While we try to absorb the enormity of Donald Trump’s decision to fire FBI Director James Comey—ostensibly because Comey had been too mean to Hillary Clinton; laughable considering the source—one thing is abundantly clear: How we respond to the rationalizations put forth by the Trump administration to justify its daily assaults on the law will determine whether the constitutional order on which we have relied for two centuries will survive. Whether we truly are teetering on the brink of a constitutional crisis, as some experts now posit, turns on whether the various governmental systems that exist to check authoritarian behavior can distinguish between that which is normal and that which is insane. It truly is that simple.
Lawyers, judges, and elected officials (not to mention the rest of us) wake up every day asking whether the crazy mess of pretexts and justifications proffered by Trump and his defenders really is a crazy mess or whether the fact that it is proffered by the president of the United States somehow makes it reasonable. It’s an inquiry separate and apart from whether it was “legal” or “permissible” to fire Comey. The legality of the firing is one thing—the better question is whether the reasons proffered for the firing are normal or reasonable. In essence, “are we nuts for even accepting this rationale?” has become the hottest game in town.
There is a useful legal lens through which to analyze this question, although it comes with a loftier name than “normal versus insane.” It was on display just this week, as the Trump administration attempted to defend its second try at the travel ban in federal appeals court. To do so, his lawyers demanded what’s called a “presumption of regularity.” That phrase means pretty much what you would expect, that we should assume that the president warrants tremendous judicial deference because he is assumed to be a regular, reasonably functional executive.
Donald Trump’s lawyer, Jeffrey Wall, used the words “presumption of regularity” four separate times in his argument defending the travel ban at the 4th U.S. Circuit Court of Appeals last Monday, May 1. And when challenged on whether judges would need to “willfully blind themselves” to the fact that Trump is not normal, Wall assured the court that the president’s activities don’t even come close to the line where we need to be probing such things.
In ordinary times, the “presumption of regularity” is a necessary check on the courts and a predicate for necessary restraint. These are not ordinary times.
Increasing numbers of sober lawyers, judges, and thinkers are joining the ranks of those persuaded that President Trump in fact has crossed that line and has forfeited the “presumption of regularity” and the attendant deference it requires. That is in part because he has evinced a crippling disregard for both facts and the rule of law and also because sometimes what he says conflicts with what his lawyers say he says. As a result, it becomes all but impossible to take the pretexts he offers up seriously, which is a cue for all of us—rational citizens and courts alike—to attempt to reckon with what his real motives are. To be sure, Trump apologists will continue to insist that we are the hysterical ones. But their persistent insistence that we do not see what we see or know what we know is its own form of madness.
One of the essential components of the presumption of regularity should be, it would seem, regularity. But President Trump, of course, doesn’t do regularity—in fact, he exults in its disruption. Every time things begin to seem coherent, he does something aberrational and terrifying, leaving his lawyers to try to argue either that (a) no, everything really is normal, you’re just overreacting; or (b) if we could just be allowed to govern as we see fit, we could get things to be normal again, right quick. Their predicament isn’t unlike Leslie Nielsen’s Frank Drebin in The Naked Gun, tasked with convincing bystanders that there’s “nothing to see here” while a fireworks factory explodes in the background.
Jeffrey Wall’s version of “things are about to get awfully normal around here” involved repeatedly insisting that Candidate Trump was not in fact President Trump, that President Trump on Twitter was different from President Trump in the Oval Office, and that the President Trump who says stupid things while signing bills or attending rallies is not the same president who soberly consults with Jeff Sessions in closed-door meetings, at which they both wear their big-boy pants.
Press secretary deputy Sarah Huckabee Sanders offered a similar argument in explaining the apparent dissonance between Trump’s jovial embrace of Comey over the past several months and his abrupt firing of him on Tuesday: “He was a candidate for president, not the president,” she said. “Those are two very different things,” she added, for good measure. Every day is a festival of wondering when to pause the crazy clock and when to start it again.
Judges are free to believe the assertion that the president is about to stop behaving like a maniac and that he would do so more readily if the courts and the laws and the Congress and the press would just get out of his way. And his supporters are nothing if not charitable in their unending willingness to give him the benefit of the doubt, based on the assertion that he isn’t as bad as Hitler and that he’s just on the cusp of turning things around. If you are prepared to take Sanders at her word, that as soon as we put this whole messy FBI thing–slash–Russian hacking–slash–lying-about-being-wiretapped thing behind us, America is poised to get not just great but AMAZING again, then by all means, presume regularity.
But for the rest of us, for the people who find it hard to say that yesterday’s atrocities are just a madcap precursor to a better, more constitutional tomorrow, the fabrications and falsehoods and corruption and ugliness don’t just distort the picture. They are the picture, and what judges call the “presumption of regularity” in this presidency is what the rest of us call the danger of normalization. And the instant we accept as normal the president firing the FBI director as the latter is in the midst of an investigation into the former and his associates, we aren’t just through the looking glass of irregularity. We’re also inviting what looks a lot like a constitutional crisis.
Here’s another thing we can learn from the presumption of regularity: Judges aren’t asked to look forward; they’re asked to look back. Law isn’t only about what may happen tomorrow; it’s also about what happened yesterday, and the day before that. What Trump’s lawyers keep asking for is an Etch A Sketch presidency, in which we start the clock on “regular” conduct at whichever moment of their choosing and erase whatever alarming acts came before.
I hope I am wrong about this. I hope we are not facing a yearslong pattern of President Trump disregarding legal norms and distorting the truth and threatening the constitutional order. I hope that tomorrow we can shake off the Groundhog Day sense that some fresh horror is upon us and that rules and customs have been demolished anew. But Donald Trump has now shifted that burden onto his own shoulders. It is on him to prove he has changed his ways, not on us to forgive and forget and to restart the timer on “cloudy with a chance of tyranny.” To assume, contrary to all evidence, that Donald Trump is a faithful constitutionalist and that we should simply shake away all the laws and norms that stand in his way would have all of us presuming insanity. Checks and balances require checking and balancing, not the promise to be better tomorrow.
