We take it for granted that President Trump says demonstrably false things on any number of topics. That is itself alarming.
But gross factual mischaracterizations have started to trickle down to the lawyers who serve at the president’s pleasure: At oral argument in the Supreme Court, for example, the solicitor general declared that the president had made it crystal clear that he would never follow through on his campaign promise to ban Muslims. In fact, the president never said any such thing.
.. In the case, Ms. L v. Immigration and Customs Enforcement, the president has made the up-is-down claim that a Democratic law — the Trafficking Victims Protection Reauthorization Act, in conjunction with the Homeland Security Act and statutes criminalizing illegal entry — requires him to separate families to protect the children.
.. The administration’s legal mumbo-jumbo attempts to use laws that are meant to protect vulnerable children as a screen to terrorize them and to deter immigrants from coming to the United States border.
.. The laws that Mr. Trump’s Justice Department cites — which apply to unaccompanied children, not children with parents — require no such thing.
.. Instead, the Homeland Security law, a statute governing the Office of Refugee Resettlement, gives custody of unaccompanied minors to that department, and very clearly not to the Department of Homeland Security, to address the challenges that children without parents face in the immigration system.
.. The statute that addresses child trafficking — part of the Trafficking Victims law — is designed to reduce the risk that children who are alone will fall victim to human trafficking. The administration is arguing that the laws do the opposite — that they make children more vulnerable to human trafficking and place children at greater risk in the immigration system — and so require the D.H.S. to separate families that would otherwise be together.
.. This is a specious use of law: It inverts the laws governing child immigration and uses them to exacerbate the very evil the law was designed to address.
.. Mr. Trump’s Justice Department is thus lying about what the tax bill did, and about Congress’s intent in passing it. And the department, like the president himself, is doing so as part of a transparent effort to rid the country of a law that Mr. Trump and his Republican caucus do not like but could not repeal through normal channels.
.. Lawyers, including at the Department of Justice, sometimes make aggressive arguments. But there is a difference between aggressive and preposterous, and between truths and untruths. The rule of law depends on these distinctions — to hold governments officials to the law, we need to be able to acknowledge what the law says.
.. The administration is simultaneously insisting that it must enforce a law that does not exist, but is refusing to defend a law that actually does exist, and jeopardizing the law in the process.
.. More likely, the administration will not persuade the current Supreme Court with these arguments. But it may be playing a long game that shifts expectations about legal arguments, and what falls within the bounds of reasonable — to make the law seem as manipulable, and therefore as easy to write off, as the facts.
This is a test for the courts. The executive and legislative branches have in too many ways capitulated to the president’s post-factual world. Will the legal system allow a post-legal one as well?
Meanwhile, Trump is back to publicly berating Attorney General Jeff Sessions, who responded with a pointed statement — and then went out to dinner with Deputy Attorney General Rod J. Rosenstein in a very public sign of solidarity.
Noel Francisco, the solicitor general, was there too. You may recall that Francisco is in line for the No. 3 spot at the Department of Justice after the departure of Rachel Brand.
.. anyone who is surprised by the utter chaos, the ethical sleaze, the policy incoherence and the nepotism/cronyism was not paying attention during Trump’s career in real estate or during his campaign. This is how Trump ran his family operation, stumbling through one failed venture after another.
.. This is how Trump wound up declaring bankruptcy multiple times. No one — not Kelly, Ivanka, Jared, the GOP Congress or even Hicks — can keep him on task.
.. Trump will either be compelled to leave office or will continue to spin out of control. Aides tell the press this is a new level of chaos. Don’t worry — it’ll get worse.
Francisco had originally been named as the No. 2 in the solicitor general’s office, which represents the federal government in appellate courts. He might be best known as the lawyer who represented former Virginia governor Robert F. McDonnell last year when the Supreme Court unanimously overturned McDonnell’s conviction on corruption charges.
.. The solicitor general is considered to be one of the nation’s best legal jobs, and the occupant is often referred to as the “10th justice.
.. Jeffrey B. Wall, a veteran of the office who now works for the firm Sullivan & Cromwell, will assume Francisco’s role as principal deputy.
.. representatives of the Trump transition approached U.S. Circuit Court Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — an influential judicial voice on the right — to see whether he would be interested in the job.
.. For a time, there appeared to be two front-runners. One was George T. Conway III, a New York lawyer who received high marks from those in the Supreme Court bar and who is also married to Trump adviser Kellyanne Conway.
.. The other was Charles Cooper, a Washington legal fixture and confidant of Attorney General Jeff Sessions.
.. Cooper pulled out of consideration, and the Trump administration expanded its search.
.. he has had to recuse himself from some of the most important cases, such as the legal battle over Trump’s first travel ban executive order, because his law firm Jones Day represented parties in the dispute.
.. Francisco is a former clerk to Justice Antonin Scalia
.. Francisco was part of the team that represented President George W. Bush in the 2000 Florida presidential election recount.
.. He was raised in Oswego, N.Y., and both his undergraduate and law degrees are from the University of Chicago... he represented religiously affiliated organizations that said providing contraception services for their female employees would implicate them in sin.
Brand, 44, who has only been in her Senate-confirmed position for nine months, would have been in line to take over the supervision of special counsel Robert S. Mueller III’s Russia investigation if Deputy Attorney General Rod J. Rosenstein, the department’s No. 2 official, was fired by Trump or recused himself from the matter.
.. Brand is leaving the Justice Department for a top legal job at Walmart
.. When Trump was asked by a reporter whether he was then more likely to fire Rosenstein and whether he had confidence in him, Trump replied, “You figure that one out.”
.. With Brand’s departure, Solicitor General Noel Francisco is next in line at the Justice Department to oversee the Russia investigation after Rosenstein.
.. The news that Brand is leaving came as a surprise to many people who know her. The Federalist Society just announced Friday that Brand is scheduled to speak next week at a Washington chapter lunch... Brand has one of the department’s more politically challenging jobs, managing the lawyers who litigate civil issues, including Trump’s travel ban as well as civil rights, environmental and antitrust cases.