We can read the language of blindness and sight as something of a doctrinal means by which judges are signaling their recognition that this is a new type of presidency, for which they are developing a new body of law. By framing the question of whether to incorporate off-the-cuff statements by Trump and aides as a matter of whether or not to be “blind” to the reality before them, the judges are saying that they cannot ignore not only that the President or President-elect made those statements, but that the President is Donald Trump.

To be clear, the question of whether the courts may permissibly consider a pattern of statements made by the President both before and after his election and inauguration, and whether they can permissibly consider the fact that the President in question is Donald Trump, are two different matters. We have recently seen arguments from commentators both supporting and opposing the Fourth Circuit’s decision in IRAP that view these issues as entirely distinct. Critiquing the IRAP decision in Lawfare, Josh Blackman has argued that the Fourth Circuit’s ruling is entirely an effort “to hold President Trump at bay.” Responding on Take Care, Leah Litman, Helen Murillo, and Steve Vladeck take the position that the question of whether Trump’s statements are permissibly the subject of judicial analysis is a purely legal issue, entirely distinct from any discomfort judges may have with the fact of Trump’s presidency. In Blackman’s view, the IRAP decision is entirely about Trump qua Trump, and is therefore illegitimate as a work of legal reasoning; in Litman, Murillo, and Vladeck’s view, the decision is based on a neutral principle separate from the fact that Donald Trump is the President of the United States, and is therefore legitimate.

I think the truth is more complicated. The two matters of the specific presidency of Donald Trump and of the courts’ surprising willingness to consider Trump’s statements are linked: the courts have been unusually willing to interpret the law in the manner least deferential to the executive because that executive is Donald Trump—and because they doubt Trump’s oath. It’s an interesting chicken-and-egg question whether the pattern of statements by Trump and his aides has undermined judicial confidence in Trump’s oath, or whether preexisting doubts about the oath shaped the judiciary’s response to Trump’s statements.