Sunday, June 16, 2019

For Criminal Justice Reform, Go Local

      Voters in two suburban counties outside Washington, D.C., joined the growing criminal justice reform movement last week [June 11] by ousting two longtime prosecutors in favor of candidates who promised if elected to make fundamental changes in prosecutorial policies. Subject to Virginia's off-year general elections in November, Parisa Dehghani-Tafti and Steve Descano will join the growing number of criminal justice reformers elected around the nation as local prosecutors, notably in such major metropolitan areas as Chicago, Philadelphia, and Orlando, Fla.
      Dehghani-Tafti, a former public defender who had worked on exoneration cases for the Mid-Atlantic Innocence Project, won 52 percent of the vote in defeating two-term incumbent Theo Stamos for the Democratic nomination for commonwealth attorney in the close-in suburban jurisdiction of Arlington County. Steve Descano, a former federal prosecutor, won 51 percent of the vote to oust three-term incumbent Ray Morrogh in the well-to-do outer suburban jurisdiction of Fairfax County.
      Campaigning in Democratic strongholds, neither Stamos nor Morrogh presented themselves as old-style, law-and-order prosecutors. Stamos took credit for reducing the incarceration rate in Arlington County, while Morrogh campaigned under the slogan: "Effective. Fair. Progressive." Still, the Washington Post's story viewed the results as bellwethers: "Voters endorse new mandate on criminal justice," the headline read.
      Miriam Krinsky, executive director of the Los Angeles-based advocacy group Fair and Just Prosecution, estimates that more than three dozen reform-minded prosecutors have been elected in recent years. In comments to the Post, Krinsky described the election results as evidence of "a growing new normal in the world of prosecutions." More and more communities and more and more voters are "tired about the old thinking in the criminal justice system," Krinsky explained.
      Andrew Cohen, a senior fellow at the Brennan Center for Justice who also edits the daily report on criminal justice for the Marshall Project, similarly sees a trend in favor of reformers in local prosecutor races. "Clearly, a big part of the criminal justice reform movement over the past five years has been directed at these races as people realize how powerful local prosecutors have become at the local and state levels," Cohen says.
       Cohen cautions, however, that elections cannot guarantee thoroughgoing reform of themselves. Several of the high-profile reform-minded prosecutors, such as Larry Krasner in Philadelphia, Kimberly Foxx in Chicago, and Aramis Ayala in Orlando, encountered opposition as they sought in office to turn away from punitive, sentence-maximizing prosecution policies.
       Ayala, who is African American, declared her opposition to the death penalty upon taking office in 2017 after ousting the incumbent state's attorney in Florida's fifth most populous county the previous year. Florida's Republican governor, Rick Scott, responded by reassigning capital cases from Ayala's office to another state prosecutor — a move that the Florida Supreme Court upheld on a 5-2 vote. Politically battered, Ayala announced late last month [May 28] that she will not seek re-election in 2020.
       Krasner, a former federal public defender and longtime criminal defense and civil rights lawyer, won election as district attorney in Philadelphia in 2017 in a campaign that drew opposition from the city's police union. In office, Krasner stopped prosecuting marijuana possession cases and instructed prosecutors to stop seeking cash bail for defendants arrested for misdemeanors or nonviolent felonies. Some judges overruled some sentence recommendations as too lenient and resisted Krasner's initiative to shorten probation sentences.
       Kimberly Foxx, who is African American, won election as Cook County state's attorney in 2016 after having helped craft a criminal justice reform agenda as chief of staff to the Cook County Board president. In office, she has promoted bail reform by instructing prosecutors to agree to release on recognizance where appropriate and has raised the threshold for prosecuting theft offenses as felonies. The local police union has criticized Foxx's policies as soft on crime.
      With more than 2,400 local and state prosecutors nationwide, the three dozen or so reformers elected in recent years according to Krinsky are far outnumbered when district attorneys gather for conventions and training sessions. But Krinsky's group is promoting a comprehensive reform agenda under the title "21 Principles for 21st Century Prosecutors" that calls for, among other changes, de-escalating charging policies, making plea bargaining more transparent, and reducing use of cash bail.
      Krinsky acknowledges that the agenda "hasn't taken hold everywhere," but she believes that a "new paradigm" is beginning to form. "We are seeing candidates commit to the principles and commit to implementing them in office," she says.
      Listed twelfth among the 21 principle is an exhortation to "address racial disparity," which the report says "exists at every stage of the justice system." The audience for that recommendation is overwhelmingly white, according to a recent study. Among 2,437 elected local and state prosecutors in office in 2014, fewer than 5 percent were African American, according to the study.
       African Americans are also underrepresented among federal prosecutors, according to my review of the current officeholders. Among 93 U.S. attorneys nationwide, Louis Franklin, U.S. attorney for the middle district of Alabama, appears to be the only African American; my count found four Asian Americans and three Hispanics, all the others white.
       Congress and President Trump are also on board the criminal justice reform movement, at least to some extent. Trump was taking unwarranted credit last week [June 13] for the First Step Act, the federal sentence-reducing law he signed in December 2018 after it moved through Congress with bipartisan support. Among other provisions, the law retroactively reduced crack-related sentences for 1,150 offenders: a significant even if modest step toward moving away from "Incarceration Nation."

Sunday, June 9, 2019

On Supreme Court Reform, No Consensus

      Credit law professors Daniel Epps and Ganesh Sitaraman with thinking outside the box to try to save the Supreme Court from the historically unprecedented degree of politicization of the past several decades. But their offsetting proposals to depoliticize the Court are respectively needlessly complex or mind-bendingly unsettling in comparison to a potentially workable solution already adopted in many states.
      Epps, an associate professor at Washington University in St. Louis, and Sitaraman, a professor at Vanderbilt University in my former home town of Nashville, Tenn., have gained wide attention by detailing their two proposals in an article for the Yale Law Journal now being circulated on-line in draft form. Epps and Sitaraman go way beyond the other pending reform proposals, such as adding justices to restore balance on the Court and enacting term politics to de-politicize confirmations. Instead, they open their article with a blunt demand for "a complete rethinking of how the Court works and how the Justices are chosen."
      The two professors call their proposals, respectively, the Balanced Court and the Lottery Solution. The first of the proposals borrows the requirement for political balance in appointments to federal regulatory agencies: the Supreme Court, under this proposal, would consist of 10 justices, five from each of the two major political parties, who would then select by unanimous or supermajority vote five more from the pool of federal appellate judges to sit with them two years later for a period of one year.
      The Lottery Solution would go one step further by creating the "one Supreme Court" as specified in the Constitution by randomly selecting nine justices from the pool of federal appellate judges to sit for two-week periods. For good measure, the professors pair this proposal with the oft-discussed idea of a supermajority requirement to overturn a federal statute  not by a 6-3 vote as generally proposed in the past but by an even stronger 7-2 vote.
      These proposals were among others discussed in an opening plenary session when legal progressives gathered in Washington last week [May 7] for the annual convention of the American Constitution Society (ACS). Attendees were greeted outside the Capital Hilton by earnest ACS members handing out cards with the printed message: "It's Time to Unite Around Supreme Court Reform." The card listed the three narrower reforms: expanding the Court, enacting term limits, and adopting a code of ethics for the justices.
      Before considering the various proposals, it is necessary to explain how what is widely described as the Supreme Court's crisis of legitimacy has come to pass. Epps and Sitaraman list several factors, but the most important and chronologically the first is the overt politicization of the Court by a succession of Republican presidents and over time the Republican Party writ large.
      For the last half century, five Republican presidents — all except Gerald Ford  have used Supreme Court appointments deliberately to politicize the Court, unsettle precedent, and pursue a partisan conservative agenda. Democratic presidents, Bill Clinton and Barack Obama, have not responded in kind.
      To be sure, the four Democratic-appointed justices  Ginsburg, Breyer, Sotomayor, and Kagan — can all be described as liberals or progressives. But all of them with the possible exception of Sotomayor commanded wide support in legal and judicial circles before their appointments as consensus seekers rather than doctrinaire ideologues.
      Ginsburg and Breyer won Senate confirmation with 96 and 87 votes respectively, Sotomayor and Kagan each with more than 60. Compare that to the under-60 vote confirmations of Thomas, Alito, Gorsuch, and Kavanaugh. In a fair process, President Obama's blocked nominee Merrick Garland would likely have won confirmation  thus, McConnell's decision to deny him any hearing whatsoever.
      Indeed, Supreme Court watchers who do the numbers have shown that none of the four current Democratic justices is as "liberal" as the most "conservative" of the Republican appointees: notably, Rehnquist, Scalia, Thomas, and now Alito. The two Trump appointees, Gorsuch and Kavanaugh, can be expected to be equally conservative after being blessed as Supreme Court nominees by the ultraconservative Federalist Society.
      Epps and Sitaraman define the current crisis as "the rise of a Court polarized on party lines." They cite as additional factors the deeply divided political environment and the rise of competing schools of legal thought  think, originalists versus living constitutionalists  with opposing views corresponding to the two major political parties. The combination of these factors, in effect, lead Epps and Sitaraman to despair of any possible reforms other than a complete transformation of the Court as we know it.
      Thus, they give no consideration to the kind of nonpartisan merit selection systems adopted in a number of states, including my home state of Tennessee. At the federal level, one reform  outlined here for the first time as far as I know  could be the creation of a nine-member Supreme Court nominating commission, with two members each appointed by the party leaders in the House and the Senate and perhaps a ninth by the president.
      The president, under this plan of mine, could nominate as justice only a candidate deemed qualified by a two-thirds supermajority of the commission on the basis of professional qualifications, judicial temperament, and legal views. Epps and Sitaraman, I suppose, would view this idea as ineffective in reducing the now hard-wired politicization of the Supreme Court confirmation process.
      The ACS panel produced no consensus around any of the reform proposals. Epps and Sitaraman reject expanding the Court as inviting a tit-for-tat response in the future; they reject term limits as more likely to increase rather than reduce the politicization of the confirmation process. The lack of consensus on the legal left likely dooms any of the reforms, especially if Republicans think they will continue to have the upper hand in these debates. Thus, the message for Democrats and legal progressives is simple and direct: Elections have consequences; the path to Supreme Court reform begins and ends at the ballot box.

Sunday, June 2, 2019

At Harvard, Defending Truth in Age of Trump

      Angela Merkel, chancellor of Germany and leader of the Free World since President Donald Trump abdicated that role, came to Harvard University last week [May 30] to accept an honorary degree and to plead with Americans to rededicate ourselves to among other principles "the maxim of truth."
      Harvard's founders adopted truth — in Latin, Veritas — as the school's motto in 1640, four years after Pilgrim settlers founded the college in a former cow yard in a sylvan wilderness. The Harvard shield, with the letters of veritas superimposed on three opened books, adorns interior and exterior walls throughout the campus in what is now the 21st century metropolis of Cambridge, Massachusetts.
      Truth was on the minds of several of the speakers during Harvard's week-long "festival rites," to borrow the phrasing from Fair Harvard. Trump, a member of Harvard's extended family through his government major son-in-law, Jared Kushner, A.B. 2003, was not in Cambridge, but he was the unnamed target of thinly veiled swipes from Merkel and several other speakers for his ongoing war against truth.
      Merkel, in her 14th year as chancellor but politically battered by immigration politics, embraced global multilateralism in a 35-minute speech that would have been welcomed by any of the previous post-World War II American presidents but not by the "America First" Trump. "More than ever, our way of thinking and our actions have to be multilateral rather than unilateral, global rather than national, outward-looking rather than isolationist," Merkel declared. "In short, we have to work together, rather than alone.”
      Seventy years earlier, in a very different country from today's United States, the American secretary of state George Marshall had spoken from the same spot on Harvard's campus to propose what became the Marshall Plan: the $13 billion rebuilding of war-torn Europe by a prosperous and victorious United States. Merkel listed the benefits of what she called "a transatlantic partnership based on values such as democracy and human rights," specifically "an era of peace and prosperity, of benefit to all sides, which has lasted for more than 70 years now."
      Merkel received standing ovations at several points in her speech, perhaps the longest when she called on her audience "not to describe lies as truth and truth as lies." Calling on the audience to "be honest with ourselves," the former research chemist declared, "What better place to begin than here in this place, where so many young people from all over the world come to learn, to research, and to discuss the issues of our time under the maxim of ‘truth.'”
      Two days earlier, former vice president Al Gore had the importance of truth on his mind too as he delivered a 28-minute speech to graduating seniors and their families on Class Day [May 28]. Gore, participating in his 50th class reunion along with me and 500 other class of '69 classmates, used part of the speech to preach the importance of addressing what he labeled the "existential crisis" posed by climate change caused by dumping billions of tons of carbon dioxide into the atmosphere as though it is an open sewer.
      Without mentioning Trump by name, Gore also turned to domestic politics and what he saw as the threat to democracy in the age of Trump. "Veritas— truth — is not only Harvard’s motto," Gore declared, "but it is also democracy’s shield. And the right to pursue truth is the most fundamental right of them all, and that right is now at risk."
      "And as a result," Gore went on, "freedom itself is at risk, more so now than it was 50 years ago. The system of checks and balances that has protected the integrity of our American system for more than two centuries has already been dangerously eroded.”
      Truth was also on the mind of another classmate, Robert Post, professor and former dean of a certain unnamed law school in southern Connecticut, as he reflected in a speech to former classmates on the unrest and rebellion that marks the class of '69 in history and Harvard lore. That rebellion, Post recalled, was "infused with a constructive appreciation of the authority of disciplined thought and expertise." But today, he went on, contemporary populism in the United States and elsewhere comes with "profound disdain for the authority of knowledge."
      "Apparently the infinite gush of information now cheaply and easily available on the internet has made every person an authority on every possible subject," Post said. "The upshot is that truth is no longer the product of patient inquiry and disciplinary craft. It is instead merely the opinion produced in the echo-chambers of like-minded partisans."
      Post acknowledged the reasons for the growing distrust of elite centers of knowledge such as Harvard: for example, the growing economic inequality in the United States and the loss of upward economic mobility. The distrust, he went on, can be seen in "the refusal to credit scientific judgment" in matters such as climate change and vaccinations and in the "utter disrespect of economic theories in controversies like Brexit" — or, he might have mentioned, Trump's trade wars.
      Truth, it has often been said, is "the first casualty in war." And thus it is in the uncivil war between red state Trump supporters and blue state opponents. But this son of Harvard left the campus with renewed hope for what Fair Harvard describes in closing as, "Calm rising through change and through storm."

Sunday, May 26, 2019

Trump Loses Two Rounds in Subpoena Fights

      President Trump has no legal basis whatsoever for opposing the enforcement of subpoenas by congressional committees seeking information from his accountants and two of his banks about his business dealings. That much is clear from the two rulings issued this week [May 20, May 22] by federal judges flatly rejecting the arguments from Trump's lawyers alleging a congressional overreach into the personal affairs of private citizen Donald J. Trump.
      Despite an untenable legal position, Trump is using his accustomed tactics of delay, evasion, and obfuscation to try to confuse the public about the stakes in the dispute. More tellingly, he also is clearly trying to run out the clock on the congressional efforts to learn more from his business records about possible wrongdoing before his presidential campaign and potential conflicts of interest with his presidential duties.
      Trump's strategy may succeed, thanks in part to the time required for the promised appeals in the two cases. In addition, Trump surely believes that the Republican-majority Supreme Court will rescue him with temporary stays even if, as widely expected, he loses the two appeals. Court watchers are already speculating that the five Republican-appointed justices, all of them schooled in executive branch positions and invested more in presidential than in congressional power, are quite likely to side with Trump in any showdown with Congress.
      In the first of the two rulings, Judge Amit Mehta, a federal district court judge for the District of Columbia, issued a 41-page opinion rejecting Trump's request to block the accounting firm Mazars USA from complying with the House Oversight Committee's subpoena for Trump's business records. With a Democratic majority for the first time in Trump's presidency, the committee issued the subpoena after hearing testimony from Trump's former lawyer-fixer Michael Cohen that Trump "routinely" altered the valuation of his assets to better suit his financial purposes: inflating the supposed value in loan applications and deflating the stated value in tax filings.
      Two days later, U.S. District Court Judge Edgardo Ramos in Manhattan similarly upheld the enforcement of subpoenas issued by two House committees, Financial Services and Intelligence, for financial records from two of Trump's banks, Deutsche Bank and Capital One. The committee's stated purposes were to investigate "possible foreign influence" in the U.S. political process and possible money laundering abroad. 
      Ramos and Mehta, appointed by President Obama respectively in 2011 and 2014 and both Senate-confirmed by voice vote, made mincemeat of the arguments from Trump's lawyers that Congress was out of bounds in demanding Trump's business records. In his written opinion, Mehta acknowledged the Supreme Court's 19th century decision in Kilbourn v. Thompson (1880) that found a congressional investigation had ventured into judicial territory by examining the operations of a real estate partnership in the District of Columbia. 
      Mehta stressed, however, that the subsequent Supreme Court decision stemming from a congressional investigation into the Teapot Dome scandal in the 1920s took a broader view of congressional power. The Court in that case, McGrain v. Daugherty (1927), reversed a lower court decision that questioned the investigation by holding, instead, that an investigation is legitimate if "the subject . . . was one on which legislation could be had."
      The Supreme Court and lower federal courts have taken that approach ever since, Mehta noted. "[N]ot once has a court found a congressional investigation unconstitutional because directed at the personal affairs of a private citizen," he wrote. He dismissed the pleas from Trump's lawyers that the Oversight Committee's investigation was politically motivated and not plainly directed at some legislative purpose. 
      The court's role, Mehta explained, was not to question political motives or possible legislation. He noted, as a telling example, that the congressional investigations into the Watergate scandals yielded a laundry list of major enactments:  the Ethics in Government Act, the Congressional Budget and Impoundment Control Act of 1974, the War Powers Resolution, and the Independent Counsel Statute. He also specifically found that two of the issues listed by the Oversight Committee — Trump's possible violation of the Emoluments Clause and possibly false disclosures to the Office of Government Ethics —were indeed "subjects on which legislation could be had." 
      Ramos, delivering his ruling from the bench, also made short shrift of Trump's arguments by declaring the two committees' subpoenas "likely lawful" because of "a legitimate legislative purpose." He added: "Put simply, the power of Congress to conduct investigations is inherent in the legislative process."
      By week's end, supposed constitutional experts from the political and legal right were delivering talking points that insisted Congress had no general powers of investigation. On that score, they disagreed with the Framers themselves, who referred to Congress as "the grand inquest of the nation." The Framers borrowed that phrasing from William Pitt the Elder, who coined it in the English House of Commons as he launched an investigation into Robert Walpole's ministry.
      Anthony Lewis, the New York Times's celebrated legal affairs columnist, recalled that history in a column written in 1974 as President Richard Nixon was invoking executive privilege to resist congressional investigations. Nixon's stonewalling ended badly for him. As a legal matter, Trump's arguments fare no better even as he — of the hush-money payments to his former paramours — declares, "I don't do cover-ups." This cover-up may hold long enough to spare him political damage, but one way or another Trump appears likely to have to answer to Congress and to the courts. 

Saturday, May 18, 2019

Court's Conservatives 'Unmaking' Law Again

      The Roberts Court's refortified conservative majority stirred fears for the future of abortion rights last week [May 13] by flexing their muscles to discard in the name of federalism a 40-year-old precedent that had gone all but unnoticed ever since. Speaking for the four liberal justices in dissent, Justice Stephen G. Breyer rejected the majority's rationales for scrapping the old case and, pointing in particular to the most reaffirmation of Roe v. Wade, wondered in print about "which cases the Court will overrule next."
      The fate of Roe v. Wade apparently now turns on the predilections of Chief Justice John Roberts and the Court's newest justice, Brett Kavanaugh. The future of Roe v. Wade was the most important issue in Kavanaugh's confirmation hearing last year until the late-arising dispute over a 30-year-old accusation of sexual misconduct.
      Kavanaugh secured the influential vote of Maine's sometime maverick Republican Susan Collins only after convincing Collins that he was not dead set on overruling Roe if confirmed. Roberts too was questioned closely about the case in his confirmation hearing 14 years ago and allayed some fears among abortion-rights advocates by stressing the importance of precedent and calling it a "jolt to the system" to overrule a prior decision.
      Outside the Court, anti-abortion forces are working hard to provide a test case that the conservative bloc could use to flatly overrule Roe, notably in the new Alabama law that makes women and doctors alike criminally liable for abortions except in extremely rare circumstances. The new laws enacted in ruby-red Republican states validate their political strategy despite the still prevailing majority in the United States opposed to completely outlawing abortion.
      The Court's reversal of an old precedent in the new decision, Franchise Tax Board of California v. Hyatt, refocused attention on the Roberts Court's record on reversing prior rulings. Statistics compiled for the Supreme Court Database at Washington University's School of Law in St. Louis show that the Roberts Court actually has been scrapping old cases at a slower pace than any of the previous Courts under three chief justices: Earl Warren, Warren E. Burger, and William H. Rehnquist.
      A close examination of the overruled cases behind the statistics, however, shows that the conservative justices' policy slips are showing beneath their robes. Among 22 cases listed either in my Supreme Court Yearbook, the Supreme Court database, or both, nearly half divide neatly between five Republican-appointed conservatives and four liberal justices, currently the four Democratic appointees and earlier including the moderate Republican appointees Anthony Kennedy and John Paul Stevens.
      Twice, the Roberts Court reversed prior decisions to throw out provisions of campaign finance laws favored by Democrats and election reformers and opposed by Republicans and conservative groups. In both of those cases, the conservative majority acted more like legislators than judges by discounting the fears of corruption that Congress had cited in enacting the campaign spending limits.
      Among other 5-4 conservative reversals, the Roberts Court narrowed the scope of federal antitrust law by rejecting a century-old precedent and just last year threw out a 40-year-old precedent to limit the financial base for public employee unions. Another precedent-reversing decision limited, in the name of newly discovered Second Amendment gun rights, the power of local governments to regulate possession of handguns. The parallel to Republican Party platform positions cannot be ignored.
      The conservative justices all followed the Republican script in their confirmation hearings by promising to interpret the law instead of making law, as activist judges presumably do. In any number of cases, however, the Republican justices have turned out to be activists bent on unmaking the law. Look, for example, at the 5-4 decision in 2007 to uphold a federal ban on so-called partial-birth abortions just seven years after striking down an almost identical state law.
      In last week's decision, the Court threw an earlier ruling, Nevada v. Hall (1979), that allowed a California plaintiff to sue the state of Nevada in a California court for injuries sustained when hit by a car driven in California by a Nevada state employee. In the new case, the tables were reversed: a Nevada man, the wealthy investor Gilbert Hyatt, sued California's tax agency in Nevada court for alleged wrongdoing in an aggressive tax audit back in the early 1990s.
      The conservative majority led by Justice Clarence Thomas concluded that states enjoy sovereign immunity in other states' courts even though the Constitution never says so in so many words. Thomas recited, of course, the various rationales for overruling old decisions, including supposedly unfavorable consequences. But Breyer noted that the old case had been rarely used: only 14 cases in 40 years when a state was sued in another state's courts.
      Liberal justices have prevailed in only three of the Roberts Court's 5-4 reversals of prior decisions by picking up Justice Anthony Kennedy's vote in the same-sex marriage case and by picking up votes from Thomas or Justice Antonin Scalia in two criminal law decisions. Some of the other reversals have come by lopsided votes: two in unanimous decisions, two others by 8-1 votes.
      It bears noting here that the Warren Court was unanimous in two of its most important reversals of prior decisions. All nine justices joined in the decision in Brown v. Board of Education (1954) to overturn the separate-but-equal doctrine from Plessy v. Ferguson. A decade later, the Court was unanimous again in reversing a prior decision when it ruled, in Gideon v. Wainwright (1963), that indigent criminal defendants must be provided an attorney for their defense. History now judges both of those reversals to have been well considered and long overdue.
      As chief justice, Roberts has tried in vain to dispel the odor of political partisanship that hangs over the Court more than perhaps ever before in history, but he has gone along with his fellow conservatives in all of those overtly political cases To paraphrase Roberts from another context, perhaps the best way for the Court to stop being seen as political is, in fact, to stop ruling on the basis of politics.
      Many experts believe that Roberts will shy from providing the fifth vote to flatly overrule Roe v. Wade just as Republicans and President Trump have hoped for in packing the Court with doctrinaire conservatives. As Trump might say if asked, "We'll see what happens."

Sunday, May 12, 2019

The Unfinished Work of Reconstruction

      A day trip to Philadelphia's Independence Mall provides a valuable reminder of the unfinished work of racial justice in America. Slavery was America's original sin and recompense for that sin not yet fully paid, if at all.
      Philadelphia, it will be remembered, is the city where Thomas Jefferson drafted the Declaration of Independence in 1776 with its sweeping promise that "all Men [sic] are created equal" and "endowed . . . with certain unalienable rights, [including] Life, Liberty, and the Pursuit of Happiness." A decade later, delegates from 12 of the 13 states of the new nation gathered to draft a new Constitution in hopes of forming "a more perfect union" while tacitly bowing to the reality of human-chattel slavery in six of those states.
      The occasion for the visit was the opening of a new permanent exhibit at the National Constitution Center, "The Civil War and Reconstruction: The Battle for Freedom and Equality," a project spearheaded by the center's president, Jeffrey Rosen. The 3,000-square foot exhibit, accessibly designed and insightfully curated, features among more than 1,000 artifacts original copies of the three post-Civil War constitutional amendments that together amount to what many historians call "the Second Founding."
      Rosen, a friend and source for years, enthused as he welcomed invited guests for a preview of the exhibit on Tuesday [May 7]. The exhibit, he explained, "takes the story of the promise of the Declaration of Independence that was thwarted in the Constitution and then resurrected by Lincoln and Douglass and enacted in the Reconstruction Amendments." But Lincoln's promise of "a new birth of freedom" went unrealized as the three amendments were neutered by the connivance of white-dominated state governments and the shortsightedness of a Supreme Court that rejected Congress's attempts to enforce the amendments.
      The Thirteenth Amendment, approved by Congress with the war still going on and ratified barely eight months after the Confederacy surrendered, abolished slavery on paper. But it included a loophole, the "criminal exception clause," that allowed involuntary servitude "as a punishment for crime . . . ." That loophole, Rosen explained, effectively consigned many of the freed ex-slaves to servitude on the plantations still owned by the former slave masters.
      The Fourteenth Amendment, ratified in 1868 with its Equal Protection Clause, embodied the goal of equal rights long urged by Ohio's Republican representative John Bingham. It came to naught for a half-century and longer because of a series of Supreme Court decisions beginning with the ruling in the so-called Slaughterhouse Cases(1872) that the amendment protected only a limited list of federally guaranteed rights.
      All three of the amendments included sections specifically authorizing Congress to enact "appropriate legislation" to enforce their provisions. In 1876, however, the Court effectively nullified one of those laws: the Enforcement Act of 1870, which prohibited two or more persons from joining together to deprive anyone of constitutional rights. The 5-4 ruling in Cruikshank v. United States reversed the convictions of armed white insurgents who had ousted the elected black government in a Louisiana parish; the justices decided that the Fourteenth Amendment applied only to state action, not to private conduct.
      In a more serious setback, the Court applied the same rationale in striking down the law Congress had passed in 1875 to prohibit racial discrimination in public accommodations. The 8-1 ruling in Civil Rights Cases (1883) denied Congress the power despite the Fourteenth Amendment's Enforcement Clause to regulate private conduct. It took Congress another 80 years to try again by passing the Civil Rights Act of 1964, a law upheld the same year by a much different Supreme Court under Chief Justice Earl Warren.
      The Fifteenth Amendment, ratified in 1870, seemed on paper to guarantee black men, not women, the right to vote, but southern states found ways to get around it and block most blacks from voting until the Voting Rights Act of 1965. Some 80 percent of black men registered to vote as early as 1867 in southern states even before the Fifteenth Amendment, according to Henry Louis Gates Jr., the Harvard professor and author of the new bookStony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow.
      The Fifteenth Amendment notwithstanding, southern states began disenfranchising blacks not long after Reconstruction ended with the withdrawal of federal troops in 1877. Mississippi provided the template with a new constitution adopted in 1890 by an all-white constitutional convention that imposed literacy tests and poll taxes as requirements for voting. Gates, speaking with Rosen after touring the new exhibit, noted that in Mississippi's neighboring state of Louisiana the number of blacks registered to vote fell from 130,000 in 1898 to only 1,342 in 1904.
      Reconstruction produced "a violent backlash, a racist backlash," Gates explained. His book and his PBS series Reconstruction: America after the Civil War parallel the new exhibit in seeking to counteract the previously dominant view of Reconstruction as a misguided effort to subjugate the defeated southern states. It was instead an ambitious if short-lived effort to fulfill the revolutionary era's promise of equal rights that fell victim to violence, intimidation, and legal stratagems at the hands of resurgent white supremacy.
      With the present-day eruption of white supremacist ideology, Gates was stating the all-too-painful truth in saying, "We have never dealt with the issues raised by Reconstruction." Rosen appeared to agree: "We all share a collective responsibility to make our union more perfect."

Sunday, May 5, 2019

Trump's Lawyers Revive Imperial Presidency

      Three years after quitting the White House in disgrace, the former president Richard M. Nixon explained to the British interviewer David Frost his understanding that the president is not so much above the law as the personal arbiter of the law itself. Asked about the legality of his conduct in the Watergate scandals, Nixon answered as though stating the obvious, "Well, when the president does it, that means that it is not illegal."
      Nixon's claim was so audacious that the video clip has been replayed and viewed countless times as the simplest and most blatant expression of his constitutional offenses.  Four decades later, however, President Donald Trump's lawyers are now reviving the Nixonian theory of the imperial presidency in defending him against two of the many accusations against him of unconstitutional conduct.
      Attorney General William Barr had no compunctions whatsoever in using a nationally televised congressional hearing last week [May 1] to claim for Trump the power to shut down a criminal investigation into his own conduct. Political and legal historians immediately saw a parallel in Barr's view of presidential power to Nixon's ill-fated decision to fire Watergate special prosecutor Archibald Cox in October 1974.
      Admittedly, Barr was just starting law school at the time of the Saturday night massacre in fall 1974, but still he must know that the American public, Congress, and the judicial system decisively rejected Nixon's claimed power to shut down the Watergate investigation. A special federal court found Cox's dismissal illegal and then appointed Leon Jaworski to take over the investigation. The ensuing history gives no support for executive branch partisans such as Barr.
      Here, from Barr's testimony before the Senate Judiciary Committee as questioned by ranking Democrat Dianne Feinstein, is his explanation for Trump's power to remove special counsel Robert Mueller had he chosen to do so. Note at the outset that Barr misstates the Mueller report by depicting the evidence as conclusively disproving the accusations against Trump rather than falling short of provable obstruction of justice.
      "If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he knew they were false, and he felt this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for removing an independent counsel. So that's another reason we would say the government would have difficulty proving this [obstruction of justice] beyond a reasonable doubt."
      Barr went even further in his role as Trump's lapdog by contending that Trump's direction to his former White House counsel Don McGahn to lie about Trump's instruction to raise a phony conflict of interest issue to try to remove Mueller. "That's not a crime," Barr said without a moment's hesitation. He reasoned that McGahn's lie would not have impeded Mueller's investigation because McGahn had already testified about the episode.
      In the meantime, Trump's lawyers were advancing a similarly expansive view of presidential power in defending him in federal court against a lawsuit seeking to stop him from further violations of the Constitution's Emoluments Clauses. Ruling in a case brought by Democratic members of Congress, Blumenthal v. Trump, U.S. District Court Judge Emmet Sullivan rejected Trump's lawyers' various arguments for narrowing the definition of domestic or foreign "emoluments" that the president, along with other federal officers, are constitutionally prohibited from accepting without consent of Congress.
      Sullivan, a no-nonsense judge appointed to District of Columbia courts by two Republican presidents before being appointed to the federal bench by President Bill Clinton, devoted most of his 48-page opinionto a point by point refutation of the arguments for overlooking all the foreign governments booking expensive stays or events at Trump's Pennsylvania Avenue hotel. In sum, Sullivan found that the Framers understood emoluments broadly to include any financial benefits and viewed the clause as a safeguard against foreign influence on the president.
      Apart from those unsuccessful arguments, Trump's lawyers also argued that the court had no power to order the president to stop accepting foreign emoluments. Instead, they argued, the plaintiff lawmakers "can only obtain relief from the president"--totally up to the president, in other words, whether to comply with the Constitution or not. Sullivan answered by citing judicial precedents. "When there is no other remedy, courts have allowed suits against the President to proceed," he wrote.
      The president's duty under the Emoluments Clause, Sullivan went on, was clear and absolute. "The acceptance of an Emolument barred by the Clause is prohibited unless Congress chooses to permit an exception . . . ," the judge wrote at page 47. "Given the 'sweeping and unqualified' Constitutional mandate, the President has 'no discretion  . . . no authority to determine whether to perform the duty' to not accept any Emolument until Congress gives its consent."
      Trump's lawyers had one more argument: an injunction to block any further emoluments, they warned, would create a "significant burden" for a president who, it needs to be noted, refused to divest himself of entangling financial interests before entering the White House. "It may take judgment and planning to comply with the Clause," Sullivan wrote, "but he has no discretion as to whether or not to comply with it in the first instance."
      With lawless arguments such as these, it is no wonder that the disgruntled conservative commentator Max Boot now views Trump's presidency as "criminal" and Barr's "jaw-dropping" performance as reminiscent of Nixonian hubris. With the Mueller investigation over, Boot wrote in a column over the weekend [May 4], "we are left with the dismaying likelihood that the president will now feel emboldened to commit ever greater transgressions to hold onto power."