The presumption of regularity

During the past week, President Trump fired FBI director Comey at least in part due to dissatisfaction with an investigation the outcome of which matters to Trump. At first, the administration said the firing was based on the recommendation of the Deputy Attorney General, who believes Comey mistreated Hillary Clinton and hasn’t acknowledged his error. Later, the president admitted that he would have fired Comey regardless of what the Deputy Attorney General recommended and that the decision was based on Comey’s post-election conduct.

President Trump says he discussed the Russia investigation with Comey. He also tweeted that Comey better hope there are no tapes of the talks between the two. And, though denying that he asked Comey for his loyalty, Trump said it wouldn’t be a bad question to ask. He added that “loyalty to the country, loyalty to the U.S., is important; it depends on how you define loyalty.”

Is any of this illegal? No, I don’t think so. But it is all irregular in the colloquial sense. So are any number of other things Trump has said or done as president.

The presumption of regularity is a legal doctrine. In the context of government action, it holds that in the absence of clear evidence to the contrary, a court will presume that public officers have properly discharged their official duties.

In the oral argument before the U.S. Court of Appeals for the Fourth Circuit in IRAP v. Trump — a challenge to the president’s order restricting entry into the U.S. — the government repeatedly relied on the presumption of regularity as a ground for upholding Trump’s order. Its brief in that case states:

Under the Constitution’s structure and its separation of powers, courts evaluating a presidential policy directive should not second-guess the President’s stated purpose by looking beyond the policy’s text and operation. The “presumption of regularity” that attaches to all federal officials’ actions, United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926), applies with the utmost force to the President himself.

It is evident that in this case and others, some judges are not just rejecting the “presumption of regularity” as applied to Trump’s actions. They are, in effect, applying a presumption of irregularity.

That’s improper. Every administration is entitled to the presumption of regularity.

But the more irregularly Trump behaves, the more difficult it will be for him to receive the presumption. I’m not just talking about left-wing judges. They seize, improperly, on statements Trump made when running for president as a candidate as an excuse to assume that his actions as president are based on wrongful motive. To them, it doesn’t really matter how Trump behaves as president.

I’m talking about non-leftist judges. They may well be willing, as they should be, to discount Trump’s campaign rhetoric. But it’s human nature to be reluctant to presume that the president is discharging his duties consistent with the presumption of regularity when one witnesses a stream of irregular behavior and commentary from him.

Moreover, it will be unfortunate for government attorneys called on to defend President Trump’s actions in court if leftist lawyers and judges increasingly become able to cite against the administration not just Trump’s statements as a candidate, but also his tweets as president.


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