//  5/12/17  //  In-Depth Analysis

In a post earlier this week, Joshua Matz explained what Trump’s decision to fire James Comey might tell us about the lawfulness of EO 13780, the executive order barring entry into the United States by nationals of several Muslim-majority countries. Given that the Ninth Circuit Court of Appeals will hear argument about the entry ban’s legality on Monday, I wanted to highlight two other possible parallels the Comey affair has to the entry ban.

Process And Regularity. My earlier post on Trump’s decision to fire Comey  addressed the claim that the decision was entitled to a presumption of regularity. I explained why those who are concerned about Comey being fired (specifically those who are urging there to be some investigation), are not failing to apply a presumption that presidential decisions, including Trump’s decisions, are “regular.”  Rather, they are applying the presumption of regularity to the facts of particular decisions, and (reasonably) concluding that particular decisions Trump has made look a little irregular.

With respect to the Comey firing, the facts suggesting some irregularity are too many to recount here.  Just to name some: The administration has offered several different reasons why Trump fired Comey; within 24 hours the administration explicitly disavowed those reasons; the Rod Rosenstein memo that purportedly supports Comey’s firing was sourced with news articles and over the top characterizations; and the memo was prepared outside of the normal channels in which these kinds of investigations occur, and in fact were occurring.  (For other, more fulsome reasons why the process leading to Comey’s firing was highly irregular, you can read any one of the numerous posts on lawfare, justsecurity, more lawfare, or here.)

The same is true with respect to the entry ban that is now the subject of litigation.  In the oral argument in the Fourth Circuit Court of Appeals, Acting Solicitor General Jeff Wall insisted that the district court had failed to apply a presumption of regularity.  And Wall repeatedly invoked that presumption as a reason why the ban is lawful.

But as Marty Lederman explained on this blog, the “process” (if you can call it that) that led to the entry ban order was anything but regular:

Most importantly, the President did not seek or receive any information or advice from anyone within the executive branch who would be capable of informing him about whether and how the existing procedures were inadequate or required supplementation. (Indeed, Sally Yates testified yesterday that the White House Counsel deliberately declined to inform her—the Acting Attorney General—and all other components within DOJ with any expertise, of the existence of the Executive Order until after it was issued, and that the Office of Legal Counsel (which was reviewing the draft for form and legality) was even instructed not to inform the Attorney General about it!).

That’s not the only way in which the process leading to the order was out of the ordinary. DHS has admitted that nationality is an "unlikely indicator" of an individual’s terrorism threat. And, as Marty explained, there was no evidentiary basis for the order’s conclusion that the existing vetting procedures are inadequate to prevent the entry of persons committed to terrorism; the order identified “unrestricted” entry as the threat, but existing procedures do not allow for unrestricted entry.

Motive, Evidence of Motive, & More Evidence of Motive

The more interesting parallel between the Comey affair and the entry ban is what Trump’s firing of Comey suggests about how courts should go about determining the intent behind the entry ban. One of the arguments for why the entry ban is unlawful is that the ban violates the Establishment Clause, which prohibits (among other things) the government from taking actions with an intent to favor one religion over others, or actions taken with an intent to disfavor one religion over others. 

Because the lawfulness of the entry ban turns in part on the intent behind it, much of the discussion around the legality of the entry ban has focused on questions about how that intent should be determined.  These questions include what kinds of evidence courts may rely on: Can courts consider statements by the President’s subordinates, or statements the President made before his inauguration, or statements the President made during the campaign. Other questions include whether the ban would be lawful if created by a President who did not have an intent to exclude Muslims. 

As Richard Primus and others on this blog have explained, these questions are interesting and important. But the questions also have established answers under current doctrine.

It is illuminating to see how these questions (and answers) play out with respect to Comey’s firing.  Helen Klein Murrillo, my sometimes co-author here at Take Care, has explained over at lawfare what an “obstruction of justice” is.  The Department of Justice U.S. Attorneys’ Manual says that the crime of “obstruction of justice” has three elements: “(1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.”

As should be clear, the third element turns on the intent of the relevant person, and whether they “endeavored to influence, obstruct, or impede.” Helen writes:

Under § 1515(b), a corrupt state of mind requires intent: “acting with an improper purpose.” Ultimately the answer goes to the motives: Did the President or Attorney General intend for Comey’s firing to “influence, obstruct, or impede” the Russia investigation? 

A quick caveat before I work through what the Comey firing suggests about some of the entry-ban-related questions about intent.  This post does not purport to make the case that the President or Attorney General is actually guilty of obstruction of justice. Rather, my point is only to show that the evidence that is obviously relevant to that question, and must be considered when answering that question, is precisely the same kind of evidence that the entry ban challengers are using.

The Comey affair thus illustrates what is misguided about the claim that courts cannot consider “unofficial” statements, statements made by subordinates, or “pre-election” statements when determining the “intent” behind some presidential action. That kind of evidence is deeply relevant to questions of motive, and questions of motive are relevant to both the Comey affair, and one of the claims in the entry ban litigation. 

Claim #1: “Unofficial statements cannot be used to establish intent.  Courts can only look to the text of official documents to establish the administration’s intent.”

In the case of the Comey affair, the only “official” statement about Comey’s firing is the letter that Trump signed on Tuesday. The letter purported to concur in Rod Rosenstein’s evaluation of Comey’s handling of the Clinton investigation, and implied that Comey’s handling of the Clinton investigation was why Comey was being fired.

But the President announced on television that he did not in fact fire Comey for that reason.  He stated that he had already made up his mind to fire Comey before receiving the memo. That is, in the now infamous interview with Lester Holt, Trump stated that he was going to fire Comey no matter what Rod Rosenstein’s memo said about Comey’s handling of the Clinton investigation.

Could a court, or an investigator, consider that evidence if either had occasion to ask “why did Trump fire Comey”?  Of course they could.  They must. In the television interview, the President explicitly disavowed what the “official” letter firing Comey had offered up as the reason why the President was firing Comey.  And there are precisely zero questions about the authenticity of the President’s statements—no one doubts he said those things.

Now contrast that with the entry ban litigation. In the entry ban litigation, Trump’s defenders have repeatedly argued that courts cannot look beyond the four corners of the ban in determining what the motive behind the ban was.  (This argument has been made by commentators, lawyers for the United States, and the handful of judges who have suggested the ban is lawful.) Trump’s defenders insist that it would be improper and dangerous to consider “unofficial” statements the President has made about Muslims.  They argue that courts must look only to the official documents to determine the President’s motive.  And the official text of the ban asserts the ban was established for national security reasons.

The argument that courts cannot consider anything outside the corners of the entry ban itself has always struck me as odd, for reasons I’ve explained. But the Comey affair drives the point home in readily apparent ways:  Why on earth must courts consider only the reasons for a presidential policy that have been provided in official documents, when the President explicitly disavows those reasons elsewhere?  

Claim #2: “To establish intent, courts should not consider statements made by administration officials.”

Again, imagine there is a proceeding in which the question is why Trump fired Comey.

Consider some of the potentially relevant evidence:

  • The memo firing Comey indicated that Comey was fired because in October, Comey made improper comments about the FBI’s investigation into Hillary Clinton’s use of a private email server. Kellyanne Conway, counselor to the President, subsequently stated that Comey’s firing had nothing to do with the election and was related to Comey’s conduct after January.
  • White House Deputy Press Secretary Sarah Huckabee Sanders said that the decision to fire Comey was a “step[]” “taken” to bring the investigation into the Trump administration’s connections with Russia to an end.
  • White House Deputy Press Secretary Sarah Huckabee Sanders also stated that Comey had “lost the confidence” of “rank-and-file” members of the FBI. (The next day, Acting FBI Director McCabe testified that “the vast majority of FBI employees enjoyed a deep and positive connection to Director Comey.” Sanders subsequently said that she had “heard from countless members of the FBI that are grateful and thankful for the President’s decision … I don’t even know that many people in the FBI.”)

Could the individuals conducting an investigation into why Trump fired Comey look to statements made by officials in the Trump administration?  Those statements are certainly probative evidence of why Trump may have fired Comey, and why he didn’t do so. 

Again take this back to the context of the entry ban, where Trump’s defenders pejoratively criticized the district courts for relying on statements by Trump’s subordinates.  The argument does not make any more sense there.  The relevant speakers are the President’s subordinates, and they are explaining why their boss took a certain action. How is that not probative evidence of the President’s motives?

Claim #3: “To establish intent, courts cannot consider pre-election statements.”

Back to the imaginary proceeding that seeks to determine why Trump fired Comey:

I won’t rehash how this argument applies to the entry ban.  I’d just encourage you to read Rick Hasen’s piece on the topic, as well as Joshua Matz’s pieces on this blog. Moreover, my prior post about DOJ's brief demonstrated that the vast majority of statements that were used in the entry ban litigation were made after the inauguration, and that many of the “pre-inauguration” statements were made after Trump had been elected President. 

Claim #4: “An order is lawful if the order would be lawful with a legitimate motivation.”

After Trump fired Comey, we were treated to a barrage of commentators who insisted there was nothing to see in the firing because the President has the authority to fire the FBI Director.

As I wrote in my post yesterday (and Niko Bowie and others have also explained), the fact that a President could have fired Comey for legitimate reasons does not mean that if the President actually fired Comey for illegitimate reasons, the firing would be lawful.    Put another way: That an action would be lawful if done for legitimate reasons does not mean that action is per se lawful, even if done for illegitimate reasons.

Here too I won’t relitigate the issue in the context of the entry ban.  I’d just encourage you to read Richard Primus explain how former-Chief-Justice Rehnquist rejected the idea that an action motivated by an illegitimate purpose is lawful because the action could have been, but was not actually, done with a legitimate purpose.


To wrap up: The various arguments about how certain kinds of evidence cannot be considered should be understood for what they are—a plea to ignore everything that has been said and done in order to pretend as though what the president has done is lawful.

 Questions of motive are ordinarily hard to prove:  If it walks like a duck, it could still be a loon.  But if walks like a duck, quacks like a duck, and announces, “I AM A DUCK,” well…. maybe we should take the duck seriously.


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