Lawrence S. Robbins is an appellate and trial lawyer at Robbins Russell. George T. Conway III is a lawyer and an adviser to the Lincoln Project, an anti-Trump super PAC. The writers both submitted friend-of-the-court briefs opposing the government’s motion in the Flynn case.
The latest example comes in the criminal case against Trump’s first, short-tenured national security adviser, Michael Flynn. He pleaded guilty — not once but twice — to charges that he had lied to FBI agents during an interview about his conversations with senior Russian officials during the presidential transition. Despite Flynn’s admissions of guilt, Attorney General William P. Barr filed a motion asking that the case be dismissed — and supporting Flynn’s effort to have that done without even a hearing before the district judge.
Flynn won before an appeals court panel. But when the full court of appeals heard arguments on Flynn’s petition, the judges couldn’t have seemed more bewildered at the Trump administration’s position. The government argued that the district judge couldn’t inquire into the government’s reasons for seeking dismissal even if he’d seen the prosecutor take a bribe, in open court, in exchange for dismissing the case.
The Trump administration has been saying things like that a lot lately — trying to stretch the law in ways that undermine its remaining credibility. It argued that a sitting president’s accountants and bankers can’t be subpoenaed for his personal records during his term in office by either a state grand jury or, without meeting an impossibly high burden, by Congress. It argued that the president’s close aides can’t be called to testify before a congressional committee investigating presidential misconduct. The least trustworthy administration in decades, if not ever, keeps arguing: “You’ve just got to trust us.”
Lawyers have a phrase for the government’s saying “Trust us.” It’s called the “presumption of regularity.” The presumption of regularity means that courts should presume that government officials acted through a “regular” process: that it carefully vetted its policy and scrupulously examined relevant legal precedents.
But, as its name suggests, the presumption of regularity rests on the premise that the government is functioning in a regular way. And the Trump administration is anything but regular. Following the cues of a chief executive who despises what he calls the “deep state,” administration officials have cut corners, displaced career professionals, exiled dissenters and abandoned institutional norms — in short, circumvented the very processes that justify the presumption of regularity in the first place.
The chickens have now come home to roost. Whether they say so explicitly or not, courts have been dispensing with the presumption of regularity. The best example: In the litigation over the 2020 Census, the Supreme Court held that Commerce Secretary Wilbur Ross’s decision to add a citizenship question to the census form was arbitrary and capricious. The reason? “Altogether,” Chief Justice John G. Roberts Jr. wrote, “the evidence does not match the explanation the secretary gave for his decision.” That’s just a polite lawyer’s way of saying Ross lied.
Examples of the administration’s disrespect for regularity are legion, and not just confined to litigated matters. Barr has acted as a virtual one-man band of irregularity: He forced the U.S. attorney in Washington, Jessie K. Liu, out of her job, thereby enabling him to countermand former special counsel Robert S. Mueller III’s sentencing recommendation for Roger Stone. And Barr gave a transparently false account of the Mueller report in the week before it was released to the public.
So, too, with other executive departments. Take the firing or removal of career diplomats whose only offense was to stand in the way of the president’s efforts to smear his electoral opponent, former vice president Joe Biden. And it was the perception of irregular process that led the Supreme Court to set aside the Department of Homeland Security’s effort to undo DACA protections for “dreamers” brought to the country as children.
The problem with bypassing professionals and norms is that the decisions you make instead are often transparently foolish, or appear rigged to achieve an unprincipled or corrupt result. Which brings us back to Flynn. No serious criminal lawyer could have written the government’s motion to dismiss the prosecution. The government relied on a single, 64-year-old case on “materiality” that both the Supreme Court and the court of appeals have repudiated. The government asserted that FBI agents had no legitimate reason to interview Flynn, despite his obvious susceptibility to Russian blackmail. Given the weakness of the government’s arguments, it’s hard not to conclude that it sought to spare Flynn to satisfy the whims of Trump.
To be sure, elections have consequences, and political appointees can and should change policies in accordance with their electoral mandate. But ad hoc, one-off decisions that bypass the input of trained professionals end up looking like they were cobbled together for an Audience of One. And that doesn’t cut it under our system of government. Otherwise, the rule of law becomes what an earlier Justice Roberts (Owen Roberts, in 1944) called “a restricted railroad ticket, good for this day and train only.”
correction
An earlier version of this column misquoted the 1944 opinion by Justice Owen Roberts. This version has been updated.
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The Post’s View: Barr wants Michael Flynn’s charged dropped. Judges should be able to question that.