Dahlia Lithwick (3:07)

Well, that was gonna be my next question. I mean, you've written several pieces this week trying to figure out if he was, I think you just called him a secret hack, you know, somebody who has been waiting to do the President's bidding and start firing people, or if he was just basically a diligent career attorney who got rolled.

Leon Nayfak (3:26)

Yeah. So the way in which he got rolled is that he was asked on Monday by Donald Trump to basically put his thoughts on FBI Director James Comey in writing. Rosenstein and Trump had a meeting at the Oval Office with Jeff Sessions in which they discussed Comey. And we don't really know exactly what was said in that conversation, but the takeaway for Rosenstein was that he was to write a memo, which he did, and submitted to Jeff Sessions about basically what he thought Comey had done wrong in his handling of the Clinton email investigation.

Dahlia Lithwick (3:59)

This is from the summer, right? We're talking May, June, correct?

Leon Nayfak (4:02)

Yeah, from months ago. And Rosenstein wrote a diligent memo in which he kind of went through various decisions that Comey had made, such as going on TV and publicly describing his thoughts on Clinton's conduct. And then, I guess, as Rosenstein saw it, unilaterally declining to pursue charges. You know, strictly speaking, he had recommended to the Attorney General not to pursue charges, which the Attorney General then took. But Rosenstein felt like he had overstepped his role. He also objected to the letter that Comey sent to Congress in October, days before the election, informing them that the Clinton email investigation was being reopened. And this memo was then submitted to Sessions, who then submitted it to Trump. And on Tuesday, both the memo and Sessions sort of brief letter about the memo to Trump were published within moments, basically, of the news breaking that Comey had been fired. So the memo was trotted out essentially as like, here are the reasons why this guy had to go. And all manner of White House officials, including the Vice President, went in front of reporters and said, this guy, this guy Rosenstein, great reputation, man of integrity, as you all know, he said, we have to do this. And so Mr. President took his recommendation. The question, you know, in the hours and days that followed was, did Rosenstein know that this memo would be used as the pretext for firing Comey and the sole basis?

Dahlia Lithwick (5:29)

Right. Not just the pretext, but this is the whole shebang right here in this very, very brief memo that doesn't end by saying, p. S, I think you should fire him.

Leon Nayfak (5:39)

Yes. Interestingly, the memo does not say, I think you should fire him. It says, like, we need an FBI director who understands that these were mistakes and pledges to never make such mistakes again. Whether he stopped short because he just didn't realize they were really talking about firing him that day, or he thought that this was just the beginning of a more traditional and restrained process by which this decision would be made, we don't know. But it had the effect of legitimizing a decision that was pretty obviously, and at this point, admittedly by the president, motivated by concerns about the Russia investigation that Comey was overseeing.

Dahlia Lithwick (6:19)

So one question I have is. I guess the question everybody has is there was certainly rumors. I think they've since now been denied by Rosenstein himself, that effective Tuesday night, Wednesday, he was saying, please don't use my name. I will resign if you use me as the sole predicate for this firing. And so then that looked like, again, either an act of brave heroism or, you know, a feint at trying to stay neutral.

Leon Nayfak (6:47)

Yeah, I mean, I think. I don't think you can. I don't think you can call it a threat to resign that is then not followed through on as an act of bravery, but.

Dahlia Lithwick (6:54)

And also denied.

Leon Nayfak (6:55)

Yeah. And then he was like, actually, no, I didn't threaten to resign when he was asked by a reporter while walking through the halls of Congress. But it does. It does seem like he was not comfortable with the way he had been used as a prop or as a sort of a pretty face to sell this decision. And he apparently called the White House counsel and was like, yo, this narrative that you guys are putting out is wrong. Please correct it. And I gather from the Wall Street Journal he gave the impression that he could not serve an administration that would put forward this inaccurate timeline. But, you know, he's still there.

Dahlia Lithwick (7:31)

But that seems to be heroic or not. That then becomes the basis for what we see on Thursday, which is now Sarah Huckabee Sanders is saying, no, we didn't mean that. He was the base. Even the president himself by Thursday afternoon is saying, no, it was really about Russia. Like, don't look at Rod Rosenstein. It's about Russia, which is its own box of crazy. But at least he may have inadvertently tagged the White House with actually saying what they actually did.

Leon Nayfak (8:02)

Yeah, I wonder. I mean, I feel like Trump's motivation for going on TV and saying it was all me was more about his ego and wanting to be the one who pulled the trigger because, like, what's the point of pulling the trigger? People don't know it was you. I do think that, for instance, like a new timeline that was issued, I believe on Wednesday night that sort of put Rosenstein's memo fourth on the list of events that led to the firing was probably motivated by Rosenstein's concerns. But yeah, I feel like Trump was not thinking about Rosenstein when he said that. I think he was thinking, I want people to know that I cut off this head and not somebody else.

Dahlia Lithwick (8:37)

Oh, and by the way, obstruction of justice. But yeah, he didn't think it through.

Leon Nayfak (8:40)

Maybe, but I think that's the instinct he was acting on.

Dahlia Lithwick (8:43)

So before I turn to anything else, I guess I want to say this. I have had a theory, theory for the last year almost, which is that Jim Comey was sort of trying to publicly perform neutrality, right? He was like, if I just keep saying how neutral and above the fray I am, you know, people, and then bonking both sides on the head periodically, it's gonna look like I'm super neutral. And that I think maybe doesn't work.

Leon Nayfak (9:10)

I can't claim to understand his, what he's been going for throughout this process. I think there's, you know, there's a pretty thorough New York Times piece from a few weeks ago now that kind of walked through what he was weighing when he made, say, the decision to write the letter. I think his fear was that, say Clinton wins. And then months later, these new emails that they discovered turned out to be consequential. And then he would be accused of concealing the fact that they had reopened the investigation to process the emails retroactively. Instead, he was accused of partisanship in that moment. Why he thought one would be better than the other, I don't know.

Dahlia Lithwick (9:49)

So then it raises the corollary question, which is here's Rosenstein, who's saying, whatever I'm going to do, I'm not going to do what Comey did right now. I'm going to do something that looks like real neutrality. And so he's quiet, right? I mean, he's, whatever he's doing, we don't know. He's not performing neutrality. He's just kind of doing his job. Right?

Leon Nayfak (10:07)

Well, I think there's an interesting parallel that someone made to me about Comey's decision making process in that moment in October and what Rosenstein might have been thinking when he wrote this memo, which is that Rosenstein might really believe, and probably does, that Comey messed up and deserves not to be the director of the FBI anymore. He probably wrote things that he believes are true in that memo. And maybe he thought, yeah, probably this is going to be used in some political way, but that's not my job to think about that. Not thinking about the optics means not thinking about the optics. And I believe these things, and I, on a legal basis, believe that he violated Department of Justice tradition and protocol. And that's it. That's where my thought process has to end. And in so doing, obviously did the most political thing possible by creating the pretext for this firing.

Dahlia Lithwick (10:58)

So that's an incredibly depressing proposition, Leon, that here we have. Let's start from the basis that nobody ever thought the FBI could be neutral. Nobody thought the attorney general could be neutral.

Jeffrey Wall (11:11)

Right.

Dahlia Lithwick (11:11)

You and I have been having this conversation since you started covering justice in the Trump era. But it seems to me that if the alternatives are Jeff Sessions, right, Attorney general, who I don't think anyone thinks is neutral, and then a bunch of other people who are, you know, career Justice Department people who are just finding it impossible to be neutral, too, are we simply at a time where there are no neutral entities left?

Leon Nayfak (11:38)

I mean, one thing you and I have talked about is neutral. How is it that you, as the attorney general or the career attorney in the Justice Department, prosecute people who are Democrats and Republicans the same way? Then I think that's still possible. But is it that you don't make choices that have political ramifications? I don't think that's possible, and maybe it never was. But in the Trump era, we just have a president, I think, who's much less, this is an understatement, much less restrained or cautious about undermining the credibility, the apolitical credibility of these agencies than any president we've had before. And as a result, decisions that in the past could have been made with minimal damage to that reputation are just always going to blow up in the worst possible way.

Dahlia Lithwick (12:30)

And that leads me to the meditation you wrote on Thursday night where you were trying to think through, I think, a question I've been thinking through literally since the morning the election ended. And that is, do good people serve? If you are, and you quote Russ Doutha, you quote Una Hathaway. There's a lot of, I think, debate about whether good people in the Justice Department stay on and try to act as a bulwark and try to do their very best. And I think your feeling is probably that's what Rod Rosenstein was.

Leon Nayfak (13:05)

Yeah, I think he probably felt about his nomination and his service the same way those Trump critics I talked to felt, which is like, I will be a steadying force here. I know this department. I love it. I've served in it for 27 years. I've been a career attorney. I've been a prosecutor. I understand how this place is supposed to run. And it's good that I will be in this influential position where I can make it run that way, despite the fact that the people above me maybe don't share my values. He thought he could be a positive influence, and I think he has found very quickly that his good intentions aren't really enough.

Dahlia Lithwick (13:43)

Now we're talking about him like he's dead in a ditch somewhere. And I want to.

Leon Nayfak (13:46)

He's still the deputy attorney general.

Dahlia Lithwick (13:47)

I want to be clear. He's still the deputy as of Friday at 10something. So that makes me want to ask, what could he do to turn this around?

Leon Nayfak (13:57)

So there was an open letter written to him in the New York Times that said basically, like, look, you only move here if you want to, save your reputation, if you want to, and more importantly for the rest of us, preserve the integrity of the Justice Department, the FBI, more specifically, this investigation into Trump campaign's potential collusion with Russian hackers. You have to appoint a special counsel to take over this investigation. So Rosenstein is right now that the head of the investigation. He is. He was overseeing Comey's oversight of the FBI investigation because Sessions, back in March, under pressure, recused himself after it came out that he had misled Congress about his contacts with Russian officials. So it's up to Rosenstein to say, actually, I can't be neutral because I'm serving these guys, and I need to bring someone in from the outside who can be. And he has, I think, the unilateral power to do that. Whether he will get fired for doing it is a separate question. Right now. He's not given any indication that he believes a special counsel is necessary. He was asked at his confirmation hearing, will you commit right now to appointing a special counsel to look at this? And he said, no, I can't commit to this right now. I don't even know anything about this. I haven't been briefed on it. How can I make such an important call ahead of time? Let me get in there and I will take a look and I will decide based on the facts whether a special counsel was needed. So presumably, he's been thinking about it, but I just don't know if he has the sway to do that without getting axed. Himself.

Dahlia Lithwick (15:31)

Leon, before I let you go, listeners have probably been right there with you all week talking about what's happening in the Justice Department. But other stuff is happening in the Justice Department. Jeff Sessions has been, despite his recusal from the Russia investigation, awfully busy this week. Do you want to tell us a little bit about what's going on?

Leon Nayfak (15:49)

Yeah, I mean, up until Thursday night, he was sort of out of the headlines and not addressing his recommendation to Trump that Comey should be fired. I was kind of bewildered by his absence and don't understand why he doesn't feel compelled to explain why he thought this was a good idea. I feel like he should be forced to say the words, I thought Comey should be fired because of the email investigations. Like that was the point of his letter to Trump. Was this rationale laid out in the Rosenstein memo is what I'm citing as the main rationale for my recommendation to you.

Dahlia Lithwick (16:22)

So he's sufficiently recused from the Russia investigation to be out of the conversation, but not sufficiently recused to have fired the head of the FBI and then not talked about it?

Judge Dennis Shedd (16:32)

Is that.

Leon Nayfak (16:32)

Yeah, I mean, they didn't cite his recusal as the reason for his silence, but it would be quite funny if they decided to try to have it both ways in that regard. But, yeah, no, he's been. Maybe he's. Maybe he's been silent because he's been busy doing other stuff. In particular, we now know that he has been preparing to issue a directive to federal prosecutors around the country saying that they must always charge the most serious offense when filing indictments against drug defendants. There were policies in place from the Obama administration that allowed or encouraged prosecutors to essentially stop short of bringing charges that would trigger certain mandatory minimums. So, like, leave out the amount of drugs that were on the table so that this unfair mandatory minimum statute doesn't take effect and force you to put this person in prison for 10 years when that, you know, for reasons related to the circumstances of their case, would be a gross miscarriage of justice. But now Sessions has said, we are now instructing you federal prosecutors of America to be as punitive as the law allows.

Dahlia Lithwick (17:38)

And we should also note that the other thing he's been awfully busy with is this now new commission to examine, you know, all the non, rampant, rampant vote fraud in America.

Leon Nayfak (17:49)

They're gonna be working hard looking for.

Dahlia Lithwick (17:51)

It, looking for it under the tutelage of Kris Kobach and other people who've been pretty open about the agenda of using this notion of vote Fraud to further curb voting in America. Right?

Leon Nayfak (18:07)

Yeah. They're gonna work really, really hard to find it. Find something they want to find.

Dahlia Lithwick (18:10)

Three million, three to five, I believe it was five illegal voters. All right, so good times at the Justice Department. Leon Nafeck has the unenviable job of covering the Justice Department for Slate and has been doing yeoman's work this week as we just spiral down into new levels of bonkers. So, Leon, thank you very much for taking time. I know you've been busy this week.

Leon Nayfak (18:36)

Thanks for having me.

Dahlia Lithwick (18:38)

This week, the Court of appeals for the 4th Circuit heard oral argument on President Donald Trump's second iteration of his now famous travel ban. Now, in an unprecedented move, the court decided to hear it en banc, which means that the entire court heard it. Instead of a panel of three judges, two of the judges, both Republican appointees, were recused. And that meant that we had 13 judges and two oral advocates for a 90 minute smackdown on what Trump's travel ban really means. Joining us to talk about that argument is Professor Micah Schwartzman. He teaches law at UVA Law School and he co authored an amicus brief on the case. Micah, first of all, welcome to Amicus.

Micah Schwartzman (19:26)

Thanks. Thanks for having me here.

Dahlia Lithwick (19:27)

And you were in the, at least the overflow room at the 4th Circuit.

Micah Schwartzman (19:32)

Yes, the red courtroom.

Dahlia Lithwick (19:33)

The red room. And let's just start by explaining, if you would, this is an en banc court reviewing a second version of a travel ban that has already been blocked by several judges. There's a lot of moving pieces.

Micah Schwartzman (19:46)

Right. So this case comes up to the Fourth Circuit from a case out of Maryland. And instead of having a three judge panel hear the appeal, which would be the ordinary way that the Fourth Circuit would proceed, there were motions to take this directly to the entire court. And, and I think that's because everyone expects this case ultimately to go up to the Supreme Court. And so we should just get on with it. And since this was probably going to be heard by the entire 4th Circuit anyway, they just proceeded to do that directly. But it's unprecedented. I don't think the 4th Circuit has done this in the past, gone directly en banc.

Dahlia Lithwick (20:20)

And it's worth pointing out that next week the 9th Circuit is going to hear an appeal from a similar decision that came out of a district court in Hawaii, right?

Micah Schwartzman (20:29)

That's correct. On May 15, the Ninth Circuit scheduled to hear argument at an ordinary panel, three jud. In a case coming out of the Hawaii District Court.

Dahlia Lithwick (20:37)

So let's set the table. This is not travel ban 1.0 that was, you know, already set aside at the Ninth Circuit. This is travel ban 2.0. What's the difference between the original executive order and the one that is at issue now?

Micah Schwartzman (20:53)

So the original order came about a week after inauguration, very quickly, without review by various agencies that were involved in implementing the order. You remember, there was a mess in the airports that followed the order. The new order has been vetted by the various agencies, and it continues to prohibit travel from Muslim majority countries. Six of them, Iraq has been removed from that restriction. That's a change from the first order. And then there were various provisions in the first order that granted protections for religious minorities, where those minorities were defined according to the demographics of the country that they were coming from. And a lot of people thought that this authorized the government to privilege religious minorities in Muslim majority countries. Really were talking about Christians, and there was an argument that these provisions were discriminatory on their face against, against Muslims in those countries. And so the, the administration has pulled those provisions out. So now we're just talking about a prohibition on travel from Muslim majority countries, the six countries. But the order, the New Order 2.0, also focuses more closely on people who are living abroad. So it doesn't apply to permanent residents in the United States, to current visa holders. We're really just talking about people who are not in the United States and who don't already have visas.

Dahlia Lithwick (22:16)

And it's important to say, I think, that Jeff Wall, the acting Solicitor General who was defending the ban, was at pains to say over and over, this is a little nothing. It's a little temporary 90 day. You know, all we're doing is just checking out what's going on, that there's nothing sort of lasting or permanent or consequential here. That's their characterization. Is that your view of what the ban was doing?

Micah Schwartzman (22:39)

Well, the first order, I think, was kind of a trial balloon. And a lot of people read the time restrictions as afloat to see whether there would be pushback, and it was possible that those time restrictions could have been extended. Now the administration is Saying it's just 90 days for us to do some checking of our vetting procedures to make sure that we're doing what we need to be doing inside these countries to make sure that the people coming through them to the United States aren't risks to us. And they say that's all that's going on here. But I don't think the judges are buying it.

Dahlia Lithwick (23:11)

Well, before we get to the judges, I want to ask you this question? Because it seems to me that, at least on its face, the government has a pretty plausible argument that whatever Establishment Clause problems, not that there was an Establishment Clause problem in the first take, but on the second take, there's clearly no problem because we've taken out anything that smacks of even a discussion of religion. And in fact, they kept saying, this is not a Muslim ban. It is not a Muslim ban. So what's your answer when you claim, and I think you have written an amicus brief to this effect? No, there's a real Establishment Clause problem here. On its face, this doesn't look like an Establishment Clause problem. No.

Micah Schwartzman (23:50)

So the argument that there's an Establishment Clause violation looks both at the text of the order, but also at statements by the President and other officials in the administration which suggest that the purpose of the order was to discriminate against Muslims. And it's that purpose, the intention or motivation for the order, which triggers problems under the Establishment Clause. The Establishment Clause is part of the First Amendment, and it forbids the government from discriminating on the basis of religion. And the argument is that was the whole point of not just the first Order, but it's a continuing purpose under the second order as well. And if the purpose of the order is to discriminate against Muslims, it violates the First Amendment. That's the crux of the argument against the order.

Dahlia Lithwick (24:31)

Okay, so let's go down the rabbit hole now. Right? Because I was in the courtroom, you were in the red room next door. It is clear that the judges are obsessed with these extracurricular statements and that they're talking about the tweets, they're talking about what Trump is saying when he's signing orders. They're talking about campaign promises. There is nothing that Trump has said or done that is not actually verbatim being parroted by the judges who are sitting here saying, tell me again why I'm supposed to ignore this. Let's just listen for one to Judge Henry Floyd talking about, just verbatim, what it is that Trump has said.

Judge Dennis Shedd (25:08)

Shortly after the Executive Order 2 was signed, Sean Spicer said the principles remain the same. Trump. President Trump's statement concurrent with that time. You know my plans, Spicer. President Trump yesterday continued to deliver on campaign promises. Is there anything other than willful blindness that would prevent us from getting behind those statements?

Micah Schwartzman (25:35)

Yes, Judge Floyd.

Leon Nayfak (25:37)

Respect for the head of a coordinate branch and the presumption that officials act legally, which is to say the presumption of regularity.

Dahlia Lithwick (25:43)

So, Micah, I mean, this is just talk about unprecedented. It is really weird to have 13 judges, of whom I count six or seven, who are parroting back statements that the president has made casually or on Twitter. How seriously are they taking these statements?

Micah Schwartzman (26:02)

I think they're taking them very seriously. They're taking the president at his word. And it's not only statements that were made during the campaign or when he was president elect before inauguration, but it's also statements that the president and other officials have made since the election and statements that have been published online, including on the president's campaign website. We all know that campaigns are perpetual, and the president has done nothing to distance himself from these comments. So I think the courts are taking those statements seriously, But I actually don't think that's unprecedented. What's unprecedented is that you have a president making statements of this kind about religious discrimination. But it's not unprecedented for courts to look at official statements and even by members of the executive branch in reviewing the purpose of state action. And so I don't think that the courts think of themselves as doing anything that they wouldn't have otherwise ordinarily done in cases where they're evaluating the purpose of official actions.

Dahlia Lithwick (27:01)

And yet we have Jeffrey Wall, who's the acting solicitor general, arguing over and over again, these are not to be taken seriously. These are off the cuff. You know, either campaign statement. He basically said several times, this doesn't rise to the level of something that you need to take into account. Right.

Micah Schwartzman (27:22)

So Wall's argument, I think, proceeds in two ways. One is to say that under a precedent involving cases that concern immigration, the president has broad authority to make these decisions. And as long as those decisions are reasonable and bona fide, that is they're facially legitimate. There's nothing in the orders themselves that is discriminatory, that we shouldn't look to the purpose, to any statements outside the text of those orders. That's the first kind of argument, an argument from precedent in the context of immigration. And the second argument is that campaign statements should be off limits because they're not serious, because they're exaggerated, because campaigners make promises that when they become officials, they take an oath and they take on the responsibility of the office. And at that point, a presumption of regularity is what Jeff Wall called it, the presumption of regularity. Some deference to the office attaches to the president then. And I think the majority of the Judges on the 4th Circuit didn't go for either of those arguments.

Dahlia Lithwick (28:22)

Well, before we get to. I want to talk about Mandel and I want to talk about the doctrine. But before we do, I had the same reaction you did, I think, to this argument that there's a presumption of regularity, that there is something that happens the day Donald Trump takes the oath of office, and then he confers with his, you know, administration, and he's serious now and everything else falls away. And I think he kept talking about that presumption of regularity. And I had the same visceral sense that the judges, at least most of the judges on that panel, were like, oh, my God, there is nothing regular about this president. And to kind of give that deference is to give away the thing we're meant to pierce, which is what is he really trying to do? Right, right.

Micah Schwartzman (29:07)

The idea that there's presumption of regularity that should be applied to President Trump, just the dissonance about that claim in the courtroom, I think, was palpable. It's very hard to think that this president is regular in the way that you would need to think in order to grant the kind of deference that the government is asking for here. You have to think that the president's statements are totally detached from what all of the other things that the executive branch is doing. And some of the judges ask questions like that. What about other officials in the administration? Should we afford them the kind of deference that maybe we shouldn't afford President Trump himself? But I don't think that we can draw those kinds of lines, and I don't think the majority of the Judges on the 4th Circuit were prepared to do it either.

Dahlia Lithwick (29:51)

Well, let's listen just for a minute to Judge Paul Niemeyer saying, oh, really? You're going to start looking at his statements? Are we looking back at his college statements? Are we looking back to speeches to businessmen? So let's have a listen.

Judge Paul Niemeyer (30:06)

We're going to look at the taint that this person who signed the order has, and we're going to look. Can we look at his college speeches? How about his speeches to businessmen about 20 years ago? We're going to look at those two.

Jeffrey Wall (30:25)

No, your honor, we're not giving you any of that sort of evidence in this case. What we're looking at here is statements specifically about, I know the kind of.

Judge Paul Niemeyer (30:32)

Policy that he types of statements as a college student. Perhaps, perhaps he made it to a business club in New York during a speech 20 years ago. Perhaps he ran for office earlier and made similar statements. Are we going to look at all those, too?

Jeffrey Wall (30:47)

Your honor, Those would obviously be much less probative than the statements he made over the last two years. In the course of campaigning, what you.

Judge Dennis Shedd (30:55)

Look for is things that are relevant and probative.

Jeffrey Wall (30:58)

That's right, you, Honor.

Dahlia Lithwick (30:59)

And I do think, Micah, that Judge Niemeyer has a point. Right. We don't. We're not gonna pierce everything. I mean, if we're going to start to look to intent, are we looking to grocery lists, are we looking to stuff he told his wife, you know, late at night? I mean, really, where does it end? If you're going to assume that everything is on the table, every statement ever made, what's the response?

Micah Schwartzman (31:21)

So, first, I should probably disclose that I clerked for Judge Niemeyer, and I don't have any personal insights into his views about this particular case. But then I would say, yes, he's making an important argument. He's asking what are the kinds of lines we should draw when we're thinking about evidence of purpose? What sources do we look to when we're trying to sort out why government officials are making the decisions that they're making? And at some point, it can become absurd. We're going to psychoanalyze them. We're going to try to peer into their minds or into their hearts to figure out what their reasons are. But here in the aclu, lawyers response is, we've got very good evidence that's proximate to the decision that was made. President Trump has continuously, as a candidate, as president elect, as president, made statements that tell us the purpose. And there's no good reason to ignore all of those statements. They're overwhelming. We're not faced with the line drawing problem in this case. There might be other cases down the road that would raise these kinds of questions, but this isn't one of them. It's not even close.

Dahlia Lithwick (32:20)

Okay, so you. You flicked at the doctrine, and I think this is the thing that got a little bit lost when we started focusing on the tweets. But the doctrine's important because there's clearly a collision between two lines of cases. Right. We have Establishment clause cases, we have lemon, we have McCreary talk about those and the ways in which those are in conflict with the case. I think you were referring to Mandel, this 1972 case that says none of that matters. Or at least the way Jeff Wall presents it, none of that matters. What's the two lines of cases at issue?

Micah Schwartzman (32:51)

Right. So Mandel, this case involving immigration and the president's sweeping authority to exclude people at the border says that as long as the President's decision is, quote, facially legitimate and a bona fide reason, then courts should not look underneath those reasons to figure out what the president's actual purpose was. So that's one set of cases on the side of immigration. The Establishment Clause, which prohibits discrimination, is a constitutional provision. And there are cases dealing with the Establishment Clause which say that the court should take into consideration official purposes for decisions. Those cases, and here, the Most important is McCreery County. It's a case involving a county that put up a Ten Commandments display. And in that case, the Supreme Court said the Court should look at purpose and can look at various sources of evidence to determine those purposes. The brief that I helped to organize on behalf of a group of constitutional law professors, in a brief that was authored by Joshua matz, argues that McCreary county should be understood as representing an idea. And that idea is the government can't act for an impermissible purpose. But that idea has broader roots. It's not only rooted in the Establishment Clause, it's also a matter of the Free Exercise Clause, which prohibits the government also from discriminating against people on the basis of their religion under the First Amendment. And it has roots in the Equal Protection Clause as well, where the Court has said in the context of race discrimination or in discriminating against gays and lesbians that the government can't discriminate on the basis of an invidious purpose. Basically, the government can't act because it hates or disfavors or is prejudiced against a particular group. And so that idea that rule against the government acting on what's sometimes called animus runs through not just the Establishment Clause, but the Free Exercise Clause and equal protection. And we wanted to say, look, that principle is what's at stake in this case. This is a case about government discrimination against Muslims. And. And it's not only the Establishment Clause that forbids that, but other provisions of the Constitution as well.

Dahlia Lithwick (35:08)

But doesn't that just take us directly back to the problem of you can't show animus unless you're looking at the tweets in the campaign statement?

Micah Schwartzman (35:16)

Right? That's right. There is a conflict between the government's position that you can't look at evidence of purpose and the position represented by the ACLU and by the brief that I helped to organize that says not only can you look at evidence of purpose, but you're required to under the Constitution. That's right.

Dahlia Lithwick (35:34)

And so. And so when Jeff Wall says, there's no animus here, Micah, all there is is a determination that these countries don't have sufficient vetting. And we don't hate Muslims. We just think we're not safe. What's the answer?

Micah Schwartzman (35:50)

I think the response is that Mandel and. And Carrie v. Den, these two immigration cases that were widely discussed in the Fourth Circuit, require that the government have a bona fide reason. And there is direct evidence that the reason that was offered was not legitimate. And Justice Kennedy writes a concurring opinion in Kerry v. Denn, another immigration case, with Justice Alito joining his concurring opinion. And. And it says that the government's reasons have to be legitimate. And here is a prima facie case that based on evidence of intent, that the government's reasons here are not legitimate, that they're invidious, they're based on animus.

Dahlia Lithwick (36:33)

So let's pan back. Micah. The third thing that I felt undergirded the entire discussion at the 4th Circuit was an anxiety about the role of judges. And so we've talked about the doctrine and we've talked about the tweets and intent, but it seemed to me that there was this feeling, and I think Judge Dennis Shedd maybe put it most eloquently, that it is not our job to second guess Department of Homeland Security, to second guess Jeff Sessions. Let's listen to him talking about this question of. And you can tell, I think I heard palpable anxiety in his voice on this question of this is a national security issue. It is not on us as the judicial branch to second guess the president. So let's listen.

Judge Dennis Shedd (37:20)

Is it the president that makes the determination of national security issue interest in this case?

Jeffrey Wall (37:27)

Yes, your Honor, but.

Judge Dennis Shedd (37:28)

And your argument is he's tainted by animus, correct?

Jeffrey Wall (37:32)

I'm saying that his purpose was a religious purpose.

Judge Dennis Shedd (37:35)

Is that tainted by his animus, do you think? Yeah, I mean, his horse feeling toward Muslims. Do you think that taint goes to the Attorney general, to the Homeland Security director, and to the Secretary of State?

Jeffrey Wall (37:51)

No, you, Honor, but I think if you look at the history of what happened in this case.

Judge Dennis Shedd (37:55)

Okay, then let me say. But doesn't the record in this case indicate that at least expressly, the Attorney general and the Director of Homeland Security gave a basis for the order?

Micah Schwartzman (38:09)

No, you, Honor, they most certainly did.

Jeffrey Wall (38:12)

Well, I think.

Dahlia Lithwick (38:13)

So what do we. What do we do with that? That seems like, at one level, a pretty persuasive argument. We are not experts in national security. We have a letter from Jeff Sessions, and we have a letter from the Department of Homeland Security that says this is necessary to keep us safe. And what you're doing, judges, by interposing yourselves into this question is unsettling. What we all agree is the president's duty to keep us safe. What's the answer?

Micah Schwartzman (38:41)

I think there are two answers. The first is the question that was posed to the ACLU lawyer was, who's responsible for national security? That was Judge Shedd's question. And the answer to that question is the president is responsible for national security. That wasn't the answer that the ACLU lawyer gave. He said it was the court that was ultimately responsible for making all the decisions in the case. I don't think that was his best answer. His best answer is the president has to make these decisions, but he has to make those decisions within the rule of law. And that's the kind of answer that has been given in earlier national security cases, and especially involving terrorism, where the court has said there has to be a balance between liberty and security. The President has to make his decisions in a way that are. That's consistent with constitutional prohibitions. And here he just hasn't done that. So it's fine for the President to make national security determinations, but he has to do it in a way that doesn't discriminate on the basis of religion, and he simply hasn't done that here. The second answer is there aren't good facts to support a national security determination. There's A brief by 42 former National Security officials which reviews the orders and says there simply isn't a national security justification to be given here. And so in the presence of animus on the basis of religion, the court has a duty to review the president's justification. And I think that's what the ACLU lawyer was trying to get at. The broader answer is in the historical context, we've seen the government say to the court in the past, trust us, we have national security concerns. And the foremost case that comes to mind, and one that Judge Nguyen mentioned, is Korematsu, which involved a national security justification for Japanese internment. And that case is looming here in and I think the end of the argument in the 4th Circuit was under the shadow of Korematsu.

Dahlia Lithwick (40:35)

Can you, just for readers who don't have Korematsu on the tip of their memory, tell us what the issue was, what the court decided briefly, and then explain how this is different from Korematsu.

Micah Schwartzman (40:49)

So Korematsu involved an executive order that authorized the internment of Japanese American citizens from the west coast during World War II. So Japanese people were relocated forcibly from their homes and put into internment camps. And the question in the case was whether the government had violated the Constitution, especially the Equal Protection Clause and the Fifth Amendment, the Due Process Clause, in ordering those internments. And the court held that race discrimination has to be justified by a compelling interest and that the government had provided one. That is, there was a national security justification.

Dahlia Lithwick (41:24)

It's right after Pearl Harbor. People are freaking out.

Micah Schwartzman (41:26)

People are very afraid. But there's also anti Japanese racism. And the government's argument about national security is infected by that kind of racism. And we learn many years later that the government suppressed evidence of racism, that it didn't reveal that to the court. The Solicitor General under Obama explained that that evidence was not presented to the court and should have been. And there's a lesson to be learned from that, which is that that racial animus, that discrimination and prejudice can infect the national security justifications that are presented. That is, the government perceives a threat or there isn't one. And part of the reason it perceives that threat is because it's prejudiced against the group that it thinks is threatening. And there's a concern in this case involving Muslims, that the government perceives certain kinds of threats, in part because of the prejudice against Muslims. So when President Trump says, I have a national security justification, on the one hand, and some of the judges, like Judge Shedd, are worried about second guessing the president and then having a terrorist event and being blamed for all the harm, but on the other hand, they're worried about looking like the Korematsu Court, which is a court that didn't stand up to racism.

Dahlia Lithwick (42:39)

And am I right? Did it happen that Judge Shedd, I think it was, had a colloquy with Jeffrey Wall saying, in effect, could we just say that Jews can create a national security threat and therefore we could plausibly create a ban on people coming from Israel, am I right that Jeff Wall's answer to that was yes?

Micah Schwartzman (42:59)

I think that's what Jeff Wall said in so many words. I mean, the ACLU lawyer Omar Jadwat had presented this hypothetical. Suppose the Trump administration had expressed, or any president had expressed hatred for Jews and then almost immediately turned around and prohibited immigration from Israel and said, there's terrorist events happening in Israel. There's all kinds of national security concerns we have in the state of Israel. And so we're just going to bar everyone from Israel from coming in. Would we really not look at the statements that the president in this hypothetical had made? And Jeff Wall was asked this question, this hypothetical and he said, look, if the order was facially neutral, that is, it was just a national security determination, then we wouldn't look at any of those statements. And I think the hypothetical was designed to test intuition. Really, you wouldn't look at those statements. And I think he wants to bite the bullet on, but it's a really hard bullet to bite.

Dahlia Lithwick (44:00)

I just want to ask, before we turn to my last topic, if you don't think that at some point I'm going to coin a term here, and it's intent fatigue, that there's a weird way in which the project of at least the legal assessment of the Trump administration, and I'm even thinking of the Comey firing as this question of, is it, what's the real intent? What's the, the pretext? You know, what, what is Trump really doing? He's awfully good at creating a plausible alternative explanation. I wonder if some of this conversation we're now having, at least in the academy, about does intent matter? You know, how do we know what the real intent is? My God, judges are not supposed to psychoanalyze. At some point, it just seems as though this is going to become futile, that trying to, to parse what someone means when he's persistently changing his mind and obfuscating what he means is going to be. I mean, it just seems like. I know this is an ontological question and outside both of our wheelhouses, but I do think that judges are going to say at some point, all I can do is look at the four corners of what these orders say, because the rest of it is where madness lies.

Micah Schwartzman (45:12)

I suppose I don't share that kind of skepticism about purpose or intent inquiries. I think judges do this all the time. They're constantly being asked, ask, to sort out why people did various kinds of things, from the lowest level criminal case to the highest questions of constitutional law. They're always asking why officials are making the decisions that they make. They're always asking about the reasons. Part of the rule of law is about reason giving, and officials have to give reasons for their actions. It's required under the equal protection clause, it's required by the establishment clause that they not give certain kinds of reasons, namely discriminatory ones. So, you know, maybe at some point there'll be intent fatigue, but this is really the case that gets things rolling. I mean, this is the case where it's presented most squarely. And I just think maybe down the road, judges will say there's not enough evidence or it's too far for us to reach. But here, there's so much evidence this is such a clear case in terms of determining or discerning purpose. And I don't think this will be the one where that line gets drawn.

Dahlia Lithwick (46:10)

So, Micah, before I let you go, I have to ask you about the judges. Donald Trump is very, very happily unrolling new slate of judges. He's quite determined to really flood the zone. He's going to just put judges everywhere. Can you tell us a little bit about at least the first raft of judges that Donald Trump rolled out on Monday and what it tells us about where his head is in terms of filling more than 100 empty seats now on the federal district and appeals courts?

Micah Schwartzman (46:44)

So the first thing to say is that President Trump faces a judicial nomination procedure with no filibuster after the Democrats exercised the so called nuclear option and did away with the filibuster for district and appellate judges. With a Republican Senate, President Trump is in a good position to move judges, no matter Democratic opposition. So the first wave of judges, I think is right out of the Republican playbook. That is, they're smart, they're hardworking, they're talented, they're committed conservatives, and they're young. The average age of the slate that was just named 10 or 11 judges is 48. So just by comparison, the average age of Obama's first 10 nominees or so was something like 56. The average age of judges from since Reagan is something like to the Court of Appeals anyway, something like 50 years old. So why did age matter? Age matters is a proxy. You pick people young. They don't have as much of a track record. Why are you picking them? You pick them because you think they're talented and committed. And that's what Republicans have done very successfully over decades now. And they do it for a good reason, which is you want to put people on the bench who are going to work out core principles and ideas that are shared by a party, a certain kind of judicial philosophy. And I think Democrats have sometimes adopted a different strategy. That's to pick people who are well known within the legal establishment, especially within state and local bar associations, but who aren't picked because they're the rising stars, but because they've paid their dues and they've been long established members of the bar. The first Trump nominees show a different strategy. The strategy is to pick young talent that will shape the bench over many, many years and that will serve as a farm team, at least at the Court of Appeals level, for future Supreme Court nominations.

Dahlia Lithwick (48:33)

But isn't the answer that those young judges are, as you said, unknown and that judges drift and that I think social science shows that judges drift left more than they drift right. So isn't there a super high risk.

Micah Schwartzman (48:47)

To this strategy that would be a concern about picking young judges that they'll move over time? And so you insulate against that risk, but by picking people who you know are fairly committed to the principles that you want judges to embody. And that seems to be the move so far by the Trump administration.

Dahlia Lithwick (49:04)

Micah Schwartzman teaches law at the University of Virginia Law School, and he helped author a brief in the travel ban case that was heard this week at the Fourth Circuit. Micah, thank you so very much for joining us.

Micah Schwartzman (49:16)

Thanks, Dalia.

Dahlia Lithwick (49:23)

And that is going to do it for this week's edition of Amicus. Let us know what you thought. Our email address is amicasatslate.com and we're on facebook@facebook.com AMICUSpodcast Leave us a comment there. And while you're in a commenting mood, go ahead and leave a few kind words on our page in the iTunes store. We always love your feedback and and your letters, and we really appreciate your support. Now remember, if you've missed any of our recent episodes, you can find them all on our show page, that is@slate.com amicus and if you're a Slate plus member, you'll also find transcripts of our shows there. But know that they do take a few days to post. A big thanks goes out as ever to the Virginia foundation for the Humanities, where our show is taped, and also to the wonderful gift June Thomas, who provided engineering support this week in New York. Amicus is produced by Tony Field. Camille Mott is our wonderful intern. Steve Wichtai is our executive producer and Andy Bowers is the chief content officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts at Panoply fm. I'm Dahlia Lithwick. We will be back with you in a couple of weeks with another edition of Amicus.