It’s Not Nice to Lie to the Supreme Court

The decision in the census case suggests President Trump can no longer take the court for granted.

A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.

President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.

I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.

It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.

Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.

The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.

But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.

I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.

To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”

Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.

“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:

“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.

There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.

There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.

It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.

Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”

That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?

As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.

So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.

A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.

Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.

The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.

Jeff Bezos stands his ground

Much remains mysterious about the Enquirer’s actions, and in particular its connections, if any, with President Trump and the government of Saudi Arabia — a possibility that Bezos alluded to in his blog post. Both the Saudis and Trump are aggrieved at The Post, and Trump wrongly blames Bezos for the newspaper’s accurate but unflattering coverage of him. When the Enquirer’s initial article about Bezos’s extramarital relationship was published, the president gloated in a tweet: “So sorry to hear the news about Jeff Bozo being taken down by a competitor whose reporting, I understand, is far more accurate than the reporting in his lobbyist newspaper, the Amazon Washington Post. Hopefully the paper will soon be placed in better & more responsible hands!”

The president would obviously love to see a sale of The Post to a friendlier owner — perhaps Trump pal David Pecker, the chairman and chief executive of AMI. (One is reminded of autocrats such as Hungary’s Viktor Orban, Russia’s Vladimir Putin, and Turkey’s Recep Tayyip Erdogan, who have benefited from bullying media organizations into submission in their own countries.) The Enquirer was threatening Bezos in order to get him to affirm that its coverage was not “politically motivated or influenced by political forces.” Might the Enquirer have, at a minimum, pursued the story to curry favor with Trump?

.. This is apparently not the first time the publication has been accused of extortionate demands. Other journalists, including Ronan Farrow of the New Yorker, have said they were threatened by the Enquirer’s lawyers while investigating the tabloid’s relationship with Trump. And Bezos wrote that “numerous people have contacted our investigation team about their similar experiences with AMI.” These machinations are now being exposed because of Bezos’s smart and courageous decision to confront the Enquirer rather than give in. “I prefer to stand up, roll this log over, and see what crawls out,

.. I suspect David Pecker will rue the day that his friend Donald Trump became president — if he does not already. And he is not alone.

  • Paul Manafort had a flourishing business as an international influence-peddler before he became Trump’s campaign chairman. He now faces a long stretch in prison after having been convicted of felony financial charges. Trump’s friend
  • Roger Stone has now been indicted for the first time after a long career as a political dirty trickster.
  • Michael Flynn, Trump’s first national security adviser, has gone from well-respected general to felon.
  • Michael Cohen had a cushy career as Trump’s personal lawyer before his client became president. Now Cohen, too, is a felon. Numerous other Trump associates and family members are facing, at a minimum, hefty legal bills and, at worst, serious legal exposure.

Every organization Trump has been associated with — the Trump Organization, the Trump Foundation, the Trump campaign, the Trump administration — is being investigated by prosecutors and lawmakers. His name, long his biggest asset, has become so toxic that bookings are down at his hotels. And Trump, a.k.a. Individual 1, faces a serious threat of prosecution once he leaves office. Before it is all over, Trump himself may regret the day he became president. His unexpected and undeserved ascent is delivering long overdue accountability for him and his sleazy associates. We have gone from logrolling to having logs rolled over — and it’s about time.

Saudi crown prince exchanged messages with aide alleged to have overseen Khashoggi killing

In the hours before and after journalist Jamal Khashoggi was killed inside the Saudi Consulate in Istanbul, Saudi Crown Prince Mohammed bin Salman and a senior aide who allegedly oversaw the assassination exchanged multiple messages, according to people familiar with the matter.

.. The CIA included the existence of the messages in its classified assessment that Mohammed is likely to have ordered Khashoggi’s death, a view that agency officials have shared with members of Congress and the White House.

.. Mohammed exchanged the messages on Oct. 2 with Saud al-Qahtani, one of his closest aides and a fierce public supporter who has kept a blacklist of those he deems disloyal to the kingdom.

.. Citing portions of the CIA’s written assessment, the Wall Street Journal first reported on Saturday that Mohammed had sent at least 11 messages to Qahtani before and after the killing.

.. The CIA has rated its assessment that Mohammed was involved in the killing at “medium-to-high confidence,” and privately, officials have said it is inconceivable that the prince, who exercises total authority over the government, could not have known about such an audacious operation. The Post had previously described officials as saying that the CIA had high confidence in its assessment.

.. “The accepted position is that there is no way this happened without him being aware or involved,” said a U.S. official familiar with the CIA’s conclusions. The CIA has declined to comment, and people familiar with the intelligence said the agency has not found any single piece of evidence that irrefutably links Mohammed directly to the killing.
.. “I have read every piece of intelligence that is in the possession of the United States government,” Secretary of State Mike Pompeo said in an interview with CNN on Saturday, “and when it is done, when you complete that analysis, there’s no direct evidence linking him to the murder of Jamal Khashoggi.”
.. “They are a relationship that has mattered for 70 years across Republican and Democrat administrations alike,” said Pompeo, who previously served as the CIA director. “It remains an important relationship, and we’re aiming to keep that relationship with the Kingdom of Saudi Arabia.”
.. Secretary of Defense Jim Mattis said the question of holding the killers responsible and the strategic importance of the U.S.-Saudi relationship were separate issues. 

“Accountability for the murder of Khashoggi stands alone. It is distinct from any other factor going on,” Mattis said in remarks at the Reagan National Defense Forum in California.

.. Qahtani has emerged as a key player in the killing and a compelling link to the prince. He shows up in another portion of the CIA’s assessment: An alleged member of the Saudi hit team that U.S. and Turkish officials said Qahtani oversaw, Maher Mutreb, called Qahtani from inside the consulate to inform him Khashoggi was dead, The Post has previously reported. Mutreb, a security official who was often at the crown prince’s side, is seen on security camera footage entering and leaving the consulate on the day Khashoggi was killed.

.. The U.S. intelligence community also has intercepts of communications before Khashoggi was killed that show Mohammed had ordered an operation to lure him back to Saudi Arabia. Friends of Khashoggi’s have said that Qahtani called the journalist and raised the potential of his working for the crown prince if he would end his self-imposed exile in Virginia and return to his native country.

.. Communications that the United States intercepted in July show that Mohammed had asked senior Saudi intelligence officials about the status of a plan to lure Khashoggi back to Saudi Arabia, according to one intelligence official.

.. President Trump, who also has been briefed on the CIA’s findings, has been equivocal in assigning blame to the crown prince, who works closely with the president’s son-in-law and senior adviser Jared Kushner on Middle East issues.

“Maybe he did or maybe he didn’t!” Trump said in a statement last month, adding that the true culprits might never be known. The president has said that the strategic relationship with Saudi Arabia and the benefit to the U.S. economy from Saudi arms purchases are too important to rupture over the killing of Khashoggi, which he has condemned.

.. But the latest revelation of intelligence connecting Mohammed and his aide Qahtani to the killing may increase pressure on the administration to take more punitive steps.

.. Last week, in a rebuke of Saudi Arabia and the administration’s handling of the Khashoggi case, a majority of the Senate voted to advance a measure to end U.S. military support to Saudi Arabia for its war in Yemen against Iranian-backed militants.

This is the new GOP: Angry and afraid

One of the unpleasant surprises of your 50s (among many) is seeing the heroes and mentors of your 20s pass away. I worked for Chuck Colson, of Watergate fame, who became, through his work with prisoners, one of the most important social reformers of the 20th century. I worked for Jack Kemp, who inspired generations of conservatives with his passion for inclusion. I worked against John McCain in the 2000 Republican primaries but came to admire his truculent commitment to principle.

Perhaps it is natural to attribute heroism to past generations and to find a sad smallness in your own. But we are seeing the largest test of political character in my lifetime. And where are the Republican leaders large enough to show the way?

President Trump’s recent remarks to evangelical Christians at the White House capture where Republican politics is heading. “This November 6 election,” Trump said, “is very much a referendum on not only me, it’s a referendum on your religion.” A direct, unadorned appeal to tribal hostilities. Fighting for Trump, the president argued, is the only way to defend the Christian faith. None of these men and women of God, apparently, gagged on their hors d’oeuvres.

.. “It’s not a question of like or dislike, it’s a question that [Democrats] will overturn everything that we’ve done, and they will do it quickly and violently. And violently. There is violence.” Here Trump is preparing his audience for the possibility of bloodshed by predicting it from the other side. Christians, evidently, need to start taking “Onward, Christian Soldiers” more literally.

.. This is now what passes for GOP discourse — the cultivation of anger, fear, grievances, prejudices and hatreds.

.. “the true populist loses patience with the rules of the democratic game.” He comes to view himself as the embodied voice of the people, and opponents as (in Trump’s words) “un-American” and “treasonous.”

.. As Robert S. Mueller III continues his inexorable investigation of Trump’s sleazy business and political world — and if Democrats gain the House and begin aggressive oversight — a cornered president may test the limits of executive power in the attempt to avoid justice. If the GOP narrowly retains control of the House, Trump and others will take it as the vindication of his whole approach to politics. The president will doubtlessly go further in targeting his enemies for investigation and other harm. He will doubtlessly attack the independence of the FBI and attempt to make it an instrument of his will. He will doubtlessly continue his vendetta against responsible journalism and increase his pressure on media companies that don’t please him. On a broad front, Trump’s lunacy will become operational.

.. But at length he was asked to retreat from that final area where he located his self. And there this supple, humorous, unassuming and sophisticated person set like metal, was overtaken by an absolutely primitive rigor, and could no more be budged than a cliff.”

Republican leaders may dread it, but they will eventually be forced to identify that final area where they keep themselves — or find there is no one there.