In 2004, the President had claimed extraordinary, unreviewable powers in prosecuting the so-called “War on Terror”—and challenges to those claims had finally reached the Supreme Court. At oral argument in Hamdi v. Rumsfeld, Justice Ginsburg asked Deputy Solicitor General Paul Clement, “Suppose the executive says, ‘Mild torture, we think, will help get this information.’” She added, “Some systems do that to get information.”
With a touch of indignance, Clement replied, “Well, our executive doesn’t. And I think the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement in overseeing of that authority. You have to recognize that in situations where there is a war, where the government is on a war footing, that you have to trust the executive.”
About seven hours later, photos depicting the vile and inhumane abuse of detainees at Abu Ghraib were revealed. It’s safe to assume these photos made an impression on the Court. In cold and uncompromising prose, Justice Sandra Day O’Connor wrote for a plurality of four justices to reaffirm that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
Sometimes, when an emissary of the President asks courts to “trust us,” things the President does elsewhere can fatally undermine judicial confidence in the President’s respect for rule of law values. We’ve seen it before and we’re about to see it again.
Defending Trump's revised travel ban on Monday, the Acting Solicitor General based major parts of his argument on the presumption of good faith and regularity afforded to Executive Branch decisions. Particularly with respect to national security and immigration, he emphasized, the President must receive the benefit of every doubt. If any tenable interpretation of Trump's comments would strip them of animus, that reading must be preferred. This is true not only because of the executive powers vested in Trump under Article II, but also because Trump has formed a government and acts with guidance from his cabinet.
That was Monday. On Tuesday, Trump unleashed a wrecking ball at the tattered remains of "regularity" in his Executive Branch. And as many commentators immediately noted, his reasoning and timing seemed wholly at odds with any plausible conception of "good faith." To the contrary, Trump and his Attorney General had previously stated—time and again—that the very behavior now deemed fireable should instead be celebrated. The whole situation reeked of an effort to derail the FBI’s investigation into Trump associates who may have conspired with an enemy foreign power to shape the election and/or U.S. policy.
As I wrote yesterday in an op-ed about the travel ban argument, “It’s true, of course, that the president typically enjoys a judicial presumption of good faith and regularity. But surely there comes a point where reliance on this rule amounts to judicial abdication – and Trump’s continuing bad faith and irregularity suggest we have crossed that Rubicon. Even if we haven’t, the nature of presumptions is that they can be rebutted, and here the evidence of Trump’s bad faith toward American Muslims is overwhelming.”
The President has the raw power to fire the FBI Director. But valid exercises of power can still create constitutional crises and threaten rule of law values, especially when our system depends heavily on norms and precedents rather than just a series of underlying formalisms. Having fired the man in charge of significant national security and intelligence policies—and having done so while that man led a criminal investigation involving foreign influence at the highest levels of the U.S. government—Trump has unquestionably forfeited any claim to a presumption of “regularity” or “good faith.”
I expect that the judges of the Fourth Circuit Court of Appeals, and their law clerks, are paying close attention to these events. Norms of judicial rhetoric likely wouldn’t permit any mention of Comey in an opinion. But it's inconceivable to me that the Comey firing won’t frame their reaction to Trump’s insistence that presumptions of deference compel them to uphold his Muslim Ban.