Andrew McCarthy is wrong about Trump’s Perkins Coie executive order.
Much has been written about Trump Derangement Syndrome, that mental and emotional affliction that distorts its victims’ ability to make measured judgments about the doings of our past and present president. No doubt much more will be written about it, because this malady shows no signs of abating.
One of the worst side effects of TDS is the widespread circulation of bogus constitutional claims. As Trump, the astute politician that he is, has staked out popular positions on many issues of interest to the public, his critics, at a loss for other arguments, routinely say he is trashing the Constitution.
This is a serious problem. Preserving our constitutional system, and the many blessings that flow from it, depends on preserving a correct understanding of the Constitution’s various provisions among the public. But the public’s understanding of the Constitution is undermined by the TDS brigade’s continual reiteration of fanciful claims of constitutional violations.
TDS, regrettably, is not just a problem on the American Left. There are plenty of conservative sufferers who cannot evaluate Trump dispassionately and twist the Constitution to find grounds on which to denounce him. A prominent case is National Review’s Andrew C. McCarthy, who recently condemned President Trump’s executive order regarding the law firm Perkins Coie.
According to McCarthy, “Trump’s Executive Order Targeting Perkins Coie Must Be Condemned.” He goes on for more than 3,000 words, many of which do not even attempt to support his thesis, betraying a lack of proportion that often distorts the thinking of those who contort their minds to condemn Trump. McCarthy claims that Trump is “exploiting the awesome might of the presidency to destroy his enemies, just as they tried to destroy him.” The order, McCarthy continues, is “lawfare on steroids.”
Contrary to McCarthy, Trump’s executive order does not deserve to be put in the same class as what Trump’s enemies tried to do to him.
On McCarthy’s own account, the order denies security clearances to the employees of Perkins Coie, bars them from secure facilities and government buildings, seeks to cancel government contracts with the firm, and prevents its employees from working for the government. In contrast, Trump’s enemies tried to prosecute him and put him in prison. Even granting for the sake of argument that the executive order is a misuse of presidential power, it can only be viewed as dialing back lawfare, not putting it “on steroids.”
Turning to McCarthy’s main contention, it is not even clear that the order is a misuse of presidential power. He can’t say what law the order violates, so he goes straight to the Constitution. Our fundamental law, he observes, establishes a separation of powers, which means that only Congress can enact law and only the courts can adjudicate whether a person is guilty of a legal violation.
Moreover, McCarthy notes that the Constitution forbids bills of attainder, or laws that declare peremptorily, and without judicial process, that someone is guilty of a crime and shall be punished. Trump’s executive order, he declares, “is nothing less than a bill of attainder, as that unconstitutional decree has always been understood in American law.” According to McCarthy’s argument, the order declares without any due process that Perkins Coie is guilty of various crimes and then punishes its members by imposing the aforementioned sanctions.
A much more reasonable reading of the order is that it states the president’s opinion—to which he is surely entitled, and which seems supported even by McCarthy’s own recounting of recent events—that Perkins Coie has in the last few years harbored bad faith actors whose conduct has impeded the orderly administration of government. On this basis, the order exercises the president’s discretion to limit the firm’s relationship to the executive branch of the federal government.
Properly understood, a bill of attainder convicts a person of a crime and then punishes him by taking away something the target of the attainder would otherwise have a right to keep. By contrast, Trump’s executive order does nothing of the kind—unless McCarthy can show, which he does not even attempt to do, that Perkins Coie has a right to benefits such as security clearances and federal contracts that depend on the executive’s discretion.
McCarthy’s understanding of the Constitution’s prohibition on bills of attainder is not even supported by the source he cites in his anti-Trump diatribe. Perhaps seeking to win over hesitant NRO readers, he quotes from the Heritage Foundation’s Guide to the Constitution, observing that the Founders were so concerned about preventing abuses like bills of attainder that they prohibited both the federal government and the states from taking such actions. This is true.
McCarthy omits, however, the Guide’s observation later in its bill of attainder entry that the Supreme Court has embraced a narrow understanding of the kinds of punishment the Bill of Attainder Clause forbids—holding, for example, that “the denial of noncontractual government benefits such as financial aid” is “not a punishment.” This is no doubt a correct understanding of what the Founders would have understood as a punishment—an exercise of the government’s coercive power to take away life, liberty, or property, none of which is done by Trump’s executive order.
In his zeal to condemn Trump, McCarthy not only distorts the meaning of the Bill of Attainder Clause, he also implicitly diminishes the president’s legitimate authority under Article II of the Constitution.
In the absence of a law granting a right to hold a security clearance, the president clearly has power per the Constitution to control who gets access to sensitive information held by the executive branch. Remarkably, McCarthy claims that if Trump thinks people are guilty of crimes, he may have them prosecuted, but he cannot do anything else. This account leaves out the obvious executive authority to decide that some people, though not guilty of any crime for which they could be prosecuted, are nonetheless not sufficiently reliable to have access to executive branch secrets or work for the government.
Of course, McCarthy is right that constitutional conservatives should be willing to criticize Republican administrations when they push the constitutional envelope. The former is a recurring duty, because the latter is a recurring temptation. Administrations of both parties are tempted by the pressures of high public responsibility, and also of the quest for low political advantage, to take the executive power further than it can properly go. But by acting like the boy who cried wolf, McCarthy only makes this important duty more difficult to perform credibly whenever a real occasion for it arises.
