This is a transcript of Episode 68 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.
Dahlia Lithwick: Later in today’s show, we’re going to recap this week’s oral arguments in one of the legal challenges to Donald Trump’s travel ban. Remember that? But first to this week’s palace intrigue. Jim Comey was fired, it seems, either because of his investigation of the Trump campaign and its ties to Russia, or not because of his investigation of the Trump campaign and its ties to Russia. Speculation about what is really going on has carried so many of us down the rabbit hole and back, but throughout this wild ride, one name has dominated the news cycle for days: Rod Rosenstein. He is deputy attorney general under Jeff Sessions, and until Tuesday, Rod Rosenstein was probably only a household name, well, in his own household. But now, Slate’s Leon Neyfakh happens to be in the room with me, and he has been writing about nothing but Rod Rosenstein for weeks. We’re delighted to have you here, Leon.
Leon Neyfakh: Thank you for having me.
Lithwick: And can you tell us who this deputy attorney general is, what’s going on in this incredibly polarized world? Is he the most neutral man in America?
Neyfakh: He was supposed to be. He was the subject of a piece I wrote last week about how this most principled and famously apolitical and resolutely independent U.S. attorney from Maryland is coming to the Justice Department as the deputy attorney general to serve as a check on Jeff Sessions and Donald Trump, and how people who are generally very nervous about the Trump administration and about Jeff Sessions’ leadership of the Justice Department were cheered by his nomination, and felt like he would be an adult in the room, and someone who takes seriously the institution that he would be leading on a day-to-day basis. But then, very quickly, within two weeks of his being sworn in, he got played or he played himself.
Lithwick: Well, that was going to be my next question. You’ve written several pieces this week trying to figure out if he was a “secret hack,” somebody who has been waiting to do the president’s bidding and start firing people, or if he was just basically a diligent career attorney who got rolled.
Neyfakh: Yeah, so the way in which he got rolled is that he was asked on Monday by Donald Trump to basically put his thoughts on FBI Director James Comey in writing. Rosenstein and Trump had a meeting at the Oval Office with Jeff Sessions in which they discussed Comey, and we don’t really know exactly what was said in that conversation, but the takeaway for Rosenstein was that he was to write a memo basically about what he thought Comey had done wrong in his handling of the Clinton email investigation, which he did, and submitted to Jeff Sessions.
Lithwick: This is from the summer, right? We’re talking May or June.
Neyfakh: Correct, yeah, from months ago. And Rosenstein wrote a diligent memo in which he kind of went through various decisions that Comey had made, such as going on TV and publicly describing his thoughts on Clinton’s conduct, and then, I guess, as Rosenstein saw it, unilaterally declining to pursue charges. You know, strictly speaking, he made a recommendation to the attorney general not to pursue charges, which the attorney general then took. But Rosenstein felt like he had overstepped his role. He also objected to the letter that Comey sent to Congress in October, days before the election, informing them that the Clinton email investigation was being reopened.
And this memo was submitted to Sessions, who then submitted it to Trump, and on Tuesday, both the memo and Sessions’ sort of brief letter about the memo to Trump were published, within moments, basically, of the news breaking that Comey had been fired. So the memo was trotted out, essentially as like, “Here are the reasons why this guy had to go,” and all manner of White House officials, including the vice president, went in front of reporters and said, “This guy, uh, this guy Rosenstein, great reputation, man of integrity, as you all know, he said we had to do this, and so Mr., uh, Mr. President took his recommendation.” The question in the hours and days that followed was, did Rosenstein known that this memo would be used as the pretext for firing Comey?
Lithwick: And the sole basis, right?
Lithwick: Not just the pretext, but this is the whole shebang right here, in this very, very brief memo that doesn’t end by saying, “P.S.: I think you should fire him,” right?
Neyfakh: Yes, interestingly, the memo does not say, “I think you should fire him”—it says something like, “We need an FBI director who understands that these were mistakes, and pledges to never make such mistakes again.” Whether he stopped short because he just didn’t realize they were really talking about firing him, like, that day, or because he thought this was just the beginning of a more traditional and restrained process by which this decision would be made, we don’t know, but it had the effect of legitimizing a decision that was pretty obviously—and at this point, admittedly by the president—motivated by concerns about the Russia investigation that Comey was overseeing.
Lithwick: I guess the question everybody has is, there were certainly rumors—I think they’ve since been denied by Rosenstein himself—that effective Tuesday night or Wednesday, he was saying, “Please don’t use my name. I will resign if you use me as the sole predicate for this firing.” And so then, that looked like, again, either an act of brave heroism or a feint at trying to stay neutral.
Neyfakh: Yeah. I mean, I don’t think you can call a threat to resign that is then not followed through on as an act of bravery, but—
Lithwick: —And also denied.
Neyfakh: Yeah, and then he was like, “Actually, no, I didn’t threaten to resign,” when he was asked by a reporter while walking through the halls of Congress. But it does seem like he was not comfortable with the way he had been used, as a prop, or as sort of a pretty face to sell this decision, and he apparently called the White House counsel and was like, “Yo, this narrative that you guys are putting out is wrong. Please correct it.” I gather from the Wall Street Journal that he gave the impression he could not serve an administration that would put forward this inaccurate timeline. But, you know, he’s still there.
Lithwick: But heroic or not, that then becomes the basis for what we see on Thursday, which is Sarah Huckabee Sanders saying, “Oh, no, we didn’t mean that he was the basis.” Even the president himself, by Thursday afternoon, is saying, “No, it was really about Russia.” Like, “Don’t look at Rod Rosenstein, it’s about Russia,” which is its own box of crazy, but at least he may have inadvertently tagged the White House with actually saying what they actually did.
Neyfakh: Yeah, I wonder. I mean, I feel like Trump’s motivation for going on TV and saying, “It was all me,” was more about his ego and wanting to be the one who pulled the trigger, because what’s the point of pulling the trigger if people don’t know it was you? You know, I do think that, for instance, the new timeline that was issued, I believe, on Wednesday night, which sort of put Rosenstein’s memo fourth on the list of events that led to the firing, was probably motivated by Rosenstein’s concerns. But I feel like Trump was not thinking about Rosenstein when he said that. I think he was thinking, “I want people to know that I cut off this head, and not somebody else.“
Lithwick: Right. “Oh, and by the way, obstruction of justice.” But yeah, so—
Neyfakh: —He didn’t think it through, maybe, but I think that’s the instinct he was acting on.
Lithwick: Before I turn to anything else, I guess I want to say this. I have had a theory for almost the last year, which is that Jim Comey was sort of trying to publicly perform neutrality. He was like, “If I just keep saying how neutral and above the fray I am, and then bonking both sides on the head periodically, it’s going to look like I’m super neutral.” And that, I think, maybe doesn’t work.
Neyfakh: I can’t claim to understand what he’s been going for throughout this process. There’s a pretty thorough New York Times piece from a few weeks ago that kind of walked through what he was weighing when he made, say, the decision to write the letter. You know, I think his fear was that, say Clinton wins, and then months later, these new emails that they discovered turned out to be consequential, and then he would be accused of concealing the fact that they had reopened the investigation to process the emails retroactively. Instead, he was accused of partisanship in that moment. Why he thought one would be better than the other, I don’t know.
Lithwick: Then it raises the corollary question, which is, here’s Rosenstein, who’s saying, “Whatever I’m going to do, I’m not going to do what Comey did. Now I’m going to do something that looks like real neutrality,” and so he’s quiet, right? I mean, he’s ... whatever he’s doing, we don’t know. He’s not performing neutrality; he’s just kind of doing his job, right?
Neyfakh: There’s an interesting parallel that someone made to me between Comey’s decision-making process in that moment in October and what Rosenstein might have been thinking when he wrote this memo, which is that Rosenstein might really believe—and probably does—that Comey messed up and deserves not to be the director of the FBI anymore. Like, he probably wrote things that he believes are true in that memo. And maybe he thought, “Yeah, probably this is going to be used in some political way, but that’s not my job to think about that. I’m following protocol and that’s it, that’s where my thought process has to end.” And in so doing, obviously did the most political thing possible by creating the pretext for this firing.
Lithwick: That’s an incredibly depressing proposition, Leon. Let’s start from the basis that nobody ever thought the FBI could be neutral. Nobody thought the attorney general could be neutral, right? You and I have been having this conversation since you started covering justice in the Trump era. But it seems to me that if the alternatives are Jeff Sessions, an attorney general who I don’t think anyone thinks is neutral, and a bunch of other people who are career Justice Department people, who are just finding it impossible to be neutral too, are we simply at a time where there are no neutral entities left?
Neyfakh: I mean, one thing you and I have talked about is, neutral how? Is it that you, as the attorney general, or the career attorney in the Justice Department, prosecute people who are Democrats and Republicans the same way? I think that’s still possible. But is it that you don’t make choices that have political ramifications? I don’t think that’s possible. And maybe it never was, but in the Trump era, we just have a president, I think, who’s much less—this is an understatement—much less restrained or cautious about undermining the credibility, the apolitical credibility, of these agencies than any president we’ve had before. As a result, decisions that in the past could have been made with minimal damage to that reputation are just always going to blow up in the worst possible way.
Lithwick: That leads me to the meditation you wrote on Thursday night—you were trying to think through a question I’ve been thinking through since the morning the election ended, and that is, do good people serve? You quote Ross Douthat, you quote Oona Hathaway … you know, I think there’s a lot of debate about whether good people in the Justice Department stay on and try to act as a bulwark, and try to do their very best, and I think your feeling is, probably, that’s what Rod Rosenstein was.
Neyfakh: I think he probably felt about his nomination and his service the same way those Trump critics I talked to felt, which is like, “I will be a steadying force here. I know this department, I love it, I’ve served in it for 27 years, I’ve been a career attorney, I’ve been a prosecutor. I understand how this place is supposed to run, and it’s good that I will be in this influential position where I can make it run that way, despite the fact that the people above me maybe don’t share my values.” He thought he could be a positive influence, and I think he has found very quickly that his good intentions aren’t really enough.
Lithwick: Now we’re talking about him like he’s dead in a ditch somewhere, and I want to be—
Neyfakh: —Nope, still the deputy attorney general.
Lithwick: I want to be clear, he’s still the deputy as of this morning. So that makes me want to ask, what could he do to turn this around?
Neyfakh: There was an open letter written to him in the New York Times that said, basically, “Look, your only move here if you want to save your reputation and—more important, for the rest of us—if you want to preserve the integrity of the Justice Department and the FBI, more specifically this investigation into the Trump campaign’s potential collusion with Russian hackers, is to appoint a special counsel to take over this investigation.” So Rosenstein is, right now, the head of the investigation. He was overseeing Comey’s oversight of the FBI investigation because Sessions, back in March, under pressure, recused himself after it came out that he had misled Congress about his contacts with Russian officials. So it’s up to Rosenstein to say, “Actually, I can’t be neutral, because I’m serving these guys, and I need to bring someone in from the outside who can be,” and he has, I think, the unilateral power to do that. Whether he will get fired for doing it is a separate question.
Right now, he has not given any indication that he believes a special counsel is necessary. He was asked at his confirmation hearing, “Will you commit right now to appointing a special counsel to look at this?” and he said, “No, I can’t commit to this right now. I don’t even know anything about this. I haven’t been briefed on it. How can I make such an important call ahead of time? Let me get in there, and I will take a look, and I will decide based on the facts whether a special counsel is needed.” So, presumably, he’s been thinking about it, but I just don’t know if he has the sway to do that without getting axed himself.
Lithwick: Leon, before I let you go, listeners have probably been right there with you all week talking about what’s happening in the Justice Department, but other stuff is happening in the Justice Department. Jeff Sessions has been, despite his recusal from the Russia investigation, awfully busy this week. Do you want to tell us a little bit about what’s going on?
Neyfakh: Up until Thursday night, he was sort of out of the headlines and not addressing his recommendation to Trump to fire Comey. I was kind of bewildered by his absence, and don’t understand why he doesn’t feel compelled to explain why he thought this was a good idea. I feel like he should be forced to say, “I thought Comey should be fired because of the email investigations.” That was the point of his letter to Trump: “This rationale laid out in the Rosenstein memo is what I’m citing as the main rationale for my recommendation to you.”
Lithwick: So he’s sufficiently recused from the Russia investigation to be out of the conversation, but not sufficiently recused to have fired the head of the FBI and then not talked about it.
Neyfakh: I mean, they didn’t cite his recusal as the reason for his silence, but it would be quite funny if they decided to try to have it both ways in that regard.
Neyfakh: But yeah, maybe he’s been silent because he’s been busy doing other stuff. In particular, we now know that he has been preparing to issue a directive to federal prosecutors around the country saying that they must always charge the most serious offense when filing indictments against drug defendants. There were policies in place from the Obama administration that allowed and encouraged prosecutors to stop short of bringing charges that would trigger certain mandatory minimums, for instance, leave out the amount of drugs that were on the table, so that this unfair mandatory minimum statute doesn’t take effect and force you to put this person in prison for 10 years when that, for reasons related to the circumstances of their case, would be a gross miscarriage of justice. But now, Sessions has said, “We are now instructing you, federal prosecutors of America, to be as punitive as the law allows.”
Lithwick: And we should also note that the other thing he’s been awfully busy with is this new commission to examine all the non-rampant rampant vote fraud in America.
Neyfakh: They’re going to be working hard looking for it.
Lithwick: Looking for it under the tutelage of Kris Kobach, and other people who’ve been pretty open about the agenda of using this notion of vote fraud to further curb voting in America, right?
Neyfakh: Yeah. They’re going to work really, really hard to find it, find the thing they want to find.
Lithwick: Three million illegal—
Neyfakh: —Three to five. I believe it was five. Yeah.
Lithwick: All right, so good times at the Justice Department. Leon Neyfakh has the unenviable job of covering the Justice Department for Slate, and has been doing yeoman’s work this week as we just spiral down into new levels of bonkers. So, Leon, thank you very much for taking the time.
Neyfakh: Thanks for having me.
* * *
Lithwick: This week, the Court of Appeals for the 4th Circuit heard oral arguments on President Donald Trump’s second iteration of his now-famous travel ban. Now, in an unprecedented move, the court decided to hear it en banc, which means that the entire court heard it instead of a panel of three judges. Two of the judges, both Republican appointees, were recused, and that meant that we had 13 judges and two oral advocates for a 90-minute smackdown on what Trump’s travel ban really means. Joining us to talk about that argument is Professor Micah Schwartzman. He teaches law at the law school at the University of Virginia, and he co-authored an amicus brief on the case. Micah, welcome to Amicus.
Micah Schwartzman: Thanks for having me here.
Lithwick: And you were in the overflow room at the 4th Circuit.
Schwartzman: Yes, the Red Courtroom.
Lithwick: Let’s just start by explaining, if you would. This is an en banc court reviewing a second version of a travel ban that has already been blocked by several judges. There’s a lot of moving pieces.
Schwartzman: Right, so this case comes up to the 4th Circuit from a case out of Maryland, and instead of having a three-judge panel hear the appeal, which would be the ordinary way that the 4th Circuit would proceed, there were motions to take this directly to the entire court. I think that’s because everyone expects this case ultimately to go up to the Supreme Court, and so we should just get on with it, and since this was probably going to be heard by the entire 4th Circuit anyway, they just proceeded to do that directly. But it’s unprecedented; I don’t think the 4th Circuit has done this in the past, gone directly en banc.
Lithwick: And it’s worth pointing out that next week, the Ninth Circuit is going to hear an appeal of a similar decision that came out of a district court in Hawaii, right?
Schwartzman: That’s correct. On May 15, the 9th Circuit’s scheduled to hear arguments at an ordinary panel—three judges—in a case coming out of the Hawaii District Court.
Lithwick: Let’s set the table. This is not Travel Ban 1.0, which was already set aside at the 9th Circuit; this is Travel Ban 2.0. What’s the difference between the original executive order and the one that is at issue now?
Schwartzman: The original order came about a week after inauguration, very quickly, without review by various agencies that would have been involved in implementing the order. You remember there was a mess in the airports that followed the order. The new order has been vetted by the various agencies, and it continues to prohibit travel from Muslim-majority countries, six of them. Iraq has been removed from that restriction; that’s a change from the first order. There were various provisions in the first order that granted protections for religious minorities, which were defined according to the demographics of the country they were coming from, and a lot of people thought that this authorized the government to privilege religious minorities in Muslim-majority countries—really, we’re talking about Christians. There was an argument that these provisions were discriminatory on their face against Muslims in those countries, so the administration has pulled those provisions out.
Now we’re just talking about a prohibition on travel from Muslim-majority countries, the six countries, but the order, the new order, 2.0, also focuses more closely on people who are living abroad, so it doesn’t apply to permanent U.S. residents, to current visa holders. We’re really just talking about people who are not in the United States and who don’t already have visas.
Lithwick: And it’s important to say, I think, that Jeff Wall, the acting solicitor general, who is defending the ban, was at pains to say over and over, “This is a little nothing. It’s a little temporary, 90-day ... you know, all we’re doing is just checking out what’s going on,” that there’s nothing sort of lasting or permanent or consequential here. That’s their characterization. Is that your view of what the ban was doing?
Schwartzman: The first order, I think, was kind of a trial balloon, and a lot of people read the time restrictions as a float to see whether there would be pushback, and it was possible that those time restrictions could have been extended. Now, the administration is saying, “It’s just 90 days for us to do some checking of our vetting procedures, to make sure that we’re doing what we need to be doing inside these countries to make sure that the people coming through them to the United States aren’t risks to us,” and they say that’s all that’s going on here, but I don’t think the judges are buying it.
Lithwick: Well, before we get to the judges, I want to ask you this question, because it seems to me that, at least on its face, the government has a pretty plausible argument that whatever Establishment Clause problems might have been read into the first take, there’s clearly no problem on the second take, because we’ve taken out anything that smacks of even a discussion of religion. In fact, they kept saying, “This is not a Muslim ban. It is not a Muslim ban.” So what’s your answer? You claim—and I think you have written an amicus brief to this effect—“No, there’s a real Establishment Clause problem here,” on its face, but this doesn’t look like an Establishment Clause problem, does it?
Schwartzman: So the argument that there’s an Establishment Clause violation looks both at the text of the order, and also at statements by the president and other officials in the administration, which suggest that the purpose of the order was to discriminate against Muslims. And it’s that purpose, the intention or motivation for the order, that triggers problems under the Establishment Clause. The Establishment Clause is part of the First Amendment, and it forbids the government from discriminating on the basis of religion. And the argument is, that was not just the whole point of the first order, but also a continuing purpose under the second order. If the purpose of the order is to discriminate against Muslims, it violates the First Amendment. That’s the crux of the argument against the order.
Lithwick: OK, let’s go down the rabbit hole. I was in the courtroom, you were in the Red Room next door—it is clear that the judges are obsessed with these extracurricular statements, and that they’re talking about the tweets, they’re talking about what Trump is saying when he’s signing orders, they’re talking about campaign promises. There is nothing that Trump has said or done that is not—actually verbatim—being parroted by the judges, who are sitting here saying, “Tell me again why I’m supposed to ignore this.” Let’s listen for one second to Judge Henry Floyd talking about, just verbatim, what it is that Trump has said.
Henry Floyd: Shortly after executive order two was signed, Sean Spicer said the principles remain the same. Trump, President Trump’s statement [inaudible] concurrent with that time: “You know my plans.” Spicer: “President Trump yesterday continued to deliver on campaign promises.” Is there anything other than willful blindness that would prevent us from getting behind those statements?
Jeffrey Wall: Yes, Judge Floyd: respect for the head of a coordinate branch, and the presumption that officials act legally, which is to say, the presumption of regularity.
Lithwick: I mean, this is just unprecedented. It is really weird to have 13 judges, of whom I count six or seven who are parroting back statements that the president has made casually or on Twitter. How seriously are they taking these statements?
Schwartzman: I think they’re taking them very seriously. They’re taking the president at his word. And it’s not only statements that were made during the campaign or when he was president-elect, but it’s also statements that the president and other officials have made since the election, and statements that have been published online, including on the president’s campaign website. We all know that campaigns are perpetual, and the president has done nothing to distance himself from these comments. So I think the courts are taking those statements seriously, but I actually don’t think that’s unprecedented.
What’s unprecedented is that you have a president making statements of this kind about religious discrimination, but it’s not unprecedented for courts to look at official statements, even by members of the executive branch, in reviewing the purpose of state action. I don’t think that the courts think of themselves as doing anything that they wouldn’t have otherwise ordinarily done in cases where they’re evaluating the purpose of official actions.
Lithwick: And yet we have Jeffrey Wall, who’s the acting solicitor general, arguing over and over again these are not to be taken seriously, saying these are off-the-cuff statements. He’s basically said several times, “This doesn’t rise to the level of something that you need to take into account,” right?
Schwartzman: Wall’s argument, I think, proceeds in two ways. One is to say that under precedent involving cases that concern immigration, the president has broad authority to make these decisions, and as long as those decisions are reasonable and bona fide—that is, they’re facially legitimate, there’s nothing in the orders themselves that is discriminatory—we shouldn’t look to the purpose, to any statements outside the text of those orders. That’s the first kind of argument, an argument from precedent in the context of immigration.
The second argument is that campaign statements should be off limits, because they’re not serious, because they’re exaggerated, because campaigners make promises, but when they become officials, they take an oath, and they take on the responsibility of the office, and at that point what Jeff Wall called a “presumption of regularity”—some deference to the office—attaches to the president. I think the majority of the judges on the 4th Circuit didn’t go for either of those arguments.
Lithwick: I want to talk about Mandel, and I want to talk about the doctrine, but before we do, I had the same reaction you did, I think, to this argument that there’s a presumption of regularity, that there is something that happens the day Donald Trump takes the oath of office, and then he confers with his administration, and he’s serious now, and everything else falls away. I think he kept talking about that presumption of regularity, and I had the same visceral sense that the judges, at least most of the judges on that panel, had—like, “Oh, my God, there is nothing regular about this president, and to kind of give that deference is to give away the thing we’re meant to pierce, which is, what is he really trying to do?”
Schwartzman: Right. The idea that there’s presumption of regularity that should be applied to President Trump, just the dissonance about that claim in the courtroom, I think, was palpable. It’s very hard to think this president is regular in the way you would need to think to grant the kind of deference the government is asking for here. You’d have to think that the president’s statements are totally detached from all the other things the executive branch is doing. And some of the judges asked questions like that. “What about other officials in the administration? Should we afford them the kind of deference that maybe we shouldn’t afford President Trump himself?” But I don’t think that we can draw those kinds of lines, and I don’t think the majority of the judges on the 4th Circuit were prepared to do it either.
Lithwick: Well, let’s listen just for a minute to Judge Paul Niemeyer saying, “Oh, really, you’re going to start looking at his statements? Are we looking back at his college statements, are we looking back to speeches to businessmen?” So let’s have a listen.
Omar Jadwat: ... can’t give you the exact date.
Paul Niemeyer: So under your principle, we’re going to look at the taint that this person who signed the order has, and we’re going to look ... Can we look at his college speeches? How about his speeches to businessmen about 20 years ago? Are we going to look at this, too?
Jadwat: No, your honor, we’re not giving you any of that sort of evidence in this case.
Niemeyer: Where are we going to cut it off?
Jadwat: What we’re looking at here are statements specifically about the kind of policy that he in fact—
Niemeyer: —I know, but I’m talking about—he made those types of statements as a college student, perhaps. Perhaps he made them to a business club in New York, during a speech 20 years ago. Perhaps he ran for office earlier and made similar statements. Are we going to look at all those, too?
Jadwat: Your honor, those would obviously be much less probative than the statements he’d made over the last two years in the course of campaigning—
Niemeyer: —What you look for is things that are relevant and probative.
Jadwat: That’s right, your honor.
Lithwick: And I do think, Micah, that Judge Niemeyer has a point, right? We’re not going to pierce everything. I mean, if we’re going to start to look at intent, are we looking to grocery lists, are we looking to stuff he told his wife late at night? Really, where does it end if you’re going to assume that everything is on the table, every statement ever made? What’s the response?
Schwartzman: First, I should probably disclose that I clerked for Judge Niemeyer, and I don’t have any personal insights into his views about this particular case. But then I would say yes, he’s making an important argument. He’s asking, what are the lines we should draw when we’re thinking about evidence of purpose? What sources do we look to when we’re trying to sort out why government officials are making the decisions they’re making? And at some point, it can become absurd. What—we’re going to psychoanalyze them, we’re going to try to peer into their minds or hearts to figure out what their reasons are? But here, in the ACLU lawyer’s response, we’ve got very good evidence that’s proximate to the decision that was made. President Trump has continuously—as a candidate, as president-elect, as president—made statements that tell us the purpose, and there’s no good reason to ignore all of those statements. They’re overwhelming. We’re not faced with the line-drawing problem in this case. There might be other cases down the road that would raise these kinds of questions, but this isn’t one of them. It’s not even close.
Lithwick: OK, so you flicked at the doctrine, and I think this is the thing that got a little bit lost when we started focusing on the tweets. But the doctrine is important, because there’s clearly a collision between two lines of cases, right? We have Establishment Clause cases—we have Lemon, we have McCreary. Talk about those, and the ways in which they are in conflict with the case I think you were referring to, Mandel, this 1972 case that says none of that matters, at least the way Jeff Wall presents it. What’s the two lines of cases at issue?
Schwartzman: Right. Mandel, this case involving immigration and the president’s sweeping authority to exclude people at the border, says that as long as the president’s decision is “facially legitimate and a bona fide reason,” courts should not look underneath those reasons to figure out what the president’s actual purpose was. So that’s one set of cases on the side of immigration. The Establishment Clause, which prohibits discrimination, is a constitutional provision, and there are cases dealing with the Establishment Clause that say the court should take into consideration official purposes for decisions. Here, the most important case is McCreary County, which involves a county that put up a Ten Commandments display. In that case, the Supreme Court said the court should look at purposes, and can look at various sources of evidence to determine those purposes.
The brief I helped to organize on behalf of a group of constitutional law professors, and a brief that was authored by Joshua Matz, argues that McCreary County should be understood as representing an idea, and that idea is the government can’t act for an impermissible purpose. But that idea has broader roots. It’s not only rooted in the Establishment Clause—it’s also a matter of the Free Exercise Clause, which also prohibits the government from discriminating against people on the basis of their religion under the First Amendment, and it has roots in the Equal Protection Clause as well, where the court has said, in the context of race discrimination, or discrimination against gays and lesbians, that the government can’t discriminate on the basis of an invidious purpose. Basically, the government can’t act because it hates or disfavors or is prejudiced against a particular group.
And so that idea, that rule against the government acting on what’s sometimes called animus, runs through not just the Establishment Clause, but also the Free Exercise Clause and the Equal Protection Clause, and we wanted to say, “Look, that principle is what’s at stake in this case.” This is a case about government discrimination against Muslims, and it’s not only the Establishment Clause that forbids that, but other provisions of the Constitution as well.
Lithwick: But doesn’t that just take us directly back to the problem of “You can’t show animus unless you’re looking at the tweets and the campaign statements”?
Schwartzman: Right. There is a conflict between the government’s position that you can’t look at evidence of purpose and the position represented by the ACLU and by the brief I helped organize, which says not only can you look at evidence of purpose, but you’re required to under the Constitution. That’s right.
Lithwick: And so when Jeff Wall says, “There’s no animus here, Micah; all there is a determination that these countries don’t have sufficient vetting, and we don’t hate Muslims, we just think we’re not safe,” what’s the answer?
Schwartzman: I think the response is that Mandel and Kerry v. Din, two immigration cases that were widely discussed in the 4th Circuit, require that the government have a bona fide reason, and there is direct evidence that the reason that was offered was not legitimate. And Justice Kennedy writes a concurring opinion in Kerry v. Din, another immigration case, with Justice Alito joining his concurring opinion, and it says that the government’s reasons have to be legitimate. And there is a prima facie case that, based on evidence of intent, the government’s reasons here are not legitimate—that they’re invidious, they’re based on animus.
Lithwick: So let’s pan back, Micah. The third thing I felt undergirded the entire discussion at the 4th Circuit was an anxiety about the role of judges. We’ve talked about the doctrine, and we’ve talked about the tweets and intent, but it seemed to me that there was this real feeling—and I think Judge Dennis Shedd maybe put it most eloquently—that it is not our job to second-guess the Department of Homeland Security, to second-guess Jeff Sessions. Let’s listen to him talking about this question of “This is a national security issue, it is not on us as the judicial branch to second-guess the president”—you can tell, I think ... I heard palpable anxiety in his voice. Let’s listen.
Dennis Shedd: Is it the president that makes the determination of national security issue interest in this case?
Jadwat: Yes, your honor, but—
Shedd: —And your argument is he’s tainted by animus, correct?
Jadwat: I’m saying that his purpose was a religious purpose, your honor.
Shedd: Is that tainted by his animus, do you think?
Jadwat: Yeah, [inaudible]—
Shedd: —I mean that ... his harsh feeling toward Muslims. Do you think that taint goes to the attorney general, to the homeland security director, and to the secretary of state?
Jadwat: No, your honor, but I think if you look at the history of what happened in this case—
Shedd: —OK, then let me say, but doesn’t the record in this case indicate that at least expressly, the attorney general and the director of homeland security gave a basis for the order?
Jadwat: No, your honor.
Shedd: They most certainly did.
Lithwick: So what do we do with that? That seems like, at one level, a pretty persuasive argument. “We are not experts in national security. We have a letter from Jeff Sessions, and we have a letter from the Department of Homeland Security, that says, ‘This is necessary to keep us safe, and what you’re doing, judges, by interposing yourselves into this question, is unsettling what we all agree is the president’s duty to keep us safe.’ ” What’s the answer?
Schwartzman: I think there are two answers. The first is, the question that was posed to the ACLU lawyer was “Who’s responsible for national security?” That was Judge Shedd’s question. And the answer to that question is that the president is responsible for national security. That wasn’t the answer that the ACLU lawyer gave; he said it was the court that was ultimately responsible for making all the decisions in the case. I don’t think that was his best answer. His best answer is “The president has to make these decisions, but he has to make those decisions within the rule of law.”
And that’s the kind of answer that has been given in earlier national security cases, especially involving terrorism, where the court has said there has to be a balance between liberty and security, the president has to make his decisions in a way that’s consistent with constitutional prohibitions. It’s fine for the president to make national security determinations, but he has to do it in a way that doesn’t discriminate on the basis of religion, and he simply hasn’t done that here.
The second answer is, there aren’t good facts to support a national security determination. There’s a brief by 42 former national security officials that reviews the orders and says there simply isn’t a national security justification to be given here. And so, in the presence of animus on the basis of religion, the court has a duty to review the president’s justification, and I think that’s what the ACLU lawyer was trying to get at. The broader answer is, in the historical context, we’ve seen the government say to the court in the past, “Trust us, we have national security concerns,” and the foremost case that comes to mind, and one that Judge Wynn mentioned, is Korematsu, which involved a national security justification for Japanese internment. That case is looming here, and I think the end of the argument in the 4th Circuit was under the shadow of Korematsu.
Lithwick: Can you just, for readers who don’t have Korematsu on the tip of their memory, tell us what the issue was, what the court decided, briefly, and then explain how this is different from Korematsu?
Schwartzman: So Korematsu involved an executive order that authorized the internment of Japanese American citizens from the West Coast during World War II. Japanese people were relocated forcibly from their homes and put into internment camps, and the question in the case was whether the government had violated the Constitution, especially the Equal Protection Clause and the Fifth Amendment, the Due Process Clause, in ordering those internments. And the court held that race discrimination has to be justified by a compelling interest and that the government had provided one. That is, there was a national security justification.
Lithwick: It was right after Pearl Harbor, people were freaking out.
Schwartzman: Right after. People were very afraid, but there was also anti-Japanese racism, and the government’s argument about national security was infected by that kind of racism. We learned many years later that the government suppressed evidence of racism, that it didn’t reveal that evidence to the court. The solicitor general under Obama explained that that evidence was not presented to the court and should have been. And there’s a lesson to be learned from that, which is that racial animus—discrimination and prejudice—can infect the national security justifications that are presented. That is, the government perceives a threat where there isn’t one, and part of the reason it perceives that threat is because it’s prejudiced against the group it thinks is threatening.
There was a concern in this case involving Muslims that the government perceives certain kinds of threats in part because of the prejudice against Muslims. So when President Trump says, “I have a national security justification,” on the one hand, some of the judges, like Judge Shedd, are worried about second-guessing the president, and then having a terrorist event and being blamed for all the harm, but on the other hand, they’re worried about looking like the Korematsu court, which is a court that didn’t stand up to racism.
Lithwick: And did it happen that Judge Shedd had a colloquy with Jeffrey Wall saying, in effect, “Could we just say that Jews can create a national security threat, and therefore we could plausibly create a ban on people coming from Israel?” Am I right that Jeff Wall’s answer to that was yes?
Schwartzman: I think that’s what Jeff Wall said, in so many words. The ACLU lawyer, Omar Jadwat, had presented this hypothetical: “Suppose the Trump administration had expressed—or any president had expressed—hatred for Jews, and then almost immediately turned around and prohibited immigration from Israel, and said, ‘There’s terrorist events happening in Israel, there’s all kinds of national security concerns we have in the state of Israel, and so we’re just going to bar everyone from Israel from coming in.’ Would we really not look at the statements that the president in this hypothetical had made?” And Jeff Wall was asked this question, this hypothetical, and he said, “Look, if the order was facially neutral —that is, it was just a national security determination—then we wouldn’t look at any of those statements.” And I think the hypothetical was designed to test the intuition, “Really, you wouldn’t look at those statements?” I think he wants to bite the bullet on that, but it’s a really hard bullet to bite.
Lithwick: I wonder if some of this conversation we’re now having, at least in the academy, about whether intent matters—you know, “how do we know what the real intent is?” or “my God, judges are not supposed to psychoanalyze”—at some point is going to become futile—that trying to parse what someone means when he’s persistently changing his mind and obfuscating what he means is going to ... I know this is an ontological question and outside both of our wheelhouses, but I do think that judges are going to say at some point, “All I can do is look at the four corners of what these orders say, because the rest of it is where madness lies.”
Schwartzman: I suppose I don’t share that kind of skepticism about purpose or intent inquiries. I think judges do this all the time. They’re constantly being asked to sort out why people did various kinds of things. From the lowest-level criminal case to the highest questions of constitutional law, they’re always asking why officials are making the decisions that they make. They’re always asking about the reasons. Part of the rule of law is about reason-giving, and officials have to give reasons for their actions. It’s required under the Equal Protection Clause and the Establishment Clause that they not give certain kinds of reasons, namely discriminatory ones. You know, maybe at some point there’ll be intent fatigue, but this is really the case that gets things rolling. I mean, this is the case where it’s presented most squarely, and maybe down the road, judges will say “there’s not enough evidence“ or “it’s too far for us to reach,“ but here there’s so much evidence, there’s such a clear case in terms of determining or discerning purpose. I don’t think this will be the one where that line gets drawn.
Lithwick: So, Micah, before I let you go, I have to ask you about the judges. Donald Trump is very, very happily unrolling a new slate of judges. He’s quite determined to really flood the zone; he’s going to just put judges everywhere. Can you tell us a little bit about at least the first raft of judges that Donald Trump rolled out on Monday, and what it tells us about where his head is in terms of filling more than a hundred empty seats now on the federal, district, and appeals courts?
Schwartzman: The first thing to say is that President Trump faces a judicial nomination procedure with no filibuster, and after the Democrats exercised the nuclear option and did away with the filibuster for district and appellate judges with a Republican Senate, President Trump is in a good position to move judges, no matter Democratic opposition. The first wave of judges, I think, is right out of the Republican playbook. That is, they’re smart, they’re hardworking, they’re talented, they’re committed conservatives, and they’re young. The average age of the slate that was just named, 10 or 11 judges, is 48. Just in comparison, the average age of Obama’s first 10 nominees or so was something like 56. The average age of judges since Reagan—to the court of appeals, anyway—is something like 50 years old.
Why does age matter, right? Age matters as a proxy. You pick people young, they don’t have as much of a track record. Why are you picking them? You pick them because you think they’re talented and committed, and that’s what Republicans have done very successfully over decades now. And they do it for a good reason, which is to put people on the bench who are going to work out core principles and ideas that are shared by a party, a certain kind of judicial philosophy. And I think Democrats have sometimes adopted a different strategy, which is to pick people who are well known within the legal establishment, especially within state and local bar associations, not because they’re the rising stars, but because they’ve paid their dues, and they’ve been long-established members of the bar. The first Trump nominees show a different strategy; the strategy is to pick young talent that will shape the bench over many, many years, and that will serve as a farm team, at least at the appeals level, for future Supreme Court nominations.
Lithwick: But those young judges are, as you said, unknown, and judges drift, and I think [inaudible] shows that judges drift left more than they drift right. So isn’t there a super-high risk to this strategy?
Schwartzman: That would be a concern about picking young judges, that they’ll move over time, and so you insulate against that risk by picking people who you know are fairly committed to the principles that you want judges to embody, and that seems to be the move so far by the Trump administration.
Lithwick: Micah Schwartzman teaches law at the University of Virginia School of Law, and he helped author a brief in the travel ban case that was heard this week at the 4th Circuit. Micah, thank you so very much for joining us.
Schwartzman: Thanks, Dahlia.