Bad Faith

Whom do you side with in the curious case of the deported French scientist?

The scientist in question traveled to the U.S. earlier this month to attend a conference in Houston. Upon arrival, he was stopped and subjected to a random security check. Agents looked through his phone and laptop and discovered something so alarming that they turned him right around and put him on a plane back to France the next day.

The dispute has to do with what they found.

On Thursday a Department of Homeland Security official claimed that the security check had revealed “confidential information on his electronic device from Los Alamos National Laboratory—in violation of a non-disclosure agreement—something he admitted to taking without permission and attempted to conceal.” That sounds like stealing state secrets, surefire grounds to bar someone from entry.

France’s minister of higher education says that’s not what happened, though. “This measure was taken by the U.S. authorities because the researcher’s phone contained exchanges with colleagues and friends in which he expressed his political opinion on the policies of the Trump administration on research,” he told Agence France-Presse.

Two unidentified sources corroborated that to the news agency but alleged that the “opinions” expressed in the exchanges went further than garden-variety criticism. One described them as “hateful and conspiratorial messages” while the other claimed they “showed hatred towards Trump and could be qualified as terrorism.”

Whom should you believe?

Normally I’d trust the feds. If they’re willing to turn away a researcher who’s talented enough to work at Los Alamos, they must have their reasons. Absconding with documents and/or threatening the president are pretty good ones.

But remember who we’re talking about here. In two months and one day, the Trump administration has withdrawn federal security protection from the president’s critics, rescinded security clearances for law firms that worked against him in court, and barred the Associated Press from events for not adopting his preferred terminology. His acting U.S. attorney in D.C. has threatened detractors with criminal charges on flimsy grounds. A federal agency was defunded in part for being “anti-Trump.” And at least one other immigrant has been targeted for removal not for committing a crime but for holding obnoxious political views.

Not only would it not surprise me to learn that administration officials are barring visitors for mildly criticizing Trump, it would seem out of character if they didn’t. They don’t deserve the benefit of the doubt about their supposedly good intentions, especially with respect to free speech. They don’t deserve the benefit of the doubt on anything.

But what do you do if your job requires you to give it to them?

Deference.

There’s a kernel of truth in the president’s ongoing mental breakdown over judges enjoining his policies. Surely there are matters of executive authority in which the courts should defer to his judgment.

As dismaying as it is to imagine him doing anything without supervision, including playing with matches, the nature of the job is such that the judiciary can’t ride herd on him all the time. War powers are the supreme example. Imagine the absurdity of a court attempting to enjoin his battle plan for China. (Or Europe, more likely.)

Respect for separation of powers means respecting the president’s supremacy over Article II functions. That supremacy isn’t total—Trump’s belief that it should be is the cause of his breakdown—but it warrants extremely wide latitude from the courts when he’s acting within the bounds of his constitutional duties.

In fact, failing to show the president the deference he’s due is the core grievance in a House Republican impeachment resolution aimed at James Boasberg, the federal judge who sought to halt Trump’s deportation of accused Venezuelan gang members last weekend.

The resolution claims that Trump’s determination that an “invasion” has taken place within the meaning of the Alien Enemies Act of 1798 is a political judgment, not a legal one, and therefore should be unreviewable by the courts. The fact that Boasberg is insisting on reviewing it anyway means he’s overstepped his judicial authority and violated separation of powers, justifying his removal from the bench.

Pretty straightforward. Here’s the problem, though, with demanding greater deference to presidential discretion: What if the president is a fantastically corrupt authoritarian who routinely operates in bad faith?

On Friday the New York Times reported that Trump’s reliance on the Alien Enemies Act to deport the supposed gang members is more dubious than originally thought. By its own terms, the Act applies to “any invasion or predatory incursion … against the territory of the United States by any foreign nation or government” (emphasis mine). According to the Times, however, a U.S. intelligence assessment published just last month “concluded that the gang, Tren de Aragua, was not directed by Venezuela’s government or committing crimes in the United States on its orders.”

The only federal agency that dissented from that opinion was the FBI, helmed by super-toady Kash Patel, citing information that America’s other intelligence agencies reportedly found not to be credible. The consensus saw “the gang as lacking the resources and being too disorganized—with little in the way of any centralized command-and-control—to be able to carry out any government orders.”

If that’s true, it means Trump’s own deputies informed him that his grounds for invoking the Alien Enemies Act were bogus—and he invoked it anyway. In order to use the emergency powers granted to him by the Act, he needed the gang to be acting at the behest of the Venezuelan government. So he lied.

What do you do with that information if you’re a federal judge weighing whether to defer to the president’s judgment in invoking the statute?

Relatedly, how much benefit of the doubt can you give him knowing that some of the “gang members” he whisked off to an El Salvadoran prison without due process quite possibly aren’t gang members at all? The U.S. government stands plausibly accused of having “disappeared” innocent men, having done so in some cases based on notoriously sketchy “evidence,” having denied them access to the courts by relying on a law that didn’t actually apply, and having deliberately placed them beyond the reach of lawyers by dispatching them to a banana-republic gulag thousands of miles away. 

Going forward, shouldn’t that affect the degree of deference that the executive branch receives in court?

Discretion.

That isn’t the first time Trump has used a dishonest rationale to justify questionable executive action.

On February 1 he cited the “extraordinary threat posed by illegal aliens and drugs, including deadly fentanyl” at both the southern and northern borders as justification for new tariffs. But fewer than 25,000 people were apprehended crossing illegally from Canada into the U.S. last year, amounting to just 1.5 percent of apprehensions nationwide. The fentanyl disparity was even wider: The amount seized along the northern border over the same period represented just 0.2 percent of the amount seized along the southern one.

“During the first two months of this year,” the Wall Street Journal reported, “the amount of fentanyl confiscated at the Canadian border weighed about as much as a can of soup.” That’s the so-called “emergency” that supposedly grants Trump legal authority to tangle with our neighbor to the north in what will end up being one of the most destructive trade wars in American history. Judges are being asked to yield to the president’s judgment knowing that his judgment is sometimes based on transparent nonsense.

And that’s assuming that he’s willing to explain his judgment at all. As I write this on Friday, we’re on day six of Judge Boasberg trying to get a straight answer out of the Justice Department to a simple question about whether the alleged Venezuelan “gang members” were flown out of the U.S. last weekend after he issued a written order halting their deportation. Shouldn’t that persistent stonewalling influence how much other judges are willing to trust the executive branch?

In theory, a judge should be blind to everything except the facts and the law in the case before him. It doesn’t matter what’s going on in Judge Boasberg’s courtroom or if Trump is lying about the Alien Enemies Act and the fentanyl “emergency” to the north. If the relevant case law says that the president is owed the benefit of the doubt in a matter then the court should show him the same degree of deference it would any other president.

In theory. But he isn’t any other president, and that reality can’t help but penetrate the consciousness of judges.

Trump extorts his opponents openly, including members of the legal profession. He demagogues anyone who demands accountability of him, the federal judiciary not excepted, and betrays no hint of remorse for the predictable consequences. He seems to regard remorse as weakness, in fact—a material deficiency in someone to whose judgment the courts are being asked to defer. 

His motives are frequently inscrutable, per his trade war on Canada, or malign, as his haste to make an example of the “gangsters” who might not actually be gangsters demonstrates. Or both, of course: When the federal health bureaucracy is endorsing measles infections, you don’t need to choose between extreme negligence and extreme malevolence.

On top of all of that, let me remind you that the president is an actual convicted criminal whose rap sheet would have ended up a lot longer if not for his reelection. Judges don’t normally defer to criminals, do they?

The most salient fact about Trump’s relationship with the judiciary, though, is that he’s overtly engaged in a revolutionary project to consolidate federal power in the executive branch. And not just congressional power; he’s coming for the judges too. How can respect for separation of powers compel the courts to defer to the president as much as they did to his predecessors when he’s trying to dismantle separation of powers and subordinate them to his authority?

We afford public officials a degree of discretion in exercising their duties because we trust that they’ll restrain themselves from abusing their power. There’s no such reason to trust Trump. He’s done everything he can to show that he’d like to govern as a monarch and will seize any political opportunity to make it happen.

Judicial deference is the idea that, so long as Article II grants the president a certain authority, the courts shouldn’t second-guess his bad judgment in using it. The question judges will wrestle with for the next four years is whether a different approach to deference should be taken when the problem isn’t so much bad judgment as bad faith.

A dilemma.

Blame Congress for putting the judiciary in this position.

Ideally, judges wouldn’t be tinkering with how much benefit of the doubt to grant to a new president since judicial credibility depends on consistent application of the law. When federal district judges issue almost as many nationwide injunctions in the first two months of Trump’s term as they did in four years under Biden, that’s a bad look.

Although I’d argue that that’s like comparing the number of arrests in a rough neighborhood to the number in a quieter one. Maybe it’s less a problem with the cops being biased than with the fact that a lot more crime is happening in one than the other.

Regardless, there’s a good case to be made that judges should stick to the same ol’ deference they’ve always shown the president. If someone needs to turn up the heat on the president to stop him from abusing his authority and threatening separation of powers, Congress can always step in and make him back off. The House and Senate have plenty of ways to punish him, from roadblocking his nominees to defunding his pet programs to investigating his administration to impeaching him if need be.

They’re much better suited to reining him in than the judiciary is, frankly. The courts can’t muscle a renegade executive because they’re passive by design, but the legislature is built for brawling. And Congress doesn’t have the legitimacy problem that unelected judges do when they confront an elected president. When the legislature acts, it acts in the people’s name.

Letting Congress take the lead in restraining Trump is a nice theory. And utterly ludicrous in practice.

I’ve said before but will say again here that congressional Republicans are political archvillains of this era no less than Trump himself is and will be remembered by history as such. They’re bona fide American quislings, traitors to the constitutional order in having abandoned all pretense of resisting the president’s autocratic ploys. We’re not yet at the point where they’ll do anything Trump tells them but we’re certainly at the point where Trump can do anything he likes without fear of repercussions from the legislative branch.

So long as Republicans are in charge, there’s no doubt with whom Congress will side in an extended confrontation between the president and the judiciary. And they’ll be really, really stupid about it too.

The judiciary’s dilemma in deciding how much deference to show Trump comes down to this, then: If they don’t hold him accountable, no one will.

And in a constitutional democracy, that’s a profound conundrum. The “constitutional” part should mean less discretion for the president when he’s threatening separation of powers but the “democracy” part points to giving him the same benefit of the doubt as his less Putin-ish forbears. After all, if Congress doesn’t care about him trampling on Articles I and III and the electorate doesn’t care much about anything except what groceries cost, why should judges care? 

The choice for courts is whether to give Trump broad latitude in making a mockery of enumerated powers or trying to rein him in hopes of saving Americans from their own civic anomie. Some choice.