his laws and the lawyers who defend them, but also poisons every hearing at which his actions are at issue.
At Monday’s oral arguments in Richmond, Virginia, the salient and material legal questions faded beneath the claim by Trump administration boosters that—daily evidence to the contrary—the president is a Real Boy, and his policy decisions are considered and serious. This is a tough act to pull off in front of considered and serious people. It involves demanding not only suspension of their disbelief but actual affirmances that considered and serious people should just pretend the emperor is wearing a sharp suit. It doesn’t always go well.
So there—filed under Trump lawyers past—was former acting attorney general Sally Yates, up on Capitol Hill, defending her decision to advise DOJ lawyers not to defend the first version of the travel ban because, as she wrote at the time, she was not “convinced that the executive order is lawful.” In addition to brushing off Sen. Ted Cruz’s attempts at “gotcha” constitutional questions, Yates also offered up a stinging rebuke to the other Texas senator, John Cornyn, who tried to scold her for disagreeing with the president on a purely political “policy matter.” In her reply, Yates tartly reminded Cornyn of an episode from her own confirmation hearing:
You specifically asked me in that hearing that if the president asked me to do something that was unlawful or unconstitutional and one of your colleagues said or even just that would reflect poorly on the Department of Justice, would I say no? And I looked at this, I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with principles of the Department of Justice and I said no. And that’s what I promised you I would do and that’s what I did.
And there—filed under Trump lawyers future—was Jeffrey B. Wall, acting United States solicitor general, attempting to persuade a panel of mostly dubious federal appeals court judges in Richmond that they owed a “presumption of regularity” and a massive degree of deference to the president, as he is a deeply sober and thoughtful leader who needs to be accorded the highest levels of regard for his actions. Indeed, Judge Dennis W. Shedd, one of the panel’s most vocal supporters of Trump’s authority to enact the second iteration of the travel ban, seemingly felt that the president’s taint of lawlessness was diffused because of a March 6 letter signed by Attorney General Jeff Sessions and Homeland Security Secretary John Kelly expressing concern about “weaknesses in our immigration system that pose a risk to our Nation’s security.” In this telling, the DOJ and DHS immunize lawless Trump because of their own sober and independent counsel. But up on Capitol Hill, Sally Yates was being pummeled for offering counsel that was anything other than perfectly aligned with the president’s. So where is the check on the president again? You begin to see the problem.
It is impossible to look at the events unfolding in the 4th Circuit solely through the prism of law. While the government’s appeal of a federal court’s decision to stop parts of the president’s second travel ban—the version that restricted immigration from six Muslim-majority countries and omitted the language offering preferences to religious minorities—should have been routinely assigned to a three-judge panel, the court decided to hear it en banc. And here is a good time to say, “Sorry we keep crapping all over you, Barack Obama. Thanks for the judges.” Because, as the New York Times noted, “Nine of the judges who heard Monday’s arguments were appointed by Democratic presidents and three by Republican ones.” And nobody familiar with the 4th Circuit’s history as what used to be the most conservative appeals court in the country could fail to be struck by the extraordinary diversity of an en banc panel that included women, people of color, and some very open skeptics of the president’s seriousness of purpose.
Wall, who despite his outstanding oral advocacy efforts, is somewhat disadvantaged by his eerie resemblance to Sean Spicer. As the solicitor general pounded away at the contention that the president’s tweets and speeches weren’t really all that serious, one jurist after another repeated back the horrifying tweets and comments verbatim. Judge James A. Wynn Jr., for one, described Trump’s statement as he signed the second executive order that “we all know what that means” as “a subtle wink and nod.” The judges wondered openly why a Trump campaign promise of a “complete shutdown of Muslims entering the United States” was still up on the campaign website. Wall suggested it couldn’t be physically removed. (It has now been removed.)
Omar C. Jadwat, a lawyer with the American Civil Liberties Union, allowed himself to be shoved and buffeted and spun around by some members of the panel, and enraged a few with his failure to answer their questions. But perhaps the best metaphor for the day came when Judge Stephanie Thacker whipped out a sparkly black fan when the room got overheated. It really did require a kind of Night at the Opera–esque comfort with cognitive dissonance to keep on listening to claims that Trump’s oft-stated purpose in enacting the travel ban was irrelevant. Judge Henry Floyd spoke for the majority in the room when he put it this way to Wall: “Is there anything other than willful blindness that would prevent us from getting behind those statements?”
Judge Paul Niemeyer, the most vocal supporter of the travel ban, insisted that you cannot try to pierce the actual text of the order by looking at Trump’s words: “Can we look at his college speeches? How about his speeches to business men 20 years ago?” But perhaps the most chilling exchange was one between Judge Shedd and Jadwat, in which Shedd seemed to evince horror at the prospect of judges being responsible for undermining a president’s decision-making on national security. Shedd wondered several times what might happen if the courts second-guess the president “and something happens in that time period, who’s responsible?” Judge Wynn was quick to point out the problem with that framing: “If we follow that line of reasoning would we think differently of Korematsu now? … If you don’t lock ’em all up and something bad happens, oh, then it’s on the president.” If judges don’t want to look bad in the Trump era, there’s a handy fix. It’s called being judges.
It’s with a palpable sense of unease that the federal panel contemplates using tweets and speeches and websites to determine presidential intent. This isn’t what courts usually do. But these are not ordinary times. And if, as Wynn observed, presidential statements that are so proximate to a presidential order have no meaning, what does have meaning?
Which brings us back to the judges. Trump announced Monday that he would name 10 more judges to the lower federal courts. But oral arguments Monday at the 4th Circuit showed exactly why the administration’s efforts to wall off the judicial selection process from the sewage of the Trump presidency is probably doomed to looking like a cheap effort to give cover to a president who hates the law. You can debate whether Trump’s Justice Department is “tainted” by the careless disrespect of Trump for the rule of law, or whether his executive orders share that taint, and how far out into the future the taint will stretch. But what was still clear in Richmond this week is that Trump’s own Trumpness poisons everything he touches, and the best his lawyers and judges can do is pretend they don’t care.
