Thursday, May 24, 2018

Gorsuch Vote Deals Unequal Justice for Workers

      Justice Neil Gorsuch cast the most important vote of his Supreme Court tenure so far in a decision this week [May 14] that consigns 25 million American workers to take workplace disputes with their employers to a quasi-legal system tilted against them. Gorsuch wrote and cast the tie-breaking vote in Epic Systems, Inc. v. Lewis to allow employers to enforce arbitration clauses that prevent workers from banding together in disputes over, for example, alleged violations of federal wage and hour laws.
      For forgotten working class voters in President Trump's political base, this decision is their payoff: argue with your boss over wage theft in arbitration, not in court, and bear the cost and any risk of retaliation all by yourself. In Gorsuch's telling, the employees in these cases all "agreed" to these terms even if, as Justice Ruth Bader Ginsburg noted in dissent, the fine-print terms were in "take-it-or-leave-it" contracts.
      The employees in two of the consolidated cases,  Epic Systems and Ernst & Young LLP v. Morris, went to federal court instead to claim that their companies had misclassified them as professional employees not entitled to overtime pay. In the third case, National Labor Relations Board v. Murphy Oil USA, Inc., Sheila Hobson decided to complain to the NLRB that she was forced to work off-the-clock without pay to monitor prices at rival companies' service stations.
      The employees' claims were far too small to justify an all-out legal war. So they joined with others to try to take on their employers together. No dice, the companies said, citing the clauses that limited any disputes to individual, not class, arbitration,
      The cases posed a seeming conflict between two federal laws: the pro-arbitration Federal Arbitration Act (FAA), enacted in 1925, and the pro-worker National Labor Relations Act, enacted a decade later in 1935. The FAA, enacted to override judicial reluctance to enforce arbitration agreement between businesses, provides generally that arbitration agreements are enforceable just like any other contract. The labor law provides that workers have the right to form and belong to unions, to bargain collectively, and to "engage in other concerted activities . . . for mutual aid and protection."
      In his majority opinion, joined by the other four Republican-appointed conservatives, Gorsuch concluded that class arbitration is not one of the "concerted activities" protected by the labor law. This interpretation comes from a justice who proudly identifies himself as a "committed textualist."
      In this case, Gorsuch imposed a narrow construction to the disadvantage of the complaining workers. Critical observers may recall the controversy at his confirmation about his dissent in the so-called Frozen Trucker Case. In that case, Gorsuch interpreted a trucker safety law so narrowly as to leave a stranded trucker no legal protection against being required to risk frostbite in subzero weather in his inoperable vehicle.
      The advantages and disadvantages of arbitration as opposed to in-court litigation are grist for a long debate, but individual arbitration clearly leaves the complaining worker out-resourced in a dispute with the employer. Gorsuch works in a building with a motto carved in marble above the entrance: "Equal Justice Under Law." In this case, however, the Gorsuch-led majority dispensed not equal justice, but unequal justice for U.S. workers.
      Gorsuch's vote marked the eighth time to cast a tie-breaking vote in a 5-4 decision. The justices vote in conference in order of seniority, so Gorsuch literally breaks the tie in these cases. In this case, eight justices divided down the middle before it came Gorsuch's turn to vote. Yet, in his opinion, Gorsuch said the correct result was "clear.".
      The one typical result in Gorsuch's other tie-breaking votes has been to extend "equal justice" to those least in need of the law's protection and deal out seemingly unequal justice to those in need of the law's benefit. Thus, in two procedurally complex cases, he blocked a Texas death row inmate from challenging his death sentence because of woefully deficient legal representation (Davila v. Davis) and prevented California's public employee pension system from suing Wall Street underwriters for funny figures in a public stock offering (California Public Employees Retirement System v. ANZ Securities, Inc.).
      In a more important case this year, Gorsuch cast the decisive vote in Jesner v. Arab Bank PLC  to immunize foreign corporations from being sued for human rights violations in U.S. courts:in this case, the Jordanian bank that allegedly serves as global paymaster for Hamas, helping to finance suicide bombers and other terrorist attacks. In other cases, Gorsuch helped limit damage awards for prisoners in some federal civil rights suits (Murphy v. Smith) and blocked car dealer service advisors from getting overtime pay (Encino Motorcars LLC v. Navarro). One more: In SAS Institute v. Iancu, he strictly interpreted a statutory phrase to give companies challenging a patent an extra measure of procedural rights.
      Only once has Gorsuch provided a tie-breaking vote to the liberal bloc. In that case, Sessions v. Dimaya, Gorsuch joined in ruling a criminal code provision too vague to be used to mandate deportation of an immigrant with a minor criminal conviction. Oddly, his vote there aligned with his strict approach to statutory construction in disagreement with a more flexible interpretation advanced by Chief Justice John G. Roberts for the four conservative dissenters.
      With 32 cases awaiting decision, Gorsuch is likely to be the tie-breaker in a few more this term. Equal justice for some; for others not so much. As President Trump might say, "We'll see what happens."

Sunday, May 20, 2018

New Evidence Shows No Time to End Mueller Probe

      The smoking gun that implicated President Richard M. Nixon in the Watergate cover-up emerged two full years after the break-in itself and more than a year after the appointment of Archibald Cox as special prosecutor to take over the case from the U.S. attorney's office. With that history in mind, no one should be surprised that special counsel Robert Mueller has been investigating the Trump campaign's connections with Russia for a full year now without having gotten to the bottom of this pit of Trump-style duplicity and obfuscation.
      Nixon marked the one-year anniversary of the Watergate investigation with a plea to shut it down. "I believe the time has come to bring that investigation and the other investigations of this matter to an end," Nixon urged on January 30, 1974, in what proved to be his final State of the Union address to Congress. "One year of Watergate is enough!"
      President Trump and his vice president, Mike Pence, channeled Nixon in making the same plea for an end Mueller's investigation. "I think it's time to wrap it up," Pence declared in a n interview with CNN [May 10] after claiming somewhat disingenuously to have "fully cooperated" with the investigation. Trump marked the actual one-year milestone [May 17] with a mocking tweet: "Congratulations America, we are now into the second year of the greatest Witch Hunt in American History."
      Mueller himself had no reactions, but senators from both parties batted the White House's line away. "That's not his call to make," South Carolina Republican Lindsey Graham said of Pence's plea. Senate Democratic leader Chuck Schumer used a floor speech to declare Mueller's investigation "not a witch hunt" and to denounce the efforts by conservative media and "extreme" elements in the Republican Party to "distract from the special counsel's investigating."
      Inconveniently for Trump, new evidence emerged only two days after his tweet  in an article in the New York Times showing that his campaign entertained efforts to influence the U.S. election not only from Russia but also from an emissary purporting to represent Saudi Arabia and the United Arab Emirates. It turns out that Donald Trump Jr. was meeting at Trump Tower in summer 2016 not only with Russian emissaries offering dirt on Hillary Clinton, but also with an adviser to the UAE's Crown Prince Mohammed bin Zayed Al Nahyan and an Israeli social media specialist offering help for Trump's then lagging-in-the-polls presidential campaign.
      Trump dissembled about the Russian meeting in a statement that Trump helped draft from the Oval Office. But Junior's email traffic eventually confirmed the purpose of the June 9 meeting and forced him into the fallback position that nothing ever came of it. Junior has settled more quickly on that same position in regard to the Aug. 3 meeting with the Gulf states' emissary George Nader and the Israeli social media practitioner Joel Zamel. Alan Futerfas, a lawyer representing Junior, told the Times that Junior recalls the meeting, but that after listening to the pitch Junior "was not interested and that was the end of it."
      Junior's effort to fashion an innocent ending for the two disclosures brushes over the damning fact that he took the meetings in the first place instead of responding, indignantly, that federal law prohibits foreigners from contributing to a campaign for federal office. His other defense, modeled after Nixon's famous advice in the Watergate investigation, is a failing memory.
      Transcripts of Junior's interview by the Senate Judiciary Committee released last week [May 16] show that he answered 171 times with the impossible-to-cross-examine reply, "I don't recall." His lapses of memory included an inability to recall the individual with a blocked number that he called to report on the meeting — thus, avoiding the evident implication that he called his candidate-father himself. Rep. Eric Swalwell, a California Democrat on the House Intelligence Committee, aptly commented on CNN that "I don't recall" was "code for Yes."
      Meanwhile, the Republican-majority Senate Intelligence Committee was underscoring the reasons for the Mueller probe to continue by endorsing the U.S. intelligence community's finding that Russians attempted to influence the 2016 presidential election. By now, the hyperpartisan House Intelligence Committee is the only governmental entity — apart from the Oval Office — resisting this conclusion. The evidence of Russia's active social-media campaign in Trump's behalf is damning, but not enough to move the administration or Republicans in Congress toward fashioning legislation to prevent a recurrence.
      The Oval Office-inspired clamor for Mueller to "wrap it up" shows no immediate sign of receding, however illogical. One of my journalist friends noted on Twitter that Watergate was not the only special counsel investigation to last more than a year. "The Whitewater investigation lasted six years & the Iran/Contra probe lasted four," former New York Times reporter Steven Greenhouse noted on Twitter. He called Russia's interference in the 2016 election and the possible collusion "far more serious matters" than those and noted that Mueller's supposed witch-hunt has already resulted in five convictions without also mentioning the pending indictments of the accused Russian meddlers.
      Mueller's investigation gained judicial endorsement when a federal judge last week [May 15] rejected the plea by Trump's indicted former campaign chair Paul Manafort that his indictment went beyond Mueller's scope of authority. Judge Amy Berman Jackson underscored the charge to Mueller to investigate "any links and/or coordination between the Russian government and individuals associated with the campaign." With more smoke emerging day by day, Mueller deserves encouragement not to wrap things up but to document the full story of foreign interference in Trump's election, however embarrassing that may be to the candidate who benefited.

Saturday, May 12, 2018

On Blue Slips, Republicans' Hypocrisy Is Showing

      President Obama had been in office for less than two months when the Senate's Republican minority sent him an earnest letter imploring him to take steps what the letter called the "needlessly acrimonious" process of federal judicial appointments. The letter, signed by all 41 GOP senators, urged the president to consult with senators on judicial nominations and promised to block action on any Obama nominee who was not approved by senators from the nominee's home state.
      The letter's oblique reference to the Senate's long-established "blue slip" procedure cast "the principle of senatorial consultation (or senatorial courtesy)" as part of the Senate's "unique constitutional responsibility to provide or withhold its Advice and Consent on nominations." That was then, but this is now. Two of those who signed the letter, the Senate's GOP leader Mitch McConnell and the current Judiciary Committee chairman Charles Grassley, are pronouncing last rites for the blue slip procedure so that a Republican president can pack the federal judiciary without a semblance of bipartisan comity.
      The blue-slip procedure holds up Senate action on a president's judicial nominees until senators from the nominee's home state return a blue slip of paper assenting to the nomination. It is a custom, not a Senate rule much less a constitutionally prescribed requirement, but a custom long followed in a body that requires a measure of collegial courtesy to get some of its work done.
      Grassley took to the Senate floor this week [May 9] , however, to denounce the blue slip procedure as an extraconstitutional limitation on the president's Article II power to nominate candidates for lifetime seats on federal courts. Neither Grassley nor McConnell is known to have uttered any doubts about the procedure when they honored and practiced it to bottle up some of Obama's judicial nominations during his years in the White House.
      The double standard on this issue, sad to say, extends beyond the ignominious Senate Republicans to the gadfly journalist David Lat, who opined in The New York Times this week [May 9]: "Good riddance to the blue slip." Lat, a personal friend despite our ideological disagreements, conceded in reply to my question that he could not recall writing about the issue back when Republicans wielded it against Obama.
      Lat now admits that Republicans "abused" the procedure and casts his belated criticism as aimed at public rather than partisan interests. The blue slip procedure hurts the federal bench by leaving judicial vacancies unfilled and unfillable, he says. Its demise may benefit Republicans today or Democrats tomorrow, but the federal judiciary will be "the true winner" in the long run.
      Given current conditions, however, Lat is completely off point. Republican obstructionism in the final year of Obama's presidency left a record number of federal court vacancies as he left the White House. Now, Trump is choosing nominees at breakneck pace. A 61-page report by Judiciary Committee Democrats released on Thursday [May 10] details the Republicans' thus-far successful "efforts to stack the federal courts" with right-wing ideologues. The report decries the "degradation" of the confirmation process so as to limit any true deliberation.
      Grassley has changed the previous practice of scheduling only one circuit court nominee at a time in favor of allowing two circuit court nominees along with multiple district court nominees all on the same day. The Democrats note that stacking nominees hampers senators' ability to study background materials or thoroughly question nominees. After hearings, judges are confirmed "as quickly as possible, without thorough review" — with floor votes on average only 20 days after committee action.
      Now, the Republicans are moving to short-circuit floor procedures as well by proposing to limit debate on district court nominees to two instead of 30 hours once the Republican majority votes to invoke cloture. The resolution introduced in December by Oklahoma Republican James Lankford is awaiting consideration in the face of a strongly worded letter from civil rights organizations opposing the move.
      Lat professes to be agnostic about the nominees who are being rushed into lifetime tenure through this process. Most court cases would come out the same way regardless of the judge's politics, he argues. The short answer to that argument: Neil Gorsuch and the frozen truck driver.
      Clearly, Trump, Senate Republicans, and Trump's political base are counting on his judges to shift federal courts away from protecting, for example, LGBT rights  and toward favoring companies in disputes over regulatory policies protecting consumers, workers, and the environment. The Democrats' report underscores the contrast between Obama's judges and Trump's. Obama's judges represented the full diversity of America: 52 percent of district court nominees, persons of color; 52 percent, women. Trump's vision appears to be a federal judiciary of white men: only 8 percent of district court nominees are persons of color and only 24 percent women.
      One final point: the president who is so intent on reshaping the federal judiciary has little respect for the rule of law or the goal of impartial justice. The candidate who attacked the Mexican-American judge in the Trump University case is now the president who attacks judges who rule against his policies — as many have done. Contrary to Lat, the federal judiciary will not be the winner if Trump is given an even freer hand in choosing federal judges. 

Saturday, May 5, 2018

On Hush Money, Trump Tries to Change Subject

      President Richard Nixon famously tried to deflect the talk of impeachment in fall 1973 with an eminently quotable declaration of innocence in a televised news conference with the nation's newspaper editors. ""People have got to know whether or not their President is a crook," Nixon declared. "Well, I'm not a crook."
      Nixon was facing accusations of political espionage and obstruction of justice far more serious than stealing from the government's cookie jar, but "I'm not a crook" was the dominant sound bite on the network newscasts that day and in newspaper headlines the next day. Nixon's effort to change the subject failed in the end only after the Oval Office tapes confirmed his deep involvement in the Watergate cover-up.
      President Trump and his new wartime consigliere Rudy Giuliani appear to be borrowing from Nixon's subject-changing playbook to try to get rid of the controversy over Trump's alleged sexual affair with porn star Stormy Daniels a decade ago. For weeks, Trump had been denying the affair and in addition denying any role in the $130,000 hush-money payment to Daniels from his lawyer Michael Cohen three weeks before the November 2016 election.
      Giuliani went off on a completely different tack this week [May 2] by announcing to Fox News' Trump-loving host Sean Hannity that Trump actually had reimbursed Cohen for the payment. Giuliani's claim, within days after Trump added him to his White House legal team, directly contradicted Trump's and Cohen's previous statements that Cohen had paid the money himself without ever having been reimbursed directly or indirectly by Trump or the Trump organization.
      Any method behind Giuliani's startling claim appears to have been his specifying that Trump paid Cohen back from personal funds, not from his campaign treasury. "No campaign finance violation," Giuliani told Hannity. "Zero," he added with a wide Cheshire-cat grin on his face.
      Hannity appeared to be totally satisfied. "I didn't know," he said matter-of-factly without noting the complete contradiction of Trump's prior statements. But legal experts on other cable news channels, CNN and MSNBC, pounced viciously on Giuliani's statements as implicating rather than exonerating Trump and Cohen.
      From the initial disclosure, campaign finance experts viewed Cohen's payment as a campaign-related expenditure aimed at keeping a lid on Daniels' accusation at least until after the election. On that premise, the nonpartisan Campaign Legal Center filed a complaint with the Federal Election Commission (FEC) charging Cohen with a $130,000 contribution to Trump's campaign, well in excess of the $2,700 limit on individual contributions under federal law.
      Appearing on CNN with host Don Lemon, former Clinton White House counsel Jack Quinn noted that Giuliani's seemingly exculpatory statements were completely off point. "'We never used campaign funds,'" Quinn said, paraphrasing Giuliani. "That's not the issue. That was never the issue."
      Giuliani also tried to depict the hush-money payment as aimed at sparing Trump's wife Melania from embarrassment rather than protecting Trump's candidacy. With no regard for the evident implausibility, Giuliani went on in any event to contradict himself in a later appearance on Fox and Friends. "Imagine if that came out on Oct. 15, 2016, in the middle of the last debate with Hillary Clinton," Giuliani said, making the hush money's campaign-related purpose evident.
      For FEC purposes, Trump's eventual reimbursement to Cohen is meaningless for the lawyer's legal exposure. FEC regulations make clear that a loan to a campaign is subject to the same limit as a contribution: "A loan that exceeds the contribution limitations of 52 U.S.C. §30116 and 11 CFR part 110 shall be unlawful whether or not it is repaid."
      Far from exonerating the president, Trump's previously undisclosed reimbursement puts him squarely in legal crosshairs. If campaign-related, the expenditure needed to be included in spending reports with the FEC: it was not. If a loan or advance from Cohen, the debt needed to be included in Trump's June 2017 financial disclosure form: it was not.
      Admittedly, the future of Trump's presidency is unlikely to hinge on violations of federal disclosure laws. But Giuliani added further to Trump's legal exposure with a new explanation of the president's decision to fire FBI director James Comey. Trump had muddied those waters months ago, first by linking his decision to Comey's supposed mishandling of the campaign-time investigation of Clinton's email server and then by acknowledging the connection to the special counsel's Russiagate investigation.
      In the newest version of events, Giuliani claimed that Trump decided to fire Comey when the FBI director refused to make a public declaration that Trump was not a target of the Russiagate investigation. With a stronger link to the special counsel's investigation, the firing seemingly strengthens the case for charging Trump with obstruction of justice, if not in an indictment at the least in Robert Mueller's final report.
      Practicing lawyers who appeared on CNN or MSNBC appeared to be unanimous in viewing Giuliani's comments as an unforced error by a spotlight-loving politician. Giuliani insisted, however, that he made the statements after conferring with Trump and with the president's blessing. In the end, the episode gives Trump's critics this consolation: Trump and those around him are simply too incompetent to pose a lasting risk to American democracy, despite their worst efforts.

Sunday, April 29, 2018

On Muslim Ban, Justices Unfazed by Diplomatic Harm

      The Supreme Court's conservative majority was very troubled last week about the risk of diplomatic friction between the United States and other countries when they decided to bar suits in U.S. courts against foreign corporations for violations of international law. Writing for a 5-4 majority in Jesner v. Arab Bank (April 17), Justice Anthony M. Kennedy stressed that the government of Jordan had warned it would regard it as an affront to its sovereignty if the Jordanian-based Arab Bank were hauled into U.S. courts for helping to finance the terrorist organization Hamas.
      Kennedy noted concerns raised by a number of other countries about the recent discovery of the 225-year-old Alien Tort Statute as a vehicle for allowing human rights suits in U.S. courts against foreign individuals and companies for overseas human rights violations. In a forceful dissent, however, Justice Sonia Sotomayor noted that the State Department's legal advisor had signed briefs in this and one earlier case arguing against giving foreign corporations legal immunity for human rights violations.
      Foreign policy concerns are usually not part of the Supreme Court's job description, as Kennedy himself acknowledged in his opinion even while considering them. Given the debate in Tuesday's decision, however, it was ironic that the justices breathed not a single word during arguments the next day over the diplomatic harm the United States is already suffering from President Trump's anti-Muslim travel ban.
      The hour-long arguments in Trump v. Hawaii (April 18) left observers predicting a decision to uphold Trump's downsized version of the complete Muslim ban that he had promised in his campaign. The 18-page proclamation that Trump issued in mid-September stopped short of that goal, but imposed substantial limits on travel to the United States by individuals from seven countries, including five Muslim-majority nations in the Mideast and Africa.
      Trump has vented anti-Muslim animus both as candidate and as president to the evident detriment of U.S. standing not only in the Muslim world but also in many of the United States' closest allies. A global poll by the Pew Research Center last summer after courts had ruled against Trump's earlier executive order found that 62 percent of those surveyed disapproved of the travel ban and only 32 percent approved.
      The controversy over what opponents insist on calling the Muslim ban has contributed to a worldwide drop in public confidence in the U.S. president. Barack Obama left office in 2016 with 64 percent of respondents voicing confidence in him compared to 23 percent with no confidence. Six months into Trump's presidency, the results were flipped: 74 percent of respondents voiced no confidence in him and only 22 percent had confidence in him.
      In Indonesia, the world's most populous Muslim majority country, confidence fell from 64 percent under Obama to 23 percent under Trump. The decline in the United States' closest ally, Britain, has been sharper: from 79 percent to 22 percent. The controversy over the travel ban is one of several factors cited in the British government's decision to deny Trump a full-blown state visit this summer.
      Trump has been a diplomatic bull-in-the-china shop on a range of issues, of course: not just by imposing the Muslim travel ban, but also by pulling out of the trans-Pacific trade deal and the Paris climate change agreement. Those last two issues are outside the justices' concerns, but the travel ban touches directly on issues of equal treatment that fall within the Court's jurisdiction.
      Defending Trump's order, Solicitor General Noel Francisco minimized its scope. "This is not a so-called Muslim ban," Francisco told the justices, since it excludes "the vast majority of the Muslim world." In challenging the ban as illegally discriminatory, Neal Katyal, a former acting U.S. solicitor general, rejected Francisco's point by noting that an employer would be guilty of racial discrimination by firing an employee because of race even if others of that race were still on the job.
      No court has yet to uphold any of the three versions of Trump's travel ban. In the Hawaii case, the Ninth U.S. Circuit Court of Appeals ruled that the ban violated an immigration law provision that prohibits discrimination on the basis of nationality. In the separate case still awaiting Supreme Court review, the Fourth U.S. Circuit Court of Appeals found that the ban amounted to anti-Muslim discrimination in violation of the Constitution's religious liberty clause.
      Francisco defended the travel ban by insisting that the countries affected had been found by an interagency review to fall short in their vetting procedures for travelers to the United States. Chief Justice John G. Roberts Jr. was one of several conservatives who seemed ready to accept the review as washing away the taint from Trump's anti-Muslim rhetoric. The conservatives also appeared ready to give the president a wide berth on immigration issues even in the face of congressional actions to the contrary and even without any justification of its claimed national security concerns.
      The Court bases its decision on law, of course, not on public opinion, but it takes pains at time to stay within some broad range of public opinion. A recent poll conducted for Muslim Advocates found that only 36 percent of Americans approve of the travel ban compared to 44 percent who disapprove. Demonstrators on the day of arguments carried placards declaring immigrants and refugees to be welcome in the United States. But the Court that proudly promises equal justice under law seems headed in an opposite direction.

Sunday, April 22, 2018

At Supreme Court, Originalism's Illusory Promise Exposed

      "The life of the law has not been logic," the great Supreme Court justice Oliver Wendell Holmes Jr. once proclaimed, "it has been experience." Holmes' embrace of legal realism in a series of lectures before his judicial career challenged the legal formalists of the era who saw law as nothing more than "syllogisms" or "the axioms and corollaries of a book of mathematics.".
      The formalists of the 19th century stunted the development of the law by preventing workers or others from joining together to protect their interests or recover for the often deadly injuries of the industrial era. Today, a new generation of legal formalists are defying Holmes' practical wisdom by looking not to experience or even to logic, but to what they believe can be discerned as the "original meaning" of the Framers who wrote the U.S. Constitution some 225 years ago.
      Originalists promise in part that originalism can yield definite answers to hard legal issues and thus force judges to decide cases solely on the basis of law instead of their personal views. But the promise is an illusion, as seen in the dueling opinions of the two originalist justices Clarence Thomas and Neil Gorsuch in the Supreme Court's closely divided decision last week [April 17] in an important immigration law case.
      Thomas and Gorsuch clashed on the question of whether the Due Process Clause authorizes courts to strike down laws as unconstitutional on account of vagueness. The two justices came out on opposite sides of the 5-4 decision in Sessions v. Dimaya, with Gorsuch joining the four liberal justices in ruling in favor of the immigrant in the case. Thomas joined with three other conservatives in the main dissent and wrote a separate, history-based dissent for himself alone.
      Thomas and Gorsuch disagreed about the significance of old court decisions dealing with vague laws from 18th century England and 18th and 19th century America. The debate was worthy of an advanced seminar in legal history, but for Filipino immigrant James Dimaya the stakes were anything but academic.
      Dimaya, who immigrated legally to the United States at age 13 in 1992, was facing deportation because of two burglary convictions a decade ago in his adopted home in the San Francisco Bay area. The government moved to deport him under a provision in immigration law that mandates removal for anyone convicted of a "crime of violence." The provision defines that term as a "felony . . . that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
      Three years ago, the Supreme Court ruled a similarly phrased provision in the federal Armed Career Criminal Act (ACCA) as unconstitutional under the so-called void-for-vagueness doctrine. Thomas agreed with the result in Johnson v. United States (2015), but in a separate opinion he called the void-for-vagueness doctrine inconsistent with the original meaning of the Bill of Rights' Due Process Clause..
      In the new case, Gorsuch noted that none of the other justices had responded to Thomas's view and took on the task himself. Reviewing the cases, Gorsuch concluded that void for vagueness "serves as a faithful expression of ancient due process and separation of powers principles . . . ." Thomas reiterated his "doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause."
      Paradoxically, Thomas and Gorsuch both favorably cited a 19th century decision by Supreme Court Justice Bushrod Washington as evidence for their opposing views. Presiding as circuit justice in a Pennsylvania case, Washington found a federal law prohibiting seamen from making a "revolt" too vague to allow the government's case to go to the jury.
      Commenting on the two opinions, Evan Bernick, a lecturer at Georgetown Law School and a fellow with the school's originalist Center on the Constitution, sees "not a lot of difference" between Thomas and Gorsuch. Thomas, he explains, would apply vagueness doctrine "on a retail basis" — one case at a time — while Gorsuch would strike down a vague law in its entirety as serving the original purpose of the Due Process Clause.
      Eric Segall, a law professor at Georgia State University and a sometime critic of originalism, sees the difference between the two justices as an example of the difference between an "old" originalism that emphasized judicial deference and a "new" originalism better disposed to so-called "judicial engagement." The shift, in Segall's view, shows that originalism has become "a political symbol" more than a legal methodology. "Once you say no deference," he explains, "given the indeterminacy of history, originalism will not be able to limit judicial choices."
      Bernick and other originalists, such as Case Western Reserve law professor Jonathan Adler, reject the criticism. "No method of interpretation is entirely determinate," Adler replies. Originalism constrains the range of outcomes in constitutional cases, he argues, "but it does not reduce every single case to a single permissible outcome." Bernick similarly views originalism as "marginally more discretion-reducing" than other methods of constitutional interpretation.
      Originalists achieved their biggest victory to date in the Second Amendment gun-rights decision in Heller (2008), written by the godfather of originalism, the late justice Antonin Scalia. Writing for the four dissenters, Justice John Paul Stevens argued just as strongly as Scalia that original meaning pointed the other way. "History is always going to be unclear," Segall contends. With Gorsuch proudly identifying himself as a "committed originalist," legal history may figure prominently in future cases too, but Court watchers should not expect history to provide definite answers.

Saturday, April 14, 2018

Trump Worse Than Nixon for Rule of Law?

      President Richard Nixon's decision to fire Watergate prosecutor Archibald Cox came like a bolt out of the blue on what was otherwise a slow-news, football weekend in October 1973. In the pre-cable news era, all three major television networks interrupted their programming to report that Cox had been fired by the previously unknown solicitor general, Robert Bork, after Attorney General Elliott Richardson and his deputy William Ruckelshaus had resigned rather than carry out Nixon's justice-obstructing order.
      Recalling the episode now 45 years later, Nick Ackerman, one of Cox's assistants, recalled on MSNBC that he left the office that night with several investigative files to safeguard them from possible disappearance or destruction. The precaution proved to be unnecessary. The reaction to the "Saturday Night Massacre" was so instantaneous and so intense that Nixon was forced to acquiesce in the appointment of a new Watergate prosecutor, Leon Jaworski.
      With rampant speculation that President Trump is now on the verge of removing special counsel Robert Mueller from the Russiagate investigation, Nixon is now being recalled, whatever his other faults, aa a believer of sorts in the rule of law. By comparison, Trump appears in this recollection to be a greater threat to the rule of law: a president who might pull out all stops — legal or not, constitutional or not — to thwart the investigation into the Trump campaign's interactions with election-meddling Russian agents.
      Nixon likely had legal authority to remove Cox, his independence at the time unprotected by statute or Justice Department regulation. Richardson and Ruckelshaus refused Nixon's order on the ground that each had promised the Senate in their confirmation hearings to safeguard Cox's position. Today, by contrast, Mueller is protected from removal by a Justice Department regulation that allows Mueller to be removed only "by the personal action of the Attorney General" for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause."
      With Attorney General Jeff Sessions recused from the Russia investigation, the removal power lies instead with the deputy attorney general, Rod Rosenstein, who has publicly defended Mueller's conduct in office up till now. Trump's supporters and surrogates envision indirect steps to oust Mueller — for example, by firing Rosenstein and relying on Solicitor General Noel Francisco to be as compliant to the president's wishes as Bork was 45 years ago. As another alternative, Trump could order Sessions or Rosenstein to rescind the regulation or perhaps use his supposed unitary executive power to nullify the regulation himself.
      The speculation about Mueller's possible removal intensified after the Mueller-approved FBI raid on the New York City offices of Trump's personal attorney, Michael Cohenr, on Monday (Aprl 9), and intensified further after NBC News' report on Thursday (April 12) that Mueller's office was said to be ready to report four findings regarding Trump and obstruction of justice.
      Trump was widely reported to be beyond boiling-mad after news of the raid on Cohen's office broke on Monday morning. He interrupted a meeting of his national security advisors for an extended tirade against Mueller, for his "witch hunt," and Sessions for his "big mistake" to recuse himself from overseeing the Russia investigation. Trump said that FBI agents had "broken into" Cohen's office; that was his description of the lawful execution of a no-knock search warrant signed by a federal magistrate judge in New York.
      Trump surrogates later described the raid as "Gestapo-like," but Cohen himself said FBI agents acted professionally throughout. The raid, actually carried out by the U.S. attorney's office for the southern district of New York, apparently sought information about Cohen's possible involvement in paying "hush money" to porn star Stormy Daniels or other women to quash accusations of Trump's sexual infidelities in the run-up to the November election. Rep. Chris Collins, a New York Republican who was the first in Congress to endorse Trump, was among those who described the raid as going beyond Mueller's authority. In fact, the letter appointing Mueller gives  him authority to take on other matters discovered in the course of the Russia investigation.
      The week ended with NBC's potentially explosive report that Mueller was prepared to give Congress a bill of particulars about Trump's possible obstruction of justice. The report was described as including four findings regarding Trump's firing of FBI director James Comey, his role in crafting the misleading June 2016 statement concerning the Trump Tower meeting with Russian reprsentatives; the White House's discussion of possibly pardoning witnesses in the Russiagate investigation, and his attempt to pressure Sessions into withdrawing his recusal from the case.
      With the accusatory report possibly imminent, Harvard law professor Noah Feldman imagined the hyper-mercurial Trump ready to do almost anything to raise the drawbridges around the White House. "What if Donald Trump tries to fire Robert Mueller — and fails?" Feldman asked in a column forBloomberg. The result, he went on to warn, "could be a constitutional crisis" with neither of them willing to back down and the courts unwilling to intervene for a definitive resolution..
      Nixon "allowed the Constitution to prevail," MSNBC's Lawrence O'Donnell recalled on his program last week. "Donald Trump is no Richard Nixon," he went on, in an oddly unfavorable comparison. The political landscape is also different from 1973: Nixon had few defenders on the Cox firing. But Trump's base, and his Fox News chorus, likely would cheer him on in his defiance. The rule of law could wind up lying seriously wounded at his feet.