A maddening type of official document has emerged as a tool of the Trump Administration. This document is short and inadequate to its stated task: providing a rational basis for a highly suspect executive decision. Often, the document contradicts the words or actions of the President himself.
The example that has garnered the most attention is the two-and-a-half-page memorandum written by Rod Rosenstein, the Deputy Attorney General, and used by the White House last week to support the firing of the former F.B.I. director James Comey. The memo became a point of debate in the uproar over the firing, in part because it was so startlingly lacking in substance.
The memo set forth a rationale for Comey’s firing—the alleged mishandling of the Clinton e-mail probe—that was at odds with Trump’s many past statements praising the F.B.I. and Comey for their fairness in that case. But the memo’s key fact was its date: May 9th, the day of Comey’s dismissal. That, along with its having been prepared and signed by Rosenstein just two weeks after he took his job, was evidence of how little diligence went into its production.
Rosenstein’s memo had much in common with a document the Administration issued on March 6th, the day that Trump signed the second version of his executive order banning travellers from several predominantly Muslim countries. That day, the White House quietly released a one-and-a-half-page letter signed by the Attorney General, Jeff Sessions, and the Homeland Secretary, John Kelly, which laid out the “weaknesses in our immigration system that pose a risk to our Nation’s security” and urged the President to direct “a temporary pause in entry” from “certain countries.”
Like the Rosenstein memo, the March 6th letter contained a smattering of selective facts but lacked any references to relevant statutory authorities or historical precedents. It did not acknowledge the failure of Trump’s first travel-ban order—which was halted by federal judges—or the extensive vetting procedures that travellers and immigrants were already subject to. Nor did it name the countries whose nationals supposedly posed a danger to U.S. national security. It ended with a sweeping, largely unsupported conclusion: “it is imperative that we have a temporary pause on the entry of nationals from certain countries.” Its focus on “countries” stood in obvious contrast to Trump’s campaign promise of a “total and complete shutdown of Muslims entering the United States.”
The March 6th letter has received less attention than the Rosenstein memo, but it is proving important in ongoing litigation challenging the revised travel ban. The Justice Department has made it an exhibit in its case for the travel ban as a rational response to legitimate national-security concerns. Last week, during an argument before the full bench of the Fourth Circuit Court of Appeals, the letter was cited by several judges who expressed reluctance about second-guessing the President’s national-security determinations when they are explicitly backed up by his Cabinet. The letter was referred to yet again this week, when the travel ban came up before a Ninth Circuit panel.
Other documents more subtly fit the pattern, such as the letters that the Justice Department sent to nine so-called “sanctuary” jurisdictions in April. These letters, signed by the acting Assistant Attorney General, Alan Hanson, demanded that the recipients provide proof that their local law-enforcement officials were coöperating with federal immigration agencies in the wake of an executive order requiring that coöperation as a condition for receiving federal funds.
On their face, the letters weren’t a big deal: this coöperation is already required by an existing federal statute. But the letters weren’t what they seemed to be. Although the Justice Department claimed that an Obama-era report identified these nine jurisdictions as “having laws that potentially violate” the coöperation statute, that report actually made clear that at least some of the jurisdictions were, in fact, in compliance with the law.
So why send the letters? The timing was suggestive: they were issued less than a week after oral arguments in a case brought by San Francisco and Santa Clara, challenging Trump’s sanctuary-cities order. The judge on the case, William Orrick III, had shown some skepticism toward the government’s claim that Trump’s order doesn’t condition federal funds on anything beyond what’s already required. Sure enough, just a few days after the Justice Department issued the letters, Orrick rejected the government’s narrow reading of Trump’s order and issued an injunction temporarily blocking its enforcement, citing Trump’s sweeping threat to use the order as a “weapon” against jurisdictions that disagree with his immigration policy. Going forward, we can expect those nine letters—and the jurisdictions they target—to be cited by the government in its arguments against Orrick’s reasoning.
Together, the Rosenstein memo, the Kelly and Sessions letter, and the sanctuary-city letters provide insight into the Administration’s approach to counteracting the chaos of the White House and the lack of self-control repeatedly exhibited by the President. These documents should be recognized for what they are: government reliance on evidence that is valuable precisely because it has been drafted and approved by people other than Trump—and sometimes amounting to a formal pretext.
In the courts, these even-keeled statements, printed on letterhead and signed by the Administration’s most senior officials, are being used to explain away Trump’s loose-cannon comments. They play to judges’ reluctance to look past the four corners of official documents when assessing the lawfulness of certain kinds of executive-branch policy judgments. We will see more of them.
Civil servants should be held accountable when they use their authority and influence to provide post-hoc cover for unconscionable dictates handed down from above—just as they should be celebrated when they, like Sally Yates, the former acting Attorney General, refuse to provide that cover. That’s true in normal times, but it’s even truer when the President appears determined to flout the political and ethical norms on which our system relies. By putting their names on these documents, officials risk signing away one of the rule of law’s last defenses.