Bankole: Damon Keith set the judicial presidential bar

Bankole Thompson
The Detroit News

If you have been listening to the administration and those supporting the executive orders coming out of the White House, you would be inclined to believe that the federal courts are committing a great sin by checking the limits of President Donald Trump’s executive power.

You would be driven to think — especially given the ranting on social media about the judiciary from those administration supporters — the courts have no jurisdiction whatsoever to rein in the excesses of any presidency.

But you need not look far or take a law school class to know that history and the Constitution are on the side of the federal judges, who have put the brakes on Trump’s executive order targeting seven Muslim majority nations, otherwise known as the Muslim ban.

Detroit’s own Damon J. Keith, a senior judge on the U.S. Sixth Circuit of Appeals in Cincinnati, who first became a district judge in 1967, is a classic example of a jurist whose rulings have effectively reined in presidential power.

One of his most important rulings was in 1971 at the height of the Vietnam War, when Keith ruled in United States v. Sinclair that then-President Richard Nixon and his Attorney General John Mitchell could not conduct non-court approved wiretaps of citizens under the guise of national security.

Keith ruled that the Nixon administration should tell an anti-war group in Detroit if its members were under surveillance by the federal government.

“In the opinion of this court, the position of the Attorney General is untenable. It is supported neither historically, nor by the language of the Omnibus Crime Act. Such power held by one individual was never contemplated by the framers of our Constitution and cannot be tolerated today,” Keith wrote in the historic ruling.

The ruling was the first time the powers of a sitting president had been overruled by a federal judge. It did not sit well with an angry Nixon, who personally sued Keith following the decision and subsequently lost.

The same questions that Trump’s supporters are raising today about the role of the courts when it comes to national security were raised then with the Keith decision.

“If the attorney general and the president of the United States think it’s needed to defend our national security, who are you, as a judge, to tell them otherwise,” was the repeated question from critics of Keith’s ruling, according to his biography “Crusader For Justice.”

Nixon, who had campaigned on law and order issues and felt he could govern unchecked, watched his authority being reviewed by an unelected lifetime federal judge. He appealed Keith’s decision to the U.S. Supreme Court and lost 8-0.

“As news of the decision spread, Judge Keith was heralded from coast to coast. The Keith case was seen as a triumph for civil liberties, the principle of separation of powers, and on a broader level, constitutional rights,” according to his biography.

The decision against the Nixon White House was not the last time the Detroit judge locked horns with a sitting president.

Decades later, Keith delivered a blow in 2002 to then-President George W. Bush, after the Sept.11, 2001, terrorist attacks in New York, in a case similar to that of the Nixon administration.

Keith rejected the government’s argument that it can conduct secret deportation hearings of those with suspected terrorist links in a case that became another triumph for civil liberty.

In announcing the decision of a three-judge panel of the Sixth Circuit of Appeals, Keith wrote: “The executive branch seeks to uproot people’s lives, outside the public eye, behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.”

Keith added, “The framers of the First Amendment did not trust any government to separate the true from the false for us. They protected the people against secret government.”

In 2008, I interviewed Daniel Ellsberg, the man who leaked the Pentagon papers in 1969 that contributed to the fall of Nixon. “The U.S. president is not a king,” said Ellsberg, who was in town as the keynote speaker for the National Lawyers Guild convention. “What the Constitution meant to exclude was a ruler who is beyond the laws. That is what the checks and balances were meant to reject.”

What the courts are presently doing is within the bounds of the Constitution because no one is above the law. That underscores the vitality of separation of powers, the cornerstone of any functioning democracy.

We are a democracy where the elected leader of the nation is called the president, not a king. Because of that, the actions of any president as demonstrated in Keith’s decisions are always subject to review by the courts.

Twitter: @bankieT

Bankole Thompson is the host of “Redline with Bankole Thompson” on Super Station 910AM weekdays at noon. His column appears Mondays and Thursdays.