Lawfare’s Quinta Jurecic has a new post up, A New Jurisprudence for an Oathless Presidency, in which she considers, as she has in earlier posts, the judicial fate of Trump’s travel ban. Her discussion turns “on whether the judiciary can permissibly consider off-the-cuff statements made by Trump and his associates as evidence of religious animus in the drafting of the executive orders,” a matter which may soon end up before the Supreme Court. The issue is the intent of the order and what constitutes legitimate evidence of that intend.
Heretofore the practice has been to ignore such “off-the-cuff statements” (including Presidential tweets) because, in effect, they are merely personal statements and cannot be taken to reflect the intention of actions taken in the name of the Presidency. For reasons Jurecic has stated before and reiterates here, the courts are now allowing such statements to be taken into evidence. There is the opinion that Trump himself does not make a firm distinction between his personal interests and opinions and the Presidency and therefore the courts cannot treat his actions in the ordinary way.
And so Jurecic ends up here:
And examining Trump’s campaign-trail and presidential statements on the travel ban—an examination the majority considers permissible under McCreary—the court finds the national security rationale behind the travel ban to have been proffered in bad faith. (In her concurrence, Judge Stephanie Thacker reaches the same conclusion only on the basis of post-inauguration statements by Trump, having reasoned that candidate Trump’s comments are not appropriately considered.)There are certainly disagreements to be had with this analysis. (Judge Niemeyer, for example, argues that it substantially misapplies both Mandel and Din. On Lawfare, Peter Margulies and Josh Blackman have made similar points.) But if the courts are going to write a new jurisprudence for an oathless presidency into the law, Mandel and Din actually make for a very natural place to start. Both literally concern the question of “bad faith,” the same question raised by whether the courts can trust Trump’s fidelity to his oath. To put it another way, the cases are an expression of the “presumption of regularity,” the idea that we can usually trust public officials to do their duty. And as the Trump administration is discovering, that presumption of regularity is only a presumption, which courts can waive in extraordinary circumstances.If the majority—along with the number of other courts that have ruled against both the original and the revised travel ban—is crafting a new body of law for a new kind of presidency outside the presumption of regularity, why not say so explicitly? I suspect that many onlookers sympathetic to the plaintiffs but concerned by the charge into uncharted legal territory might be comforted by a direct acknowledgement of the dynamics at work here, but the rhetorical signposts of blindness and sight may be as close as the courts can comfortably get. It may be a question of wanting to step lightly or to avoid further accusations of making up law from whole cloth. Or perhaps some of the judges ruling against the ban are seeing through a glass darkly, and may not themselves be entirely aware of the implications.
That’s what’s interesting, that the judges may be “crafting a new body of law for a new kind of presidency” and this is being done is full view of the public. At the center of this action we have the distinction between a person, in this case Donald J. Trump, and the status that person occupies, the presidency of the United States.
That distinction, of course, is quite general and applies to all manner of organizational life, both public and private, and not just to the presidency. The idea of a meritocracy, for example, depends on the distinction. One succeeds in an organization based on one’s competence and accomplishments, not on one’s attachments to kith and kin. Is the Trump presidency going to unfold as a morality play about that distinction?
Courts regularly rely on legal fictions and simplifications, which are what make it possible to map the reasoned structure of law onto a chaotic and unreasonable world. There is nothing wrong or unusual about this. The difference here is that the bizarre facts of the travel ban cases and the bad faith at the core of Trump’s presidency have exacerbated—to the point of absurdity—the gap between the abstract legal questions at play under existing doctrine and the facts at the ground. The situation recalls Thomas Kuhn’s description of scientific crisis, in which an existing paradigm of thought begins to lose its ability to explain and predict the shape of things. We may be at that point now—where the paradigm of deference to the executive in national security without reference to the integrity of the president’s oath is clearly faltering but the jurisprudence of an oathless presidency has yet to fully emerge.
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You might want to look at an earlier article by Jurecic, Body Double: What Medieval Executive Theory Tells Us About Trump’s Twitter Accounts, where she says:
The astute reader will instinctively see what I’m driving at here: President Trump’s two Twitter accounts. Indeed, I want to propose here almost entirely with a straight face that the relationship between the @POTUS and @realDonaldTrump accounts is the new manifestation of a very old dynamic. That is, the distinction between @POTUS and @realDonaldTrump is the distinction between the office and the person who fills it, what we might call the President’s “Twitter politic” and his “Twitter natural.”
You might also want to review a post I made shortly after the election, The Crown and the Presidency, 2016, in which I discuss the Netflix series, The Crown, and point out that one of the central themes of that series, at least in its first season, is the distinction between the person, Elizabeth, and the status she came to occupy, Queen of England.