Three Big Constitutional Lessons of 2017 That Are Not Fully Appreciated

The year that is winding down brought many legal twists and turns at the highest levels of the federal government, and 2018 promises to be just as legally interesting and important. It is thus helpful to reflect a bit on the past year, and what it taught—or should have taught—all of us about some important constitutional principles.

LESSON #1: Improper Motive is the Key to Attacking Many Government Actions, But it is a Hard Ground on Which to Succeed

Two of the highest-profile and highest-stakes legal disputes this year were: (1) the legality of each of President Trump’s executive orders regulating entry into the United States from various countries; and (2) the extent to which President Trump committed penal crimes (such as obstruction of justice) or engaged in impeachable misconduct by his actions concerning the Department of Justice’s investigation into Russian meddling in the 2016 election and related matters.

At first glance, these two disputes—while both undeniably important—seem quite legally distinct. And in many ways they are. But they are linked in an important analytic way; the key to whether the president’s actions were unlawful is not what he did, but why he did it.

Take President Trump’s original and revised executive orders concerning entry into the United States by nationals of several Middle Eastern and African countries. Many people pejoratively describe the executive orders as “Muslim bans”—even though there is no mention of Muslim peoples in the orders themselves—because these critics credit rhetoric leading up to and following the issuance of the executive orders that may tend to suggest anti-Muslim sentiment has been on the president’s mind as he has crafted these entry limitations. To the extent that the executive orders are facially neutral, they are very likely to be found to be within a president’s permissible authority (imagine how they would have been evaluated had President Obama issued them), except to the extent that courts go behind the facial neutrality and find an invidious religiously discriminatory motive.

Now consider President Trump’s actions with regard to the Russia-election-meddling investigation. How do the allegations against President Trump—e.g., that he asked then-FBI Director James Comey to end the Michael Flynn/Russia investigation and then fired Comey for not complying—measure up to the standards for criminal obstruction of justice or the Constitution’s “high crimes and misdemeanor” bar for impeachment?  As to both questions, I think a great deal depends on what the president’s motives were and (in the case of impeachment) how those motives are understood by the American public.

For starters, understand that the president has the authority under the Constitution—assuming his motive is otherwise permissible—to start, direct, accelerate, dial down and terminate all federal criminal investigations. Just as he is the prosecutor-in-chief, the declassifier-in-chief and the pardoner-in-chief, so too he is the investigator-in-chief (more on all that in lesson #3). Although it might be wise to keep his hands off certain matters —and failure to do so can make a president unfit in the eyes of the American public—it is not per se wrong, criminally or constitutionally speaking, for a president to direct an FBI head to end an investigation.

For example, if the investigation into Hillary Clinton’s careless email practices were ongoing when President Trump took office, would anyone think that President Trump would have committed a crime or high misdeed by directing Mr. Comey to end such investigation, so that the country could move on and begin to heal its divisions? I think not. So there is no absolute ban on presidential involvement in federal investigations as a general matter.

On the other hand, the president’s lawyers are wrong when they intimate that a president discharging constitutional powers given to him can never be held to have criminally obstructed justice in doing so. Imagine a president who confers a pardon—unquestionably one of the president’s core powers under Article II of the Constitution—but does so only because he is paid millions of dollars on the side. Such “bribery” would be impeachable conduct for sure, and I would argue could also violate criminal statutes, perhaps including obstruction of justice, seeking to ensure good government.

What is key, then, in the Trump-Comey interaction, is why President Trump might have asked Mr. Comey to ease up on Mr. Flynn. If the president’s primary motivation was his belief that Mr. Flynn was innocent and that consumption of additional resources would be wasteful, that is one thing. If it was President Trump’s sense that Mr. Flynn, while perhaps guilty, had suffered enough, that is another. If it was based on the personal friendship President Trump had with Mr. Flynn, that is more worrisome still. And if it was because of President Trump’s concern that continued investigation might suggest criminal or other wrongdoing by the president himself or his relatives, that is yet another. How inappropriate it was for President Trump to get involved in the investigation (assuming he did get involved) depends in large part on the reason he was getting involved.

Notwithstanding the importance of motive analysis, consideration of evidence of impermissible subjective motive has been a confused area of constitutional law. Courts have often expressed—as the Supreme Court did in United States v. O’Brien, the case involving a famously unsuccessful free-speech challenge to a federal law prohibiting destruction of draft cards—a reluctance to use extrinsic proof of invidious motive to strike down laws that would otherwise pass constitutional muster. Courts have offered a variety of reasons for their wariness to look into motive. One is that courts would be in the position of accusing co-equal branches of pretext and dishonesty (or at the very least unawareness of their own true motivation), and that can create friction between the branches. (Think of how courts have reacted to President Trump’s allegations of judicial dishonesty.) Another is the idea that a president or legislature whose action is struck down because of a bad motive can simply reenact the policy for a good motive, in which case courts will have to uphold the new enactment, raising the question why it was worth the hassle to invalidate the action in the first place.

In spite of these and other concerns, however, courts have been willing to accept direct proof of impermissible motive in certain doctrinal areas. Perhaps the most prominent is the equal protection norm of the Fourteenth and Fifth Amendments. A second (and perhaps similarly equality-driven) area of jurisprudence where the Court has made use of subjective evidence of improper motive is the Establishment Clause of the First Amendment. The evidentiary threshold a challenger must satisfy in both these settings is high, but at least the courts are open to the evidence if a strong case is made. There is much less judicial discussion of how aggressive courts should be in evaluating a president’s motives in the foreign affairs or internal criminal enforcement settings, but the evidentiary bar on the challenger’s part is likely to be at least as high if not higher.

LESSON #2: The Supreme Court Seems Likely to Have a Different Attitude on Some of These Things Than the Lower Courts

This brings me to the second—largely unnoticed—lesson from 2017, concerning the different stance the Supreme Court seems likely to adopt on some of these matters, compared to lower federal courts. Let us return to the executive orders relating to border entry. Several district courts, and some United States Courts of Appeals, were quick and almost uniform in their invalidation of President Trump’s actions in this area. Not only have lower courts as a whole been relatively willing to infer invidious intent and strike down the executive orders, the lower courts have also been quite energetic in their approach to procedural limitations—for example, breaking new ground in affording states “standing” to sue on behalf of would-be immigrants, and entering nationwide injunctive bans on enforcement even though the plaintiffs before them were limited to a specific locale.

Yet the few tea leaves we have are probably best interpreted to indicate the Supreme Court will have a very different take on these matters. The Court’s decision earlier this month—by a 7-2 vote, with only Justices Ginsburg and Sotomayor dissenting—to let the entirety of the most recent iteration of the so-called travel ban to go into effect pending further judicial review (even though lower courts in two separate challenges had blocked it in part) is a strong indication that, on the merits, the majority of justices will be considerably more deferential to presidential power in this realm than have been the vast majority of lower court judges who have been evaluating these disputes. And this action by the Court occurred even though, in the midst of the Court’s consideration of the matter, the president bolstered the case for finding problematic intent by, as one media source put it, “retweeting three inflammatory videos from a British far-right account rife with anti-Muslim content.”

To be sure, this one decision by the Court should not be overread, and there are many pending disputes that may make their way to the Court in which the administration may very well lose in whole or in part. But this recent decision by the Court reinforces what some sophisticated constitutional analysts have been saying for months about the Court being relatively disinclined to use extrinsic social media evidence to interpret and invalidate otherwise permissible executive actions. It may also signal a more general deference to the new administration, at least for some period of time, on several other upcoming matters, suggesting that the expectations of many detractors of the Trump administration—expectations that were bolstered by early lower court decisions — about how the federal judiciary was likely to be a major brake on the president’s power may not have been warranted.

LESSON #3: Norms (Even Some Very Important and Venerable Norms) that People Assume are Enshrined in the Constitution are Not

As I noted earlier, many people have been shocked—and troubled—by the president’s willingness to insert himself into the affairs of the Department of Justice and the Federal Bureau of Investigation of which it is a part. And there is no denying that the president is taking a very different approach to the relationship between the White House and the DOJ than most of his recent Oval Office predecessors.

But, importantly, the “independence” of the DOJ that many have come to take for granted is not built into the Constitution. Just the opposite.

One of the frustrating things about discussions of FBI Director Comey and others over the past year or so is that these discussions have tended to obscure who—as a legal, constitutional matter—has decision-making authority over federal prosecution. The power to prosecute or not does not rest with the FBI, or the “career prosecutors” in the DOJ or even the attorney general of the United States. It rests with the president and the president only. He is the one in whom Article II of the Constitution vests “the executive authority” (of which criminal prosecution is a key component). He is the one the Constitution charges to “take care that the laws be faithfully executed.” And he is the one who can render moot any pending or future federal prosecutions (even prior to indictment) by pardoning individuals.

Since the summer of 2016, it would have been easy to lose sight of these constitutional facts, given how people in the media, some members of Congress and others talked about how Comey, the FBI, other people in DOJ, and the attorney general had discretion to operate. These folks had decisions to make, to be sure, but those decisions ultimately were decisions about what suggestions to make within the executive branch, whose ultimate arbiter is the president himself.

Of course presidents often do, for political and efficiency reasons, like to distance themselves from many prosecutorial decisions, and they may even send the public message that they are going to defer to the recommendations of underlings. But these traditions—which have a great deal of virtue to them in many cases—exist in the realm of the political and the prudential, not the legal or the constitutional. According the supreme law of the land, the decision whether to proceed criminally—and the decision whether and when to defer to underlings at all—is one the Constitution commits to the president.

If this seems non-intuitive to many folks, I should add that much of it is corroborated by recent Supreme Court decisions (such as Edmond v. United States and Free Enterprise Fund v. Public Company Accounting Oversight Board) that lean in the direction of the so-called “unitary executive” theory, under which all actors who exercise core executive powers within the federal executive branch must be controllable by the president himself. To be sure, such recent cases send signals different from those coming from Morrison v. Olson, the case a generation ago which upheld, against a separation-of-powers challenge, the so-called independent counsel position created by Congress in the Ethics in Government Act of 1978. The reality is that Morrison may not command five votes at the Court today.

Another important norm that many people may have assumed was constitutionally dictated (but is not) concerns operations in Congress, as opposed to the judicial and executive branches. Inadequate attention has been paid to the streamlined process by which major pieces of legislation—repeal of all or parts of Obamacare, major tax law changes, etc.—are being crafted, proposed and voted upon. So too the process of judicial nominee vetting has changed, especially concerning the use to which American Bar Association evaluations of qualifications are being put. But whether we are talking about relaxing filibuster rules generally or in specific areas, forgoing meaningful hearings on complicated policy questions, eliminating “blue-slip” practices that slow down judicial confirmations or more generally eliminating what Senator John McCain has called “regular order,” it is important to remember that these legislative practices and procedures—some of which do deserve to be reconsidered or eliminated—all exist at the will of the majority in Congress; none of them is enshrined in the Constitution, which says only “Each House [the House of Representatives and the Senate] may determine the Rules of Its Proceedings.” That’s very important to remember heading into a congressional election year such as 2018.