The Death of the Presumption of Regularity

A few years ago, “good faith” was declared dead. Obama was still president and the Department of Justice was run by the people lionized today for their not being sycophants of the Trump administration. To some howls of disapproval, I disputed the contention as unworkable, the end of the American experiment. A nation cannot function without the presumption of regularity.

The beauty of such presumptions is that they are rebuttable.  The law may presume a public official to act in good faith, but that merely informs the parties of who has the burden to dispute the presumption and the burden of proof.

Yet, the Comey termination letter tests the presumption beyond the breaking point. As Julian Sanchez writes, the claim that he fired Comey for mishandling the Clinton email investigation is too ludicrous to be taken seriously. It’s as if Trump wasn’t even trying to come up with a credible story. It’s insulting. Lawprof Dawn Johnsen, at the WeHateTrump blog, argues that he’s not entitled to the deference otherwise shown presidents:

It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking?

After the Comey firing, Josh Matz at the same blog argued the same point. Josh Blackman replied,

This rabbit hole goes down very, very far. Think before you leap.

It’s one thing for the public to say that they don’t believe Trump, that his claimed justification for firing Comey is insultingly ludicrous, but to take that a step further, so as to relieve government officials of the presumption of regularity, is another matter. It opens the door to justifiable insubordination by those in official positions who disagree with or dispute their superior. It allows every person who gets a government paycheck to veto and undermine the president.

Rod Rosenstein is reported to have considered resigning after Trump used his memo for ulterior purposes. He didn’t. Threatening to quit isn’t bold. Quitting is bold. Rosenstein remains in his office today.

Should he have written the letter, reasonably assuming that it would be used to bolster a lying narrative? Assuming, arguendo, it was a truthful statement of his belief, and he was asked to prepare it by his superior, his option was to comply or quit.* You don’t get to be Deputy Attorney General and simultaneously decide to tell the president to get lost.

The New York Times has written an open-letter editorial to Rosenstein, imploring him to appoint a special prosecutor to continue the investigation of the Trump administration’s Russian ties.

Given the sterling reputation you brought into this post — including a 27-year career in the Justice Department under five administrations, and the distinction of being the longest-serving United States attorney in history — you no doubt feel a particular anguish, and obligation to act. As the author of the memo that the president cited in firing Mr. Comey, you are now deeply implicated in that decision.

Note the projection of emotion onto Rosenstein, that he “no doubt feel[s] a particular anguish.” To say “no doubt” is to beg the question. To attribute “anguish” to him isn’t to inform him, but to play to their audience. However Rosenstein feels, he knows it without the Times telling him.

You must also know that in ordering you to write the memo, Mr. Trump exploited the integrity you have earned over nearly three decades in public service, spending down your credibility as selfishly as he has spent other people’s money throughout his business career.

Every president “exploits” the credibility of those he appoints, who serve at his pleasure. That’s part of the job description of being appointed to a government position.

Given your own reputation for probity, you must be troubled as well by the broader pattern of this president’s behavior, including his contempt for ethical standards of past presidents.

While the back end of this sentence carries far too much weight, the front end ignores the fact that Rosenstein accepted the position of DAG in the Trump Administration, under Attorney General Jeff Sessions. If he’s not a fool, then he knew what he got himself into and said, “yup, I’m your guy.” And didn’t resign.

You have one choice: Appoint a special counsel who is independent of both the department and the White House. No one else would have the standing to assure the public it is getting the truth.

This is a threat. This is the New York Times editorial board challenging Rosenstein to appoint a special prosecutor, and appoint one of whom they approve. If not, then it will be Rosenstein’s fault. He, and he alone, will have failed the nation.

In simpler times, the decision of the Deputy Attorney General, following the recusal of the AG, would have been entitled to the presumption of regularity, that he exercised his authority in good faith and did what he believed to be proper. But these aren’t simple times. Whatever decision is made, it will be subject to scrutiny and disbelief, whether by the New York Times or by supporters of the president, such that his decision will be decried either way.

Even if he appoints the most respected, pristine, honorable person ever, they will be Gorsuched. Without the presumption of regularity, there is no possibility of a trusted outcome. This is the rabbit hole of which Josh wrote. We may already be falling down it and there will be nothing to stop us from crashing when we hit the bottom. No nation can function this way.

*For those who have willfully bought the Sally Yates narrative that her offense was disagreeing with the president’s Muslim Ban EO, this is false. Her offense was issuing a letter, given to the media, undermining the president publicly while sitting in the Acting Attorney General’s chair. She was publicly insubordinate. Right or wrong on the substance, that was not an option available to her. If she refused to do the job, her option was to quit, not go public.

13 thoughts on “The Death of the Presumption of Regularity

  1. Turk

    The irony here is that if Rosenstein is anguished or angry, it’s just the kind of person that you want in the job doing the investigation of the Trump Russia scandal.

  2. REvers

    Given the sheer amount of shit that comes out of Washington, I think it’s safe to presume the government is very regular indeed.

  3. John Barleycorn

    No “short take” here when “short takes” have started falling from the sky like pollen, and not a “long take” in sight…?

    I am confused, but I do like it like that…

    If I could, I surely would, but they want their Reality TeeeVeee and a Harper Collins book deal too, as they dream of their futures in the green rooms of New York and DC.

    BTW, you do know, that newspaper you read everyday, along with every other outlet, has already, or is surely about to take the plunge, that you can’t take back. Down the slip-and-slide we go. Not even a studder step shall appear.

    Critiquing the tenor and shrill in their “Wheee!” along the slippery way, may be a factor, but it isn’t going to slow down the ride. It’s their show and they will wheee in a shrill as they will.

    Only the Japanese comic book publishers can save us now…not even WWIII.

  4. Jake D

    “A nation cannot function without the presumption of regularity.” – Says who? When has this experiment ever been run?

    PS- Color me surprised; I otherwise imagined a libertarian defense attorney pleased, to learn this particular legal fiction might someday cease to exist.

    1. SHG Post author

      Says me. Says basic principles of law and governance that rely on the presumption of regularity. The former should have been clear because my name is on the post. The latter would require basic grade school civics. Did you missed that day?

      And as for your “libertarian defense attorney,” just because you’re a slave to labels doesn’t make me anything. Remember, neutrality to a mindless progressive looks the same as every other enemy to the cause.

  5. Jake D

    Stop being so mean. I have taken more time to reread your post and to read all the associated links. My comment was impertinent, possibly satisfying both definitions of the word.

    PS- “mindless progressive?” Just because you’re a slave to labels…Besides, there are no neutrals in a prize fight.

    1. SHG Post author

      You thought “mindless progressive” referred to you?

      Pretty sure that’s my old buddy, Jimmy Ryan, on guitar.

      1. Jake D

        Worst. song. ever. Says me.

        PS- The language I used in my previous post-script might not be sufficient to decide I believed I was the target of your petty slur unless you assume I know how to properly use the ellipses. Thanks for the benefit of the doubt! Now if we could all just agree on what the definition of ‘that’ was in the sentence: “We all know what that means” while referring to the title of a new regulation banning travel from 7 Muslim-majority countries. I might not have cause to say: We can function without the presumption of sanity, let alone regularity because here we are doing it, one day at a time.

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