Analysis: President Donald Trump's legal philosophy puts politics first

The Washington Post

President Donald Trump welcomed Brett Kavanaugh to the White House on Monday evening for a ceremonial swearing-in as the Supreme Court's new associate justice.

The event was much more a culmination of a political fight than a legal one. Kavanaugh's legal philosophy faded into the background over the last month as the country debated assault allegations that had emerged against him. The speech by Sen. Susan Collins, R-Maine, in which she confirmed that she would support Kavanaugh's nomination focused heavily on jurisprudence, but by then the Kavanaugh fight had become about left vs. right, not about rights and precedent.

The extent to which Trump himself was well-read on Kavanaugh's decisions before the nomination is unclear.

"No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination," Kavanaugh said when Trump announced his nomination, a claim that was treated with some skepticism at the time. It's understood that Kavanaugh's name was selected from a list of jurists compiled with substantial help from the conservative Federalist Society and the Heritage Foundation.

It's not a surprise, then, that, during the ceremony honoring Kavanaugh, Trump avoided any mention of Kavanaugh's judicial philosophy. Instead, Trump offered a bit of his own.

"What happened to the Kavanaugh family violates every notion of fairness, decency and due process," Trump said of the allegations made against Kavanaugh. "In our country, a man or woman must always be presumed innocent unless and until proven guilty. And with that, I must state that you, sir, under historic scrutiny, were proven innocent. You were."

We've heard the first part of this argument frequently in recent weeks, as Kavanaugh supporters have insisted that the default assumption in regard to the accusations should be that Kavanaugh didn't act as alleged. The latter part, though, is new. Kavanaugh was no more proven innocent than he was proved guilty. The allegations against him exist in limbo, unsettled, lingering.

But this is part and parcel of Trump's approach to jurisprudence. We've distilled his demonstrated thinking on legal issues down to three core precepts.

Innocent as long as politically useful

When Trump first declared that Kavanaugh should be considered innocent until proven guilty, the immediate response was that he was demanding a standard that didn't fit the situation. Were Kavanaugh under arrest and facing trial, it would indeed be up to the state to prove him guilty beyond a reasonable doubt. But Kavanaugh didn't need to be proven to have committed the alleged assaults in order to be blocked from taking a seat on the Supreme Court.

It was also hard not to immediately note that Trump's fealty to the primacy of innocence was itself a bit spotty.

When a group of black and Hispanic teenagers were arrested in New York City in 1989, accused of raping a woman in Central Park, Trump took out full-page ads calling for the state of New York to reintroduce the death penalty. While he didn't cite the rape case in particular, he did talk about "roving bands of wild criminals" terrorizing the park.

More telling, though, is that even after the five men were convicted of the crime and later exonerated following a serial rapist's confession, Trump stood by his assertion of their guilt.

"They admitted they were guilty," Trump said on CNN during the 2016 election. "The police doing the original investigation say they were guilty. The fact that that case was settled with so much evidence against them is outrageous. And the woman, so badly injured, will never be the same."

Those confessions, obtained from teenagers generally without parents or attorneys present, were soon retracted. But Trump established their guilt shortly after the accusations emerged and then, during a campaign when his focus was on crime and safety, reiterated his allegations against the men to bolster his bona fides.

Kavanaugh is not the only political beneficiary of Trump's insistence that his allies are innocent. Trump defended the innocence of his former campaign manager Corey Lewandowski in the spring of 2016 after Lewandowski was accused of grabbing a reporter at a campaign event. After video from the scene — at one of Trump's own properties — showed that the reporter's version of the story was true, Trump simply downplayed it.

He continued to defend Alabama Republican Roy Moore against allegations that Moore had inappropriately touched an underage girl in the 1970s until Moore lost his bid for a Senate seat last year. Now Moore is Trump's go-to example of a flawed candidate.

When allegations emerged against then-Sen. Al Franken, D-Minn., last year, though, overlapping with the Moore allegations, Trump was unrestrained in his condemnation.

As with Kavanaugh, in most of these cases "innocent until proven guilty" is not the necessary standard for public evaluation. But Trump's willingness to demand that standard only on behalf of his allies is notable.

The law is what Trump says it is

Earlier this year, we noted that Trump's deployment of legal arguments for political ends is broader than debates over guilt and innocence. Since he began running for office, he has suggested in tweets or speeches that the following individuals or organizations have actually broken the law:

  • Hillary Clinton, by having an email server.
  • Clinton aide Huma Abedin, for knowing about Clinton's emails.
  • Sen. Ted Cruz, R-Texas, for a purported omission on a personal financial disclosure form.
  • The Republican National Committee, for fundraising.
  • Cruz, for fundraising.
  • Former President Barack Obama, for an executive order.
  • The State Department, for how it released Clinton's emails.
  • Former Democratic Party head Donna Brazile, for sharing debate questions with Clinton's campaign.
  • Clinton, for receiving them.
  • Brazile, for illegally stealing the Democratic nomination from Sen. Bernie Sanders, I-Vt.
  • Three million unidentified people, for allegedly voting illegally.
  • Former attorney general Loretta Lynch, for not prosecuting Clinton.
  • Former FBI Director James Comey, for allegedly leaking classified information.
  • The Clinton campaign, for unspecified legal violations.
  • Sen. Dianne Feinstein, D-Calif., for releasing congressional testimony.

That was through January. Since then, Trump has also leveled accusations of illegal behavior against Rep. Adam Schiff, D-Calif., the Justice Department, the FBI, the state of California, former Secretary of State John Kerry, the investigation by special counsel Robert Mueller, the Obama administration, Sen. Mark Warner, D-Va., Twitter, former FBI agent Peter Strzok and Google. Plus Comey and Clinton a few more times.

Trump generally doesn't mention that a number of former campaign and administration staffers have actually pleaded guilty to criminal charges, including his former campaign chairman, deputy campaign chairman, a campaign adviser, his former national security adviser and his personal attorney, who himself implicated Trump in an illegal campaign contribution.

The mechanics of law enforcement are a subset of political power

At the same time that Trump excoriates the Justice Department and the FBI for investigating possible links between his campaign and Russia's effort to influence the election, he bashes the agencies for not targeting his political opponents. (See the list above.)

He has repeatedly threatened to "get involved" in Justice Department decision-making in an effort to redirect the department's energy away from him and his campaign. It's a threat that implies erasing the wall that past presidents have respected between law enforcement and the White House, a wall erected to keep the Justice Department from becoming a mechanism for the president's political influence.

Trump has described Attorney General Jeff Sessions as ineffective, despite Sessions' laser focus on Trump's agenda. Largely, Trump is critical of Sessions for recusing himself from the Russia investigation - a recusal announced by Sessions following advice from department staff. In the private sector, Trump was used to attorneys such as Roy Cohn and Michael Cohen (the attorney mentioned above), men who would put Trump's interests above all else. News reports have suggested that Trump expected the same from Sessions, looking, as The New York Times' Michael Schmidt put it in January, for "his top law enforcement official to safeguard him the way he believed Robert F. Kennedy, as attorney general, had done for his brother John F. Kennedy and Eric H. Holder Jr. had for Barack Obama."

This brings the larger pattern into relief. Trump sees his current position much as he did his old one. He's not the protector of the Constitution so much as the CEO who demands loyalty from his subordinates.

His comments at the Kavanaugh event on Monday are even more potent. At an event celebrating his political victory in pushing forward a Supreme Court nomination recommended to him by others, Trump flipped a basic element of jurisprudence on its head for rhetorical effect. And yet it's very fitting.

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