“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

The Fourth Circuit Court of Appeals issued an 8-7 en banc ruling in January in a criminal justice case in which both of President Trump’s nominees on the court—Julius Richardson and Marvin Quattlebaum—were among the dissenters. All but one of the dissenters was a Republican-nominated judge, with Richardson authoring a separate dissent that only Quattlebaum joined. The Trump judges sought to uphold a conviction under an unconstitutionally vague criminal law by rewriting it in a way that the Supreme Court has clearly rejected.

In United States v. Simms, Joseph Decore Simms had been convicted of brandishing a firearm in connection with a “crime of violence.” The underlying “crime of violence” in his case was a conspiracy to commit a robbery. But in two recent cases involving materially identical statutes, the Supreme Court has struck them down as too vague to give fair notice as to exactly what activities are encompassed by the terms “crime of violence” or “violent felony.” That is important, because the Due Process Clause protects people from being convicted for doing something that is not clearly defined as a criminal act.

As the Fourth Circuit majority pointed out, the Supreme Court has twice in recent years instructed lower courts how to interpret statutes like the one in this case. Under Sessions v. Dimaya (2018) and Johnson v. United States (2015), the issue for the judge is not whether the specific defendant in a particular case before the court did something that posed a substantial risk of violence while committing the underlying crime. Instead, judges have been directed to imagine the “ordinary case” of the underlying crime to determine if there is a substantial risk of violence.

Accordingly, the Fourth Circuit majority asked whether the underlying crime—conspiracy to commit robbery—has a substantial risk of violence. Answering that question would involve exactly the same type of guesswork and lack of fair notice as in Johnson and Dimaya. In a straightforward application of precedent, the en banc majority struck the law down as unconstitutionally vague.

The seven dissenting judges urged the court to interpret the law differently, asking whether there was a substantial risk of violence in the particular incident before the court. The main dissent argued that this was the best way to interpret the statute.

But in his separate dissent, Trump judge Richardson (joined by Trump judge Quattlebaum) agreed with the other dissenters on how to interpret the law, but for a very different reason. They did not care what the best way to interpret the statute is. In order to avoid striking the law down as unconstitutional, they would have used the case-specific approach and upheld the criminal conviction as a “fairly possible” interpretation of the law. But as the majority explained, that interpretation has already been foreclosed by the Supreme Court.

In a concurring opinion, Judge James Wynn (joined by Judge Pamela Harris) pointed out that the dissenters’ interpretation would actually broaden the universe of defendants subject to the criminal statute at issue:

By relying on constitutional avoidance to expand a criminal statute’s reach, my dissenting colleagues embrace an unprecedented application of the doctrine of constitutional avoidance that empowers the judiciary to usurp Congress’s exclusive authority to establish crimes and punishments.

Judge Wynn observed that:

neither my dissenting colleagues nor the government points to a single case in which the Supreme Court has sanctioned the use of constitutional avoidance in a manner that expands the scope of a criminal statute, as it would if we applied the case-specific approach to Section 924(c)(3)(B).

Judges Wynn and Harris were nominated by President Obama. In fact, based on the party of the appointing president, the 8-7 vote was nearly party-line.