Saturday, January 9, 2021

Trump Must Be Removed From Office: Now!

            President Trump must be removed from office, as soon as possible, before he can do more harm to law and order, justice, and political discourse. Trump incited the mob that stormed the U.S. Capitol on Wednesday [Jan. 6, 2021: a date that shall live in infamy] just as Congress was about to complete the process of electing Joe Biden as president and confirming Trump as the loser in 2020 election.

            My home state of Tennessee faced a similar dilemma in 1979 in dealing with an out-of-control lame-duck chief executive as evidence emerged that Gov. Ray Blanton was selling pardons through his counsel to convicted felons. The U.S. attorney in Nashville worked with Democratic legislators to cut off the pardon-selling scheme by helping engineer the installation of the Republican governor-elect Lamar Alexander three days before the scheduled inauguaration..

            Trump has already engaged in a pardon-issuing binge and is reported to be considering many more in his final days in office, including possible pardons for son-in-law Jared Kushner and even a legally dubious pardon for himself. Trump’s enablers and apologists need to take steps now to prevent any further debasement of the presidential pardon power and any further damage to the constitutional order.  

            My former Tennessean newsroom colleague Keel Hunt detailed the Tennessee story in his masterful book, Coup: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal (Vanderbilt University Press, 2017). As Keel tells the story, the successful effort to thwart further debasement of the governor’s office required acts of political statesmanship by the state’s Democratic leaders and the then U.S. attorney, Hal Hardin, who started the ball rolling by calling Alexander with word that Blanton had more pardons set to be issued.

            With similar statesmanship here in Washington, Republican leaders and the interim U.S. attorney Bruce Sherwin could combine to make it untenable for Trump to remain in office for the ten days that remain in his four-year term. As the federal prosecutor for the District of Columbia, Sherwin could and should state that Trump’s speech on Wednesday morning urging the mob toward the Capito is enough to charge him with the federal crime of incitement.

            Sherwin raised this possibility by telling reporters on Thursday [Jan. 7] that his office is considering possible criminal charges against “all actors, not only the people who went into the building.” Under questioning, Sherwin left open the possibility that Trump could be included among the targets. “We’re looking at all the actors,” Sherwin repeated, according to the account in The New York Times. “If the evidence fits the elements of a crime, they’re going to be charged.” The next day, however, prosecutor Kenneth Kohl batted the suggestion away. “We don’t expect any charges of that nature,” he told The Washington Post.

            Here, for anyone needing a bill of particulars, is the federal law that prohibits incitement 18 U.S.C. §373. The law makes it a crime for anyone to “solicit[], command[], or induce[]” another person to “engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States . . . .”

            The Supreme Court, in the leading case of Brandenburg v. Ohio (1969), held that the First Amendment does not protect from possible prosecution speech, such as Trump’s, if “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.” Trump’s speech to a throng that numbered in the thousands clearly satisfies those requirements. He directed the placard-waving crowd m to march toward the Capitol and exhorted them to show strength. “You will never take back our country with weakness,” he said.

            The timing of the march needs to be stated clearly: Trump spoke around the noon hour as Congress was set to convene, imminently, at 1 PM to count the Electoral College votes that would verify Biden’s election and confirm his own defeat. In effect, Trump was exhorting a lynch mob to march into the courtroom just as the jury was about to return a verdict. And, in fact, the mob’s successful entry into the Capitol forced Congress into recess, delaying the eventual certification of Biden’s victory past midnight.

            In contrast to the amorphous situation in Tennessee four decades ago, the U.S. Constitution sets out two procedures for removing Trump from office before his term expires: removal by impeachment and conviction in Congress or invocation of the Twenty-Fifth Amendment based on a finding by his own Cabinet that he is “unable to discharge” the duties of the office. Either of those procedures is problematic, but Republicans interested in reclaiming a measure of the party’s integrity could provide the votes needed for conviction in the Senate or the support needed to persuade Vice President Pence to join in invoking the Twenty-fifth Amendment.

            At this writing, Pence is said to be opposed and, in fact, he declined to take a call on Thursday from House Speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer, who wanted to ask him to take that step. Leading newspapers joined last week in editorially endorsing whatever steps are needed to remove from Trump from office now: not only The New York Times, but also USA Today and the solidly conservative Wall Street Journal. As the Times put it, Trump’s “potential to wreak havoc is enormous,” even if his remaining time in office is short. USA Today's editorial cited Trump’s incitement of the assault on the Capitol as evidence that he has “forfeited his moral authority to stay in office.

Sunday, January 3, 2021

Trump Diehards Sow Disorder in Contesting Election

           Disorder and even violence are in the forecast for Washington this week as President Trump’s diehard supporters take to the Senate floor and the streets to try to overturn Joe Biden’s decisive victory in the 2020 presidential election. Their efforts promise tense confrontations in D.C. streets between Trump’s paramilitary shock troops from the white supremacist Proud Boys and pro-democracy counter protesters from liberal and progressive advocacy groups.

            With 11 Republican senators now committed to challenging Electoral College votes from several Biden states, their efforts promise a drawn-out debate on the Senate floor and perilous votes for Republican senators in what is normally a purely ceremonial opening of envelopes and counting of votes.

            The defeated president is encouraging the disorder on his Twitter feed by urging supporters to mass in Washington on Wednesday [Jan. 6] as the Senate prepares to count the electoral votes. The effort is doomed to fail because electoral votes certified by the states cannot be rejected except by a majority votes in both chambers of Congress. With a Democratic majority, the House of Representatives is certain to reject the Trump-backed challenges; with a narrow Republican majority, the outcome in the Senate itself is uncertain since some GOP senators have said they will vote to confirm Biden’s victory.

            A Biden spokesman dismisses the Senate protests as political theater. "This stunt won't change the fact that President-elect Biden will be sworn in on January 20th," spokesman Mike Gwin said. Gwin went on to note that Trump’s “baseless claims” of fraudulent voting and vote counting have been dismissed by “Trump’s own attorney general, dozens of courts, and election officials from both parties.”

            Indeed, the Trump campaign and Republican officials in key battleground states have failed in every effort to overturn Biden’s popular vote victories by five- or six-figure margins, unlikely to be overturned even after the most thorough of election audits. In an effort to give substance to the Senate maneuver, Texas’s senior senator Ted Cruz fashioned a proposal calling for a special commission to conduct what he calls “an emergency 10-day audit of the election returns in the disputed states.”

            Texas’s Republican attorney general Ken Paxton had already tried but failed with a “Hail Mary” legal maneuver to get the Supreme Court to consider overturning election returns in four Biden-carried states: Georgia, Michigan, Pennsylvania, and Wisconsin. The Court kicked Paxton’s unprecedented suit, Texas v. Pennsylvania, in a three-sentence order [Dec. 11] that correctly concluded that Texas had no “judicially cognizable interest in the manner in which another State conducts its elections.”

Missouri’s Josh Hawley was the first of the Republican senators to say he would challenge the electoral votes on the Senate floor. Cruz added Arizona and Nevada to the list of disputed states and gained the support of ten other GOP senators for his harebrained scheme of a special election commission to audit the results. All of the senators but one represent states that Trump carried handily: Marsha Blackburn, Tennessee; Mike Braun, Indiana; Steve Daines, Montana; John Kennedy, Louisiana; and James Lankford, Oklahoma, Also backing the plan is Wisconsin’s Ron Johnson, who in effect is seeking to overturn Biden’s victory in his own state.

Four of those backing the plan are senators-elect due to be sworn in as the new Congress takes office: Bill Hagerty, Tennessee; Cynthia Lummis, Wyoming; Roger Marshall, Kansas; and Tom Tuberville, Alabama. But some veteran Republicans have strongly criticized the effort, including Pennsylvania’s Patrick Toomey, Nebraska’s Ben Sasse, Utah’s Mitt Romney, and South Dakota’s John Thune, an assistant Republican leader. “In the end, I don’t think it changes anything,” Thune commented, in a remark that drew a critical tweet from Trump urging the state’s Republican governor to challenge Thune in the 2022 election.  [530]

            Cruz and the others are defying the Senate’s Republican leader, Kentucky’s Mitch McConnell, who had urged the GOP caucus to sit back and allow electoral votes to be cast and counted without challenge. The floor debate and roll-call votes on any individual challenges will put some Republican senators in a tricky political situation of avoiding offense to the millions of Trump voters who believe the president’s bogus claims of voter fraud.

            Nonpartisan election watchers warn that the doomed-to-fail effort poses a longterm threat to public confidence in elections and to the Biden presidency as well. In the short term, however, the threat to civic order is more concrete. In an interview with the pro-Trump Newmax, Texas’s Republican congressman Louie Gohmert openly described “violence” as the only remaining alternative to challenge Biden’s election after a federal court rejected Gohmert’s suit aimed at forcing Vice President Mike Pence to discard some of Biden’s electoral votes. Gohmert backpedaled later by claiming that he did not intend to incite violence in Wednesday’s planned demonstrations.

            Trump’s post-election challenge is all but unprecedented in U.S. history. The closest precedent perhaps is the refusal of southern states to accept Abraham Lincoln’s election in 1860: For Pence, his role as vice president in presiding over the Senate has clear precedents in recent history. As vice president, Richard Nixon had the duty of confirming John Kennedy’s election in January 1961; Al Gore had the same role in January 2001 in confirming George Bush’s victory and followed the parliamentarian’s advice in refusing to recognize a challenge to Florida’s electoral votes.

           

Sunday, December 27, 2020

Trump's Lame-Duck Pardons Put Reform on Agenda

             President Trump’s lame-duck spree of presidential pardons has been so blatantly abusive as to breathe real life into long overdue efforts to enact some legal safeguards around the up-till-now unchecked power. Trump’s Christmas-week flurry of forty-six pardons granted undeserved clemency to three corrupt Republican members of Congress, two former advisers who had maintained loyal silence about Trump’s failings in office, and four private security contractors responsible for the September 16, 2007, machine-gun massacre of fourteen Iraqi civilians in a crowded Baghdad square.

             Trump follows but far outstrips the examples of other presidents who used their final days in office to grant pardons to donors and political bedfellows, as the Washington Post columnist Ruth Marcus noted in a column last week [Dec. 23]. President Clinton granted 140 pardons in all on his last day in office [Jan. 20, 2001], including clemency for his half-brother Roger Clinton for a 16-year-old drug conviction and for the fugitive financier Marc Rich.

The Rich pardon smelled of rank corruption, coming shortly after Rich’s ex-wife had “lavished donations” on the Democratic Party and Clinton’s presidential library, in Marcus’s phrasing. Rich had fled the United States after he and his partner were indicted in 1983 for 65 criminal counts in all, including tax evasion, wire fraud, racketeering, and trading with Iran during the U.S.-imposed oil embargo.

Eight years earlier, President George H.W. Bush had pardoned six people connected to the Reagan-era Iran-contra scandal on his final Christmas Eve in office in 1992. Bush preemptively pardoned two Reagan administration officials who had not yet stood trial: former Defense secretary Caspar Weinberger and former CIA official Duane Clarridge. The other four had all been convicted variously for perjury or withholding evidence, including former national security adviser Robert McFarlane, former assistant secretary of state Elliott Abrams, and two former CIA officials: Clair George and Alan Fiers.

Comparing Trump’s lame-duck spree to those examples, Marcus aptly concluded that Trump outranks them by far. “No president has ever misused the pardon power as thoroughly as Trump has,” Marcus wrote, “not to rectify wrongs and dispense mercy but to reward political allies, excuse corruption, and erase, as much as possible, the work of the special counsel who plagued his years in office.”

In the same vein, The New York Times declared in an editorial that Trump “corrupted the presidential pardon” and that Biden “must now repair it” after Biden takes office in January. Biden should make “this deeply important but long-abused power . . . work more as the founders intended: as a counterweight to unjust prosecutions and excessive punishments.” Indeed, the Framers saw the pardon power as an important safeguard against judicial abuse and, for that reason, included no guidelines or procedural rules for its use by the president.

The Times editorial notes that Trump has largely neutered the Justice Department’s pardons office while wielding the power on his own without waiting for Justice to weigh in. To counter DOJ’s prosecutorial bias, the Times backs a proposal by law professor Mark Osler for a free-standing pardon commission staffed by, among others, criminal justice experts, to report directly to the president.

Two of those Trump pardoned included two close advisers who had been convicted of trying to impede the special counsel’s Russia investigation: former 2016 campaign chairman Paul Manafort and Trump’s longtime political adviser Roger Stone. The White House’s statement on the 26 pardons granted on Wednesday, specifically blamed Manafort’s and Stone’s convictions on “prosecutorial overreach” and “prosecutorial misconduct” by the Mueller investigation.

Other lesser figures in the Mueller probe also gained pardons: George Papadopoulos, a former foreign policy adviser who pleaded guilty to lying to the FBI in a plea bargain after agreeing to cooperate with the Mueller probe. He completed a 14-day prison sentence after Thanksgiving 2018.

            The three former Republican congressmen pardoned included New York’s Chris Collins, the first member of Congress to endorse Trump during the 2016 primaries, who had been sentenced to 26 months in prison on an insider trading charge. The others were California’s Duncan Hunter, who was sentenced to 11 months in prison after pleading guilty to misusing campaign funds for personal expenses, and Texas’s Steve Stockman, who was sentenced to 10 years in prison after being convicted of diverting charitable donations to his campaign fund.

            One reform well worth considering would be to eliminate lame-duck pardons altogether, just as Kenya’s constitution does. The Kenyan constitution limits the president’s use of various powers, including “the power of mercy,”  from the time that voting begins in the presidential election until a successor assumes office.

            Trump’s pardons prompted one Republican senator at least to speak out: “rotten to the core,” according to Nebraska’s Ben Sasse. In like vein, the Naderite watchdog group Public Citizen denounced the pardons of the three former congressmen as a “stunning rebuke of ethics in government.”

            The pardons for the four Blackwater contractors, convicted and sentenced to long prison terms for the indiscriminate machine-gunning of Iraqi civilians in 2007, are reminiscent of Trump’s very first presidential pardon. Eight months into office, Trump pardoned Arizona’s tough-talking sheriff Joe Arpaio, a Trump supporter who had been sentenced for criminal contempt of court because of his hard-line tactics in cracking down on illegal immigrants. Like Arpaio, Blackwater’s founder, Erik Prince, has been an influential Trump supporter.

Sunday, December 20, 2020

Court Gives Trump a Pass in Census Lawsuit

             The Constitution seems clear enough on how to use the population figures from the once-every-decade Census to apportion seats in the House of Representatives among what are now 50 states. The Constitution requires “an actual enumeration” (Amendment XIV, sec. 2), not an “incomplete” or “partial” enumeration.

            Congress made the constitutional implication explicit in 1929 by specifying in the Census Act that in reporting Census figures to the president, the secretary of Commerce is required to include “the tabulation of total population by States.” Through two centuries of historical practice, the Census has included all persons residing in the United States, without regard to their immigration status.

            President Trump defied these provisions and this practice by issuing a directive to Commerce Secretary Wilbur Ross on July 21 under the title “excluding illegal aliens from the apportionment base after the 2020 Census.” Trump claimed executive authority to adopt this policy and directed Ross to comply “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

            A three-judge federal district court ruled in September, however, that Trump’s directive violated applicable statutory provisions. The court’s ruling, in a lawsuit led by the state of New York on behalf of 22 states and the District of Columbia, found that the presidential memorandum “violates the statutes governing the census and apportionment in two clear respects.”

            Federal district courts had reached the same conclusion in two separate lawsuits, but the Supreme Court concluded last week [Dec. 18] that New York lacked legal standing to bring the lawsuit and that the suit was “premature” because the eventual injury to the Empire State – reduced representation in Congress and reduced federal funding -- from excluding illegal aliens from the state’s population count was “speculative.”

            The Court’s unsigned opinion in Trump v. New York, issued apparently on behalf of the six Republican-appointed justices, leaves Trump free in his final month in office to submit an apportionment formula to Congress likely to disadvantage among others two states, California and New York, that voted against Trump in 2016 and against him again in 2020.

            The Court’s seven-page opinion described the case, contrary to the district court’s 85-page opinion, as “riddled with contingencies and speculation that impede judicial review.” The Court noted the administrative difficulties in determining the number of illegal aliens among the immigrant population in respective states. “We simply do not know,” the Court wrote, “whether and to what extent the President might direct the Secretary to ‘reform the census’ to implement his general policy with respect to apportionment.”

            Three liberal justices dissented from the decision in a forceful, 21-page dissenting opinion written by Breyer and joined by Sotomayor and Kagan. Breyer mocked the majority’s seeming insouciance toward what he called the administration’s  “illegal” policy. “Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal,” Breyer wrote, “this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed.”

            Breyer acknowledged that the few cases challenging congressional apportionment in the past came after presidents had presented their tabulations to the House of Representatives for approval. But he argued that leaving the present case unresolved and waiting to adjudicate claims later “risks needless and costly delays in apportionment.”

            The Court’s unsigned opinion expressly left the constitutional and statutory issues unresolved, but Breyer declared unambiguously that on the merits he agreed with the three district courts that had ruled the president’s memorandum unlawful. “Our tools of statutory construction all point to ‘usual residence’ as the primary touchstone for enumeration in the decennial census,” Breyer wrote. “The concept of residency does not turn, and has never turned, solely on a person’s immigration status. The memorandum therefore violates Congress’ clear command to count every person residing in the country, and should be set aside.”

            In contrast to the Court’s silence in regard to the congressional action in 1929, Breyer noted that some members of Congress considered offering proposals to exclude aliens from the population count but none was ever adopted. “Time and again throughout the debate over what became the 1929 Act,” Breyer recounted, “members considered (and rejected) proposals that would have excluded aliens from the apportionment base.”

            Breyer acknowledged that the government had cited some historical evidence to suggest “some ambiguity” about the Framers’ intentions in regard to counting aliens as part of the census required under the Constitution. “[T]he Framers’ intent is not our focus,” he responded. “Instead, the question is the meaning of the statute enacted in 1929.” Apart from that evidence, Breyer contended, “the Government offers little more than its assertion that excluding aliens without lawful status makes good policy sense. . . . Whatever the merits of that policy, it is not the approach to representative democracy that is set forth in the statute.”

            Congress passed the 1929 law, Breyer recalled, in part to reduce political gamesmanship in regard to the population count used in apportioning seats in the House of Representatives. The conservative justices’ decision to let Trump’s policy stand based on manufactured doubts about deciding the case serves Trump’s goal, knowingly even if not intentionally, of disadvantaging Democratic-majority states. The Court ought not to have been so blind the political purpose behind Trump’s policy, given the obvious conflict with the Census Act’s specification on the issue.

Sunday, December 13, 2020

For Trump, a Final Loss at Supreme Court

          The Supreme Court cut to the chase on Friday [Dec. 11] by rejecting the week-old legal effort by Texas and 17 other red states to reverse Joe Biden’s victory over President Trump by judicial fiat after his decisive popular vote loss at the polls. With two justices dissenting, the Court threw out Texas’s unprecedented legal maneuver with a two-sentence order that, predictably, prompted a snivelingly defiant tweet from the about-to-be former president.

            With three Trump appointees on the Court, the justices deserve a measure of credit perhaps for spurning Texas’s anti-democratic legal maneuver. But the Court could have done more by warning, just as Pennsylvania’s attorney general did in his legal filing in the case, that Texas’s lawsuit amounted to “seditious abuse of the judicial process.”

            The Court’s order set the stage for Joe Biden, twice elected as vice president on the Obama-Biden ticket with a majority of the popular vote, to be designated as president-elect when presidential electors cast their electoral votes in state capitals on Monday [Dec. 14]. Barring any “faithless” electors, Biden will gain 306 electoral votes from 24 states, including four that he flipped from Trump’s column in 2016: Georgia, Michigan, Pennsylvania, and Wisconsin.

            Texas sued those four states on Dec. 4 for supposedly changing election procedures in violation of the U.S. Constitution by invoking the Supreme Court’s “original” jurisdiction over suits between states. Suits between states typically involve boundary disputes, water rights, or cross-border pollution but never before in a dispute over election procedures.

            The Court denied Texas’s “motion for leave to file a bill of complaint” for “lack of standing” by concluding, in legalistic phrasing, that the Lone Star State “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” In lay terms, the justices said that Texas has no business whatsoever in how other states conduct federal elections.

            In advance of the Court’s action, announced in mid-afternoon on Friday, one high-profile Court watcher called for the Court to issue something more than a brief, unelaborated order. Most notably, Tom Goldstein, Supreme Court advocate par excellence and founder of the invaluable SCOTUSblog, urged the justices in the blog's first-ever editorial to “decimate” Texas’s legal filing. The justices’ action, Goldstein argued, “needs to account for this extraordinary, dangerous moment for our democracy.”

            Texas’s 92-page filing, signed by the ultrapartisan Republican attorney general Ken Paxton, was widely mocked by nonpartisan legal experts but gained support from 17 red-state attorneys general, who sought to intervene in the case, and 126 Republican members of Congress who joined an amicus brief supporting Texas’s plea. For the historical record, the Washington Post’s editorial page columnist Ruth Marcus listed all those names in a column so that they can live forever in infamous memory. “These Republicans may not be capable of shame,” Marcus wrote at the end, “but you should know who they are.”

This proud Tennessean noted sadly that the list include my home state’s attorney general and six members of the state’s congressional delegation. Among House members, the list included three members of the House Republican leadership: minority leader Kevin McCarthy, whip Steve Scalise, and Republican policy committee chair Gary Palmer. Others on the list included the ranking members of two of the chamber’s most powerful committees: Jim Jordan from Judiciary and Kevin Brady from Ways and Means.

Trump himself filed a motion to intervene as plaintiff in the case on the ground that he “clearly has a stake in the outcome of this litigation.” The five-page motion was signed by John Eastman, the archconservative law professor at Chapman University in California who most recently made news with a new “birtherism” issue challenging Kamala Harris’s qualifications for the vice presidency on the false ground that she is not a “natural born citizen.”

In advance of the Court’s order dismissing Texas’s case, some legal ethics watchers argued that Paxton himself might warrant professional discipline for bringing a case that, if not frivolous, was at the least dangerous. Garrett Epps, a longtime friend and colleague as former columnist for The Atlantic, aptly called Paxton “a legal menace” in an article published in Washington Monthly. “Let’s not futz around here,” Epps wrote, with the case not yet dismissed. “Texas has no legal interest in which presidential candidate the people of other states select.”

For their parts, Goldstein and Marcus both speculated that a strong statement from the Court might counteract the widely shared myth among Trump’s political base that Biden’s victory was tainted by widespread fraud – fraud that Trump’s slapstick legal team has yet to prove in 50 post-election court cases. In the event, however, Trump’s supporters took to the streets in Washington on Saturday [Dec. 12] by massing at the Supreme Court, perhaps one thousand strong, with placards pleading “Stop the Steal.”

The cry-baby Trump responded to the Court’s action with a whining tweet that with 74 million votes he was entitled to intervene in the case even if it was dismissed. Earlier in the week, the Court had dealt Trump’s team a decisive defeat by refusing to grant an effort by Pennsylvania Republicans to prevent certification of the Biden electors in the Keystone state.

None of the justices voted to proceed with the Pennsylvania, but in the Texas case Thomas and Alito argued, as they have argued in the past, that the Court has no discretion to refuse to hear a lawsuit brought by one state against another. Even so, Thomas and Alito stated that they would not have granted Texas the relief that the state was asking for. With yet another setback in the courts, the question for Trump must be this: “Are you tired of losing yet?”

 

Sunday, December 6, 2020

Religious Liberty Ruling Risks Public Health

             Supreme Court justices have taken appropriate steps to safeguard their health and the health of the Court’s employees during the coronavirus pandemic by suspending in-person oral arguments and conferences and conducting business instead remotely, by telephone, at a safe distance from the risk of COVID-19 spread.

            The Court cast caution aside last month, however, when a 5-4 majority overturned orders issued by New York’s governor Andrew Cuomo aimed at stemming the spread of the deadly coronavirus that, to date, has claimed the lives of more than 34,000 of Cuomo’s New York constituents, including more than 24,000 in New York City alone.

            The Court’s unsigned, seven-page opinion in Roman Catholic Archdiocese of Brooklyn v. Cuomo found that Cuomo had violated free exercise rights of the archdiocese and the Orthodox Jewish organization Agudath Israel by limiting in-person attendance at worship services to as few as 10 persons in some Brooklyn neighborhoods or up to 25 persons in other neighborhoods with fewer numbers of COVID-19 cases.

            The archdiocese and Agudath Israel rushed to federal courts with separate lawsuits challenging Cuomo’s orders within a week after the Democratic governor signed the first of the orders on October 6. Two federal district court judges declined to block the orders. On appeal, a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit similarly declined to enjoin enforcement of Cuomo’s order; a Trump-appointed judge, Michael Park, dissented.

            Cuomo has distinguished himself in news conferences broadcast live on cable news channels as an official, nonpartisan voice of reason in dealing with the coronavirus pandemic in contrast to the rambling, science-free presentations by President Trump and the nonscientist he selected the administration’s coronavirus task force, Vice President Mike Pence. Even so, Cuomo’s orders invited legal challenges by capping attendance at worship services while imposing no crowd limits at all on some commercial facilities deemed under the orders to be “essential businesses.”

            The limits on worship services reflected the accepted view among medical and scientific experts that the risk of spreading the virus is especially high when significant numbers of people gather together in close proximity to each other for an extended period of time – spewing virus-carrying droplets by singing, for example, and talking. The Court’s five-justice majority took no note of this underlying science, but the three liberal dissenters emphasized the point in separate opinions written by Breyer and Sotomayor.

            In her opinion, Sotomayor stressed New York’s conclusion that worship services pose a greater risk of spreading the virus than the typical coming and going of customers in big-box stores, for example. She noted that Gorsuch, who explained his views of the issue in a lengthy and sometimes rhetorical concurring opinion, “does not even try to square his examples with the conditions that medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.”

            At the Supreme Court, Cuomo faced a likely setback from the get-go given the Roberts Court’s extraordinary solicitude for religious liberty claims in a series of decisions in the 2019 term even before the appointment of the charismatic Catholic justice, Amy Coney Barrett. Cuomo had also created a legal pitfall in advance of issuing the orders by criticizing New York’s orthodox Jewish communities for openly defying public health guidance to avoid crowded gatherings.

            The unsigned opinion joined by the conservative-justice majority held Cuomo’s orders subject to strict scrutiny because they singled out religious services for unfavorable treatment. The orders, the Court found, were not “narrowly tailored” as required under strict scrutiny because Cuomo could have tied the attendance limits to some percentage of the sanctuaries’ capacity.

            One Jewish commentator correctly faulted the ultra Orthodox for continuing to engage in “large-scale gatherings for study, prayer, weddings, and funerals that can and apparently did serve as super-spreader events.” J. J. Goldberg, editor emeritus of the Jewish Daily Forward, noted in a blog post that the neighborhoods designated under Cuomo’s orders as “red zones” subject to the most stringent limits on worship services included neighborhoods with above-normal rates of positive tests for the virus.

            It is a universally accepted principle that the First Amendment’s protection for freedom of speech does not permit someone to shout fire in a crowded theater because of the inevitable risk of death and injury. This corollary ought to be universally accepted as well: “Religious Freedom Is Not a Right to Risk People’s Lives,” as Americans United for Separation of Church and State has posted on its home page. In an accompanying blog post, senior adviser Rob Boston warned that the Court’s decision in the New York case “will likely cause people to get sick and die.”

            The Court decided the New York case summarily, without oral argument or full briefing, but has now designated the decision as precedent for lower courts to follow in dealing with the flurry of similar cases around the country. In two previous cases, the Court had declined to override similar statewide orders with limits on attendance at worship services. In a new California case, however, the Court set aside a lower court decision upholding Gov. Gavin Newsom’s executive order and directed the lower court to reconsider the case in the light of the ruling in the New York case.

        Clearly, the justices were signaling that Chief Justice Roberts’ concurring opinion in an earlier decision that counseled deference to states’ efforts to limit the spread of the virus is now inoperative. The political branches have made a mess of dealing with the pandemic ever since Trump’s deliberate downplaying of the virus in the early months, and now the Supreme Court appears intent on making things even worse. Hippocrates comes to mind: “First, do no harm.”

Saturday, November 28, 2020

As Lame Duck, Trump Flexes His Pardon Power

          Lame-duck presidents naturally issue a flurry of presidential pardons as they are about to leave office, but President Trump put a distinctively dishonorable touch on the practice last week [Nov. 27] by pardoning his former national security adviser, Lt. Gen. Michael Flynn, for lying to the FBI during the special counsel’s investigation of Russian interference in the 2016 election.

Flynn became the second of Trump’s former associates to benefit from an act of supposed clemency that Trump used instead to portray the Russia investigation as a witch-hunt and a hoax. Trump went so far in announcing the pardon on the Wednesday before Thanksgiving as to say that it was his “Great Honor” to announce that Flynn “has been granted a full pardon.”

Four months earlier, Trump had commuted the 40-month prison sentence that his longtime political associate Roger Stone had been given for lying to Congress during the Russia investigation. Trump announced that decision on Friday, July 10, in a statement that denounced “overzealous prosecutors” for convicting Stone of charges stemming from what he called “the witch hunts” and the “Russia hoax” investigation.

Democrats in Congress criticized both of Trump’s actions as a misuse of the presidential pardon power aimed mostly at insulating the president himself from further investigations. “No other president has exercised the clemency power for such a patently personal and self-serving purpose,” House committee chairs Jerrold Nadler and Carolyn Maloney declared in a joint statement after the Stone commutation.

The House Intelligence Committee chairman, Adam Schiff, took a similar view of the Flynn pardon last week, calling it a “corruption” of the presidential pardon power. “It’s no surprise that Trump would go out just as he came in—crooked to the end,” Schiff said in a lengthy statement. Schiff had led the House investigation that resulted in impeaching Trump for abuse of office and eventually acquittal by the Republican-majority Senate.

The Constitution gives the president “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment” (Art. II., sec. 2). The exception for cases of impeachment suggests at least that the Framers did not regard presidential pardons as appropriate in politically charged cases.

With that exception, the Framers gave the president virtually complete discretion in exercising what Alexander Hamilton, in Federalist No. 74, described as “a benign prerogative” needed as “a mitigation of the rigor of the law.” Hamilton argued against any need for legislative assent to a pardon on the ground that the power was “better fitted” to “a single man of prudence and good sense.”

Even before Trump’s actions, Attorney General William Barr had taken controversial steps to blunt the prosecutions against Stone and Flynn. In Stone’s case, Barr overrode recommendations from career prosecutors that Stone be sentenced to seven to nine years in prison and instead directed prosecutors to argue for the lesser 40-month sentence. In Flynn’s case, Barr initiated a virtually unprecedented move to dismiss the case even though Flynn had pleaded guilty to the offense.

The department’s motion in Flynn’s case was still pending before U.S. District Court Judge Emmet Sullivan when Trump announced the pardon. A Justice Department spokesman disclosed that the White House had advised the department of the pardon in advance, but added that the department would have preferred for the matter to have been resolved in court.

Flynn had been designated as Trump’s national security adviser after the 2016 election. He lied to investigators about a telephone conversation with the Russian ambassador, Sergey Kislyak, in which he urged Moscow to avoid any aggressive response to new sanctions announced by President Obama due to take effect on December 29, 2016. Questioned about the call three weeks later, Flynn told FBI agents that he did not remember discussing sanctions in the conversation.

Flynn resigned from the position in February 2017 after news reports of the apparent discrepancy in his accounts of the conversation with the Russian ambassador. Trump urged the then director of the FBI, James Comey, to go easy on Flynn, but the investigation resulted in an eventual guilty plea before Judge Sullivan in December 2017.

In all, six Trump associates were convicted of or charged with crimes as a result of the Russia investigation headed by special counsel Robert Mueller. With the Flynn pardon, speculation has been widespread that Trump is considering pardons for some of the others, including Paul Manafort, his former campaign chairman, who was convicted of bank and tax fraud in connection with his work on behalf of the pro-Russian Ukrainian government.

            Manafort was sentenced in March 2019 to 47 months in prison, but he was released in May 2020 because of the coronavirus pandemic. Rick Gates, Manafort’s associate and another Trump campaign aide, was convicted of similar charges and sentenced in December 2019 to 45 days in jail.

            The speculation about other possible pardons has prompted vigorous legal debate in legal circles on the question of whether Trump could pardon himself for any federal offenses committed while or before serving as president. In his post-presidential life, Trump also faces the possibility of financial fraud charges stemming from an investigation by the New York City district attorney’s office. The presidential pardon power extends only to federal offenses and thus Trump would remain in legal jeopardy to state charges after leaving the White House.