So there is, here, a question of law. In law, a "question of law" is one upon which reasonable minds will not differ. It's a legal fiction that tries to establish that all judges, presented with the same question of law, will render the same conclusion. They don't, of course, which is also why we have layers of appellate courts, and multiple judges on those courts: so there is never the tyranny, however small, of the single jurist. But questions of law are supposed to represent broad legal principles; questions of fact are peculiar to each case brought before a court. No two are ever exactly alike. That's why reasonable minds can differ on questions of fact. What they should agree on is what legal principles apply once the facts have been established.My take on DOJ’s defense of Trump in @ejeancarroll defamation case - AG Merrick Garland is trying to restore independence and non-partisanship at DOJ, but he has over-corrected on this one. https://t.co/suOLGRWYQk
— Barb McQuade (@BarbMcQuade) June 9, 2021
But this is also why we have courts: to settle questions of law. So if the statute says the DOJ "shall" defend an action brought against a government official or employee, the DOJ shall defend it. If the courts decide the DOJ has the wrong end of the stick on this particular question of law, if it decides that, given these facts and circumstances, the statements were not within the "course and scope" of the official's duties, then a sound precedent has been set for future cases. A precedent that can be enforced as a "question of law," one upon which reasonable minds will not differ. And the facts and the legal reasoning are, ideally, published for all to see and consider.
If, on the other hand, the DOJ decides it has discretion in this matter and won't follow the dictate of the statute, what other statute will it ignore, and why? And which DOJ will do that? Barr's? Garland's? Alberto Gonzales'? And how do we know, until they decide they will, or won't? And how do we know how they made that decision, if they get to do it without explaining it in public, to a court?
The better course for the country, and the DOJ, and the rule of law, is for the DOJ to do what the statute says they shall do, and to ask the courts to resolve the issue and make a finding that will be guidance for future generations; or just future iterations of the DOJ. Because the DOJ is like Theseus' ship: even as you replace every part of it, over time (personnel changes, leadership changes, etc.), it remains the US DOJ. And that institutionalism is something the country needs to be able to rely on.*
Even as we rely on the courts to determine what the law is given each new set of facts. At least courts are (mostly) expected to publish their reasons. If we leave these matters to the discretion of the DOJ solely, we very soon won't know what's being decided on behalf of the country, or why.
And that would be much, much worse than defending a former POTUS like Donald Trump in a legal matter that arose because of what he said when he was the POTUS.
Kibbitzing the DOJ's decision is fine, but it much easier to do when you aren't the USAG, than when you are.
*Yes, I know the case is on appeal from the trial court's ruling against the DOJ position. It's sound legal practice for the government to get that position worked out clearly and solidly by appellate level opinions. It's also in the best interests of the country that they do so. If the courts end up limiting "course and scope of employment," we the people need as clear and well reasoned a statement of how and why that limitation occurs, as the courts can give. That's really the legal issue at play here, and not the character, or even popularity, of Donald Trump.
All humanly erected institutions eventually fail at some point, sometimes entirely. I think the problem here is that the emergency of how close we came to a permanent instead of a merely temporary tyrant, as Trump really got away with being, is not matched by the "institutionalism" or Merrit Garland and the likes of Robert Mueller. What is called for may well be the breaking of the norms which protected Trump as he was smashing the law - protected by the DoJ memorandum against indicting a sitting president, not by a law passed by congress and signed by a president elected by a majority of voters - and the partisanship of Republican-fascists.
ReplyDeleteNorms only work to protect us in normal times, we are not now in normal times because one of the two parties who control the Senate and the Supreme Court and so many states is, in fact, a fascist party. Pretending that that isn't a crisis that requires breaking the niceness norms that are so beloved by "institutionalists" is not going to do anything to protect us. It all gets back to the successful and intentional propagandizing of a dangerous percentage of The People and those margins rigged using the anti-democratic features of the Constitutional system. Nothing "institutionalist" is going to address that crisis, not as long as the liars are free to lie with impunity. That was something that was already becoming clear as Richard Vigurie used early PCs in that effort before there was a widely used internet, based on public data of party membership, not algorithms that identify the vulnerable based on their online activity. We've gone way past the point where the protections of the past will suffice, the world has changed, the institutions haven't changed for the better in more wise ways.
If we base our law on “what Donald Trump did,” that gives him far more power than any person should have.
DeleteIf the courts decide this is an exception to “course and scope” for the President, that’s a better outcome than the DOJ deciding they don’t want the political heat raised by an unpopular former POTUS.
One outcome is the system asserting itself against any individual; the other is bending because of that individual. And not bending in a way that serves us all into the future.
That is a danger but it's also, perhaps, an inevitable result of making rules to start with. As Rachel Maddow has pointed out, the DoJ memorandum against indicting a sitting president was a result of being forced to deal with the consequences of Spiro Agnew's criminal behavior. That there will be unintended effects, even when it's the best and brightest with the highest level of confidence placed in them making the rules and institutional practices is probably inevitable. But the Republican Party isn't the party that, with Senators worried about their own election chances, they told Nixon to resign. The times have moved on and the Republican Party is a fascist party hitching its wagon to strongmen and working the margins within the anti-democratic features of the Constitutional system. Nothing we do is going to be without risks in addressing that but doing nothing new is even riskier.
DeleteThat DOJ memo is exactly what the DOJ shouldn't have done: taken authority upon itself to decide what the law is. Rather, they should leave the question open and present their arguments for the prosecution of a POTUS, if and when necessary, to a court, and let the Courts decide what the law should be. That way the process is public, not buried in a memorandum the DOJ could change in a heartbeat (and should), and putting the burden for the decision on the people who should, instead, be enforcing the law.
DeleteCourts are authorized, in our system, to tell other authorities (states, federal prosecutors) what can, and cannot, be prosecuted. Deed restrictions on what "race" can own the property, for example, are, by Court ruling, unenforceable. The USAG can't make that determination for the State of Texas; but the Supreme Court can.
The DOJ should not decide a POTUS can't be prosecuted by any authority; they should make that argument in court. If the courts say Trump was not within the course and scope of his employment when he libeled Ms. Carroll, then the Court will also establish a publicly available set of reasons (i.e., a "test" as the lawyers often call it) for how we decide when statements/actions are outside course and scope of employment for a POTUS. That is as it should be.
I don't want the DOJ deciding that in private, and taking on an authority that is almost impossible to challenge, or review, in court.
Reaching back 30 years to law school (and having been counsel, third chair, on exactly one trial 25+ years ago), the rule of thumb was the judge decided the law and the jury decided the facts. The judge has to give an explanation of the law, whereas the jury typically gives little to no explanation of the facts, just a verdict. I absolutely agree that the DOJ shouldn't be deciding this in private. It's much better to have it decided in court and with an appeal to create controlling authority with a test to guide future application.
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