The Government’s Legal Position: Ineptitude of Sinister Design?

Several decades ago Alan Dershwitz tried in vain to teach Aardvark about criminal law. Watching him on TV so many years later, I am glad, I suppose, that his self-confidence and sense of certainty have not diminished with age. Of some it may be said, “Often in error but never in doubt.” Surely the latter part of that sentence, at least, applies with full force to the good professor.

I have posted before on the difficulty of reverse engineering the government legal team’s legal strategy in the immigration case. Some readers may feel I obsess, but in fact this is damned important stuff.

Dershowitz contends that (1) the Trump executive order as originally written was constitutional (under the lenient and deferential “rational basis” test) and that (2) when Trump’s lawyers eschewed the “rational basis” test for review, and opted instead to argue that the order is unreviewable by the courts, they exhibited incompetence.

To leap from the sublime to the ridiculous, Joe Scarborough has said much the same thing. He may say the say the same thing tomorrow morning, if he remembers what he said last week.

I, myself, have identified legal incompetence by the defense team as one plausible basis to explain their behavior.

But, writing on Sunday evening, February 12, I now believe that incompetence is not the best explanation. I believe the best explanation for the Trump team’s anomalous legal strategy is that Bannon and Miller are attempting to create a constitutional crisis.

I think they want to put Trump in a place where he thinks his manhood compels him to order those he commands to disobey a court order grounded in fundamental constitutional law.

Does Trump fully grasp what Bannon and Miller are up to?

Does he approve?

Will he step back from the precipice?

We shall see.

Que será será.