Washington Post columnist Jennifer Rubin is being ridiculed for a column in which she claims that the “walls are closing in” on President Donald Trump. Critics have noted that in May 2017 Rubin declared the “walls are closing in” on Trump due to his firing of FBI Director James Comey. Then last October, she declared the “walls are closing in” due to impeachment. Now the walls are back as if this is one long struggle of transferred claustrophobic anxiety.
The more important aspect however is not the fear of moving walls but the misrepresentation of the recent ruling of the United States Court of Appeals for the Fourth Circuit. We previously discussed how some have misrepresented the ruling, but Rubin, again, appears entirely untethered by any editorial (or ethical) requirements of accuracy. Rubin’s column is based on another misrepresentation of the underlying facts.
Rubin is marketed as the Post’s “conservative opinion writer” despite a long array of controversial statements about both conservatives and Republicans. Most recently, Rubin declared Trump supporters to be as a group “primarily motivated by racism. This is why Trump does this.” It is not however Rubin’s ideological tendencies but her aversion to facts that that has repeatedly unleashed criticism across the political spectrum.
Rubin often appears to write on cases or testimony that she does not actually read. This is a case in point, literally. As I wrote earlier, the Fourth Circuit opinion was clear:
“The 9-6 opinion, below, however has been misrepresented or misunderstood by some. It is not a ruling on the merits but rather the technical standard for what is called an interlocutory appeal. It essentially blocks a Hail Mary play to shutdown the lawsuit. Nevertheless, the dissenting judges denounced the lawsuit as based on a “wholly novel and nakedly political cause of action.”
The appeal to the Fourth Circuit turned on the question of when a litigant can take an interlocutory appeal, or an appeal taken before the resolution of issues or the merits has been reached by the district court.
…In reality, for those who are seeking an exciting decision on foreign influence, this opinion will be something of a disappointment.”
Rubin however was not “disappointed.” She, again, simply said what she hoped the opinion said rather than what it actually said in the same breathless “Trump is a goner” language. Such erroneous legal accounts seem to be eagerly embraced by the Post and other media outlets with no apparent fact checking.
In her latest Post column entitled “A sweeping setback for Trump’s foreign business dealings,” readers are told that the “The full 4th Circuit repudiates Trump’s receipt of foreign emoluments.” Literally everything is wrong with those statements. The ruling was not a sweeping setback but a technical ruling on the availability of an interlocutory appeal. Indeed, even the majority noted that “Respondents press novel legal claims. But reasonable jurists can disagree in good faith on the merits of these claims.” Moreover the “full 4th Circuit” did not repudiate the Trump’s receipt of foreign emoluments. It expressly declined to rule on the merits and even that decision was a 9-6 split. Six judges excoriated the majority because they believed that the underlying theory was so unsupportable that it warranted immediate appellate review.
Rubin however goes on to say “a federal appeals court has held he cannot derive income from foreign governments that frequent his businesses.” The court not only never said that, it expressly stated that it would not state that. It confined its ruling on the narrow and technical question of when an interlocutory or mandamus action is permissible. Rubin actually cited the same counsel, former House impeachment counsel Norm Essen, who was involved in an earlier erroneous column. She quotes Essen as declaring “This case shows that the rule of law is fighting back against Trump’s pathological and illegal selfishness.” It was a ruling on when a party could seek appellate review and the technicalities of the All Writs Act, 28 U.S.C. § 1651(a), and Federal Rule of Appellate Procedure 21. It was manifestly not, as Rubin again quotes, part of that “essential story of the Trump presidency: a president who puts his personal and political interests above the national interest and the law.”
For full disclosure, I recently clashed with Rubin over her personally attacking me for a theory that I did not agree with in a column that I did not write. I also challenged her on an equally bizarre column where she wrote about my impeachment testimony with a clearly false account of a “concession” pulled out of me by counsel Norm Essen, the very same source that she uses for this latest column. In both cases, it seemed likely that Rubin did not read the underling column or the testimony — a signature for her columns.
What is most interesting is how little of this actually matters. (Not the law. Not the facts.) The media is increasing untethered to the factual record or legal authority. It simply does not matter. Readers want to read of victories of the “the rule of law … fighting back against Trump’s pathological and illegal selfishness.” When it comes to the actual ruling of the court, it is all immaterial. As the Post’s Rubin has repeatedly shown, the old adage in the media remains that “there are just some facts too good to check.”
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