Criminal Justice & the Rule of Law

Another Blow to the Presumption of Regularity

Alan Z. Rozenshtein
Tuesday, March 10, 2020, 1:47 PM

Judge Reggie Walton’s ruling demanding in camera review of the unredacted Mueller report underscores how much the Trump administration has squandered the executive branch’s goodwill with the judiciary.

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On March 5, as part of a Freedom of Information Act (FOIA) suit seeking disclosure of the unredacted copy of the Mueller report, a judge for the U.S. District Court for the District of Columbia ordered the government to provide him with an unredacted copy so that he could review it himself and determine whether the government had validly invoked FOIA’s exemptions in refusing to release it. Normally a court would accept as true the government’s representations as to why it was withholding disclosure of information—for example, because disclosure would reveal classified information or harm a law enforcement investigation. But, as the opinion of Judge Reggie Walton—who was appointed by George W. Bush and who previously served as the presiding judge of the Foreign Intelligence Surveillance Court—explained, “in camera inspection may be particularly appropriate when ... there is evidence of bad faith on the part of the agency.”

In camera review—in which a judge privately examines a document or testimony before determining whether it should be admitted or disclosed—is, although not the norm, a frequent-enough event. What is striking about Walton’s opinion is why he felt it was appropriate in this case; namely, Walton’s “grave concerns” about Attorney General William Barr’s behavior surrounding the Mueller report. Specifically, Walton pointed to Barr’s misleading letter to Congress weeks before the release of the report, as well as Barr’s now-infamous release-day press conference, both instances where Barr downplayed the seriousness of the report’s findings. Barr’s actions and “lack of candor ... call[ed] into question [his] credibility” and led Walton “to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.”

By the standards of cable news and Twitter, Walton’s criticisms may sound mild, but make no mistake—translated from the formal hush of judge-speak, this is as close as it gets to a sitting federal judge calling the attorney general a lying partisan hack. And it is another example of how the Trump era is severely testing a fundamental principle of executive-judicial relations: the presumption of regularity.

The presumption of regularity refers to a collection of deference doctrines by which courts presume that government officials “have properly discharged their official duties” in the course of making decisions—that they’ve acted with proper motives, haven’t lied and have generally comported themselves as ethical professionals. The main value of the presumption is that it, like all good legal rules, simplifies judicial decision-making while still giving the right answer most of the time. The government really does usually act “regularly,” and the presumption allows courts to avoid the time-consuming and fact-intensive process of independently verifying the truth of every government representation and the integrity of every government decision.

For the presumption to have any bite, courts must use it often enough for it to result in at least some false negatives—that is, sometimes the presumption will insulate government action even though it was not in fact properly undertaken. For example, many legal challenges to administrative action are quickly dismissed because the courts take the government at its word that it acted for the right reasons.

This willingness to look the other way is sometimes interpreted as a flaw with the presumption, but it is in fact key to the presumption’s value. By recognizing that the optimal level of government abuse of power is non-zero—that is, given the realities of imperfect information and an imperfect government, some tolerance of government misconduct is unavoidable—the presumption avoids the kind of perfectionism that would make effective government impossible. If every government action had to be supported with reams of documentation as to its scrupulousness, or if the government had to follow every jot or tittle of the law, governing would grind to a halt. The presumption’s tolerance for error also plays an important separation-of-powers function: It protects the judiciary from too-frequent conflicts with the executive branch, which could in the long term weaken the judiciary’s checking ability.

But taken too far the presumption encourages lawlessness and leaves those whose rights the government has violated without any remedy. There’s no guarantee that government abuse of power will in fact be optimal, and some of the most shameful episodes in American judicial history have come when the courts have turned a blind eye to flagrant government misconduct. Thus the presumption is a moving target, as courts continually calibrate to strike the right balance between scrutiny and permissiveness.

For the presumption to remain even-approximately accurate, courts need to take notice of the kind of government that they’re dealing with. Just how much courts should apply the presumption to the Trump administration is a matter of ongoing debate. The two highest-profile legal challenges so far to Trump administration action went in opposite directions—although the Supreme Court upheld the travel ban as on its face not discriminating against Muslims (despite Trump’s clear intent to target Muslims), it struck down the government’s bid to put a citizenship question on the 2020 census, concluding that the government’s stated justification (to better implement voting rights law) was pretextual.

It’s in this context that Walton’s opinion should be understood: as a vote of no confidence in the presumption’s applicability to the Trump administration.

Whether Walton’s ruling stands remains to be seen. The government may appeal, and a higher court may explicitly reject Walton’s skeptical approach. But Walton’s opinion matters less as a matter of doctrine and more as a matter of norms and what it signals to other judges about what one of their own colleagues thinks about this executive branch. The presumption is effective not because it is a binding rule that the government can invoke as a get-out-of-jail-free card, but because it reflects the sincere respect that one branch of government pays another. But this respect must go both ways, and in a world where the president repeatedly attacks judges and lies constantly, on matters both large and small, there’s a limit to a judicial presumption of honesty and good faith, both for the president and for those who do his bidding. What goes around comes around.

Alan Z. Rozenshtein is an Associate Professor of Law at the University of Minnesota Law School, a senior editor at Lawfare, and a term member of the Council on Foreign Relations. Previously, he served as an Attorney Advisor with the Office of Law and Policy in the National Security Division of the U.S. Department of Justice and a Special Assistant United States Attorney in the U.S. Attorney's Office for the District of Maryland.

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