This is a transcript of Episode 70 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: The Supreme Court is entering its final weeks of the 2016 term, and as we will discuss, everybody is going crazy about the travel ban litigation and whether and when and if the justices will hear the appeal of this case. Later on in the show, we’re going to talk to someone who has given a tremendous amount of thought to the burning legal question of whether presidential comments, winks, nods, and tweets should have any legal force in this litigation.
Before we talk about travel bans, we wanted to look at a legal question that seems to be a real head- scratcher for every legal thinker who isn’t a pundit on cable news and obligated to come up with an instant answer to this question. Specifically, what is obstruction of justice? By which we simply mean, what do James Comey, President Trump, the Russia investigation, a grandfather clock, and the Senate Intelligence Committee all have in common right now? Well they all raise this question of what the heck is criminal obstruction and how can we know it when we see it? Trust us when we tell you this is complicated.
To answer this question, we’ve called in a real, live criminal law professor, specifically Stanford Law professor, Robert Weisberg, who was, in the spirit of full disclosure, my own criminal procedure professor, the guy who taught us crim pro by walking us through the Law & Order episode of the week before. He is going to help us sort out what “obstruction of justice” really means. Bob Weisberg, welcome to the podcast.
Robert Weisberg: Nice to be here.
Lithwick: We’re speaking the day of the Jim Comey hearings before the Senate Intelligence Committee. I think that the great favor you could do to all of our listeners right now is define criminal obstruction for me like I’m eight years old. Just tell me what it is like I’m a little kid.
Weisberg: Well, of course you were brilliant at the age of eight, but there are a lot of federal statutes falling under the umbrella or the actual name of obstruction. There are two that are particularly relevant here. Not to go too far into the weeds, one is 18 USC 1503. The other is 1512. To cut through all the weeds, we can say this. If there is a legal proceeding—I’ll get back to that in one second—and if you take steps to prevent the fair adjudication of that proceeding or to deny that proceeding and the officials who are running it access to the information they need, you can be guilty of a federal crime along with another requirement, though. This is a word which Congress loves to throw into the statutes, but never defines it. “If you do this act corruptly.” Now what could the act be and what could the proceeding be?
Some alleged acts of obstruction involve tampering with witnesses, bribing them, beating them up, coercing them. Others involve destruction of physical evidence, most often documents. Almost anything could be the act of obstruction if it has some thwarting effect. It can include lying or it can include, shall we say, heavy-duty persuasion of someone not to do something or not to say something. Next, what is a proceeding? Well obstruction can certainly apply where you have a true proceeding in the sense of a trial going on, a grand jury proceeding, an agency proceeding, but the Supreme Court has made it clear that a pretty targeted investigation by officials of a police agency like the FBI, that’s a proceeding.
Now what could be the act that Trump did that would constitute obstruction? The closest thing we know, and of course this is quite hypothetical at this point, is that he caused Comey to cease doing an investigation or making a recommendation of prosecution, in this case of Michael Flynn, where Comey wanted to do that. Even so, he has to do that corruptly and that could mean a couple of things here: First of all, we’ve been told ad infinitum by the Trump people that Trump had the power to fire Comey flat-out. That’s true. Second, that if Trump is Comey’s boss and if we’re starting it from scratch and Trump decides, “I don’t think we should prosecute somebody or investigate somebody,” sure, Trump can do that. In effect, he’s the chief prosecutor.
It’s a little misleading to say that he can’t obstruct because he can do greater acts than a smaller act of obstruction. An act which you can otherwise do legally can become illegal obstruction if you do it corruptly. Now what in the world does corruptly mean? I used to know, but then I started teaching and studying this material more and now I’m less sure because of course they’re all over the place, but it certainly can have something to do with a self-interested motive that causes the recipient of the act of coercion to divert an investigation in such a way that it protects the person doing the obstruction. I’ll add to it in particular in this case that the act becomes more suspicious, and we’ve heard this a lot today, if it goes beyond an expression of desire that the official, Comey, do this or not do this, and comes closer to a threat or an order. Hence all the wonderful parsing of the word “hope.”
Lithwick: Before we get to hope, can you actually just help parse one other thing for me, which is there seem to be a lot of focus at this hearing on whether the thing that was being obstruction was the Russia probe per se, or just the Flynn wrongdoing, as though those are two different things. Maybe it would be OK to halt one, but not the other. I’m understanding you say any investigation that’s being thwarted is material here. It doesn’t matter if it was the whole big Russia probe that he was being asked to stop or if it was just the Flynn component. For our purposes here, those are the same. Right?
Weisberg: They obviously blend into each other. You’re quite right, though. Yeah. Another problem with saying “Well it’s only a problem if it’s this proceeding rather than that proceeding” is that if we’re talking about an open investigation, which may or may not lead to a grand jury indictment, and if you remember that when a grand jury starts hearing things, there isn’t a case against an individual. The case against the individual was the result of, not the cause of, the grand jury proceeding. You put all that together and it really doesn’t matter which proceeding you’re focusing on, even if you thought Flynn and the Russia stuff were separate. It just doesn’t matter.
Lithwick: Let’s talk about hope because we focused an enormous amount in this hearing on these 28 words, the gist of which was, “I sure hope this investigation goes away.” We heard competing versions of the narrative, right? Where Republicans say, “Hey, just saying that you hope an investigation is stopped isn’t direction to stop it.” We heard Democrats on the committee, I think Kamala Harris most pointedly saying, “If you say to someone, ‘I hope this stops,’ and you’re holding a gun to their head, that sounds like a direction.” We can, I think, stipulate now that Comey took it to be a direction. I guess this invites you, Bob, to parse the word ‘hope’ with me. What does it mean when your superior says, “I hope this investigation is dropped”? It doesn’t sound like he’s telling Comey to drop the investigation and yet ...
Weisberg: Well, needless to say, it’s all a matter of context. By the way, although we have in effect an oral transcript of the conversation, assuming Comey’s rendering is accurate, and I still don’t know whether we have a recording, it would be great if we had a video because, of course—you can’t see my subtle winks and nods that I’m trying to do on audio here.
Lithwick: Oh, I hear them, though. Yeah.
Weisberg: There are ways of saying “hope” that suggest that we don’t really mean hope. It’s all a matter of context. Senator Harris’s point was quite interesting. It reminds me of the way a certain parallel charge is sometimes framed. Not obstruction, but extortion. Just go back to the old clichés from old 1940s movies of the rough guys going down to the docks and going up to some poor merchant and saying, “You need some protection here. Nice little store you have here. Shame if something happened to it.” “Hope” could be muttered with a wink or a nod or a look or a tone that could reasonably be interpreted as a threat.
Comey did not preclude that possibility. Indeed, as you say, he at least suggested that he drew that conclusion. He, I believe, said, “I might be wrong,” and the legal test would probably be one of these convoluted things where, would a reasonable person in Comey’s position hear it as a threat or an order? Would a reasonable person in Trump’s position realize it would be so interpreted? I believe, and correct me if I’m wrong, that Comey did use the word “direct” or “direction.” That is to say he didn’t jump all the way from hope to order or threat, but he did go so far as to say he heard it as a direction.
Now that would suggest that it was possibly an order in the sense of, “I am your superior.” The other thing of course is any obstruction case would have to be based on putting a lot of separate pieces together. In either that conversation or an earlier one, we get a little closer to the gangster saying, “Nice little store you have here,” because of course Trump said things to Comey like, “Hey, do you like your job? I bet it’s a wonderful job. I bet you want to keep it.”
Weisberg: Just to add of course that it’s an open constitutional question whether Trump could actually be charged with a crime while he’s president. If he can’t, in a way, that just suggests that if Mueller, who is apparently looking into this, simply wrote a report which suggested that the elements of an obstruction charge could be established, even though Mueller could presumably not criminally indict Trump at this point, that becomes pretty powerful.
Lithwick: If it’s true that this sounds like a vague threat, what do you make of ... Several Republicans on the committee seemed to say, “Well then the onus shifts to Comey to either tell him to stop, to say, “You’re making me uncomfortable,” to report it, to threaten to quit.” In other words, if he genuinely felt threatened, and this rings of Anita Hill a little bit, why didn’t he complain or push back? Is there some affirmative defense that says it’s not obstruction unless you told the person they were making you afraid for your job?
Weisberg: Absolutely not. No. It is a good question you raise, though. It has some complexities, which I’ve been thinking about in the last couple of hours. What are we to make of Comey’s virtual silence in the face of the “hope” remark? A number of things: First of all, Comey is a very savvy and strategic lawyer, but he’s a human being. I think we can empathize with him and just allow for the possibility that he was, as he says, so stunned that he was literally speechless. Second, it’s very, very tricky for him in that situation to push much harder. What if he honestly believes that he was being threatened? He might be throwing Trump a safety device if he then says, “Mr. President, are you suggesting that you are ordering me to do it?” “Oh, no. I wouldn’t do that.”
Now, if Trump had said something like that, that would complicate the evidentiary context here. It would lead to more things to parse. The problem then is that getting back to the difficult situation Comey was in, he is in some ways a police officer, if you will, an FBI man who is investigating something, but he also becomes a witness and in this case the sole witness. He doesn’t want to be accused of, shall we say, orchestrating the evidence. If Trump had responded to such a question by saying, “You’re damn right. I am ordering you to do it,” that might change things and require some kind of reporting, or at least make it pretty clear he should do some reporting, but I don’t think Comey wants to do that either. It’s not that he would be entrapping Trump. Obviously not, but on the other hand, he would in a sense be inducing the crime in a way he’d feel uncomfortable with.
I don’t think it’s implausible that what Comey did was, “Let me just take this in. At the right moment, I might share my impressions with certain people,” which he obviously did. “I’m a witness as well as an investigator and I don’t want to jump to any conclusions. We’ll see if other evidence emerges and maybe, I hope, I hope, I hope, I can get out of the middle of this because maybe somebody else with more detachment can look at it.” That’s pretty much what Comey said today in what I thought was legally the most significant moment. Richard Burr was asking him, “Do you think it was obstruction?” I presume Burr was hoping that Comey would say, “In my view, it was not.” Comey didn’t say that.
James Comey: I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct. I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there and whether that’s an offense.
Weisberg: That was a pretty pregnant statement.
Lithwick: Right. I’m a fact witness. I’m not going to draw legal conclusions, but here’s what somebody who is drawing legal conclusions might infer. Bob, can you talk a little bit about, the other fascinating valance around this today, at least in the public conversation around the testimony, is the notion that there can be no requisite mens rea. There was no intent, certainly no corrupt intent, because Donald Trump doesn’t know what he’s doing. He’s an outsider. This is how he talks to his lawyers when he’s in Trump Tower. These norms and these rules and this notion of the independence of the director. All of that is just news to him. He wasn’t doing anything corruptly, using the language that you’ve cited, because he just didn’t know that he wasn’t supposed to tell his FBI director to stand down.
Now I’ve heard enough of it that I think it’s at least some plausible claim that he couldn’t have formed the intent to do anything wrong because he didn’t even know it was wrong in the first instance.
Weisberg: This has so many funny layers to it.
Lithwick: We aim to please.
Weisberg: Let’s take the most formal possible layer, that he did not realize that the act he was doing could violate 18 USC Section 1503. Well, your audience probably knows the broadly stated adage that ignorance of the law is no excuse. That adage overstates and somewhat distorts the way that principle operates in the law, but it’s safe to say that it’s completely irrelevant whether Trump understood the possible illegality of what he was doing. That’s really irrelevant. We then get to the question of whether his mind was so beclouded by his, how shall I say, “characteristics,” or so constrained by his ignorance and naivete, that he really, really didn’t even understand the nature of his act. Now what would that mean? First of all, it almost sounds like an insanity defense. “Didn’t understand the nature of his act or the wrongfulness of his act.” That’s the M’Naghten insanity defense.
Lithwick: Right, right.
Weisberg: Except probably you’re not going to get psychiatric experts on the defense side to say that he’s crazy. You’re left with an incredibly fuzzy nuance about what “corrupt” means. I’m not corrupt because I’m naive or I didn’t realize that Comey might take it this way. I don’t really think that there’s much of a legal defense there, but for sure if I were the defense lawyer, I would throw some of that in, hoping that a jury—now, again, this is our hypothetical jury that’s not going to be sitting, at least for the next few years—hoping that a jury would look at the very vague instruction it’s going to get about “corrupt,” “corruptly.” It’s got to be vague because the term isn’t really defined. “Improper purpose” or whatever. Hope that a jury would say, “Well, given his naivete or his screwy personality, he didn’t really act corruptly.”
To put it somewhat differently, another term which would surely come up in the jury instruction on the corrupt mens rea would be “improper.” Doing something for an improper purpose. Think of it as almost a matter of etiquette. Trump can’t be accused of doing something improper because he’s never understood the rules of propriety.
Weisberg: You can’t blame him for using the soupspoon to eat his salad because he didn’t read Emily Post.
Lithwick: Bob, if you’re constructing an argument, and I think you haven’t exactly weighed in yet if we’ve crossed the threshold into obstruction of justice for the purposes of the statutes you’ve cited, but if you’re constructing your best case, what are you looking at? Are you looking at the fact that he clears the room, that he really, really clears the room? Are you looking at the loyalty pledge he seems to have tried to exact? Which part of this seems to you to cross the line from, “I hope this investigation goes away,” to something that looks closer to obstruction?
Weisberg: Well, I think it’s the combination of these that could make the case that crosses the line. “Everybody, please leave the room.” Some people have talked about it as consciousness of guilt, which is a little strong. This gets back to your point about his naivete. His number one awareness that what he was doing was kind of sketchy, but also his way of creating a more threatening atmosphere for Comey to be sitting in. You connect that with whatever time distance there was with the, “Do you enjoy your job?” stuff. You add to that whatever context you could supply about how he said “hope.” With what tone and so on and so on. I can’t preclude the possibility of an obstruction charge here being at least something you could establish as a matter of law. I can’t speak with more confidence because the obstruction doctrine is just incredibly fuzzy.
The work that the corruptly thing has to do there is pretty heavy, but if there’s enough proof of a dastardly self-interested motive, then you could, to use your term, “construct” the obstructive act from a lot of little pieces.
Lithwick: OK. I feel that I just need to do this because I know that you are a law and literature person.
Lithwick: I just need to ask you the question that I’ve been asking all my literature people, which is Comey gets huge credit for his literary style. When you read his original testimony, his opening statement, which great towering literary figure did you feel that he was channeling?
Weisberg: Well, I’m probably not original in saying this. There were Hemingway-esque touches, no question about it. There were also, to elevate, actually lower the level of literature, there was a bit of the Penthouse story letter. “You’re not going to believe this, but this happened to me.”
Lithwick: “This happened to me.”
Weisberg: It had a certain Victorian quality, let’s go back a bit, in terms of the delicacy of use of detail, which all the more suggested something salacious underlying it. I’ve already told you with respect to the hearing today that we had some 1940s gangster–type stuff going on, some extortion language, but I will say this. In terms of a critique of today’s testimony, and again this goes beyond yesterday’s statement, this may turn out to be the most heavily parsed conversation or set of conversations of our species since Hamlet chatted up Ophelia. Boy, the parsing is just going to get wilder and wilder.
* * *
Lithwick: For the second part of our show, we thought we would probe the deep and vexing question we like to call “All the President’s Tweets.” It seems a little bit crazy, but Donald Trump is making his own Twitter feed Exhibit A in the appeals surrounding his executive order on travel and immigration from six majority Muslim countries. It’s not just because of things that he may have said or tweeted during the campaign. Nope. Now it’s about things that he tweeted this week. If you think about the litigation, about the executive order, we’ve talked about it a lot on this show, you will remember that despite its complicated origins, by the time we had an executive order, this White House was at pains to say that it was not a “travel ban.” It was not a “Muslim ban.” That it is in no way rooted in animus toward Muslims. And that really, all it is, is a process of brief and temporary “extreme vetting” and that that’s all the administration wanted.
Donald Trump, in a series of tweets, responding to the terror attacks in London over the weekend said things like, “People, the lawyers and the courts, can call it whatever they want, but I am calling it what we need and what it is: A TRAVEL BAN.” I should say travel ban is all caps. Next tweet: “The Justice Department should have stayed with the original travel ban, not the watered down, politically correct version they submitted to the SC. The Justice Department should ask for an expedited hearing of the watered down travel ban before the Supreme Court and seek much tougher version.” All of this seems to be undermining everything his own Justice Department has said about the TRAVEL BAN. All caps.
More urgently, it certainly seems to be harming what his own solicitor general is saying in court about this not simply being a watered-down version of the Muslim ban he sought on the campaign trail. Oh, and in the event that you were wondering whether these tweets are official statements, here is Sean Spicer answering that very question on Tuesday.
Sean Spicer: Well the president is the president of the United States. They’re considered official statements by the president of the United States.
Lithwick: What are the courts going to do with that? Well, that is in fact an ongoing, almost ontological, question on this show. We wanted to bring in the person who’s thought about it more systematically than anyone and that is Kate Shaw. She’s an associate professor at the Cardozo School of Law. She has a brand-new piece in the Texas Law Review about presidential speech and the courts. Kate is also a Supreme Court analyst for ABC News and I should note that she is also a friend. First and foremost, Kate Shaw, welcome to Amicus.
Kate Shaw: Dahlia, thank you so much for having me.
Lithwick: Second of all, I realize that the framers probably weren’t thinking about Twitter as much as you are, but I think that there is this core idea. In your Law Review article, you certainly go back to the history of this. This is not a brand-new problem of extracurricular speech, right?
Shaw: No, I think that’s right. I think there’s pretty broad agreement that the presidency today looks a lot different and in many ways a lot more powerful than it was at the time of the founding. I think there’s pretty broad agreement about that. Either way, whether we’re talking about today’s president or George Washington, a lot of the president’s power is not formal power, right? It’s actually rhetorical power. He has pretty broad power in military matters and the foreign affairs sphere, but particularly when we’re talking about domestic policy, a lot of what the president does typically is to use rhetoric to mobilize the population, to inspirit the population more than formal directive authority, at least in terms of the population at large. He can direct the executive branch. He’s got subordinates. He can instruct them as how to enforce the law, but making the law, obviously, is Congress’s job.
What the president has is this unique asset in the federal government and that is the bully pulpit, right? The president has, for at least the last 100 years, really used that pulpit to speak directly to the population to try to generate support for his agenda and his programs, but the mechanisms that the president has used have obviously changed, particularly with developments in technology. We are obviously seeing play out before our eyes the full flowering of the Twitter presidency. Using whatever mechanisms of communication are at his disposal to reach the population at large, that in itself is not totally new.
Lithwick: I think it’s important, and one of the reasons that we wanted you on this show is that you’re one of the people who takes seriously the proposition that this is actually a question. It’s not something to be flippantly dismissed. “Oh, the president is tweeting again,” because FDR had fireside chats. There is a long history of presidential communications that buck the norms of how presidents communicate. Every president has done something subversive to get his message out. You sort of see, I think fairly so, that what we all dismiss as Trump acting like a 16-year-old girl and tweeting to his friends, is in fact of a piece with the long line of presidents attempting to subvert norms about how we talk directly to the people.
Shaw: I think that’s right. I think maybe even broader than just rhetoric, there is this kind of dynamism that is inherent in the office of the presidency. Every president creates the office anew in some ways and communication is part of that, but I think this really tough question that we’re seeing is what courts do with these kinds of statements, comments that are made, particularly where they have a nexus with litigation. Again, that’s not entirely new either. As I catalog in the paper, there are historical instances in which courts have wrestled with this question of representations made by the president in one setting sometimes conflicting with say representations made by DOJ in briefs or oral arguments, and to be honest, they haven’t always done a great job in figuring out how much, if any, weight to give to presidential statements, but I think that the frequency with which and the stakes at which we are seeing these questions presented, that is pretty new.
Lithwick: Give us an example, Kate, if you would from your own research of a court struggling with this kind of issue that might be at least somewhat analogous to what we’re seeing, which is, honestly, now we’re seeing courts in real time saying, judges saying, “But just last week, he was tweeting...”
Lithwick: Give us an example to locate us in how a court would analyze this problem.
Shaw: Sure. To be honest, they haven’t always done the kind of depth of analysis that you would want. They just cite and don’t explain why a statement matters or ignore without explaining why a statement doesn’t matter. That’s part of my project is to try to get us to think critically about when these kinds of statements do and don’t matter, but I’ll give you two examples, both from President Obama: The first was early on in the passage of the Affordable Care Act, the president gave an interview to George Stephanopoulos in which he basically denied the suggestion that the Affordable Care Act’s individual mandate and then attending penalty was a tax increase.
Now he said tax increase, but that increase got excised in a lot of the debate and people said, “Well the president denied that it was a tax.” This statement was written about in a lot of mainstream coverage of the Affordable Care Act, especially as the federal government started to really assert that in the alternative, the Affordable Care Act could be defended. There were two big arguments the federal government was making that Congress under its commerce clause power had the authority to enact the Affordable Care Act, but alternatively, that it had that power under its taxing and spending authority.
Critics of the Affordable Care Act seized on this comment by President Obama and said, “It’s hypocritical. The president denied that this was a tax and his lawyers are now in court defending it as one. He should essentially be held to that earlier representation.” At least one lower court pressed the government’s lawyer in oral arguments about that presidential statement and then made passing reference to it, although didn’t really rely on it in the opinion. Before the Supreme Court, Justice Scalia really pressed the government’s lawyer, Don Verrilli, about this. He said, “The president said it wasn’t a tax. What did he mean by that?”
Justice Scalia: The president said it wasn’t a tax, didn’t he?
Don Verrilli: Well, Justice Scalia, two things about that.
Shaw: He said, “Well essentially, that’s irrelevant to the constitutional question of whether Congress had the power to do this.”
Verrilli: The president said…
Scalia: Is it a tax or not a tax? The president didn’t think it was.
Verrilli: The president said it wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance. I don’t think it’s fair to infer from that anything about whether ...
Shaw: There was a real exchange between Scalia and Verrilli about this question, and it was nowhere in the decision. Not in the majority opinion, not in the dissent. Presumably along the way, the justices decided, “This representation he made in a news interview is just not relevant to the constitutional question.” That’s one example. Let me give you another example: This isn’t a Supreme Court case, but in the district court litigation around the president’s executive action on immigration, presidential statements actually played a very significant role. This was this major initiative, late in the Obama administration to expand deferred action. It would have given essentially relief from deportation to several million people—a major executive action.
It was announced by the president and actually through a formal government document. It was a secretarial memo. The DHS secretary wrote a memo essentially providing new guidelines for the use of deferred action for these two categories of individuals. Texas and a whole bunch of other states quickly challenged that executive action and one of the most striking things about the district court opinion was how frequently it invoked speech by President Obama describing the program. One moment in particular I thought was really interesting. President Obama said at one point, “I just took action to change the law.” This phrase gets cited a bunch of times in the opinion, but if you go back to the setting in which he made that representation, it’s a public event. He’s talking to a crowd and he’s getting heckled.
Hecklers are basically saying, “No more deportations. You’ve been deporting more people than any president.” President Obama respectfully listens and says, “OK, OK. You’ve now had your moment and you’ve said your piece. Let me just respond and say that what you’re not acknowledging is that I just took action to change the law.”
President Obama: What you’re not paying attention to is the fact that I just took action to change the law.
Shaw: This is a totally unscripted exchange with members of the public in which he’s defending himself, but I don’t think meaning to commit the government or the executive branch to a definitive representation about what the program is or does. Nevertheless, the district court really focuses on that language in saying, “He said he changed the law,” essentially part of an argument that the program essentially created such a broad change that it needed to happen through a notice and comment rule-making process as opposed to through this informal letter from the secretary of the Department of Homeland Security.
Again, without the district court really explaining when presidential statements might matter, why they mattered here, they just came in as self-evidently relevant. The 5th Circuit affirmed what the district court did. There was a dissenting opinion in the 5th Circuit in which the dissenting judge said, “Whoa, whoa, whoa. We don’t usually put so much stock in those kinds of statements. Politicians or government officials often defend policies broadly and then litigate them differently. It just isn’t really in our tradition to bind government actors to those kinds of statements. ” That did not carry the day, that argument.
We don’t know what the Supreme Court would have done with the case at all and with this evidence in particular because the court deadlocked 4:4 and never issued a decision on the merits. You have in recent memories examples of courts both using and declining to use presidential statements in really high-stakes cases.
Lithwick: What I love about your work, Kate, and the way you’re thinking about this is you’re trying to be systematic and say, “Look, this is not a partisan question. This is a normative question about every time the president scrawls something on the back of a napkin, is that a presidential statement?” Statements get ripped out of context, as you’ve just described, but it does raise this question of if we have to say what the goalposts are, and seemingly we’re going to have to say what the goalposts are, on the one hand we have ... This was a huge concern I think of Judge Niemeyer at the 4th Circuit at oral argument. “Are we going to go back to things he said in college? If the president is just talking to his grandchildren and someone is there with a video recorder, is that a presidential statement? ”
On the other hand—and this was the concern of some of the other judges at the 4th and 9th Circuits—are we going to disregard plain statements of intent made over and over again, not necessarily pursuant to the campaign, but now as he’s signing an executive order or as he’s talking about litigation? Those are the kind of goalposts, right? They’re incredibly broad. We can’t ignore all of them. We can’t take them all into account. Where’s the sane middle place here, Kate?
Shaw: Yeah. I think this case does present some tough legal questions about line drawing. I think that the Supreme Court, if it does decide to consider the case, will be wrestling with those questions. I think you can draw the line in a few different places. Subject matter might be one place to draw the line. It seems to me that maybe when we’re talking about the president opining on matters of foreign affairs and national security, maybe we take more seriously and sometimes accord actual real legal weight to presidential statements. You have subject matter as one way to slice it.
Another way to slice it is formality, venue, things like that. If you’re talking about a State of the Union address, typically those are carefully drafted and well-circulated and vetted. I think maybe it is fair to put more stock in them than say President Obama having an exchange with members of the public at an event or even in an interview. Things like that. I think that sort of subject matter and formality are a couple of different ways to draw the line. Part of what I think separates the travel ban cases from other potential cases in which presidential speech might come in is that if we’re talking about the Equal Protection Clause or the Free Exercise Clause or the Establishment Clause, for better or for worse, we have a lot of legal tests that say we look to the intent of government actors.
In the travel ban cases, the allegation has been made that anti-Muslim animus is what drove the first candidate to promise this ban of this sort and then President Trump to issue first and then the second executive order. So it seems to me that if you have a legal test of which intent is a component, the only way you really can satisfy that legal test is through statements and conduct. We have lots of cases, both Supreme Court and lower court cases, in which courts look to statements by government officials. Usually legislators, but I don’t think there’s anything in the test that would render off-limit statements by executive branch officials and in particular the president, in particular, if you’re talking about an executive order, where the only real intent that could matter is the intent of the president.
Lithwick: Just to be clear, Kate, because I think this is where folks are confused, once you are inviting judges or justices to get involved in this question of what is really going on. Is there real animus here? Then you can start to look at intent, like you’re saying, but you can also go backwards in time in a way that one would normally be uncomfortable, right? This intent has either changed or it hasn’t changed. One of the things that’s been so interesting to me in the travel ban cases is watching the acting solicitor general argue over and over again that something magical happens the minute the president is sworn into office. He uses the language of presumption of regularity. Anything that happened in the campaign doesn’t even go to intent because he’s now a different creature. That’s a bridge too far for you, right? Intent has to be allowed to go back in time to some degree, or no?
Shaw: This case is so sui generis in some ways that I do think here it’s appropriate. I don’t want to say always it would be, but I do think in this case it is appropriate to go back before January 20th and the swearing of the constitutional oath. In part, I think that argument is shored up by the tweets from earlier this week that you mentioned, right? To the extent that the solicitor general has been arguing that there is a break and that most of the statements that the plaintiffs have pointed to precede January 20th ... Not all, but most of them or many, at least, of the most probative ones do.
Lithwick: Until this week.
Shaw: Until this week. Yeah. No, I think that that argument is significantly weakened by these new tweets that reassert this is a travel ban in all caps, which is something that the solicitor general’s office has been obviously really trying to move away from. I think it’s much harder to make the clean-break argument when you have essentially much of the earlier spirit and rhetoric revived in this latest round of tweets.
Lithwick: Let’s talk about Twitter, per se, because that’s one of the things that is just deeply strange. I’ve tried to lay out, and I think you’ve tried to lay out, this is no different than fireside chats. This is no different than other forms, but it feels a little different. It’s a weird form. It’s a form that, but for Donald Trump, we would not be talking about presidential tweets, I suspect. At least not for 50 years.
Lithwick: When old people were tweeting, I guess he is an old person, but it seems a little strange and yet here we are. We’re talking about Twitter, how do you put this forum that is so profoundly unserious, it doesn’t feel like a presidential speech act, but here we are. How do we think about Twitter when we think about modes of communication?
Shaw: Yeah. The Twitter presidency is definitely going to inspire many, many law review articles and dissertations. It does feel like we are early in, I think even my own thinking about it. I’m not sure where I stand. I don’t know that categorically I would say that they are ... I certainly think they’re not off-limits when it comes to the travel ban cases for the reasons that we’re talking about because even really informal statements and maybe especially sometimes really informal statements can be probative in intent. In the context of establishing intent, I do think that tweets are fair game in the same way that all of the statements that arguably go to intent are fair game.
If we’re talking about attempting to do something more ... Here’s something that I thought about with the travel ban cases. After the first travel ban was issued, remember there was that open question about whether green card holders were covered. The solution that the White House arrived upon was a memo, a clarifying memo from the White House, the 9th Circuit that said, “Well that doesn’t really work.” If the president had say tried to issue a tweet clarifying one way or another, “Green card holders are totally exempt, don’t worry.” “Green card holders, sorry, you’re covered,” I just can’t imagine a court putting any legal stock when it comes to interpreting the meaning of that executive order in a presidential tweet, especially if that conflicted with something that DOJ said to a court.
If the Department of Justice said, “This is how we read the executive order,” and a tweet conflicted with that, it seems to me the authoritative source of the legal position of the federal government is the Department of Justice brief. That’s not to say the president can’t direct his subordinates in the Justice Department to make particular legal arguments. Just that he has to use those internal processes to do so and courts shouldn’t let him circumvent those processes by basically just issuing an edict via Twitter that says, “This is what the order means.” There are these internal processes that exist for a reason. He may or may not successfully get the Justice Department to, say, take the position that green card holders are covered, green card holders are exempt.
That’s the right mechanism to use to try to get that interpretation put out in the world and then accepted by courts. It seems to me that putting too much weight in presidential Twitter undermines those internal executive branch processes in a way that I think is troubling, but members of the public are a lot more likely to encounter a presidential tweet than to read a brief. You and I will read these briefs, but most people won’t. Is there something troubling, from the perspective of understanding government conduct and holding the right actors accountable in all of that, in saying that these are essentially meaningless—or at least they’re not entitled to real weight—and instead what matters are the denser and less accessible kinds of documents?
I think that’s something troubling with suggesting that you should essentially just discount or disregard presidential tweets in favor of these other kids of executive branch instruments. On the other hand, there’s some evidence that members of the public do essentially take—maybe not seriously, but certainly not literally—the things that the president says on Twitter. They’re not necessarily putting real stock in the veracity or seriousness of those tweets. I think these are really hard questions.
Lithwick: I’m going to ask you one last really hard question. We’ve talked about this as court watchers and people who think about the law. We’ve talked about it from the perspective of someone sitting, looking at presidential tweets at home, but I guess for me, the buck stops with how the courts think about it. We’ve had a little bit of evidence now—watching both the 4th Circuit and the 9th Circuit—I think evidence that judges don’t like to be told to blinker themselves to something, but also really don’t like engaging in messy conversations about tweets and things that Trump said on Howard Stern. This is not why they got into Article III judging business. This is icky for them.
I sense this tension even in your article, that we don’t want judges to spend their lives deconstructing what it means when the president tweets “TRAVEL BAN” in all caps. That seems so beyond the scope of what we want this institution to be engaged in, and yet and yet and yet, to blinker themselves to it is also wrong. Do you have a sense yet of how judges are feeling about the questions you’re raising?
Shaw: I mean I think you’re right. They would probably agree with my sense of the president’s lawyers’ position, which is that they wish he would stop tweeting about things of legal significance. It’s a perfectly fine medium to announce an event or to build suspense about something that’s going to happen next week, but to substantively weigh in, particularly about matters that are the subject or could be the subject of litigation, I’m sure they would prefer to be spared having to wrestle with these questions. If that doesn’t happen, I think that some principles that guide the use of Twitter but also just more broadly of the words of the president issued in informal venues, whether that’s in radio interviews, on television, at rallies or via Twitter. I think that much of the time, it is appropriate for them to just disregard those really informal statements, but that there are a handful of very important exceptions and if the judges could give us some clarity about what those exceptions look like, then I think it would serve everybody’s interest. We’d have some clarity, the White House lawyers would be able to give some clear guidance to the president about what terrain was just too dangerous and what was perfectly appropriate for him to use as his preferred medium of communication to opine on. I think we have just no real clarity right now.
Lithwick: Kate Shaw is an associate professor at the Cardozo School of Law. She’s a Supreme Court analyst for ABC News. Kate, what a delight to have you on the show. Thank you for joining us.
Shaw: Thank you so much for having me, Dahlia.