Trump-appointed judge playing defense on presidential powers

In the News

Ilana Marcus, Joshua Eaton, and Ed Timms


Executive Power & Civil Liberties

Democrats saw warning signs long before President Donald Trump nominated Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit.

At the time, she was a White House lawyer who zealously defended Trump’s agenda. She’d clerked for Supreme Court Justice Clarence Thomas. But she had no experience as a judge and little trial experience. Her legal writings promoted broad powers for the presidency. And as a college student she’d taken positions on social issues that were anathema to many liberals and even some conservatives. 

That same background made her an ideal candidate for Trump and many conservatives. They see the appointment of federal judges who can pass their litmus test on social issues — and champion deregulation — as a way to circumvent legislative gridlock in Congress and counter the influence of liberal jurists. Loyalty to Trump seals the deal.

Less than a year after taking a seat on what is widely viewed as the second-most powerful court in the land, Rao has favored Trump’s position in dissents in two high-profile cases testing the power of the presidency. Just last week, she pushed back on a ruling that grand jury information referenced in Robert S. Mueller III’s report on Russian interference in the 2016 election must be shared with the House Judiciary Committee.

Her dissents highlighted critics’ concerns that she is willing to give presidents too much power — and, more broadly, that she is among a growing number of federal judges who likely would not have survived the confirmation process in the past.

She believes the president can’t be held accountable while in office, can overrule the independence of agencies, and that he is free to ignore laws and Supreme Court decisions.

Daniel Goldberg

 “She believes the president can’t be held accountable while in office, can overrule the independence of agencies, and that he is free to ignore laws and Supreme Court decisions,” said Daniel Goldberg, legal director for the Alliance for Justice. His advocacy group states it promotes progressive values.

With Rao, critics say, Trump found what he was looking for in a judge.

“Judge Neomi Rao has served less than a year of her lifetime appointment to the D.C. Circuit, and I fear the damage she will do if she keeps putting politics and her allegiance to this president above the law,” Democratic Sen. Patrick Leahy of Vermont said in a statement.

During her confirmation hearing, Rao told lawmakers that she would decide whether or not she would be involved in litigation involving her former boss at the White House on a case-by-case basis.

She disagreed with two other judges on the three-judge panel who ruled in the case last week involving the Mueller grand jury evidence, one of whom was appointed by President George W. Bush.

And in an October opinion, Rao, who went straight from a White House job to the D.C. Circuit, disagreed when two of her colleagues concluded that the House Oversight and Reform Committee had the authority to issue a subpoena for financial documents “concerning the President and his companies.”

In her dissent, Rao wrote that “allegations that an impeachable official acted unlawfully must be pursued through impeachment.” Allowing the committee to issue the subpoena, she said, could turn Congress “into a roving inquisition over a co-equal branch of government.”

Thomas Jipping, a senior legal fellow at the conservative Heritage Foundation, disputes critics’ characterization of Rao. Rather than a partisan player or a Trump loyalist, he sees the judge as a strict constructionist who is applying the law according to her consistent, albeit conservative, legal views.

“Judge Rao’s expressed views about the separation of powers and executive authority are no more extreme than those of America’s founders,” Jipping said in an email.

Read the full article at Roll Call.