Judicial and Media Independence After the Next Attack
Curtis Bradley and Neil Siegel write at Lawfare:
With his repeated disparagement of the judiciary and unfounded criticism of the news media for under-reporting terrorist attacks, a number of commentators have suggested that Trump is preemptively trying to shift the blame to the courts and the media in the event that an attack occurs. We agree that this is a concern. Our greater concern, however, is that he may be able to use this blame-shifting narrative to reduce the future checking power of institutions like the judiciary and the media, especially in the wake of a terrorist attack.
At the moment, the judiciary and media are functioning well. But these institutions will inevitably become more vulnerable after an attack, especially a significant attack. Trump has already given specific indications that, in the event of such an attack, he will blame these institutions. For example, he has publicly claimed that because of the recent district court decision stopping enforcement of his immigration order, “many very bad and dangerous people may be pouring into our country” and that the decision “opens up our country to potential terrorists and others that do not have our best interests at heart.” He has also contended that if the government does not win the case, “we can never have the security and safety to which we are entitled.”
It is not a stretch to think that he would attempt to use such a narrative in an effort to rally a fearful public into accepting a disregard of judicial authority or a reduction in freedom of the press. Jack Goldsmith has already speculated that Trump may be trying to lose the pending immigration case in order to help set up such a narrative. While we have some doubts about whether Trump is specifically trying to lose the case, it is at least plausible that he is looking ahead to how he might use a loss to his advantage, especially because it is now obvious that both the courts and the media are likely to be a continuing thorn in his side.
Knowing that Trump may well challenge the authority of the judiciary and the media after an attack, it is important for judges, reporters, and civil society more generally to be braced for it and to be very clear about who bears responsibility for any national security failings. For example, it is obviously Trump’s fault—not the courts’ or the media’s—that his executive order on immigration and refugees was so poorly developed, reviewed, and rolled out. And it is Trump’s fault—not the courts’ or the media’s—that he has made so many bigoted statements about Muslims, which calls the constitutionality of the order into question on establishment clause, free exercise, and equal protection grounds, notwithstanding the President’s ordinarily expansive authority in this area of the law.
To be clear, we do not yet have a situation in which Trump is ordering executive branch officials not to comply with or enforce federal court orders. Nor are we at the point at which Trump is taking affirmative steps to suppress the media. It is essential to avoid hysteria and to avoid turning everything into a purported constitutional crisis. But given Trump’s conduct and statements to date, . . .