Pretexts in the Travel Ban Case, Method-of-Execution Cases, the Assange Indictment, and More Generally

by Michael C. Dorf

"Even a dog," Oliver Wendell Holmes, Jr. wrote in The Common Law, "distinguishes between being stumbled over and being kicked." Today, as in 1881, when Holmes wrote those words, intentions matter in the law. They can be the difference between criminal and innocent conduct, between  liability and non-liability, between constitutional and unconstitutional actions. And yet illicit intentions can be notoriously difficult to prove.

Moreover, in at least some contexts, making intentions dispositive can be problematic in principle. If it is unconstitutional for a municipality to close its public swimming pools rather than desegregate them (as four justices would have held in Palmer v. Thompson), must the municipality keep the pools open forever, even though it had no obligation to operate swimming pools in the first place? If not, for how long must it keep the swimming pools open? What if the bad actor cites some facially plausible reason that is not the real reason for its bad act? Should the law disallow it as a pretext?

I addressed some such questions in a 2016 essay in the Harvard Law Review's online supplement in response to an article on forbidden legislative intent by Prof. Dick Fallon in the main issue of the HLR. I don't want to rehash our respective points here. Instead, I want to use three recent events to raise some further questions. After recapping an argument I made last year about the Muslim Travel Ban and the Masterpiece Cakeshop cases, I'll focus on some recent death penalty cases in the SCOTUS and the Julian Assange indictment.

The Supreme Court's disappointing opinion last year in the Muslim Travel Ban case credited the administration's national security justifications, despite the overwhelming evidence that but for the anti-Muslim animus of candidate Trump and then President Trump, the policy that eventually came before the justices would not have existed. Writing for the majority, CJ Roberts acknowledged the (objectively unassailable) argument of the plaintiffs that Trump's "words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition." Nonetheless, the majority said, "the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility."

And what significance did the Court attribute to the statements? Essentially zero. Reviewing the policy under a very deferential standard, the Court reasoned that because a non-bigoted administration could have adopted what became Travel Ban version 3 for national security reasons that a court would be poorly positioned to scrutinize, there was no constitutional violation when an obviously bigoted administration adopted it using national security as a mere pretext.

The Court's unwillingness to acknowledge the obvious in the Muslim Travel Ban case fit awkwardly with its ruling in the Masterpiece Cakeshop case. In the latter, the Court bent over backwards to find anti-Christian religious animus where there was none, while in the former (decided later), the Court denied the obvious evidence of anti-Muslim religious animus. Only the extreme deference ostensibly due the executive with respect to national security can remotely explain this otherwise-completely-backwards juxtaposition of results--and even that, in my view, does not come close to justifying the Muslim Travel Ban decision.

Perhaps a better explanation (though still no justification) of the majority ruling in the Muslim Travel Ban case is the Court's unwillingness to acknowledge the obvious fact that the current president is a spiteful bigot, in light of the delicate relations between the executive and the judiciary (possessed, as it is of neither sword nor purse). I find it necessary to look for Trump-specific reasons for the Travel Ban decision, because the current conservative wing of the Court does not always resist recognizing pretexts as such.

I've already noted that in Masterpiece Cakeshop the Court was persuaded by unpersuasive evidence of subjective anti-Christian bias. Another set of recent examples concerns the death penalty. In recent months, in case after case after case, the Court's conservative majority has denied relief or reversed the grant of relief to death-sentenced prisoners in whole or in part on the ground that the claims they brought -- whether alleging religious discrimination or a cruel method of execution -- came after long delays. The sub-text of the conservative majority's lament about timeliness is an accusation of pretext leveled at the anti-death-penalty bar that goes something like this: You don't really care about the issue you are using as the basis for this petition, because, after all, you oppose the death penalty in all circumstances; you are just using this challenge as a means of delaying execution.

I think that there is more than a kernel of truth to that charge. Many lawyers who challenge death sentences strongly oppose the death penalty in all circumstances. They might also think that the challenges they are bringing in particular cases have merit, but they might not.

But even assuming that the conservative justices have correctly sniffed out an ulterior motive of the capital defense bar, it hardly follows that the proper remedy is to punish the client by subjecting him to an unnecessarily painful death or depriving him of spiritual counsel or doing anything else to him. Whether a delay is unreasonable should depend on whether the lawyer and client acted in a timely way given what they knew and when they knew it. And whether a claim should succeed or fail on the merits should depend on, well, on the merits.

My main point, however, is simply that the very justices who are so timid about attributing motivation to the president are quite capable of attributing motivation to lawyers challenging the death penalty.

I want to conclude by putting aside questions of consistency. Let's consider a last case involving motive and possible pretext. As readers are no doubt aware, the US government seeks extradition of Julian Assange on a charge that he conspired with Chelsea Manning to crack a password that encrypted classified material. On its face, that indictment raises no First Amendment issues. True, under the Pentagon Papers case and Bartnicki v. Vopper, the government may not enjoin or punish those who distribute material that was obtained unlawfully if they did not participate in the unlawful activity leading to the material's discovery and release. But here the government alleges that Assange did so participate and is charging him with that.

Nonetheless, the Assange indictment and extradition request indirectly raise two related First Amendment issues. First, the government might later file a superseding indictment that adds espionage or other charges that could implicate free speech. Second, and more relevant to my main point here, some observers believe that the assistance Assange attempted to provide Manning was relatively trivial, and thus that the conspiracy charge is a pretext for the government's real motive, which is to punish Assange for the exercise of First Amendment rights.

Is that a good claim? If proved, it should be. Suppose that, under pressure from President Trump, OSHA brought enforcement actions against newsrooms of the Washington Post and CNN. If WaPo and CNN could show that these actions were brought in retaliation for their coverage of the president, that would be a good First Amendment claim. (Let's set aside whether the remedy would be a defense to the OSHA violations or something else.)

The difficulty for WaPo and CNN in my hypothetical case and for Assange in the real case is proof. Showing illicit motive/pretext is generally hard. To be sure, it's not actually hard with Trump himself, because he tweets and states his actual motives when a more prudent person wouldn't, but as we saw in the Muslim Travel Ban case, the Court is reluctant to see the obvious when it comes to the president.

In any event, in the Assange case, the evidence of illicit motive would generally not come from Trump himself. After all, until his recent bout of amnesia, he loved WikiLeaks. Showing that the DOJ or the government as a whole acted with censorial intent against Assange would thus depend on evidence about multiple people. In free speech cases, the Supreme Court has adopted the same approach for determining the motive of a multi-member body as in equal protection cases: Once the rights claimant shows that one or more members had an illicit motive (here, a censorial one) the burden shifts to the government to establish that it would have made the same decision even absent the illicit motive.

Bottom Line: if one thinks there is sufficient prima facie evidence that the government is going after Assange to retaliate for his exposing secrets, then the key question becomes whether the government would also indict people who have not divulged important government secrets on the sort of conspiracy charge that has been brought against Assange. That, at any rate, is how the law ought to apply to the likes of Assange. Whether it will be applied that way is highly uncertain, given the Supreme Court's recent erratic pattern of decisions in pretext cases.