The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Presumption of Regularity Returns to SCOTUS
Trump Firing Lisa Cook, Jack Smith Indicting Donald Trump.
On Wednesday, the Supreme Court heard oral argument in Trump v. Cook. The leading accusation in this case is that President Trump wanted some excuse to fire a Federal Reserve Board Governor, so he had his administration trump up charges based on mortgage fraud. (I've written about how Collins v. Yellen enabled Bill Pulte, the director of the FHFA, to investigate Cook.) On Thursday, Jack Smith testified before Congress about his service as special counsel. In a somewhat similar fashion, the leading allegation was that the Biden Administration wanted Trump to be indicted, so Merrick Garland retained Jack Smith to trump up some charges. I am sure people on the right would never view Cook in this fashion, and people on the left would never view Smith in this fashion, but the perceptions are there.
This topic was referenced, perhaps indirectly, during oral argument in Cook.
Justice Kavanaugh brought up Justice Scalia's Morrison v. Olson dissent. Kavanaugh, alluding to some amicus briefs, suggested that the mortgage fraud charges were simply a pretext to fire Cook.
JUSTICE KAVANAUGH: But that leads -I mean, that brief, that amicus brief, cites Justice Scalia's dissent in Morrison, which is always a good place to look for wisdom, and the --the concern that you're putting all these resources --because you can't say it's for policy, putting all these resources, let's find something, anything, about this person and --and --and --and then we're good. And, by the way, there's no judicial review, so we're really good. And there's no administrative process.
Justice Scalia's wise words are worth quoting:
As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"?
In short, give me the man, and I'll find the crime.
Later in the argument, Paul Clement referred back to Justice Kavanaugh's invocation of the Morrison dissent:
MR. CLEMENT: And, I mean, Justice Kavanaugh alluded to the Morrison dissent and, you know, Justice Scalia creating this beautiful picture of some independent counsel with nothing to do but to find a crime on somebody. But, if all the independent counsel has to do is find gross negligence, then I don't think the independent counsel would need more than a couple of hours with most of us. I mean, that's such an elastic standard. And I just can't imagine that's consistent with all the trouble Congress went to to make this unique entity insulated from kind of the political pressures of the day.
I'm not sure the analogy between Trump's firing of Cook and Alexia Morrison's investigation of Ted Olson quite fits. For starters, the President has the power to remove principal officers, and Congress expressly empowered the President to do so if there is "cause." The independent counsel, on the other hand, was a constitutional aberration that has no grounding in history or tradition. But the differences go deeper. Scalia's objection was, to be sure, that motivated prosecutors can pin a crime on anyone. But the problem of the Independent Counsel, and I would add Jack Smith, is a complete lack of accountability. Though they exercised sweeping powers, they were not nominated by the President and confirmed by the Senate. Moreover, there were protections against their removal, which made it difficult for accountable officials to supervise them. By contrast, the President is duly elected, and is fully accountable. Trump has taken massive political hits for firing Cook, and threatening Powell. I don't think the analogy quite works.
Solicitor General Sauer pushed back against the insinuation that the President had some improper motivations in firing Cook. Sauer cited the presumption of regularity.
GENERAL SAUER: One of the strongest traditions in this Court's jurisprudence is the --the sort of presumption of regularity to the president's action. That has applied to this provision, I think, effectively for 112 years and it continues to do so.
Sauer returned to the presumption in a later exchange with Justice Kavanaugh:
GENERAL SAUER: And, again, I disagree with that. I think that the --that argument, that presumption [of regularity], when applied to the president, contradicts a very, very --two very strong strains in this Court's jurisprudence that go back to the founding.
Sauer made the point again, citing the cases from Martin v. Mott to Trump v. Hawaii:
GENERAL SAUER: This Court has since Martin against Mott, running all the way through Trump against United States, Trump against Hawaii, a whole host of decisions, accorded, consistently afforded the president the presumption of regularity in his action and consistently declined to probe a president's actions for, you know, their --for their subjective motivations. And so, in the hypothetical question that you pose, that hypothetical future president should also be afforded the very same sort of deference and --and -
A common theme of the Trump presidency is that Trump is not entitled to the presumption of regularity. It would be very dangerous if the Supreme Court gave any credence to this charge.
There was a related exchange between Justice Barrett and the Solicitor General. Barrett asked what's the big deal about a court-ordered hearing before firing Cook:
JUSTICE BARRETT: I want to pick up on that question about why --Justice Kavanaugh said why are you afraid of a hearing or what would there be that would be wrong with process. I mean, you spent a lot of time litigating the case. You know, it's gone up from the district court to the court of appeals, and now we're here. And if there isn't anything to fear from a hearing and if you have the evidence, why couldn't those resources have been put into a hearing? I understand you think that you don't have to provide one either because of the statute or because of the Due Process Clause. And that's fine. But, in thinking about irreparable harm to the government, if one way to --one step you could take to reduce your irreparable harm, to show that there really was cause is just to have a hearing, why not?
GENERAL SAUER: I don't think it's a question of resource allocation. It's our position that adequate process was already provided. So, if it's a question if the district court's order has to go further and then go further and go further again, all without any legal or constitutional authority in our view, we think that imposes irreparable injury on the executive branch.
JUSTICE BARRETT: Well, they told you to go farther but not that much farther. I mean, okay, so there was the Truth Social posts and then, you know, burden on her to come back in five days. I understand that's your position. But, you know, Justice Gorsuch posited sit down across the table in the Roosevelt Room, where the president provides Ms. Cook, Governor Cook, with the evidence and waits to hear what her response is, gives her a chance to defend herself. I mean, that just wouldn't be that big a deal, it seems, if that's enough.
GENERAL SAUER: Again, it's an intrusion on the executive branch to dictate what procedures it ought to provide -
JUSTICE BARRETT: So it's the standing on principle -
GENERAL SAUER: --certainly to the president. And our position is he has provided process. He's provided adequate process. And if the district court said, well, that wasn't quite good enough, try again, and then we try again, and the district court says, no, that wasn't quite good enough, try again, we have gone --left Vermont Yankee way in --in the rearview mirror.
Standing on principle? Really? The executive branch defends its own powers not as a matter of principle, but to preserve its role in the separation of powers. How often do courts impose unreasonable injunctions to the President on the basis of some abstract legal principle? Here again, the presumption of regularity plays a role. Courts should presume that the President fired Cook for the reasons stated and not impose unnecessary hearings for the sake of some principle.
Does anyone think a hearing would make even the slightest difference? Chief Justice Roberts, the former executive branch lawyer, stated the obvious. Cook would simply say her error was not intentional, and then Trump would fire her.
CHIEF JUSTICE ROBERTS: I'm not sure I understand exactly what you want a hearing for. If your argument is inadvertence, it doesn't seem to me that there's much you can say factually other than that. You can't say, well, this is why we did it and this is okay and all that. It's just an inadvertent mistake. Now there obviously are a lot of legal questions to be addressed, but, again, those are questions for the court, a court, and not the basis for a factual hearing. You don't have anything --you have one sentence to say: It was inadvertent mistake.
Roberts is right. What's the point of such a hearing? Seems like a waste of time.
I know the conventional wisdom is that Trump loses this case, but I have been mulling it over during the past thirty-six hours. I'm not so sure.
Keep in mind, this case is only before the Court on an emergency posture. If the Court orders a hearing, and Cook is given one, the case will come right back up. I'm not sure the Court wants to go through all of this again in a year. Plus the merits issue is very difficult, especially with regard to mandamusing the President.
I am usually wrong about these things, but I think the consensus may not be quite right.
