The behavior of the judiciary in response to Trump’s Executive Orders and other activities has been fascinating. But now we’re getting reactions to the judiciary, and I’m glad we have Lawfare and Quinta Jurecic to point them out:
But most notably, in its analysis of McCreary, the [new Justice Department] brief also asserts that:
The Order, in contrast, conveys no religious message and was revised to eliminate any misperception of religious purpose. And it reflects the considered views of the Secretary of State, the Secretary of Homeland Security, and the Attorney General, whose motives have not been impugned.… Virtually all of the statements [by Trump] also preceded the President’s formation of a new Administration, including Cabinet-level officials who recommended adopting the Order (emphasis added).
Cabinet-level officials, of course, swear their own oaths upon taking office. The not-so-subtle message is that even if the judiciary can’t trust the President’s judgment and the President’s oath, it can trust the judgment and perhaps the oaths of those who serve under him at the highest level. The brief does not specifically cite the Cabinet members’ oaths, but it does specifically cite their good faith—the presumption of which, as Ben and I have argued, flows directly from the oath. Their motives, unlike those of the President, the brief says, “have not been impugned.”
In other words, by emphasizing the good faith of Trump’s subordinates, the brief evinces at least a tinge of doubt about the good faith of Trump himself. If we could trust the President’s good faith as of the moment of swearing the oath, even if only as a matter of deference, there would be no need to rely on that of his Cabinet. The structure of the argument—that the President swore an oath and thus is entitled to a presumption of regularity, and that his cabinet is entitled to the same presumption even if you can’t trust the President individually—seems to acknowledge that the judges of the Fourth Circuit might at the very least have questions about Trump’s oath.
This argument—trust the cabinet members if you can’t trust the president—suggests something of a fracturing of the unitary executive. It also raises a question asked of Ben by an audience member after his recent talk on our essay on the oath. As she put it: “If you don’t believe the president’s oath … do you feel it undermines the oath of anyone he’s appointed?”
It’s a great question – are the Cabinet members just as tainted by the President’s erratic behavior? And is Quinta really missing a point in that the President issues Executive Orders, not the Cabinet? Will the judiciary let that assertion in the brief slide by, or will they reject that part (to the extent that a brief is rejected) and all of its consequent reasoning?
But the implicit admission that the boss is prejudicing their case by being a loose cannon is really the staggering part. Could a more responsible Congress use this brief as part of the evidence in an impeachment and/or trial hearing?
