12:58, May 16 181 0 theguardian.com

2017-05-16 12:58:03
Many want to know Donald Trump's state of mind. So do the courts

Donald J Trump’s campaign of presidential sabotage accelerates with each passing day. Recent casualties include James Comey (lost his job), Rod Rosenstein (lost his credibility) and some top secret intelligence (lost to the Russians). Not to mention some pretty important principles, like the rule of law and respect for apolitical law enforcement.

You’ve probably asked yourself, “What is Trump thinking?” You’re not alone. Lawyers and judges, too, have started probing the basis for Trump’s latest acts of constitutional arson. While they have plenty of raw material, they face a major obstacle: to study Trump’s mind is to enter a strange new world where laws of grammar, logic, and meaning are always up for grabs and retroactively adjustable.

Moreover, on some vital issues, the very concept of “intent” may not really apply to Trump’s outbursts. As David Brooks notes, we appear to be dealing with a man “whose thoughts are often just six fireflies beeping randomly in a jar.”

Which raises an important question: in this topsy-turvy world, how do we deal with legal rules that consider state of mind?

This quandary presents itself in many contexts. Did firing Comey involve obstruction of justice – an offense that turns on a “corrupt” state of mind? Did Trump truly plan to withhold funds from sanctuary cities, creating an imminent threat that justified judicial action? Has he treated any foreign powers differently as a result of – or in exchange for – private financial benefits to the Trump Organization? When he leaked secrets to Russia, did he do so deliberately (and if so, why?).

On Monday, a panel of the Ninth Circuit Court of Appeals asked about Trump’s motive for yet another disputed policy: the revised entry ban (aka the “Muslim Ban”). Throughout this argument, the judges and advocates often referred back to Trump’s many anti-Muslim remarks, debating to consider them in a constitutional analysis (and if so, how).

As he did last week before the Fourth Circuit, Acting Solicitor General Jeffrey Wall argued that courts should not consider these statements at all. But even if Trump’s remarks could be examined, he insisted, “both respect for a coordinate branch and the presumption of regularity would require not reading them … in the light most hostile and least favorable to the President.” That is, any ambiguity must be viewed in Trump’s favor and against a finding of anti-Muslim animus.

In general, courts are loath to second guess the President’s motives. But these days, to presume regularity in the White House is to blink reality. Crisis and scandal are standard fare in Trumpland. So are open declarations of bad faith. Let’s be real: formal presumptions can only go so far in squeezing lemonade from Trump’s hit parade of hateful comments.

Interestingly, Neal Katyal – challenging the Muslim Ban – didn’t argue that Trump acted with an illegal purpose. (Full disclosure: I did make that argument in a brief I filed on behalf of 50 constitutional law scholars.) Instead, relying on a distinct line of precedent, Katyal argued that the ban is invalid because an objective observer reasonably acquainted with its context would think that it disparaged Islam. This approach, Katyal observed, avoided any need to psychoanalyze Trump.

Katyal’s presentation was powerful: “Our constitution and laws are better than this,” he declared. But it was striking that time and again, he dodged invitations to question Trump’s motive, instead advancing arguments about what an objective observer of Trump’s policy would think.

Probing subjective intent is always challenging, and probing the president’s intent is triply so. Presidents act on the basis of complex and often hidden motives. Moreover, they may act in consultation with many cabinet officers, state leaders, and legislators, and their acts may be supported or compelled by a diverse array of reasons. Accordingly, courts typically prefer to avoid the minefield of presidential intent, especially in security cases – and, one might expect, especially when dealing with a man whose “intent” is unstable and ephemeral, at best.

That may explain why Katyal stuck to his “objective observer” script. As some have warned, we face a creeping risk of “intent fatigue,” in which an endless flood of cases built around Trump’s state of mind sparks a judicial backlash. Federal courts have no interest in parsing every last @RealDonaldTrump tweet for signs of illegality. When push comes to shove, some may prefer to pull up the drawbridge entirely, rather than pursue an expedition into Trump’s motive for the latest doubtful executive order.

If that occurs, there are several potential responses. One is to rely on doctrines, like the Establishment Clause “objective observer” test, that evade any need to consider subjective intent. Another route is to invoke rules like the Foreign Emoluments Clause, which prophylactically bars a whole category of transactions to prevent any need for case-by-case analysis of corrupt intent. A third path is to present intent-based arguments to Congress and other actors, in hopes that they will intervene either publicly or behind the scenes.

But ultimately, questions about intent will remain unavoidable during the Trump presidency. He loves his Twitter account – and his lengthy, wacky interviews – far too much to cease arming his opponents. What’s more, Trump’s disregard for prosecutorial independence means he likely will continue to brush up against crimes – eg, obstruction of justice and treason – that include a mens rea (intent) element. Eventually, investigators are likely to take a close look at that conduct.

Most important, if courts bury their heads in the sand, the gap between lived reality and our constitutional law will grow intolerably vast. For the sake of their own legitimacy, federal courts cannot invent a parallel reality in which Trump is judged without reference to relevant statements broadcast on a global stage. Judicial decisions upholding or invalidating Trump’s acts will reverberate through American life without any such precious limitations. And those rulings will shape what we think the Constitution means in our own lives.

If the Muslim Ban is upheld, for instance, the vast majority of people in this Nation will understand – regardless of what the courts say – that Trump was finally able to follow through on his oft-repeated campaign promise to exclude Muslims from America. They will understand that this promise was part of his larger assault on the dignity of Muslims and the validity of their faith. And they will comprehend that the Constitution, as interpreted by federal courts, allowed that terrible injustice.

At Monday’s argument, Judge Richard Paez asked, “There is no case like this, is there?” Not yet, perhaps. But there will be more. Federal courts cannot wish them away. Instead, their duty is to vindicate the Constitution, even when that means asking tough questions about Trump’s true motives.