//  11/13/17  //  Commentary

Last week, Marty Lederman gave the Solicitor General’s recent filing in Hargan v. Garza a pretty thorough drubbing.  To name a few of the filing’s oddities that Marty explores in more detail:

  • The filing cites no legal authority for the SG’s claim that the Fifth Amendment allows the government to refuse to release from its custody an undocumented minor so that the minor can obtain an abortion;
  • The filing does not engage the reasoning in the court of appeals’ opinions;
  • The filing does not engage with the en banc court of appeals determination that a stay was not warranted (which is the issue the court of appeals decided, and the issue that the SG is at least nominally petitioning for cert on/vacatur of);
  • The filing (a “petition for certiorari”) does not identify any cert-worthy questions;
  • The filing cites no authority for the proposition that vacatur of the decision below is appropriate even where there are no cert-worthy questions in the case. 

The filing has other shortcomings as well.  In general, it’s short on both the law and the perspective that government lawyers are supposed to have as governmentlawyers.  (SG filings are supposed to be gray on the outside and the inside.)

David Luban has further problematized the SG’s incendiary claim that the ACLU attorneys violated ethics or bar rules by not notifying the government that the abortion would take place a day earlier (or perhaps just hours earlier) than the parties may have assumed.  (As Luban notes, lawyers represent their client and their client’s interests, not the government’s apparent interest in preventing someone from having an abortion. And the goverment had no constitutional right to be notified of Doe's abortion, and it specifically disclaimed any interest in actually preventing her from obtaining an abortion, as opposed to not faciliting it.)  On top of that, Linda Greenhouse poured some cold water (as Mike Dorf had done previously) on the SG’s argument that the government would somehow be “complicit” in or “facilitate” Jane Doe’s abortion if it followed the law and allowed Jane to have an abortion. As Greenhouse wrote, contrary to the SG’s new position, the Court has “held that while the government can endeavor to persuade a woman to choose childbirth over abortion, at the end of the day it may not prevent her from choosing otherwise.

So what is going on with the SG’s filing? Because of its ethics accusation against the ACLU lawyers (and failure to include any cert-worthy questions in its petition for certiorari...), the SG’s filing in Hargan is, in my view, different in kind from other things that the Trump DOJ has done to date.  But in other respects, Hargan is just the latest but, by far, the clearest example of how this administration uses DOJ for political gain.  DOJ’s tactics in Hargan also resemble the tactics of this administration’s enablers in an important respect.  In this post, I’ll try to connect a few dots.

DOJ As A Political Weapon

(1) The administration apparently views DOJ as a way to score political points against its opponents.  Consider the President’s repeated statements that encourage DOJ to investigate his political opponents:

“[T]hey should be looking at Democrats. ... They should be looking at a lot of things, and a lot of people are disappointed with the Justice Department, including me.”

“Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems.”

“Pocahontas just stated that the Democrats, lead by the legendary Crooked Hillary Clinton, rigged the Primaries!  Lets go FBI & Justice Dept.”

All of that is completely bonkers.  As Eli Savit explained on this blog:

That’s the stuff of banana republics, not a country governed by the rule of law…. [P]eople who enter public service shouldn’t have to worry about the possibility that they’ll be targeted for criminal liability by people who happen to have different political beliefs. 

(For additional commentary on how the administration wants to use DOJ as a weapon against its political opponents, see here or here.)

(2) The administration also apparently views DOJ as a way to ingratiate itself with its political allies.  This week, The Washington Post reported that White House Chief of Staff John Kelly apparently called Acting DHS Secretary Elaine Duke to pressure her to expel thousands of Hondurans living in the United States under residency permits. Kelly claimed that extending the Hondurans’ residency permits “prevents our [the White House’s] wider strategic goal” on immigration, and “could hurt [the] nomination” of Kirstjen Nielsen as DHS Secretary.  (Kelly purportedly picked Nielsen as his desired successor at DHS.)

For further examples of how the administration might use DOJ to score points with the administration’s political allies, see here for Lark and my post on DOJ’s flipped positions, or Helen Klein Murillo and my post on what the Trump administration, often through DOJ, has done to disadvantage LGBTQ individuals.

 (3) In light of the filing's many shortcomings (and unjustifiably hurried nature), Marty went so far as to suggest that the SG’s filing in Hargan reads like “a press release, for an audience other than the Justices.”  Who might its intended audience be?  One of the administration’s fellow political travelers, Attorney General Ken Paxton of Texas issued a statement criticizing DOJ for failing to do enough to prevent Jane Doe from obtaining an abortion: “The abortion occurred after the Department of Justice failed to appeal to the United States Supreme Court a ruling allowing the abortion.”  The Texas AG also released a draft of the amicus brief it desperately wanted to file in support of a hypothetical DOJ appeal to the Supreme Court. Was the audience for the SG’s filing in Hargan the Texas AG?  Or someone else?

(4) The administration also apparently views DOJ as a mechanism to preserve its own power.  Trump has repeatedly faulted Attorney General Jeff Sessions for failing to disclose that he would have to recuse himself from the Russia-related investigation (and thus can’t oversee the appointment and conduct of Special Counsel Mueller). This equally banana republic-esque fact has been repeatedly covered on this blog and elsewhere.

They Come For the Lawyers

(1) In a little known case, Northwest Immigrant Rights Project v. Sessions, another group of lawyers that assists a vulnerable community encountered some pushback from DOJ.  The group, NWIRP, provides legal assistance to immigrants in a variety of ways—they run workshops and provide individual consultations on immigration law; they help individuals fill out applications for various forms of immigration relief or legal status; and they provide some individuals with legal advice.  There’s no right to an attorney in immigration court, and NWIRP fills in some of the gap.

But NWIRP does not file “notices of appearance” in all of the immigration court proceedings in which NWIRP might be involved in some capacity, such as where NWIRP has provided some assistance or counseling to the person involved in the proceedings.  Filing a notice of appearance would require NWIRP to take on the entirety of an individual’s immigration case through the deportation proceedings, which NWIRP doesn’t have the resources to do in all of the cases in which it provides some assistance. 

So the Trump administration got involved.  In April 2017, the Executive Office for Immigration Review (part of DOJ) sent a letter to the NWIRP Director directing NWIRP to stop providing legal assistance to anyone facing deportation unless NWIRP had filed a formal notice of appearance in the individual’s immigration case.  By failing to file a notice of appearance, DOJ maintained, NWIRP was violating the Rules and Procedures of Professional Conduct for Practitioners in immigration court. 

Sound familiar?  (To be sure, the SG’s filing in Hargan is different in several respects.  To name one: In NWIRP v. Sessions, DOJ at least cited a federal regulation that NWIRP was purportedly violating.)

NWIRP didn’t have the capacity to provide full representation throughout the entire case to every individual it had counseled.  Thus, DOJ’s position would have required NWIRP to stop providing any legal advice at all or take on a bunch of cases it didn’t have the capacity to do.

NWIRP filed a lawsuit challenging DOJ’s attempt to force NWIRP out of the business of representing immigrants.  In July, a district court granted NWIRP’s request for a preliminary injunction against DOJ’s attempt to enforce these regulations in a way that would prevent NWIRP from providing assistance to persons when NWIRP doesn’t an enter an appearance in every single case involving every single person NWIRP has counseled.

Not every organization that is involved or might potentially be involved in litigation against the Trump administration has the resources or capacity to bear the risk that the administration will go after the organization’s lawyers and livelihood.  And it’s hard not to see the Trump administration’s actions as a meaningful deterrent against undertaking litigation against the administration.

(2) Another way of undermining lawyers who disagree with the Trump administration (and disagree with the administration about the law, not just the administration’s policies) is how the administration’s enablers try to meme all legal argumentation against the Trump administration into “the legal resistance.” 

The legal resistance is a trope that is familiar to anyone that comments, blogs, tweets, or litigates in cases involving the Trump administration:  If you make an argument that the Trump administration has done something illegal, you’re part of the “resistance.”  If a court rules against the Trump administration, the court has joined the “resistance.”  If you point out something problematic that the Trump administration has done, you’re met with an onslaught of “what aboutism” whose not-so-subtle subtext is “you’re not making a legal argument; you’re just arguing for your preferred result.” 

It's gotten kind of old at this point.  This past summer, Steve Vladeck, Helen Klein Murillo, and I wrote about some of what is wrong and deeply troubling about this “legal resistance” meme:

[The argument] fall[s] prey to the same sin of which they accuse Trump’s critics, i.e., treating decisions with which the authors disagree as being driven by motivated reasoning, all while simultaneously empowering the President and his supporters in a particularly troubling frontier—the President’s delegitimization of the federal judiciary.

As we noted, Orin Kerr identified this phenomenon in a post he wrote about the rise of Donald Trump, back in May of last year:

[The] argument relies on what I’ll call the politics of delegitimization. When someone does something you don’t want, you say they acted for improper and corrupt reasons. It’s part of a rhetorical strategy that has found particular favor on the political right since Obama was elected. That strategy, repeated hundreds of times in different contexts, was designed to further conservative and libertarian ends. And it sometimes worked.

As Steve and Dahlia Lithwick wrote in The New York Times:

[D]iscrediting federal jurists as having joined “the resistance” isn’t merely an argument lacking in analysis or evidentiary support; it’s also profoundly dangerous, for it suggests that any and all rulings against President Trump are not just doctrinally incorrect but also illegitimate. Much like criticism of all unflattering media reports as “fake news,” and attacks on the loyalty or patriotism of legislators who don’t vote in support of the president’s agenda, denouncing and dismissing all judges with the temerity to rule against Mr. Trump represents a direct attack on the independence and integrity of the entire judicial branch.


So, to recap:  The SG’s filing in Hargan v. Garza is extreme, and unjustifiably so.  But it is part of a pattern of how this administration wants to use the Department of Justice as a political tool.  And that’s a problem with no obvious, easy solutions.


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