Jurisprudence

No Time to Pretend

The courts and the press are putting themselves at risk by treating Donald Trump like a normal president.

From left, Anthony Kennedy, Donald Trump, and Michelle Wolf
Photo illustration by Slate. Photos by Saul Loeb/AFP/Getty Images, Olivier Douliery-Pool/Getty Images, and Tasos Katopodis/Getty Images.

It’s not easy to draw a straight line between oral arguments at the Supreme Court and the White House correspondents’ dinner, but I’m going to give it a try. It’s not just that both are highly selective, members-only gatherings. The two events are also closely linked by the fact that they rely on public showcasing of institutional norms for their continued survival. Taken together, they reflect the no-win conundrum faced by those who embrace norms at the expense of reality in an era in which institutions are all we have left to save us.

It’s hardly radical to posit that in the year and a half since Donald Trump took office, the press and the courts have been the strongest checks against his campaign of distorting reality and attacking the credibility of fact-based institutions. With the Republicans who control Congress unable and/or unwilling to raise their seat backs enough to do anything of substance, political journalists and judges have, in a deft one-two move, uncovered secrets and lies and halted the worst offenders and offenses in their tracks.

But that binary model is too simplistic, and it elides the problem that both journalism and the law face when they rely on their own immutable norms to protect themselves. Over the weekend, we saw what happens when the norms of “civil discourse” among journalists collapsed in the face of Michelle Wolf’s comedic takedown. And at the Supreme Court, during last week’s oral arguments in the travel ban case, Trump v. Hawaii, we were transported to a bizarre world in which this president was discussed as if he were a normal head of state.

Start first with the fact that Trump has been assailing both the media and the courts since before he took office, going after the press as “the enemy of the American people” and trashing “so-called judges.” Consider that both the press and the courts have struggled ever since with their professional responsibilities: Do we pretend everything is unfolding just as we would in a Mitt Romney administration, or do we set ourselves up as the resistance, in a move that will discredit the institutions themselves? We’ve muddled through that conundrum with varying degrees of success by toggling between calling out that which is legitimately dangerous while also striving to preserve the norms of dignity and civility and sanity that our institutions depend upon.

All year, as the travel ban has worked its way through the federal courts, we’ve watched the Trump administration insist that this president deserves “the presumption of regularity.” As law professors Sandy Levinson and Mark Graber argued this past winter, it’s not just the courts being called upon to treat Donald Trump like he is a regular president. The Defense Department has taken the same posture, warning Congress that Trump must have the same power to launch a nuclear war as any other president because, per an Obama-era DoD official, “if we were to change the decision-making process because of a distrust of this president that would be an unfortunate decision for the next president.”

As Graber and Levinson point out, academic discussions on the contours of executive power meant one thing before 2016 and another thing now, precisely because, as they put it, no legal scholar opining on executive power “considered the possibility that a bigoted, uninformed, serial liar would assume the powers of the oval office.” The question they put forward is whether constitutional decision-makers, when interpreting Article II, “ought to take into account that Americans have elected a chief executive manifestly unfit to exercise the longstanding powers of the presidency?” The two scholars, after laying out the case, conclude that “the constitutional clause ‘the President shall be Commander-in-Chief’ should be interpreted in light of the assumption that the president is a mature adult whom one would, at the bare minimum, feel comfortable hiring to watch over one’s own children.”

In the absence of such a commander-in-chief, they say, judges are sometimes forced to “improvise” when constitutional systems break down. As they explain, in the context of the travel ban litigation:

Donald Trump, on the campaign trail declared he would prevent Muslims from immigrating to the United States. His first travel ban looked suspiciously like a Muslim ban. President Trump declared the executive order a travel ban. Lower courts were therefore correct in taking the President at his word rather than taking seriously the novel arguments administrative lawyers made in court when defending the constitutionality of the travel ban.

They have no problem with the fact that appellate court judges took Trump’s tweets and campaign statements into account when reaching the conclusion that the second executive order’s “stated national security interest was provided in bad faith, as a pretext for its religious purpose.” Citing Brown v. Board, Levinson and Graber conclude that “constitutional decision makers have no more reason to assume that Donald Trump’s executive orders are based on rational policy judgments than the Warren Court had to believe that segregated schools were grounded in reasonable pedagogy.”

To be sure, Levinson and Graber have their critics, and the academic debate is well worth review. But my concern about their call to reject this presumption of regularity around Trump isn’t a normative one so much as a descriptive one. They are asking judges to recognize that the president just isn’t normal—that he lies and has others lie on his behalf and that his contempt for regular order precludes them from assuming that he’s acting in good faith. It is the formal, marble-coated echo of the arguments advanced about the White House correspondents’ dinner: Why should members of an institution the president wants to destroy treat him with dignity and decorum? Why assume this is a Rich Little kind of year when it plainly is not?

While those seem like reasonable enough questions to ask of both our journalists and our jurists, if you listened to the oral arguments on the travel ban case last week, it was clear the presumption of regularity is in the ascendancy. As my colleague Mark Stern pointed out, the majority of the court viewed those arguments as a regular day at the office, even if such a view required blinkering themselves both to human suffering and twitchy lawyering. By the time it received its third cleansing rinse, Solicitor General Noel Francisco’s soothing talk of “interagency review” and the transformational nature of the oath of office fell on some grateful and relieved judicial ears. This, despite the fact that Francisco may have given misinformation to the justices in more than one way. Also consider that in one of the key exchanges of the morning, Justice Elena Kagan hypothesized an imaginary, hypothetical, “out of the box” anti-Semitic president. To that, Francisco responded, apparently perfectly seriously, “We don’t have those, your honor.”

Assume for a moment that court-watchers are correct and the majority of justices are suffering from travel ban fatigue. Maybe the airport protests were remarkable and the racist claims of 2017 were irksome, but as time passes it’s ever easier to impute normality to the whole executive branch and move on. Why would that happen? My simple guess is that the court has just endured two consecutive terms of fragility and public debate, months upon months in which the justices have been kicked around like a soft football. They’re certainly more aware than ever that the institution’s sole public asset is its public legitimacy. With neither a purse nor a sword to protect it, even ambivalent justices might go with selective blindness and a poker face. And given that any judge who has ruled against Donald Trump has been decried as part of the faceless, unprincipled “judicial resistance,” it must be overwhelmingly tempting to pretend that Trump is getting better and better at being a semi-normal president.

But Trump isn’t getting better. His administration is rampant with corruption and self-dealing and scandals. The press and the courts should be mobilized to notice this. Yet Trump spent the weekend in Michigan destabilizing his own Justice Department and calling out immigration statutes as corrupt. He attacked the news media as “fake and dishonest.” And at the Washington Hilton, the comedian presumably conscripted to address the fact that nothing about any of that was normal was taken to task for doing so, publicly disavowed by an organization of journalists for violating a professional norm of civility and the tone of carefree bonhomie.

As Masha Gessen correctly notes, the White House correspondents’ dinner depends upon a set of “fictions about civility and performance. There is a fiction that holds that journalists and their subjects can eat and socialize together and yet maintain the distance necessary to continue performing their professional roles.” Gessen’s description of journalistic fictions just as easily fits the Supreme Court in the travel ban case:

The same fiction continues to dominate our public sphere. In this story, Trump performs the role of President, albeit poorly, and those in the media maintain a strained civility in their coverage of him. In this story, the statement that the President is a racist is still controversial. In this story, the media can discuss his affair with a porn star, and even the question of whether he used a condom, without undermining respect for the office. This is an essential pretense, because respect for the office of the President is indeed a value that should transcend the current Presidency.

What Gessen is describing here is the journalistic equivalent of the solicitor general’s claims about the “presumption of regularity.” The press doesn’t just need the norms of civility and truth. For its own self-preservation, it’s also required to pretend every day that a president who has no corresponding regard for norms and truth actually does. It’s not just about preserving access and couture gowns. The press is far more fragile than we care to believe. And if anything, the courts are even more fragile. If the arguments in Trump v. Hawaii revealed anything at all, it’s that, to preserve its legitimacy, the judicial branch also requires imbibing and performing the polite little fiction that this presidency is basically normal. To do anything less—to cite to tweets, to call blatant religious animus what it is—is to jeopardize the presumption of regularity that attaches not just to the executive branch but to the court itself.

Institutions that are under constant assault depend on both their own fictions of regularity and those relating to other institutions. For the courts to function creditably, the other institutions must be normal, too. The alternative is cross-institutional nihilism, which may explain why Justice Anthony Kennedy, often the justice most susceptible to inveighing against the erosion of civility and truth and the rule of law, seems almost willfully blinkered to the ways this president poisons all of them. For the court to be dignified, the president must be presidential, even if that president is Donald Trump.

Last week, we witnessed two institutions charged with protecting constitutional democracy cave in to protect themselves. These behaviors, intended as acts of institutional self-protection, are in reality moments of self-immolation. Each is an attack on truth and truth-seeking, rooted in the hope that the institutions themselves will survive. But institutions that must pretend that Donald Trump is a competent, functioning president to preserve their own legitimacy are at risk of becoming exactly the kinds of compromised entities he wants them to be.

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