Howl’s Moving Castle

by John Holbo on February 11, 2017

It’s good to see that National Review is awakening to the threat of one branch of government being afflicted by lunacy and threatening to ride roughshod over the other branches, and the Constitution.

I’ve been seeing much Facebook bemusement this morning over this opinion piece by Eugene Kontorovich.

More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.

I wish I’d thought of that joke I read about the President’s two bodies – the body campaign, which is corruptible; and the body Presidential, which is not. But that was someone else. The funny thing is that a lot of conservative pundits are howling about how the 9th Circuit is once again throwing common sense to the wind. The truth is (it seems to me): there is a real legal argument here, but it hinges on the potential need to maintain a legal fiction. That is, to throw common sense to the wind, because the law demands it.

Suppose candidate Trump had – on 5th Avenue, in clear daylight – promised ‘a Muslim ban’. And then he had added: “And if the courts try to stop me, because it’s unconstitutional and illegal, I promise to get you the closest thing to it I can, under pretext of doing something else. As the President, I’ll have broad latitude and discretion, so you’ll get something like a Muslim ban, as promised. The courts won’t be able to stop me, even though they’ll know – just like I’ll know, and you’ll know, the real score!”

I know, I know, that’s crazy. ‘Latitude’ is not a Trump word. He wouldn’t use that word. You get the idea. Just grant me that, in some possible world, he said that. On tape. Would all THAT still be rightly ruled out as a mere statement by a private citizen? Would motive be reviewable THEN? (But he swore to uphold the Constitution!)

At some point you have to get off the bus with regard to the legal fiction about the President’s two bodies. The counterfactual strain becomes too much. (We could actually make it more extreme, if need be. At some point something has got to give. Right?)

Politicians campaign in poetry and govern in prose. That would be the standard line to explain why ignoring campaign promises would be in order (never mind that, actually, politicians generally try to fulfill their campaign promises.)

So what has changed?

Has the 9th Circuit run mad, suddenly, for no apparent reason? No, we have an unusual President. It is unusual to have this sort of explicit evidence of bad motive. Maybe a sign of things to come? For the next few decades we will need a new form of warm, conventional wisdom? “Republicans campaign in jack boots but govern as Jacksonians”? Time will tell. I guess it could eventually become normal for Republicans to campaign on explicit promises to do something flagrantly unconstitutional, then do less, once elected. If that becomes normal, a version of the old poetry-prose dichotomy might take stable hold. But, at the moment, while we wait to find out what Brave New World we inhabit, why should we read the poetry of the executive order as prose? It didn’t function smoothly as legal apparatus, which is the typical use for legal prose. Isn’t ‘they are trying to govern in poetry,’ to please their base, an inference to the best explanation? What if, instead of reading the immigration order as prose, we read it as poetry – kind of a “Howl”-type deal – you know, like the President’s inaugural? American carnage.

I saw the best minds of my generation destroyed by madness,
starving hysterical naked,
dragging themselves through the negro streets at dawn looking
for an angry fix,

who bared their brains to Heaven under the El and saw
Mohammedan angels staggering on tenement roofs
who passed through universities with radiant cool eyes
hallucinating Arkansas and Blake-light tragedy among the
scholars of war,
who were expelled from the academies for crazy & publishing
obscene odes on the windows of the skull,
who cowered in unshaven rooms in underwear, burning their
money in wastebaskets and listening to the Terror through
the wall,

Sounds about alt-right to me. Steve Bannon is pretty smart, after all. Mad, but smart. In general, conservatives are always looking to the inner cities for an angry fix. And that thing about the universities is Milo all over. The underwear is blogs and Twitter and the money in wastebaskets is the financial crisis and how hard it is for Trump’s friends to get loans because Dodd-Frank. And Terror through the wall? Please. That’s why we need a wall. Can’t have Terror through one without one. A bit further on: “The mind leaping toward poles of Canada”? It’s true many liberals are looking north, as they are periodically wont, with some degree of envy.

Obviously it wouldn’t be reasonable for the 9th Circuit to read the executive order as beat poetry. I kid. The real question is: is reading it as campaign poetry, though the campaign is over, a dangerous precedent? How hard will it be for future Presidents (God-willing!) to avoid the problem of having foreign policy latitude and discretion pinched by the courts?

Kontorovich writes:

By accepting the use of preelection statements to impeach and limit executive policy, the 9th Circuit is taking a dangerous step. The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws.

This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.

This is right, but for a more restricted domain value of ‘who he is’ than bigot. To maintain a free hand, future Presidents will need to avoid:

1) Campaign promises to use executive power to do something that would clearly violate the Constitution.
2) Executive orders so ill-constructed everyone figures they can’t be serious attempts to do what, nominally, they are intended to do.

The legal standard for judging when cases 1) or 2) arise will be ‘all kidding aside’. That is, no legal fictions; but a great deal of deference still to be allowed the executive.

Should the 9th Circuit’s decision be upheld on appeal, future Presidents will forevermore be constrained in the following way: they will still be able to do either 1) or 2) freely, but they won’t any longer be able to do 1) AND 2) in very close, connected conjunction. There will need to be a decent interval between promising to violate the Constitution and doing something so weird people figure you are actually trying to do something else, causing them to think back to that time, last month, when you promised to violate the Constitution.

I guess I can live in this mad world the 9th Circuit – that “lost battalion of platonic conversationalists”! – would make, in its hubris.

All that just for a strained Miyazaki/Wynne-Jones title joke, Holbo? Well, sure!

But seriously: the serious point is that all the legal hand-wringing over the black-letter niceties of the 9th Circuit decision is one part serious analysis (it is kind of a legally weird, hence precedent-setting case); but two-parts goal-post shifting. If Trump is normal, this decision is weird. Because it constrains normal activities of the President. But Trump is (all kidding aside!) not normal. The Presidency is not just howling, these days, but moving from its familiar location at a rapid pace. Any assessment of what the judiciary is doing, in response, needs to be realistic about facts on the ground, though it can be legalistic in its reasoning. Some people are entitled to legal fictions, by law. But no one is entitled to ignore the facts, by reason.



Jon Weinberg 02.11.17 at 4:11 am

Neither of the cases Kontorovich cites to support his argument is on point. One of them was a case where the prosecutor had said during the campaign said she would prosecute Fred Phelps, and after she was elected, actually did so; Phelps said that this manifested bad faith, and the court said, “wait, what?” There was nothing in the prior statements indicating bad motive or bad faith, and the court said so. In the other case, the court said (off-handedly) that you can’t establish that a particular action was racist, just by proving that the actor said racist things in other contexts. But that’s not this case. This case is one where the actor’s prior comments referred directly to the particular action that was the subject of the lawsuit, and indicated that it was the product of invidious, unconstitutional motivation. If those two cases are the best that Kontorovich can come up with, he hasn’t got much.


rea 02.11.17 at 1:57 pm

Let’s see if we can find an analogy. Imagine a young man who tells all his friends, repeatedly, “I’m going to marry a rich older woman and then kill her for the inheritance.” He finds a rich older woman, marries her, and of course, as part of the marriage ceremony, promises to love honor and cherish her. Then he kills her, and in the resulting criminal trial, claims that it was an accident–he was cleaning his gun.

The prosecutor attempts to introduce evidence of his pre-marriage statements. Kontorovich, acting as defense attorney, objects:

“When my made his most controversial statements, he was a private citizen. He had not sworn to love honor and cherish his wife. He was, in this sense, a legally differently obligated person.”


John Holbo 02.11.17 at 2:31 pm

That’s perfect, rea! Now the novel needs some kind of noir title, like “Double Intentionality”.


M Caswell 02.11.17 at 2:51 pm

“The prosecutor attempts to introduce evidence of his pre-marriage statements.”

My Law and Order viewing from 20 years ago makes me wonder if that evidence would be allowable under the hearsay restriction?


JimV 02.11.17 at 4:02 pm

My own TV-lawyer watching told me a witness can testify as to what they heard the accused say, but not as to what somebody else said they heard the accused say. The source must be available for cross-examination.

All faiths depend heavily upon not observing this rule, it seems to me.


bruce wilder 02.11.17 at 4:28 pm

All I can think reading the OP is that Trump will win this, one way or another.


Anderson 02.11.17 at 4:37 pm

4: hearsay doesn’t typically apply to reports of statements by a party to the case.


rea 02.11.17 at 4:46 pm

MCaswell: it is not hearsay–see, for example MRE 801(d):

Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).


Glen Tomkins 02.11.17 at 4:58 pm

The govt lost this case because its position rested on the claimed unreviewability by the courts of executive orders in this area. It did not lose this case because Trump’s campaign statements revealed ethnic and religious animus towards those harmed by the order. Kontorovich chooses to focus on the one passing reference to campaign statements in the decision in order to ignore the entire section the decision devotes to discussing reviewability. The reader is left free to presume he did this because while the campaign statement issue is at least arguable and a potential slippery slope, the idea that any executive action is categorically unreviewable is both obviously wrong and obviously repugnant to any system of govt except dictatorship.

The govt lost this case because it failed to mobilize the machinery of govt to create even the false semblance that there was a national security need involved that overrode the admitted harm being done to individuals by this govt action. Sadly, the courts would have almost certainly accepted the mere presentation that the govt had received intelligence that justified the executive order, that there was a new danger to the security of the US that did indeed override the harm done to individuals. And they would have accepted this presentation without reviewing such intelligence because it was classified and the courts would admit that they lacked the competence to review intelligence anyway. But the govt didn’t even bother to even pretend in the case before the district court, or in the appeal, that there was any such new intelligence of a threat that overrode the rights of those harmed by the order. The govt instead relied on a ridiculous and repugnant legal theory, the doctrine of categorical unreviewability of executive orders by courts.


Glen Tomkins 02.11.17 at 5:07 pm

We haven’t got to castles yet. What happens next is that the Trump administration does it right this time and pretends in its legal pleadings defending its new ban that it has indeed received intelligence of a security threat that justifies harming individuals. Then the courts accept this presentation without any meaningful review of the supposed intelligence it is based on. That intelligence will remain undisturbed in the dungeons of Udolpho in the Castle of Otranto.


Yankee 02.11.17 at 5:47 pm

I don’t see how you can have moral behavior without considering intent, and we should be more free about considering it, not just in political life. Quine long ago pointed out that if you control the foundational assumptions you control the logical conclusions, which is what the “four corners” doctrine attempts to do. It’s the legislative equivalent of p-hacking.

The Christian thing about Accountability (in some circles) is about intent: whether your heart is righteous, not hypocritical or legalistic. The Law is an imperfect guide and we should stop pretending we can totally live by it. Also soccer refereeing: “that’s unsportsmanlike conduct not otherwise specified and it’s a free kick going the other way.”

(That’s what it says in the rules. Big-time capitalist soccer isn’t exactly like this, of course, and likewise it follows we aren’t going to get out of this globalized mess until we change our collective heart.)


William Timberman 02.11.17 at 6:16 pm

Kinda disrespectful to old Uncle Allen, and to the agonies of the Fifties, when old uncle Allen was still just a bright kid who somehow couldn’t find a home in the American Dream of Order and Inevitable Enrichment. When we see ourselves serving as quartermasters in the logistical infrastructure of the culture wars, I suppose you could argue that everything is grist for the mill, and I admit that in context the usage here makes sense. To this old-timer, though, it still smacks a bit of lèse-majesté — metaphorically speaking, of course.


Layman 02.11.17 at 6:42 pm

“My Law and Order viewing from 20 years ago makes me wonder if that evidence would be allowable under the hearsay restriction?”

A witness testifying to what they heard the defendant say isn’t hearsay, it’s direct testimony. Hearsay is when a witness tries to testify that some third party told them what the defendant said, when they themselves never heard the defendant say it.


Sebastian H 02.11.17 at 7:28 pm

The hearsay rules have so many exceptions that it would almost be easier to learn when hearsay is going to be disallowed, but Courts don’t talk that way on the issue.

But. “Rule 803(3) provides a hearsay exception for statements “of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed …


Kevin Donoghue 02.11.17 at 8:30 pm

M Caswell,
IANAL but I believe an “admission against interest” is allowable.


Lord 02.11.17 at 8:49 pm

I don’t see how 2 would survive under any conditions. Abrupt shifts imposing significant costs without imminent threats wouldn’t survive legal review. They are too disorderly. If it had been limited to future approvals, it might have had some chance at standing, but throwing spanners into the works at random isn’t plausibly justifiable under any circumstances.


Collin Street 02.11.17 at 8:50 pm

My Law and Order viewing from 20 years ago makes me wonder if that evidence would be allowable under the hearsay restriction?
“Then-Existing Mental, Emotional, or Physical Condition.”


Mitch Guthman 02.11.17 at 9:11 pm

I think it would be admissible as a statement against interest. But also, possibly not covered by the hearsay rule st all since it isn’t being offered to prove the truth of what was said.


Manta 02.11.17 at 9:23 pm

I don’t get why “intention” should be relevant at all: “did his order effects discriminate against muslims?” seems the important question.


Layman 02.11.17 at 11:33 pm

Manta: ‘I don’t get why “intention” should be relevant at all: “did his order effects discriminate against muslims?” seems the important question.’

In that case, his goose is truly cooked. His whole argument that it isn’t discriminatory requires that you ignore the effect (that those banned are uniformly Muslim) and focus instead on the absence of an explicit stated intent to produce that effect. It’s as if he banned immigration from Africa and then argued that the ban wasn’t racially motivated because it doesn’t mention race.


PatinIowa 02.12.17 at 12:10 am

Is this true, “It is unusual to have this sort of explicit evidence of bad motive”?

Think of all the Republicans caught on tape saying, “The voting restrictions will reduce the number of likely Democratic voters from voting,” and then pretending there’s enough voter fraud to justify restricting access to the ballot.


Ebenezer Scrooge 02.12.17 at 2:08 am

I’ve found the best way to explain the hearsay rule to nonlawyers is:
“Nu? Why didn’t you call up the declarant to testify directly, rather than play a game of telephone?”
If there is a good answer to this question, it’s not hearsay. If there isn’t, it is.


Bruce B. 02.12.17 at 10:31 am

So, this is a…moving castle doctrine? I can live with that.


bianca steele 02.12.17 at 5:03 pm

The real question is: is reading it as campaign poetry, though the campaign is over, a dangerous precedent?

Seems to me the poet is . . . sacred. Even in modern times. That status grants the liberty to not make sense. However, a condition of that freedom might be that poetry makes nothing happen. An Executive Order that is also poetry is thus a contradiction in terms.

Do we want our President to be a kind of poet-priest? Arguably Ginsberg was in fact a better person than the Donald is, certainly on the evidence of Howl a more empathetic one, though I still kind of think he probably might not be a good president.


Anonymous Troll 02.12.17 at 8:52 pm

There is a time for prose, and a time for poetry. When the facts and the law are both against you, table the Pound.


CJColucci 02.12.17 at 9:52 pm

Ebenezer, I’ve been practicing trial law and working with the hearsay rule for 35 years, and that’s the best short explanation of the rule I’ve ever heard.


Manta 02.12.17 at 11:52 pm

@21 Layman 02.11.17 at 11:33 pm
I fully agree with you there.

(A bit off topic): moreover, I don’t see at all how the notion of “intent” could apply to Congress: at least the President is only one guy.


M Caswell 02.13.17 at 12:46 am

Thanks for the helpful hearsay explanations!


soullite 02.13.17 at 4:06 pm

To a Trump supporter, this is just the establishment ignoring it’s own rules (which they have cited repeatedly as reasons to justify Bush’s security state and Obama’s refusal to pursue bankers) the moment those rules become inconvenient to them.

Which, of course, leaves the impression that these rules could have been ignored before, but weren’t, because that’s what the establishment wanted then. This is just you making excuses for that because you will always be an establishment organ.

The establishment murdered the American way of life. We don’t care about your excuses.


Glen Tomkins 02.14.17 at 2:16 pm

So, the American way of life is going to be restored by a president whose edicts “will not be questioned”?


politicalfootball 02.14.17 at 4:39 pm

Kontorovich offers a variation on a peculiar-but-standard defense of Trump: “He either didn’t know what he was talking about, or he was lying.”


William Timberman 02.14.17 at 5:25 pm

Anonymous Troll @ 26

Standing ovation!


J-D 02.14.17 at 8:28 pm

If that’s what Trump supporters think, they are mistaken. There is no rule being violated in this case that has been consistently upheld in previous cases. For example, if Trump supporters think there used to be a rule that Presidents can do whatever they like but that rule is now being violated, they are mistaken; there was never a rule that Presidents can do whatever they like.

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