BILL KRISTOL:
Hi, Bill Kristol here. Welcome, again, to Conversations. I’m very pleased to be joined again by Ryan Goodman, law professor at New York University, co-editor, I think, in chief of Just Security, really an indispensable website for intelligent but also accessible legal analysis and thinking about what’s happening not just in the courts, but really in government as a whole, and that’s very important in this Trump second term. So Ryan, thanks for joining me again.
RYAN GOODMAN:
Oh, my pleasure.
BILL KRISTOL:
We last spoke, at least on Conversations here, a year ago. It was exactly a year ago at the end of the Supreme Court term then, and so I just want to begin… I want to talk about, generally, how to think about the Supreme Court and the courts, but also more broadly, as I say, about what’s the rule of law in the government as a whole, as it were, but maybe just begin by asking you what should, maybe rising above particular cases, though obviously you’ll want to refer to as many as you want, but what should we think? What should we notice about this last year of the Supreme Court?
RYAN GOODMAN:
Thanks, Bill. I guess, to me, the biggest question is whether or not the Supreme Court, a majority of justices, let’s put it that way, understand the moment we’re in and are ready to meet it. By that, I mean they recognize we’re dealing with a rogue administration that’s engaging in, I think it’s just fair to say radical lawlessness, and do they understand that that’s not just the kind of crisis that we’re in, but it’s also a crisis for the courts, in the sense of the radical lawlessness includes not just engaging in policies that are unconstitutional and the rest of it, but actually engaging in actions towards the court that very much threatens the checks and balances. To me, that was one of the biggest open questions as to whether or not the majority of this court would signal that they’re aware of and are willing to meet an extraordinary situation with extraordinary responses to it, and they didn’t, is the bottom line, not from the majority. There are certainly three of the justices that did and sounded alarms, but I’m very concerned as to where the court is at.
BILL KRISTOL:
Well, that’s very interesting and provocative, and you’re someone who’s been pretty, I think maybe by temperament and also because of your position there as a law professor, kind of cautious and using terms like radical lawlessness, more cautious than I am. That’s my standard of caution, and so I’m struck that you say it, and obviously you’ve thought this through and I’ve seen you argue it in print and elsewhere, but say a word more about that part of it and just sort of what’s the evidence against someone who says, “Oh. Well, look, you don’t agree with some of it, and I would do some of the things they’re doing, but it’s not quite what as thorough going or as extreme as you say.” Then, we can go talk about the court’s reaction.
RYAN GOODMAN:
Sure, and you’re right. I have tried to be as cautious and measured in my assessments of what’s actually going on and where are we, and any trajectory toward a kind of constitutional crisis, the greatest of which might be in part reflected in Trump administration defiance of the Supreme Court itself, let’s say. But I had no expectation, coming into January 2025, that the administration would necessarily violate court orders. If that happened once, twice, it would rock the legal world, the rule of law in a certain sense, and so we’ve been tracking that over time. Over time we have this presumption regularity tracker. I can talk about what the presumption regularity is, because I think it’s an important concept for people to understand and how it operates in the legal system, but the underlying data, if you will, for the presumption of regularity is just to see how many times have judges themselves said that the administration is acting in non-compliance with their own orders, and how many times have judges said that the administration is providing false information to the court?
Things that are like sanctional behavior at a minimum, sanctional behavior. And so, the number as of a most recent update of the presumption regularity study was 34 cases in which there’s clear statements by the courts that the government is in non-compliance, and then a number of those are courts with Trump-appointed judges and all the rest of it, saying that it’s flagrant non-compliance and it’s willful non-compliance. It’s not non-compliance that, in other instances, in some of these instances, is caused by capacity constraints or information conveyance problems of the DOJ not being able to convey the information to the DHS to comply, but flagrant, willful, intentional is a lot of the cases. So, that’s 34 just regular kind of cases. Then, we also documented over 90 cases in which the courts have said that the DOJ is providing them false information, and then we very recently published just in the last couple of weeks an additional tracker that’s specific to immigration habeas, because it’s its kind of own animal.
In those instances, it’s over 700 cases in which there’s non-compliance, and that’s on habeas. The one issue that when Stephen Miller went out to the White House lawn and said, “Oh we’re contemplating suspending habeas,” it created an inflection point because people were alarmed by that. Then, what the study shows is, well, actually, the judges themselves are saying they didn’t suspend habeas, but they’re not complying with our orders, including the very definition of habeas, which is to bring the body to the court. The DOJ has failed to bring people to the court that the court has demanded, has failed to release people, has released them in places, trying to get them outside of the jurisdiction of the court, all sorts of things like that. So, that’s what’s happening running rampant just in terms of the relationship between the two branches.
Then, underlying all of that is, still, it’s a rate of two thirds of the cases that the government loses at the district court level at the fact-finding, so this is against the background of an administration that has run roughshod over congressional statutes, the Constitution, and things like that, and is being found by courts time and again for violating the law. I would even say, just to show in some sense of where I’m coming from on this, if I were advising the Trump administration on how to effectuate their policies, I would say, “You should not do it this way. Don’t try to break… You know, it’s not break everything in order to get your policies through, because it’s actually going to not be as efficient,” but that’s what they’ve decided to do. That’s the part of the radical lawlessness of it.
And it’s also revealed in obviously the new Jonathan Swan and Maggie Haberman book that that’s Stephen Miller’s mindset behind a lot of this. That’s the modus operandi, and the lower courts are seeing it. The Supreme Court is not. I should mention, sorry, just one other project that we recently published with Just Security, which is an annotation of the Declaration of Independence, and we find that a majority of the grievances that the founders raised, if you look at them, they obviously resonate with the present day. Anybody can see that, I think, for yourselves, it leaps off of the page, but then we actually document over 50 cases of judges sounding the alarm on those very same set of issues that are the modern day equivalent of the grievances. They get it. Yeah.
BILL KRISTOL:
Yeah, that’s interesting. Well, before we get to the Supreme Court, which you indicate isn’t where a lot of the district, and I guess even circuit courts are, but as you say, I’ll add this point, which you feel free to correct, modify, or amplify. I mean, of course, from the Trump administration’s point of view, I think your advice would be, in a way, well taken, understood. They could do better maybe if they broke less china, so to speak, on their way to their policies, but of course, breaking the china or breaking the structure in a way, the lawfulness, and the norms and the expectations and the practices, is part of the agenda as well, right?
It’s not just that they have a policy agenda and it’s how to get there. I think, speaking of the declaration, that’s of course true there too. It wasn’t just that here are 18 grievances, and if there’d been only 13, it would be less severe. Well, that’s true. It would be a little less severe, but the whole point was he wants to govern us without our consent and without respecting our traditional rights or natural rights. I think it’s so clear, isn’t it? I mean, that’s such an important part of what they’re doing, I think. The policies are very important, but also the lawlessness is a feature, not a bug, I guess, is the way I’d put it.
RYAN GOODMAN:
No. I have to agree with you on that. I think it’s the kind of Steve Bannon model of that this is a revolution. The whole point is to overturn the existing system. Part of the existing system is the constitutional constraints and the rest of it. That’s why there was all this uproar about the birthright citizenship case, which is so embedded in the constitution and statute. There’s no other alternative outcome, but that it was illegal. Then, you’ve got the Steve Bannon idea of like, oh no, the justices should have been ideologically in lockstep with the president to just overturn the whole thing, so it’s just not about the baseline of protecting the legal system. It’s actually that the legal system is in their way, so I agree with you on that.
BILL KRISTOL:
And so the Supreme Court you think hasn’t stepped up as much as it should or hasn’t recognized the situation as well as it should have, though obviously in two of the best known cases, tariffs and birthright citizenship, they did find against the Trump administration. So explain a little more why you got to that judgment on the Supreme Court.
RYAN GOODMAN:
Yeah. I mean, I think the bottom line upfront is just that the Supreme Court is engaging in these cases as though they’re business as usual. The most favorable, most charitable interpretation of the Supreme Court is by William Baude. He recently has this exchange with Kate Shaw and Steve Vladeck in the New York Times, and they’re looking back at the Supreme Court term, and he says, “Oh. Look at the tariffs case, look at the birthright citizenship case, a couple others,” and the court is showing how independent it is. I just don’t think that’s the case at all. There’s no indication from the Supreme Court that it’s anything other than how they would handle any administration. There’s nothing that suggests that’s an extraordinary administration. There’s nothing that suggests that they don’t apply as a majority, the regular default and presumption that the administration is engaging in good faith behavior.
They even reward the extremely bad behavior in the administration. One of the cases was one in which a federal district court had prohibited DHS from removing anybody to third countries without those individuals having an ability to claim, before an immigration judge, that they might be subject to torture, which is a statutory right. So, what did the Trump administration do? They put them on military planes and said, “Hey. It’s military planes. It’s DOD, not DHS.” It’s just outright defiance. The judge clarifies, “My order applies to you all,” et cetera, et cetera, and then it goes up to the Supreme Court and the Supreme Court slams him down, without any explanations, one of the emergency docket cases. He’s scrambling even to figure out, “They slammed me down on what basis? I don’t even know the basis for it,” but there’s nothing from the court on that. One of the high points or high watermarks for the Supreme Court, in terms of pushback against the administration, was the National Guard case. That’s the Trump v. Illinois case.
The Supreme Court does decide, with some of the conservatives in the majority, that Trump cannot federalize the guard to deal with situations in Illinois, but they do it in the most proceduralist manner. There’s no indication from them whatsoever, or signals or even dicta, they have all the ability in dicta to say what they think the situation is or to put guardrails up so that the president does not think that he has the authority to invoke the Insurrection Act. What they do is they do it on a procedural ground. The procedural ground is, “Oh. In order to federalize the guard, you have to first have exhausted the idea that the standing active military couldn’t be used,” and since the president didn’t go through that process, the Solicitor General didn’t describe that at all. Solicitor General described the wrong process, that they first saw if ICE could do it or if local officials could do it, and then they went to the National Guard. Well, that’s almost like pointing them in the direction of the Insurrection Act.
That’s what people were worried about. It’s like, “Oh my God. That creates a perverse outcome,” but there’s nothing from the Supreme Court that suggests why that might also not be within the president’s authority to do that, given that the conditions on the ground are nothing like it, and if anything, you have some of the Supreme Court justices doing outrageous things, like Justice Alito, which is totally disregarding the fact-finding of the district court, and instead relying on what I bet is, because he doesn’t use citations of some of it, Fox News reports of what’s happening on the ground in Illinois, so that’s very worrisome, given that anybody watching this, listening in, knows that we’ve got a situation on our hands in which the President of the United States has been using the military domestically as the way in which he said he wanted to, which is to suppress political dissent and the like, and has been pushed back by the district courts, including Trump-appointed judge in Oregon, et cetera.
There’s nothing from the Supreme Court to suggest that this is anything but an ordinary policy with an ordinary case, and even William Baude’s analysis is just like, “Oh, this is a really independent court,” but in ordinary run-of-the-mill type operations and interpretations, who can say that the Supreme Court has done something extraordinary with the birthright citizenship case? They did what they had to do. There’s no other outcome to the illegal interpretation of that case. It would be all fire alarms going off if they did something different on birthright citizenship. It was also, in some ways, some alarms because of how close the decision was, but I don’t see the courts stepping up in any way and sending the signals that they could be sending. We know, from the lower court judges, speaking out publicly to reporters, which is just unheard of, if you want indications that there’s a fire alarm, it’s because they’re dismayed by the Supreme Court, and the way it’s handled itself in the emergency docket over this last year.
BILL KRISTOL:
And a week before the birthright citizenship case, which was right at the end of term, obviously last week, was the case on temporary protective status for the Haitians. Say a word about that and its implications, because you spoke and wrote about it when it happened two weeks ago, and it was a big deal, I think.
RYAN GOODMAN:
Yeah. I mean, it’s a huge deal in the sense that it’s over a million people who are on temporary protected status in the country, that are now subject to that court ruling, which gives, I don’t want to say carte blanche, but it’s something like that potentially, with respect to the administration’s ability to just suspend their protections and then deem them immediately illegal, which was part of the campaign. That’s where JD Vance and Trump were pointing to the Haitians in Ohio and saying at the time, “They’re here illegally,” which they were not. They were let into the country under temporary protected status. But they said, “Oh, well that wasn’t permitted by Biden and the Biden administration.” So now they have all the authority that they want to just strip them of their legal status and make them actually unlawful if they stay within the country. So that’s the huge implications. We did publish a piece by Lucas Guttentag who some people refer to as the GOAT for immigration law. He’s the foremost expert, just tearing apart the legal analysis by the Supreme Court in terms of the statutory interpretations that they did to get there.
But I think at the heart of the case also how the court is addressing what is right in front of us. And right in front of us is the explicit overt nature of the way in which this White House has gone about these kinds of policies with a racial, racist dimension to it. And there’s a very powerful exchange between the Alito majority and Justice Elena Kagan in the dissent. And I think a lot of fair-minded individuals looking at that and the lower court judges will see that Elena Kagan is completely in the right. So what happens is that we have a record of the president making a number of racist remarks about Haitians, that they poison the blood of the United States, which historians came out on that one and said that is the language of Hitler in terms of poisoning the blood. And Trump has said previously things about the genetics of immigrants.
So it really is that he thinks of this in genetic terms. And how do you poison blood unless you’re thinking about race mixing or some crazy ass thing like that? And he’s also said, “These are from shithole countries,” and he’s not anti-immigration because he has said that, “The Haitians come from the shithole countries and why aren’t we bringing in more people from Nordic countries?” And Elena Kagan is putting all of this together. She doesn’t put out one other piece of it, which is, “We now have a refugee policy that is restricted to white Afrikaners from South Africa.” So the writing is right there and all of us can see it. Alito doesn’t even have the ability in the sixth in the majority to quote and say what’s in the record. And Kagan says that, “You can’t even do that. You’re so embarrassed by it, you can’t even put it in your majority. Here it all is.”
And then she says some language which I think is meeting the moment and it’s really important because she’s quoting the chief justice back on himself. And the quote is one that we in the legal community know quite well, and it ties back up to the presumption regularity. She said, “As we often say, we’re not required to exhibit a naïveté from which ordinary citizens are free.” And she’s quoting Chief Justice Roberts from the first Trump administration in which he said those words in order to say, “We know that the administration is lying to us, that the administration is contriving rationales for the…” What they were doing in that instance, which is reinstating the citizenship question in the national census. And that is about the presumption. That is about… This is not ordinary. We ordinarily would give you the benefit of the doubt, but we understand what’s going on and the American people do as well and we have to acknowledge that.
And so it is actually the kind of language I’ve been waiting for from the court. It’s in the Kagan dissent and I’m pretty sure, and there’s already evidence to suggest this, that the lower courts will be keyed into the signal that she’s sending.
BILL KRISTOL:
And incidentally, the Haitians, they’re now 300,000. I mean, one of the striking things about this is you’re legal. They came legally and they were here. They checked in every month as you have to do under TPS and they had work permits and all these… It was a very procedural lease. They followed whatever procedures they were supposed to follow and now they’re suddenly made illegal. Now, I guess the counterargument is, “Well, that’s what temporary status is,” but it also did not seem in the legislation to be anticipated that it would just happen randomly overnight, as you say, willfully and also with racial undertones. And I guess there were a couple hundred thousand maybe more Salvadorians who’ve been here 20, 25 years. 2001, I think Salvador was declared a country from which one could get temporary protected status, the height of that civil war. It’s not quite as bad there now.
And so maybe some of them could choose to go back. And a normal administration might encourage many of them to go back or give them a deadline of a year or two from now to at least apply for regular status if they… Whatever. There are a million different ways you could handle this, obviously, if you cared about these people. They’re going to make people who’ve been here 20, 25 years illegal and I guess send them back and then separate them from their children, if their children were born here, they’re citizens. I don’t know. I really feel the practical implications of the TPS, the temporary protection status, decisions are pretty big, pretty massive. Right?
RYAN GOODMAN:
Absolutely. And just to add a couple more pieces to that, one, Republicans, state and local officials in Ohio with the particular Haitian population there, have spoken out from the presidential campaign until this day about how important the Haitian population has been to their communities and helping grow their businesses. So from just a rational perspective of the communities that are interested in having them there and the rest of it. And like you say, one of the reasons that I think they are low-hanging fruit in Stephen Miller’s equation for deportation is because they’ve done everything right. They’re fully documented, they are easily located, and therefore, are in the system in that way.
And then the other piece just to put in there to flesh out a little bit what’s actually happening in the Supreme Court case. What’s happening in the Supreme Court case is very strong arguments that the way in which DHS went about this under Kristi Noem was she did not perform the statutorily required procedures for getting a determination from the state department about what are the country conditions that we’d be sending them back to, et cetera, before rendering her decision, which maybe is within her discretion, but she has to go through these procedures. And what the Supreme Court is basically saying is, “That’s not reviewable.” Courts can’t review it, which is a bit of a sea change under the law and it’s giving enormous power to the executive branch. And maybe in the background is the idea that, “Oh, that’s legislation. And if we’re wrong, then Congress can pass new legislation.”
And there is some legislation in Congress now that’s coming through that might actually protect some of these people on temporary protective status. But in terms of the procedures and statutes to reconnect to what I think is the original understanding of those statutes that there was judicial review for this, they’d have to overcome a Trump veto. And the system is broken. It’s like, how often does Congress ever push back at that level? But that’s what’s happening. So it’s this illegal but non-reviewable decision by the Trump administration to strip these people of their legal status and doing it on the back of racist stereotypes and grotesque smears of… This goes back to the eating-dogs-and-cats type stuff—bullshit that they’ve polluted the information environment in order to try to support this agenda. And the agenda is removing people who are dark skinned from particular countries is the way I see it. I don’t see another way around that.
BILL KRISTOL:
No, the radicalness or the mass deportation agenda, now they announced it, they had signs at the convention in 2024, so I suppose you can say people voted for it, but that doesn’t mean, of course, that it’s necessarily constitutional or illegal or it can’t be taken into account somehow. But we’re talking on, what is it, Wednesday, July 8th. And yesterday there was a terrible incident in Houston where an immigrant was killed by ICE. Very dubious. Well, very unclear that there was anything justified about this killing, I want to say this was… And the original statement was, well, a DHS statement was, “An illegal alien, a Mexican, was killed and it was self-defense. He had weaponized his vehicle.” You didn’t learn…You had to… Luckily, there obviously, we still have free press mostly in this country, and there were many people in Houston who found out quickly who this man was.
He’d been here… I think he’s 52 years old, three kids, supports them and his mother, I believe, and wife, had come here 35 years ago, worked in construction, was in this case at 6:30 in the morning, driving his brother and I think two other workers to a construction site where they were going to work. Now he was undocumented, though apparently, he was seeking to regularize his status. But in any case, this is the kind of person that ICE is now picking up on the streets. And doing so in a way that obviously invites violence or legitimizes their use of violence if there’s some resistance. Not even resistance, just some concern by the people who, “Why are you arresting me here?” And we don’t know what happened in this case, I guess I should say, but I wouldn’t say ICE has a very good track record of telling the truth about the occasions at which they’ve pulled guns on people, whether citizens or non-citizens.
I guess I’m struck on the mass deportation—this is a little bit off the legal question—but on the mass deportation agenda, it itself is very hard to square, in my opinion, with the rule of law. You can square a lot of immigration policies with the rule of law and some of them would be very generous and some of them might be quite restrictive and some of them would be… There are many, many ways to have white immigration policy that we have in this. But I feel like going around in the streets, finding people who are driving to work and who have families and have lived here 30 years and then the way in which they’re treated and the attempt to just seize them and then get rid of them quickly before anyone can do anything. And then the kids and the whole question of these… Obviously, the places they’re taken and the fast flights out, if possible, to intimidate them to leave, I mean it’s all…
Yeah, the courts don’t want to… At least Supreme Court seems not to want to think about that, so to speak. And that’s been clear, isn’t it, in some of the cases they haven’t chosen to take. And I think they might finally be taking a case next year on some of the core issues presented by this, but they’ve sort of used their shadow docket to either duck them or leave it to the lower courts to try to resist some of this. But it’s pretty hard if you’re doing it district court by district court, I think.
RYAN GOODMAN:
Yeah. A couple ways in which I think about what you’ve just raised. So first, I don’t think Americans voted for this. And Adam Cox and I wrote a piece in December of 2024 based on the exit polls and other pieces of it. I think Americans voted for deportation of people who had entered the country illegally… Sorry, first of all, they were thinking that there were going to be people who had committed serious crimes. I mean, that’s the top one. And Homan has suggested, “We’re going after people who committed crimes.” Sometimes he conflates that with crossing the border illegally, but serious crimes. And then there’s other data to suggest that when people think about mass deportation, they’re also just thinking about people who had recently crossed the border. They’re not thinking about… They were not voting for… People are here lawfully, for sure. They’re not thinking about people who have been here for decades and are part of our communities and things like that.
And so what’s being done to the Haitians, for example, on temporary protected status is just… There’s no democratic support for that in terms of democracy. That’s not backed up by, I think, what Americans actually wanted or voted for. The more they understand what’s happening, I think they rejected. And that’s also why the administration has pulled back from some of this, not because of courts, because of the reaction. So I think that’s one piece of it. And then the other piece, I agree, I… In terms of the incident in Texas, ICE’s statements cannot be trusted at face value. They have given false information in the use of lethal force before courts, so not just in the public and some public statements. So I think that this absolutely has to require some kind of independent investigation at the minimum and not taking their statements at face value as to what occurred.
And then once again, it is I think part of a feature, not a bug, the way in which the paramilitary type operation has happened and the show of force from ICE. And some of the judges have picked up on this in class action suits as well in which there’s clear evidence of racial profiling in Minnesota and then across the country. There’s statements from DHS officials, CBP officials as well as to what is the legal basis for ICE arresting people and it’s not the constitutional basis of probable cause. They’re training them according to standards that are not legally permitted. I do think that Justice Kavanaugh might have a change of mind, a change of heart change of mind, because he is the one who basically is endorsing racial profiling at time one in one of the opinions. But many people think the Supreme Court endorsed the racial profiling of ICE arrests.
It’s just Kavanaugh in a concurring opinion in an emergency docket case. But then he tries to walk it back recently in the case that we just talked about, the Trump v. Illinois, he drops a footnote and says, “Oh no, no, no, no. There must be probable cause and race can’t be used as the basis for interior ICE immigration enforcement.” So maybe trying to distinguish himself and say, “Oh, the case I cited before was about at the border.” And there is a legalistic way of trying to do that, but he’s definitely backtracking. And maybe he’s backtracking in part, I sometimes think, because people started calling them “Kavanaugh Stops.” So it hurt him personally. There’s a personal effect on that. But at the same time, I also think he maybe realized, “Oh my God, the operations that we’re talking about do not fit the hypothetical,” that he had in his first opinion.
The hypothetical in his first opinion is, “ICE will ask the person if they’re here legally or if they’re a citizen. And if they are, they will go on their way within minutes.” And obviously, that’s not happening at all, people being detained and sent to Texas and here legally. So maybe the Supreme Court’s at least waking up to some of those realities, at least. And I have put this in me as the eternal optimist that on this particular issue, Kavanaugh might shift given Bayesian updating. But I do think that’s where we are in this really dangerous situation.
BILL KRISTOL:
No, that’s really depressing, but very interesting, but maybe a little cheerful. If during… As you say, if there’s some shift, people do… Justices have changed their mind, famously, at times in US history, in the ’30s and stuff. So let’s talk about the presumption of regularity, which I’ve learned about from you, a legal doctrine I learned about from you, but I think has a much broader application than the somewhat technical application it has as a legal term. So say a word about what it is in this sort of strict sense, if you will, presumption of regularity, but then the broader way in which I think you and I, and I think some others have come to use it in terms of how the courts, but also how other institutions might think or not think about this administration.
RYAN GOODMAN:
Yeah, so the presumption of regularity is a judicially created doctrine. Doesn’t otherwise exist in the Constitution or statute or anything like that. Many date it back to the early 20th century, where in a case of almost about bureaucratic paperwork, the court is basically saying we will give the benefit of the doubt, the presumption that the administration, the executive branch is engaging in regular decision making, good faith efforts, abiding by their responsibilities.
And with that presumption, it then hamstrings the other parties in litigation. It gives this unusual benefit to the administration, the executive branch, and it hamstrings other parties because to make certain kinds of claims, the courts are going to say, no, we just are going to presume as a presumption that the administration’s behaving properly. You have to prove at a high level of evidence, usually they say clear evidence, which can mean clear or convincing, it’s just one step down from beyond a reasonable doubt, that the administration is engaging in aberrant behavior, didn’t do something normal in this way.
And so that presumption of regularity is this doctrine that’s existed now for over a hundred years, and it’s expanded. It’s expanded, for example, into the space of not just bureaucratic paperwork, but all sorts of issues of discovery and litigation, but prosecutorial abuse. So if a defendant wants to say, “I was the victim of selective or vindictive prosecution,” then the DOJ responds, “Presumption of regularity, buddy,” and it’s almost impossible to overcome it. And one person who could tell us about that is Donald Trump. So when Donald Trump was subject to the special counsel investigations, one of the things he tried to do is motion to dismiss vindictive or selective politicized prosecution, and the answer was, “presumption of regularity.”
So that’s how it’s operated. And even when I say it, I think many people can think and many lawyers are starting to think, we haven’t really fully investigated this doctrine. Maybe it should never have existed. Why are we giving such an advantage to the government when we have lots of evidence of potential government abuse just generally? So for the future of what’s the right equilibrium in the whole checks and balances.
But this is where the judges are now sounding an alarm. So we did this huge study to see all the instances in which judges are saying they’re no longer applying the presumption, either in their individual cases or across the board, because of this rampant non-compliance, false information given to the courts and the rest of it. And we are in, I think, a sea change moment.
I mentioned earlier that there’s data already I think on what Justice Kagan had said in the temporary protected status order that we are not required to exhibit a naïveté for which ordinary citizens are free. There’s already a lower court opinion which cites her on that question and says, “I can’t apply the presumption of regularity.” It’s by Judge Algenon Marbley.
And we’re seeing more and more judges do this, just explicitly saying you don’t get the presumption, given the what I would say is radical lawlessness. And some of them are saying that too, and some of them are invoking the Declaration of Independence, saying we created ourselves as a country to separate from monarchic type rule or huge concentration of power in the executive overriding Congress, statute, et cetera. And they’re therefore are saying that the administration has forfeited the presumption in many of these cases. And that’s a strong signal coming from the bench I think to the American public. And the judges I think are also writing a lot of their opinions in ways that are accessible and readable for the American public because I think that they’re ultra concerned. Let’s put it that way.
BILL KRISTOL:
I guess I’m struck as looking outside the legal field and as a non-lawyer, how much though people still give the administration a kind of presumption of regularity, using the term more broadly or colloquially in what it does. And it’s sort of the media. Trump alleges the 2020 election was rigged, other people deny it. And it’s a little bit of a who’s to say kind of attitude.
And of course, I guess I would say I can see why one has that presumption. I mean, that is to say if you have a rule of law structure within the executive branch, which we’ve worked pretty hard to have for at least what, since the Administrative Procedure Act in 1946, before I suppose, too, really though, where you try to have systems that make it hard, that have internal checks and career appointees and the Justice Department and all kinds of … Once they show up in court with documents and so forth, you think, okay, this has gone through a lot of reviews and we don’t have to do everything all over again in that sort of way. There’s always been a certain deference to executive agencies in that respect.
And if EPA says that the data show that this number of parts, 22 parts per million of this carbon dioxide will be emitted, I mean you can challenge it, you can overcome the presumption, but you start off assuming, okay, the scientists at EPA are telling the truth and the lawyers at EPA who are, I guess, officers of the court are telling you the truth and reporting what the scientists are saying. So you can see how in a whole kind of areas of administrative law, and to some degree I’d say in civil cases and even, well certainly in some degree even in criminal cases, there’s a presumption that okay, you’d have to show that they’re violating that.
But I do feel like in the media, in the business world, in law firms, there’s an awful lot of this still holding and maybe they need to take more seriously what some of the district judges are saying. Now, immigration would be an extreme case where they don’t deserve the presumption, I would say, given the behavior of DHS and ICE. But I don’t know, a lot of areas I feel like in defense departments and so forth where I as a citizen have given a very strong presumption of regularity to official statements from uniform military and from civilians too and DOD about most things and most reporting on campaigns and use of munitions or dollar amounts that have been expended and stuff. One understands they could be tilted a little bit and spun a little bit.
And I’d say the same in domestic agencies and in other circumstances. Certainly the Justice Department has worked very hard to build this up over decades and since Watergate certainly, and insulated itself to some degree, considerable degree, from political pressure. I don’t know. Am I wrong that, I don’t know, more people need to be questioning the way in which we, and I include myself in this, routinely take government statements and administration assurances at face value or at least somewhat, or at least are inclined to begin by taking it at face value?
RYAN GOODMAN:
Absolutely. And yeah, there are some ways in which—
BILL KRISTOL:
I mean, you served in the defense department, so you have a real inside perspective from the executive branch as well as obviously as a student of the court.
RYAN GOODMAN:
Yeah, no, I completely agree. And I think that, to bring it into also the national security realm, there’s every reason to think that the intelligence community is under lots of pressure from politicization, and the way in which Tulsi Gabbard did it—but she wasn’t so sophisticated in the way she did it. So if you get a more sophisticated person in there—by way of example, claims that the Tren de Aragua drug gang is acting at the direction of, at the time, the Maduro regime—and then we got some declassified information that’s absolutely not what the US intelligence community writ large was saying and has been saying. There’s no such connection or direction. And that’s just one instance of it.
So I do think come the time that Bill Pulte, if he’s still acting, or if we have a confirmed DNI, and they say, oh, there’s evidence that there was foreign interference in the 2020 election so that we have to take these extraordinary emergency measures in the midterm elections, I would hope that the media is fully aware that we’re not dealing with an administration that is abiding by any of the norms.
And then the other one is how often does the media just repeat what Pete Hegseth says about who’s on the boats that are being killed systematically in the Caribbean and the East Pacific? What’s the basis for that information? What are the indicators? What are the indicators that he even knows that that person is, and are they a member of the TDA or the drug cartels, or are they some affiliates? What does he mean by affiliates? What’s the intelligence on the first boat strike that killed, I think it was 11 people, which is not like the other boat strikes because they don’t travel in packs of 11 people when they’re just transporting drugs, but instead that could be human trafficking, and then you might be also killing people who are the victims of human trafficking.
Where are the questions on that? Part of it is because Congress isn’t doing its job of having hearings and the like, which can help focus the media and expose the lies. But I think across the board, I completely agree.
And then just taking it a little bit out of the national security realm, when the anti-weaponization working group that’s come out of the DOJ issued its first report, this first report was on the idea that the Biden administration had politicized prosecutions of individuals that were engaging in acts of violence to block people from abortion services and the like. When they first move and the government first moves and drops a report, then the media just covers that because they want to be the first ones to cover it. There’s no pause, there’s no actual putting it in the context of what’s the creation of this working group? Who’s actually part of it?
And then at Just Security, one of the things we did is within about six hours, we published a deep critique, 3000 word critique of the report, and then that could expose it as to what it is, but it’s in some ways already too late. They’ve put out their media report, they’re not going to necessarily update it.
And so I think that the idea that they treat this administration as though it’s normal is a serious problem when they do that. I think it is becoming a little bit better on that when it’s come to the election fraud claims of 2020. And so hopefully they’re well-geared, the media, for example, to deal with that. But also, like you say, the business community. I’ve spoken to some senior people in the business community. Their idea has been, as far as I understand it, keep your head low and this may pass and then we’ll be back to a better situation two and a half years from now.
But it’s like, I don’t know if the country’s going to be recognizable two and a half years from now, that the agenda that’s behind the White House is a radical restructuring of our system of democracy or non-democracy. And I think that’s also why the title in some sense behind the Haberman and Swan book is about regime change. It’s about a regime that’s very different. And a lot of people’s oxes will finally be gored if they continue on the path. And I don’t think they recognize what a lot of the judges themselves are saying to us.
And once again, just want to emphasize, when I say the judges are sounding that alarm, it is judges who are Republican appointed, Democratically appointed, including several Trump appointees, including the judge that in the last 24 hours quashed a grand jury subpoena in the Fulton County case. That’s a very unusual move by any judge, to quash a grand jury subpoena. But he said, “What’s going on here is the DOJ has just cooked up a non-criminal case and the effect is obviously to chill free elections.” That’s what the judges are saying. He is a Trump-appointed judge. That’s what he’s saying.
BILL KRISTOL:
Yeah, that is amazing. So the lower court judges really are a lot of them stepping up, it sounds like, in the way you’d think they might. I mean, one point that I’d welcome your comment on also is sometimes these things are presented as well is the media should do a better job, which is true, obviously, explaining these things and educating the public. But it’s also these have real practical effects. I mean, they are actual policy memoranda. I’m thinking of some of the national security policy memoranda and so forth, but actual policies are based on these determinations, which themselves are not based on actual facts.
So the government is now doing things, as you say, killing people on drug boats, but also things domestically in terms of going after Antifa at home and so forth based on these kinds of claims. And so it’s a real… They know what they’re doing in this. It’s not just, though, that Trump is obsessed with 2020 and therefore he keeps going back to claim election interference there, and other people are obsessed with they don’t like certain kinds of, God knows, immigrants or certain ideologies. And so they’re just going to scream and yell about them. But they’re actually deploying the resources, including the law enforcement and the armed resources of the federal government, but also including a lot of other resources in the service of what they’re saying. I mean, in this respect, I think the real power is being brought to bear behind these claims by the executive branch, by Trump’s executive branch of the federal government.
RYAN GOODMAN:
A thousand percent. I totally agree with you. And they’re using the national security tools to do it. They’re using … The whole framework, the entire policy around Antifa is built on the structure of counter-terrorism. And we know from Christopher Wray, the Republican FBI director of the first Trump administration, that Antifa does not exist as an organization and they’re obviously trying to make it so, and they’re doing it with intelligence authorities. I have every reason to think that they’re using surveillance authorities because you can, once you deem a group like that, to be a kind of a foreign terrorist organization, which they have done.
And our colleague and friend Tom Joscelyn has pulled that apart in terms of a detailed critique of the designations of foreign terrorist organizations on the basis of so-called Antifa links. And when they do that, Rubio is supposed to have a summit in the summer of this global Antifa threat. I laugh because it’s so farcical. But European allies think, what are you talking about? There’s no basis here to have a global summit on this. This is not anything real.
But it’s the direction they’re going. I do think that is towards very authoritarian-like tools of surveillance and clamp-downs. And that’s the rhetorical frame, but it’s the NSPM-7, which you’ve been ahead of the game on. Tom Joscelyn has. We’ve been trying to write about it at Just Security, to inform people about it. But that’s the idea of putting this all under this framework of terroristic threats. And what we’re really talking about is political dissent or ideology. And the very NSPM-7 National Security Presidential Memorandum identifies the precursors of this terroristic threat ideology, that people have radical ideologies about the border or something like that, in opposition to the border. And that’s when Alex Pretti was shot and killed and the head of our… Cabinet member, DHS, Stephen Miller, and others were calling him a terrorist. It fit the mode. That’s the model. That’s the model. It’s not some weird aberrational thing out of their minds, it’s exactly the direction that this is all marching in. And I think people should be alarmed by it, absolutely alarmed by it. And I will bet anything when we have a future rule of law administration, we will have a lot more information about what’s been going on along those lines because they’ll be able to reveal it.
BILL KRISTOL:
Yeah. The way I think of it, I guess I wrote about this this morning, that Adam Serwer famously said in 2018 that cruelty is the point of a lot of what Trump said and did. But in the first term, it was a little more actually said or encouraged people to do, in some ways, or turned a blind eye to what people were doing and tried to do, to some degree, especially in immigration. But I do think the story of the second term is the institutionalization of, in a sense, these policies, many of which are based on cruelty or intolerance or I would say authoritarianism in various forms. And I don’t know, you were served in the Defense Department, you’ve followed closely the Justice Department over the years, a lot of other executive agencies, how much are people going along? How much are people resisting? Do you have a sense of that? How much have people left? So the people who are there now want to go along? Is there different people? I don’t know. I’m struck. I’d be curious about your thoughts on that.
RYAN GOODMAN:
So I guess a couple thoughts are, one is I completely agree with you. I think there are two moments in this whole trajectory that I think it’s worth looking back on. One is the Trump-Hegseth meeting of all of the senior military command in Quantico, and their message was “we are at war domestically and you need to put down these insurrections”. And then another one, it’s much smaller in a certain sense, but was Stephen Miller going down to Memphis when they had gotten the ability of the Governor to use the guard there and he gives this speech about unleashing, basically, the dogs of war. On whom? The American population. I don’t think anybody can look at that speech coming from Stephen Miller and think it’s anything but authoritarian in the sense that you just described. And he’s not exactly a weak person in this administration. He’s a central figure.
And then I do think that there’s a spectrum of people inside the DOD. I don’t want to say too much about it in a certain sense in the sense that I do think there are people who are definitely trying to do the right thing. I think, across the board, there was actually research done on this in terms of the civil workforce. Complete repudiation of Hegseth. They think he’s atrocious and he’s atrocious in so many ways, including we published a piece by Mike Schmidt, former JAG, just talking about all of the people that Hegseth has forced out from top leadership and how damaging that will be to the American military force’s readiness. And he draws an analogy to what Stalin did with the Soviet Red Army and the loss of that leadership. And we actually, at Just Security, have this tabulation of, if you count up all the years of experience, it’s over 900 years of experience lost at the top level. There’s huge dismay over that.
And there’s huge dismay, I think, also in Congress as well, and people from inside the military speak to Congress about it. And then there’s the huge swath of people who are just trying to keep their head low. The very same thing that I described with some senior members of American industry and corporate America are folks like that inside the DOD, which is like, “Just keep your head low, wait this out. We’ve got two-and-a-half years. Maybe it’s, in some ways, one-and-a-half years because then it’ll be really lame duck in that last year.”
But that’s not the way these things really end up. I think that Trump and Hegseth and Stephen Miller are just changing the face of America. And that’s what’s actually happening. So the idea of keeping your head low… And for those people who think at a senior level they should just keep their head low and go along, it will be discovered, at a certain point, what they did at this time. I don’t think the laser-like focus will be in the lower-level people, but on the senior folks who are veto points and decision makers. This is a time for them to be responsible. And I think history will look at them, but there’s other ways in which it’ll be discovered and there can be repercussions to that, let’s just say, like the boat strikes. I don’t know how somebody in a senior level that, I’ll put it this way, is not speaking to a defense attorney because of the liability that comes with it.
So it’s an awful, awful period. And there’s so many ways in which the leadership that’s come from the Cabinet and the power that’s being handed by the President to Hegseth undermines, I think, our country in terms of national security and then across the board, and it’s not to the satisfaction of people inside the Pentagon building.
BILL KRISTOL:
Interesting. Let’s close, maybe, just if you look ahead maybe for the next year of the Court, maybe the Supreme Court itself, but also more broadly. You’ve pointed to some sort of heartening developments and trends and then very worrisome ones. Two-and-a-half years is a long time and part of me thinks, “Oh my God, we’ve gone pretty far down a certain path in 18 months, what’s another, what was it? 30 months, I guess it would be. Where are we going to be?” But then there’s also a reaction against it. Obviously Congress might look different and the courts might act somewhat differently. I don’t know. What should we look for over the next 6 months, 12 months?
RYAN GOODMAN:
Yeah, I guess I’d highlight two things. One is the midterm elections. So a lot of people, institutions, and the like are concentrated on whether or not we’re going to have free and fair elections. And as one person said to me, I thought it was wise, it’s unimaginable that Trump won’t take a run at interfering with the elections. Like, how could he resist, in a certain sense? And I worry about how the courts will respond to that and meet the moment. And yesterday’s decision on the Fulton County case, I think, is a very positive sign. And we published a piece by Just Security that’s working from the people at the Edley Center at Berkeley trying to inform magistrate judges about what exactly is their authority when the DOJ comes knocking for search warrants and things like that with election information. So I think that’s going to be a real stress test for our country and how the courts respond to that.
And then the second one, I guess, that I’m looking for is whether or not the courts are actually meeting the moment and taking extraordinary steps. So I was in conversation with somebody recently that was much more skeptical than I am on how the courts are starting to speak about explicitly, besides implicitly, forfeiting the presumption of regularity and looking for the courts to react in extraordinary ways to the extraordinary challenges and threats. And one example is do they rule from the bench? Do they issue contempt orders? They are starting to do this in terms of also referring people to disciplinary procedures, “people” being DOJ officials and the like.
But magistrate judges can go out of their offices and do onsite investigations. As far as I know, there’s only one, and I need to do more research, but in November, a magistrate judge went to an ICE detention facility. Given the severity of the claims that are coming their way and the lack of reliable information from the government and all the rest of it, I think they needed to start taking extraordinary steps that say “this is not ordinary” in any stretch of the manner of way in which we think about that. So that, to me, is over the next several months to see where that goes. Because I do think we have this accumulation of judges on the presumption of regularity, but it’s going to be more than that that’s needed, I think, to face the lawlessness that’s happening coming out of the administration.
BILL KRISTOL:
Yeah, that’s interesting. And, yes, not entirely encouraging, but we’ve got to be hardheaded about it. I mean, being hardheaded, one last thing, I’m just curious, our federal system, the states, localities, clearly I think we’re probably happy, for now, at least, that we don’t have all power centralized in one capital. It’s not what Paris says goes pretty much everywhere in France, but that’s not quite the case here. Certainly not in elections. Mixed on other areas, law enforcement, obviously. Very mixed bag, I’d say, there in terms of federal influence over localities, but also the ability to have some independence. So you think the states have done a pretty… Well, some of the states have done a pretty good job of what they can do or are they still trying to figure that out? It’s obviously complicated and difficult, but I’m just…
RYAN GOODMAN:
Yeah. So I think they’re inching towards there in terms of issues of accountability or policing federal agents engaging in lawless behavior. There’s more that they obviously can do, and we’re going to learn from some of the Minnesota local authorities trying to bring forward cases when federal agents engage in lawless behavior. We’ve published some pieces in Just Security that explain the pedigree for that and Supreme Court endorsement of that, not the Supreme Court, in a sense, but over decades. So I think that’s a real space for thinking about what state and localities can do and should be doing.
And that’s also, just bringing back to the important case that you identified out of Texas and the ICE killing, one of the very first thoughts that came to mind is who can investigate this? Because there’s no way that the federal government can be trusted whatsoever to investigate that kind of a situation. But we’re dealing with Texas, so then it’s down to, is it there a locality? Is there local authority that can do so? And I think it’s also what the American public demands. So hopefully in this case, if it looks as though it’s going in the direction that it is, which that it will end up being a case similar in character to the Minnesota killings of American citizens, then hopefully there is a moment in which the public is in an uproar as the public was over those cases as well, and this would be treated similarly and that can potentially force authorities to do something different.
But I do think one of the other bright moments that’s come out about of all of this is some of the attorney generals and different blue states, unfortunately sometimes red states join them, but seldom, and oftentimes I should also say red states are free-riding because they like what the blue state attorney generals are doing by litigating cases in which the government has seized congressionally-appropriated funds that should be going to the states. And that is, I think, healthy for our democracy that we’re seeing that kind of action. I just wish that it were purely nonpartisan. I wish that we were living in more of a system of checks and balances and the Federalist kind of checks and balances.
And I should end it, I guess also in saying one other piece, which is all of the studies that I’ve done over the last year about how the courts have, in fact, been living up to the responsibilities, including Trump-appointed, Republican-appointed, all the rest of it, judges. At a certain point, you take a step back from that from my perspective and just look at the Capitol Hill. And that part of our system, they’re not even on the playing field. And that’s just so repulsive to me in terms of the system of checks and balances, separation of powers that should be operating, but instead they’re operating by party. And I think that should be deeply concerning to people, and maybe can look at it more fresh by understanding what the judges are doing and what the members of Congress are not doing in terms of the Republican control of Congress. They’re showing some pushback most recently because now they’re entering into general elections, but otherwise, just not. And it’s really deeply concerning, I think, for our Republic.
BILL KRISTOL:
No, that’s so interesting. Yeah, very hard to maintain checks and balances and democratic accountability without Congress.
RYAN GOODMAN:
Yeah.
BILL KRISTOL:
I mean, it is the very center of it. And so now we’ll see what happens in a few months. And over the next two-and-a-half years. As we’ve seen, things, it could be fluid. Things have gotten much, I think for a while, they were getting worse faster than I at least expected. In some ways they got better, though a little bit the reaction was stronger also, and the public actually, I think, moved away from some of what these policies and some of the authoritarianism a little faster, actually, than I expected, given that they weren’t getting that much reinforcement. The elites haven’t moved very fast, some of them at least. So I don’t know. But then these judges are another counterexample.
It’s a more complicated situation than one might think. And maybe that’s good because it does give more opportunities to resist. If we were a very simple country, a small country with a very simple governmental system that would be easier once you took over the top of it to impose everything from the top down, which maybe was a little more difficult here.
Ryan, this has been, for me, and I think for our viewers and listeners, really a very illuminating, very interesting conversation. I really want to thank you for taking the time and thank you for everything you’ve been doing at Just Security. And we’ll have you back in, I don’t know when, a few months to see what new developments, both encouraging and discouraging. We can discuss them, but, really, thanks for joining me.
RYAN GOODMAN:
Thank you. I really appreciate having a conversation with you.
BILL KRISTOL:
And thank you all for joining us on Conversations.
