Balkinization  

Sunday, May 21, 2017

Federal Official Liability for Intentional Wrongdoing: Recovering the Past

Guest Blogger

Gregory Sisk


For the symposium on James Pfander, Constitutional Torts and the War on Terror.



In his new book “Constitutional Torts and the War on Terror,” Prof. James Pfander shines a bright spotlight on the “utter failure” of the federal courts to hold the United States Government accountable for unlawful harm deliberately visited on the individuals who have become collateral damage in the “War on Terror.” (61) With the litigation evidence painstakingly (and empirically) laid out by Pfander, constitutional tort actions brought by the victims of unconstitutional detention, harsh interrogation, and other outrages in the War on Terror have invariably gone down to defeat in the federal appellate courts. (167-180) Claims may be dismissed “on the ground that federal law does not create a right to sue the responsible officers for the particular form of mistreatment alleged,” or because the government has interposed a “state secrets” defense to foreclose further litigation, or because “the doctrine of qualified immunity blocks an action against the officers in question.” (xv)

Offering a historically-grounded solution, Pfander harkens back to the pre-Bivens nineteenth century practice by which federal courts entertained simple common-law trespass claims against federal officers for unlawful conduct that harmed individuals, uncomplicated by sovereign immunity or by qualified immunity for officers. These courts evaluated “the simple legality” of the governmental conduct, imposed compensatory damages on the individual officer who transgressed statutory or constitutional limits, and left the officer to seek indemnity from Congress. (7) Pfander urges our twenty-first century federal courts to craft a revived constitutional tort cause of action, one that directly adjudicates the constitutional legality of the government conduct and is not encumbered by the inappropriate political considerations and policy-justified hesitations that cloud current Bivens doctrine. (99-100) In Pfander’s view, this upgraded and enhanced Bivens constitutional tort claim would be a modern version of the nineteenth century common-law trespass action for official wrongdoing.

To get back where we started in the early Republic, Pfander argues that we do not need “the passage of more laws,” (159) but rather that the courts should “fundamentally rethink the manner in which they enforce constitutional rights protections through their Bivens jurisprudence” (xvii). Although I am persuaded that Pfander has identified a powerful paradigm for governmental accountability by resurrecting the nineteenth century practice, I suggest that “the passage of more laws” is exactly what we need. In particular, reform of the Federal Tort Claims Act would put claims against the government for intentional wrongdoing on more secure footing and do so in the simpler format of an ordinary common-law tort action.

What Pfander has highlighted in the context of the War on Terror is part of a larger legal regime in which intentional official wrongdoing at the federal level too often falls between the cracks of judicial compensation schemes. When federal agents are negligent, the injured have a well-worn path to compensation in court through the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2674-80. The FTCA makes the government itself liable for official carelessness under the tort law of the state in which the harm occurred. But when government officials deliberately and calculatedly direct harm against others, the road to recovery is muddy and covered with obstacles.

The FTCA excludes claims for most intentional torts, including assault and battery. 28 U.S.C. § 2680(h). While a “law enforcement proviso” permits some intentional tort claims to be pursued when the federal actor was as law enforcement agents, those who are victimized by other federal employees are left without any recourse. Even in law enforcement episodes, when the harm can be characterized as the consequence of a policy decision, the government regularly asserts the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). To make matters worse, even when the government does escapes liability through exceptions to the FTCA, the injured party may be unable to pursue an alternative claim against the individual officer under state tort law. When the federal officer was acting within the scope of employment, the Westfall Act simultaneously substitutes the United States as the only defendant and immunizes the officer from personal liability. 28 U.S.C. § 2679(b)(1).

If the victim of intentional official wrongdoing looks instead to the Bivens constitutional tort remedy, he or she will encounter doubts about whether this judicially-implied cause of action is legitimate or a relic of judicial activism. Governmental policy interests, such as military discipline or protecting national security, may be asserted as counseling against extension of the remedy to any new context. And the officer typically will assert qualified immunity against liability, contending any constitutional constrains on conduct were not clearly established at the time of the episode.

In sum, the victim of intentional federal misconduct may be barred from relief against either the federal government or the individual officer.

In my view, the solution lies not in any hope for a judicial course correction in Bivens jurisprudence, but rather in a legislative overhaul of official liability for intentional wrongdoing by the federal government and its agents. And Pfander has done us the considerable service of offering a template for legislative reform, through the model of the nineteenth century common-law remedy against federal official wrongdoing.

In the historical background to his book, Pfander contends that the early Republic recognized a “sturdy common-law trespass action [that] provided individuals with an assured right to bring federal government officials to account.” (xxii) Through this common-law precursor, the courts “applied a fairly unyielding body of tort law in assessing the liability of government actors for invasions of rights to person and property,” unqualified by doctrines of official immunity. (3) In this way, the courts protected individual rights and articulated the fundamental limitations on justifiable government action. Given the doctrine of federal sovereign immunity, the federal government could not be held vicariously liable, but the equivalent was achieved by judicial imposition of damages against individual federal officers who crossed legal lines and congressional award of indemnity to the officer. (3) In the end, “Congress accepted financial responsibility for government wrongdoing.” (3)

Resurrecting this paradigm in the twenty-first century can best be accomplished through a statutory waiver of sovereign immunity, by updating the existing remedy against the government through the Federal Tort Claims Act. Rather than creating any new causes of action, the FTCA “build[s] upon the legal relationships formulated and characterized by the States” with respect to principles of tort law. Richards v. United States, 396 U.S. 1, 7 (1962). As Pfander correctly observes, the FTCA makes “no provision for constitutional suits against the federal government itself.” (19) But neither did the nineteenth century exemplar, which was grounded in the common law. By holding the federal government accountable for “ordinary common-law torts,” Dalehite v. United States, 346 U.S. 15, 28 (1953), the FTCA more closely resembles the common-law trespass remedy to curb governmental wrongdoing than does the judicially-devised Bivens constitutional tort cause of action.

The nineteenth century predecessor did not impose liability directly against the United States Government, yielding to federal sovereign immunity. However, as Pfander writes, a “striking feature of the system [was] an expectation that the officers in question would be indemnified and held harmless by Congress” by enactment of private bills that covered the amount of any judgment against the officer for damages. The FTCA accomplishes that purpose more forthrightly by shifting liability from the officer to the United States, thus holding the government directly accountable and removing the risk of undue sympathy by a trier of fact toward an individually-responsible defendant.

When enacted as an experiment in governmental liability in 1946, the FTCA was subject to a number of cautious exceptions and limitations. If the FTCA is to fulfill its promise of compensating individuals for harm by government wrongdoing, it must now be enhanced to offer relief for most forms of intentional wrongdoing. At present, claims for assault, battery, false arrest, and false imprisonment are excluded from FTCA recovery. 28 U.S.C. § 2680(h), thus eliminating the government itself as a target for liability. When the FTCA was originally enacted in 1946, the exclusion of intentional torts from the FTCA ran parallel with state respondeat superior rules that generally held the intentional tortfeasor-employee outside the scope of employment and thus subject to personal liability. With state respondeat superior rule expanding to impose vicarious employer liability for more and more intentional conduct by employees, and with the Westfall Act covering federal employees with personal immunity for actions within the scope of employment, the suit against the individual intentional tortfeasor may be barred. The evolution of the law demands repeal of the assault-and-battery exception lest the victims of intentional wrongdoing at the hands of government be left without any remedy in any court against any defendant.

By bringing intentional tort claims into the FTCA and using the vehicle of common-law torts to address governmental wrongdoing, the goal of clarity in articulating legal limits would also be achieved. As Pfander sees it, one of the great merits of the nineteenth century trespass claim against the officer was “a fairly unyielding rule of personal liability whenever an official of the United States invaded the legal rights of an individual.” (xix) Without any deflection by the doctrine of qualified immunity, early Republic courts “increasingly came to understand that their duty was to apply the law and determine . . . the legality of official action.” (9) Nor did national security or other policy concerns “trigger any hesitation on the part of the courts; they proceeded to the merits and adjudicated the claim.” (16)

An enhanced FTCA that provides a remedy for intentional torts would achieve the same clarity in legal framework for governmental action. When the United States is the defendant to a state tort law claim through the FTCA, qualified immunity is not available as a defense. Rivera v. United States, 928 F.2d 592, 609 (2d Cir. 1991) (“[Under the FTCA, t]he United States does not have the advantage of any defense of official immunity that the employee might have had[.]”) Instead, the defenses available to the federal government in an FTCA suit “are defined by the same body of law that creates the cause of action, the defenses available to the United States in FTCA suits are those that would be available to a private person under the relevant state law.”  Vidro v. United States, 720 F.3d 148, 151 (2d Cir. 2013). Because the government is directly liable under the FTCA, the concerns animating qualified immunity—about imposing personal liability for understandable legal errors by an individual—fall off the table.

Accordingly, under an FTCA regime for intentional wrongdoing at the federal level, constitutional or statutory justifications for the federal agent’s conduct would have to be raised as an affirmative defense under the pertinent state tort law. Because constitutional standards presumably would be a factor when evaluating justification for an arrest, detention, or exercise of force, those constitutional parameters would be adjudicated through the state tort vehicle. Notably, the justification affirmative defense to an intentional tort claim would turn on whether the law actually justified the agent’s conduct. Previous ambiguity in the law would not count as a valid justification for unlawful conduct. Thus, as with the nineteenth century regime, the FTCA approach should allow an individual to obtain “tort damages whenever the government official was thought to have invaded a legally protected interest without proper justification.” (xv)

There may (or may not) be a need to tweak the FTCA’s discretionary function exception, 28 U.S.C. § 2680(a), to ensure that purported policy justifications may not be raised to avoid accountability for constitutional violations. The Supreme Court already has held that the exception is not implicated unless there is room for the permissible exercise of discretion, Berkovitz v. United States, 486 U.S. 531, 536-48 (1988). If constitutional standards are not deemed sufficiently specific in direction to preclude the discretionary function exception, clarifying language would be in order to confirm that appropriate deference to policy-making prerogatives does not sanction violation of constitutional rights.

At the end of the day, Pfander and I are on the same road toward greater governmental accountability, even if we are traveling in different vehicles. While I believe that a legislative transport has greater promise and proceeds on more solid pavement, Pfander’s judicial conveyance would bring us to the same destination. We both wish to see “the federal judiciary . . . bearing institutional responsibility for governmental compliance with law.” (xv)

Gregory Sisk is Laghi Distinguished Chair in Law, University of St. Thomas (Minnesota).  You can reach him by email at gcsisk at stthomas.edu.

Friday, May 19, 2017

Beyond the War on Terror

Guest Blogger

Will Baude

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

Federal courts today are not eager to enforce constitutional rights against individual government officials who are alleged to violate them. Indeed, federal courts frequently dismiss such claims on various technicalities without ever confronting the substance of the rights invoked. That is notably true in 21st-Century litigation over the war on terror, where federal courts have expressed skepticism (or more) about implied causes of action, extraterritorial constitutional rights, and the damages remedy.

But was it always thus, and must it be thus, should it be thus, today? Constitutional Torts and the War on Terror, by James Pfander, sets out to answer these questions. (To all three: “No.”) Pfander frames the book by showing us that legal rights were originally enforced against government officials in a quite different way. Government action was assumed to be regulated by generally applicable law. Ordinary citizens could challenge the legality of that government action through ordinary suits at common law. And judges saw their primary duty as simply applying the law to the cases before them, leaving for lawmakers the task of indemnifying officials or changing the law where its consequences were undesirable.

This 19th-Century model of government legality may seem quaint, but it teaches important lessons today. Pfander argues that our constitutional tort regime fails to live up the structure or benefits of the old regime, and fails to justify its replacement. The common law has worked itself foul. Pfander may be right or wrong about the consequences, but I think his more important critique sounds in legal process: The federal courts might have you believe that today’s limits on constitutional torts are the result of an admirable judicial restraint – a hesitation to step into domains where judges have no commission. But the restraints are of the judiciary’s own devising, and thus in deep tension with the original judicial duty – to apply the law rather than make it.

I may be taking this point further than Pfander would, but I emphasize it because it amounts to my only real disagreement with the book – that it does not take the original model of government legality nearly far enough. Consider two points.

First, the problems with today’s doctrines of constitutional torts are not limited to the war on terror. You don’t need to look to Guantanamo Bay, extraordinary rendition, or the CIA torture report to see government lawlessness gone unchecked. Alas, unchecked constitutional violations happen every day on America’s streets, as police officers exceed their discretion to search or to use force, against both the guilty and the innocent. Constantly expanding exceptions to both civil liability and the criminal exclusionary rule make those violations difficult to remedy. And beyond the police -- schoolteachers, prosecutors, and nearly every government official is insulated from accountability by judicially-devised restraints unknown to the common law.

To see the full scope of this problem, we ought not limit our focus narrowly to the war on terror, but rather consider the broader sweep of constitutional remedies. Once upon a time, we had common-law and self-help remedies for government lawlessness. Then for a time, the judiciary oversaw the replacement of the original remedies with substitute remedies such as the Bivens action and the exclusionary rule. But in more recent years, the courts have begun to roll back the substitute remedies, yet without being willing to revive the original remedies. There are valid and hard questions about the role of common law evolution in constitutional remedies – to what extent should we return to the original remedies and to what extent should we accept sensible modern substitutes? – but we already  have too few remedies and might be on a path to even fewer. That is a real problem. The war on terror cases that Pfander writes about are simply a symptom of that broader problem.

Of course it is true that the law proceeds by halves, and so we can reform one area of doctrine without meaning to approve of what happens in a related area. But if we must prioritize, I would put domestic lawlessness against ordinary U.S. citizens at the core, and some of the abuses of the war on terror closer to the periphery. A full accounting of the original law of the war on terror may also raise technicalities that Pfander does not address – such as the allegedly reciprocal relationship between “allegiance” and “protection” in 19th-Century legal theory.

Second, and more specifically, there is the problem of qualified immunity, a judge-made doctrine which insulates government officials from suits for damages unless they violated “clearly established law.” While that formulation might seem somewhat innocuous, in practice it amounts to a super-duper rule of lenity protecting only government officials. Ambiguities in prior precedent are assumed in the officer’s favor, and a plaintiff must point to a remarkably specific precedent already adjudicating the issue or a really egregious set of facts.

Pfander provides an intriguing reform, which is to hold qualified immunity inapplicable to claims for nominal damages. This would allow plaintiffs to achieve symbolic victories and establish law for future cases, without unduly burdening or deterring government officials who are sued.

But in my view, this is not enough. The fundamental problem with qualified immunity – or so I argue in a recent article – is that it is contrary to law, and has neither a statutory nor common-law warrant. (This argument also owes a debt to Pfander’s historical approach.) But Pfander’s nominal damages solution is less than half a solution to this problem. It exalts a secondary duty of the judiciary – to write judicial opinions that can be cited as precedent in future cases – while neglecting the more fundamental one to enforce the law in the case at hand.

At bottom, these divergences are not really about disagreement. Rather, they reflect the fact that Pfander is on to a theory of federal courts that is more consequential than even his own conclusions suggest. Pfander repeatedly notes that many issues in the war on terror are questions of ordinary law, appropriate to our ordinary procedures for vindicating legal rights. But the point also implies a reverse diagnosis: The problem with constitutional torts and the war on terror is really the broader problem of constitutional torts in our ordinary legal system.


William Baude is Neubauer Family Assistant Professor of Law at the University of Chicago Law School.

Thursday, May 18, 2017

Blind Justice, Lady Liberty, and the War on Terror

Guest Blogger

Joanna Schwartz

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

The day Donald Trump announced his (first) travel ban, hundreds of lawyers set up crisis centers in airports around the country and began drafting legal challenges to the executive order. The next day, Judge Anne Donnelly of the District Court for the Eastern District of New York issued a temporary restraining order. Soon thereafter, judges in Seattle, Boston, Detroit, and Alexandria issued a variety of orders staying part or all of the ban. Trump appealed the Seattle court’s decision to the Ninth Circuit, arguing, among other things, that the President’s national security decisions were unreviewable. The Ninth Circuit denied the request for a stay, and in its decision strongly disagreed with the president’s depiction of the role of courts and the executive in national security matters. “There is no precedent to support this claim of unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the per curiam opinion explained. “Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.” After making a few angry tweets about the Ninth Circuit, and threats to take the case to the Supreme Court, Trump and his staff went to work on a new order.

During this flurry of legal challenges, a cartoon began circulating widely online. Blind Justice was staving off a pugilistic Donald Trump from the Statue of Liberty saying, calmly, “I’ve got this.”1 Trump had sought to use national security rhetoric to avoid judicial review of his immigration policies, and courts had refused to stand down.


Read more »

Wednesday, May 17, 2017

A Bivens Encomium—or Elegy

Guest Blogger

Stephen Vladeck


For the symposium on James Pfander, Constitutional Torts and the War on Terror.

Jim Pfander’s invaluable new monograph, Constitutional Torts and the War on Terror, arrives at an especially fortuitous moment in the history of the Bivens doctrine—which recognizes circumstances in which judges can recognize a damages remedy for victims of constitutional violations by federal officers even though no statute authorizes such relief. Sometime in the next six weeks, the Supreme Court could hand down its most important rulings on the scope of the doctrine in the 46 years it’s been on the books. And at least based on how the oral arguments went in Ziglar v. Abbasi and Hernández v. Mesa (in which I’m co-counsel to the Petitioners), the signs aren’t too optimistic for those who agree with the younger Justice Harlan, who closed his concurrence in Bivens with the observation that “it would be . . . anomalous to conclude that the federal judiciary . . . is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.” As Pfander’s book explains, careful study of the history of civil remedies arising out of federal government misconduct suggests that it would indeed be anomalous to so conclude, especially in the context of challenges to post-September 11 counterterrorism policies. That the Supreme Court may nevertheless be on the cusp of doing so, especially at this particular moment in our nation’s history, should be deeply disturbing to even the most casual reader.

Read more »

Tuesday, May 16, 2017

The Cost of Seeking Legal Clarity

Guest Blogger

Alex Reinert

For the symposium on James Pfander, Constitutional Torts and the War on Terror.


I appreciate the opportunity to join such a distinguished group of scholars in commenting on Jim Pfander’s book “Constitutional Torts and the War on Terror.”  In his book, Jim does a fantastic job explaining how courts have strayed further and further from adjudicating the merits of constitutional challenges to executive actions taken in what is colloquially referred to as the “war on terror” (what constitutes terrorism is contested and political and sometimes tinged with Islamophobia).  Jim’s descriptive account of the problem is, for the most part, right on target -- many individuals caught up in the national security response to terrorist threats over the past 15 years have suffered serious harms, and very few of them have obtained a remedy or even a hearing.  And his prescriptive solutions are provocative and move us in the right direction.  My concern is that they may expect too much of both judges and litigants, for reasons I will explain.

I want to begin with one riddle that is in many ways at the heart of the problem Jim painstakingly describes in his book: the apparent conflict between the Supreme Court’s Guantanamo habeas cases (putting limits on executive action) and its Bivens national security cases (failing to find or enforce a remedy for executive misconduct).  This is a riddle to be solved, and Jim suggests (at pp. 87-89) many plausible solutions, but I would also be careful not to overstate the apparent tension.

Read more »

Monday, May 15, 2017

Constitutional Rot and Constitutional Crisis

JB

No one could accuse Donald Trump’s presidency of being boring.  The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Every time Trump does something remarkable, like the recent firing of Director James Comey, pundits ask whether we are in a constitutional crisis.

However, as I noted in a previous post, constitutional crisis refers to something different: A constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task of keeping disagreement within the boundaries of ordinary politics instead of breaking down into lawlessness, anarchy, violence, or civil war.

As Sandy Levinson and I have explained, there are three types of constitutional crises. In Type One crises, political leaders announce that they will no longer abide by the Constitution or laws (for example, because of emergency), or they openly flout judicial orders directed at them. In Type Two crises, people follow what they believe the Constitution requires, leading to political paralysis or disaster. In Type Three crises, political disagreement about the Constitution becomes so intense that the struggle goes beyond the bounds of ordinary politics. People take to the streets; there are riots; the military is called out to restore order (or suppress dissent); political figures threaten violence or engage in political violence; or parts of the country revolt and/or attempt to secede,

Constitutional crisis is very rare, and nothing that has yet happened in the Trump Administration -- including the Comey firing-- comes even close. But people are right to think that something important-- and dangerous--is happening to our political institutions.  That is why, I think, people so often reach for the term "constitutional crisis" to describe it.

In this essay, I want to introduce a new idea to explain our current predicament. I will distinguish constitutional crisis, which is very rare, from a different phenomenon, which I think better describes what is happening in the United States today. This is the idea of constitutional rot.

Although the Comey firing is not an example of constitutional crisis, it is an example of constitutional rot.  For this reason, people are right to worry about it.
Read more »

Call for Papers -- Constitutional History: Comparative Perspectives

Jason Mazzone

Below the jump is the call for papers for the third annual conference on Constitutional History: Comparative Perspectives to be held in Bologna, Italy on November 13 & 14, 2017.
Read more »

Symposium on James Pfander, Constitutional Torts and the War on Terror

Andrew Koppelman

This week and next at Balkinization we are featuring a symposium on James Pfander's new book, Constitutional Torts and the War on Terror (Oxford University Press, 2017). We'll have contributions from Alexander Reinert (Cardozo), Gregory Sisk (St. Thomas), Joanna Schwartz (UCLA), William Baude (University of Chicago), and Stephen Vladeck (Texas). At the conclusion, Jim will respond to the essays.

Friday, May 12, 2017

For one family, war has tragic costs. For others, not so much.

Mary L. Dudziak



The lead story in the print version of today’s New York Times is a story that barely breaks through in our fast-paced digital communications: a family mourns a fallen soldier. Staff Sgt. Mark De Alencar "fought and died in a war that most Americans say is not worth fighting, according to some polls. It is a war that seemed to be over in 2014, when President Barack Obama announced the end of the original United States combat mission,” wrote reporter David Zucchino. "Honestly, I thought the war was over before Mark got sent there" the soldier’s sister-in-law said. 

War is present and personal for deployed American soldiers and their families. It is far off the radar screen of most Americans, exacerbated, it seems, by our digital algorithms. The “top stories” in my digital version of the New York Times this morning did not mention Sargent De Alencar at all.
"The war didn't seem to affect anyone outside the military," remarked De Alencar’s widow, Natasha De Alencar. His son Deshaun De Alencar emphasized: "His life was not taken: It was given to his country," in an echo of Paul Kahn’s powerful work on the soldier’s willing sacrifice.

A soldier’s giving of his life for others – for our disconnected and distracted polity – generates a powerful duty that has been ignored. At the very least, a soldier's death in a war fought in our name requires that we pay attention to it. Engagement is our responsibility.

But simple attention is not weighty enough to honor this family’s sacrifice. There are renewed calls for Congress to reengage with American armed conflict. De Alencar died in Afghanistan “while fighting Islamic State militants.” Congress has declined to authorize armed conflict against ISIS or in Syria, so that presidents rely instead on creative interpretations of preexisting authorizations for the use of force. This puts the task of defining war’s limits within the Office of Legal Counsel, which defines them in secret memos. This is hardly a source of democratic limits on presidential war power.

Though the blame for the absence of restraint falls, in part, on Congress, blame is shared by the American people. I have seen no demands in the recent town hall meetings in congressional districts for congressional engagement with the nation’s use of force. Americans care about what they feel personally. As Natasha De Alencar said, most Americans seem unaffected by the conflict that cost her children their father. The most important democracy deficit in contemporary armed conflict is that a citizenry isolated from war's cost enables ongoing war without restraint.

Trump's Innocence and the Rule of Law: A Note on the Comey Firing

Richard Primus



            Shortly after President Trump fired FBI Director James Comey, Adrian Vermeule pointed out that Trump’s decision, even if motivated by Trump’s desire to stop Comey from continuing to conduct an investigation into Trump’s ties to Russia, would be consistent with Trump’s innocence in that matter as well as with his guilt.  The guilt scenario is easy to imagine.  If Trump has colluded with Russian partners in impermissible ways, he would have had a clear incentive to fire the man who was in charge of an organization investing the matter.  But, Vermeule points out, there is also an innocence scenario that makes sense of the data.  If Trump knows that he is innocent of Russia-related wrongdoing, and if Comey refuses to drop the matter, then Trump might fire Comey as a way of putting an end to an unwarranted investigation.  Indeed, if Trump knows himself to be innocent and suspects that Comey knows it too, he might conclude that an investigation was not just unwarranted but also illicitly motivated.  Firing Comey might then seem like the way to put matters right.

            I’ve long regarded Vermeule as an unusually intelligent and systematic thinker, and I think he is right that Trump’s firing Comey to stop a Russia investigation would be consistent with the innocence scenario he describes.  That’s not to say that I think such an innocence scenario is likely.  But the point of this post is not to try to assign relative probabilities to the two scenarios.  It is to point out that Trump’s conduct would be unacceptable either way.

            To fire the official who is investigating me on the ground that I know myself to be innocent is to make myself the judge in my own case.   No, Trump wasn't executing the official role of a judge when he fired Comey: he was deploying executive power at an investigatory stage rather than rendering an acquittal at the stage of final adjudication.  But that distinction doesn't make much difference here.  Why, after all, is the idea that no person should be the judge in his or her own case fundamental and long-standing within the common law, as well as in American constitutionalism?  Because one might err in judging one’s own guilt or innocence, especially given the strong incentives to come out one way.  Because letting someone be the judge in his own case invites his corruption.  Because when a person is the judge in his own case, it is hard for others to believe the adjudicative process has integrity.  All these problems are the same when I fire the investigator on the ground that I know myself to be innocent as when I acquit myself in court on the same ground.  And they certainly apply to the Comey scenario.  Maybe Trump really does think he’s innocent, but if so he might be deluding himself.  Maybe Trump really is innocent, but it’s nearly impossible for people who aren’t already unshakably committed to the proposition that he’s innocent to be persuaded he’s innocent if he gets to choose to shut down the investigation.  Just by the way, it’s also possible that Trump is guilty and knows it perfectly well.  But even if he truly believes himself innocent, he can’t exercise his powers for the purposes of shutting down an investigation into himself without making himself the judge in his own case in precisely the way that our rule-of-law system abhors. 


Elsewhere, and in a more general way, Vermeule has argued that the idea that a person may not be the judge in his own case isn't really a categorical principle that obtains throughout our legal system.  Instead, he says, it is an idea whose force must be weighed from context to context, depending on the particular circumstances.  I think Vermeule says some valuable things on this topic, though I’m not persuaded by everything he argues.  For present purposes, though, what matters is not the merit of Vermeule’s overall view of that subject but merely whether his view commits him to a position on the self-dealing problem in the particular circumstances here at issue: that is, whether an official would act permissibly or wrongfully by firing a subordinate as a means of trying to terminate an investigation of himself.  Vermuele does not address that case squarely, and I think that on the best reading of his work suggests that he would think such behavior wrongful--which is not to deny that a reasonable reader might read his work and reach the opposite conclusion.  So while recognizing that Vermeule might think it acceptable for an official to try to terminate an investigation against himself, I do not think he is committed to that view.  

So as far as I know, then, Vermeule has written nothing contradicts the point I'm making.  When he argues that Trump’s innocence might have motivated him to fire Comey, he need not be endorsing the view that Trump’s innocence would make his decision to fire Comey acceptable And in my own comfortably held view, an official who fires a subordinate in the hopes of terminating an investigation into himself acts wrongly.  The wrong sounds in the same register as the formula that no person should be a judge in his own case.  It seems worthwhile, in the current conversation, to make that point explicit.  

Colluding with America’s foreign adversaries should disqualify a person for public office, and so should disregard for core principles of the rule of law.  For an American to have to write the preceding sentence at all is bizarre.  It’s not in the least surprising, given events of the past year.  But it’s bizarre nonetheless.

Older Posts

Home