The Corner

Law & the Courts

President Trump, Meet the Department of Justice. DOJ, President Trump.

From the first Morning Jolt of the week:

President Trump, Meet the Department of Justice. DOJ, President Trump.

This morning, President Trump tweeted several times: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.” “The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!” “In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!”

Why is the president fuming about the Department of Justice like it’s some faraway entity? Someone reminded him he gets to make appointments to the DOJ, right?

It’s June 5, and right now there are only three Trump appointees working at DOJ: Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, and Associate Attorney General Rachel Brand have been confirmed. Trump has named Noel J. Francisco as his nominee to be Solicitor general, Steven Engel to be his assistant attorney general for the Office of the Legal Counsel, Stephen Elliott Boyd to be assistant attorney general for the Office of Legislative Affair, and Makan Delrahim to be assistant attorney general for the antitrust division. The Senate can be blamed for the slow action on those nominees.

But President Trump still hasn’t even named a nominee for the positions of assistant attorney general for the national security division, assistant attorney general for the civil division, assistant attorney general for the civil rights division, assistant attorney general for the criminal division, assistant attorney general for the environment and natural resources division, assistant attorney general for the justice programs division, assistant attorney general for the Office of Legal Policy, or assistant attorney general for the tax division.

While these positions may not relate directly to litigating the travel ban, Trump still hasn’t named a director for the Bureau of Alcohol, Tobacco Firearms and Explosives, administrator or deputy administrator for the Drug Enforcement Agency, or a director of the U.S. Marshals Service.

And, of course, he fired FBI Director Comey. He said we would have a replacement quickly… three weeks ago.

Whenever I make this point, some ill-informed Trump defender insists this is a wise cost-cutting measure. No, those positions don’t go unfilled and the salary doesn’t get unspent; they’re just filled by “acting” replacements… who, at this rate, are likely to be acting for quite a while. Those acting replacements may or may not agree with the Trump administration’s perspective; while they’re no doubt professionals, why wouldn’t Trump want his own people in these positions, who understand his priorities?

Trump’s complaining about the courts? There are 131 judicial vacancies in the federal courts. Trump has nominated ten judges so far. Nominating qualified figures to the executive and judicial branch is a key part of governing. Reacting to what’s said about you on Morning Joe isn’t.

By the way, that second travel ban that Trump is complaining about? He signed it! If he thought it was such a terrible idea, he should have said so back in March when discussing it with his legal and national security team, instead of chewing their work out in public two months later.

This is the problem with a president whose decisions can be swayed by whether he talked with Steve Bannon or Ivanka Trump most recently. He makes a decision, and then if he decides he doesn’t like the outcome, he blames the person who offered that advice, instead of himself for following that advice. 

For the readers who will grumble this is “bashing” President Trump… what am I supposed to say? Pretend this is the way a president and his administration are supposed to work? The president is publicly fuming about the decisions of his own Department of Justice, decisions he signed off on! He’s got a phone. He can call Jeff Sessions anytime he likes. I’m sure they’ll wake him up if the president calls.

Yes, there are a lot of judges with starkly different philosophies who will block an executive order on sketchy grounds. This is the opposite of unprecedented. If you think Trump is the first president who have his desired policy about who to let into the country nullified by decisions by judges, ask President Obama how his executive order about illegal immigrant children and their parents turned out.

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