Published by The Lawfare Institute
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On April 5, President Trump met with officials from the Department of Homeland Security at a U.S. Border Patrol station in Calexico, California. According to CNN, the president told Border Patrol agents that they should disobey court orders and turn back asylum seekers at the border. CNN also reports, as does the New York Times, that Trump also instructed then-Commissioner of Customs and Border Protection Kevin McAleenan to cease accepting asylum applications entirely. If McAleenan faced legal trouble as a result, Trump said, he would pardon the commissioner.
There is no reason to think that McAleenan would have faced personal, much less criminal, liability if he were to have followed Trump’s order—at least none that we can think of. McAleenan seems not to have implemented the president’s order. And the agents apparently did the right thing and checked with their superiors as to how to proceed. So it’s not clear that any illegal action was taken as a result of the president’s alleged instructions.
What’s more, the administration denies that at least some of the reported conversations took place. So it’s worth being cautious. Yet if true, the incidents are notable because they represent a pretty blatant violation of the Take Care Clause of the Constitution, not to mention the explicit terms of the president’s oath of office.
The Take Care Clause requires that the president “shall take Care that the Laws be faithfully executed.” It is, Jack Goldsmith and John Manning have written, “simple but delphic”—a requirement that seemingly goes to the heart of the office of the presidency, and yet resists easy interpretation. As Goldsmith and Manning note, courts have read the clause in a number of ways over the years, some of them mutually contradictory. The clause might be read to empower the president to take action to execute the law, or it might constrain him by restraining his actions to those that involve faithful execution.
That adverb, “faithfully,” is crucial. It also crops up in the oath of office: The president swears that “I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States” (emphasis added). Without flattening the many possible interpretations of the Take Care Clause, reading the clause alongside the oath suggests a requirement that the president act in good faith in carrying out the duties of the executive branch to implement the law and uphold the Constitution. Goldsmith and Manning write as much: The oath and the Take Care Clause, they argue, “point toward a general obligation of good faith.”
Yet, according to CNN and the Times, here is the president of the United States instructing subordinates to violate the law, and promising to use his other powers in office to shield them from consequences if they do so. He is instructing them both to violate known legal obligations of the country and to defy expected court enforcement of those obligations.
It’s hard to square that with any kind of obligation of good faith execution of the law.
Note that there’s no suggestion that Trump was expressing a view of what the law is in these incidents, as the president has the authority to do. He wasn’t, for example, saying to McAleenan—at least according to the stories—that his interpretation of the law is that the United States has no obligation to accept asylum applications and that he was thus instructing him to exercise his discretion within the law to decline to do so. The Times, rather, reports that:
[Kirstjen] Nielsen had earlier refused to carry through with Mr. Trump’s desire to close the border, telling him it was illegal. But the president encouraged Mr. McAleenan to disregard Ms. Nielsen and enforce the move himself. Two days later, Ms. Nielsen submitted her resignation under pressure from Mr. Trump, and the president appointed Mr. McAleenan to her job on an acting basis.
And CNN describes the incident as follows:
President Donald Trump told Customs and Border Protection Commissioner Kevin McAleenan he would grant McAleenan a pardon if he were sent to jail for having border agents block asylum seekers from entering the US in defiance of US law, senior administration officials tell CNN.
Trump reportedly made the comment during a visit to the border at Calexico, California, a week ago. It was not clear if the comment was a joke.
Similarly, CNN offers no indication that the president was ordering the line agents to follow his good faith view of the law. He seemed in both instances, at least as they are reported, to be assuming that the subordinates would have to act unlawfully in order to follow his instructions.
Neither McAleenan nor the agents followed Trump’s instructions. In McAleenan’s case, this doesn’t seem to have had any effect on his prospects within the administration: Just days after the reported exchange, Trump appointed McAleenan to replace Nielsen as acting secretary of homeland security. What’s more, after the president left the room, CNN writes, the agents’ supervisors informed them that they should not follow the president’s command and would face personal liability if they did.
That is to their credit, but the analysis of the president’s behavior doesn’t depend on whether the subordinates carried out the orders. The president has no business instructing people to violate the law in the first place.
The only defense we can imagine here for the president’s behavior is the possibility, as both CNN and the New York Times acknowledge, that Trump may have been joking in his exchange with McAleenan. But that defense, even if true, applies only to one of the incidents, not the other. As a variation of this, perhaps the president might also argue, as the Justice Department often has in court, that he frequently speaks off-the-cuff and did not really mean his words to either McAleenan or the agents to be a directive—though such obscurity on a matter of legal compliance is not reassuring from the man tasked with “defend[ing] the Constitution of the United States.” The fact that the agents sought guidance as to how to handle the president’s instructions suggests that, if this was the reality, Trump was dangerously unclear with his subordinates as to his meaning and intent.
Responding to questions from the news organizations, the Department of Homeland Security stated categorically that “[a]t no time has the president indicated, asked, directed or pressured the acting secretary to do anything illegal. Nor would the acting secretary take actions that are not in accordance with our responsibility to enforce the law.” The White House, the Times and CNN write, did not respond to requests for comment on the McAleenan incident, and neither the White House nor the department responded to requests for comments from CNN on the other meeting with agents, according to the stories.
So the denial, while firm, also covers only one of the incidents. We won’t attempt to resolve the apparent factual dispute. We’ll just say this: If the incidents took place, it is hard to see how either of them comport with the president’s most solemn obligations under the Constitution.