Sunday, February 23, 2020

Overlooked: Need to Remember Civil Rights Heroes

      Nearly a century after his unremarked-on death, Homer Plessy has gained a measure of the recognition that he deserves for challenging racial segregation in his home state of Louisiana in the 1890s. Plessy's name is immortalized in law books and American history as the unsuccessful litigant in the Supreme Court's disgraceful decision in Plessy v. Ferguson (1896) to uphold legally mandated racial segregation in passenger railroad cars.
      Plessy's name may be well known, but his life and death escaped the Times's editors' attention when the former shoemaker and civil rights activist died in New Orleans at age 61 on March 1, 1925. The Times, the nation's self-described "newspaper of record," published a full-length obituary last month [Jan. 31] under a headline that succinctly captures Plessy's place in history: "He sat on a train and stood up for civil rights."
      The obituary, byTimes contributor Glenn Rifkin, details Plessy's role in working with a local citizens' committee in a staged test of Louisiana's then-new Separate Car Act. Rifkin treats the episode as a precursor to Rosa Parks' more successful anti-segregation protest 60 years later in the Montgomery, Ala., bus boycott. The obituary is one in a series of life stories of important African Americans long since deceased that the Times has been publishing over the past year as part of its "Overlooked" project.
      Some of the others featured in the project so far include, for example, the ragtime master Scott Joplin (1867-1917); the inventor Granville T. Woods, known as "the black Edison (1856-1910); and the New York City real estate magnate known as the father of Harlem, Philip A. Payton Jr. (1876-1917).  Others include the crusading anti-lynching journalist Ida Wells (1862-1931); the Greenwich Village transgender activist Marsha Johnson (1945-1992); and the Harlem Renaissance writer Nella Larsen (1891-1964).
      In introducing the project, the Times noted that obituaries published since the newspaper's founding in 1851 "have been dominated by white men." The project's stated aim is to "add the stories of other remarkable people," with evident effort to correct the underrepresentation of women and people of color. Along with the many obituaries of African Americans, the project has also published obituaries of such famous white female artists as the photographer Diane Arbus (1923-1971) and the poet Sylvia Plath (1932-1964).
      However important the Times's belated recognition of historic African Americans may be, a leading American historian has recently noted a larger issue of public remembrance: the relatively few public monuments to civil rights figures in comparison to the much larger number of Confederate statues, monuments, markers, and so forth. Alison Parker, chair of the history department at the University of Delaware, noted the discrepancy in an essay published in the Times earlier this month [Feb. 6].
      "There are now more than 1,740 Confederate monuments, statues, flags, place names and other symbols in public spaces across the country, not counting more than 2,600 markers, battlefields, museums and cemeteries that commemorate the Confederate dead or the many hundreds of statues of staunch segregationists," Parker wrote. "To date, only about 115 have been removed. In stark contrast, fewer than 100 monuments pay tribute to the civil rights movement."
      Most of the Confederate monuments, Parker explained, were erected not immediately after the end of the Civil War, but in the 1890s and 1900s ”by Southern whites hoping to justify the spread of Jim Crow while erasing the legacy of Reconstruction." The resistance to removing or displacing some of those monuments glosses over those political motives in arguing against "erasing history." Parker aptly characterizes the monuments as "symbols of white supremacy."
      The smaller number of civil rights memorials include most prominently the Martin Luther King Memorial in Washington, D.C., the only major monument to a non-government official on the National Mall. The National Park Service site, dominated by the larger-than-life granite statute of King, opened in 2011, more than 40 years after his assassination.
      Parker is author of a forthcoming biography of Mary Church Terrell (1863-1954), who founded the National Association of Colored Women and played an important but under-recognized role in the women's suffrage movement before ratification of the 19th Amendment in 1920. Her role and the earlier role played in the suffrage movement by the former slave Sojourner Truth are gaining some belated recognition along with the better-known white suffragists Susan B. Anthony and Elizabeth Cody Stanton. A monument planned for New York City's Central Park was redesigned in August 2019 to include a statue of Sojourner Truth along with Anthony and Stanton.
      In another instance of belated recognition, Maryland unveiled statues this month [Feb. 11] on the statehouse grounds to honor two of the state's historic black figures: Harriet Tubman, the ex-slave famous for her work with the Underground Railroad, and Frederick Douglass, who escaped slavery as a youngster and became a nationally and internationally prominent advocate for abolition.
      A statue honoring Rosa Parks was installed two months earlier on the grounds of the Alabama state Capitol in Montgomery [Dec. 11, 2019]. Homer Plessy, it appears, has not been memorialized in bronze or stone, but he is remembered in New Orleans. The site of his arrest, the Press Street Rail Yard, is marked with a plaque relating the event; and Plessy's grave, in the city's St. Louis Cemetery, also bears a marker explaining the episode. The state of Louisiana went further in 2005  by proclaiming June 7, the date of Plessy's arrest, as Homer Plessy Day statewide.
      In the obituary, Rifkin notes that Plessy paid the $25 fine for riding in the whites-only car after the Supreme Court's decision and that he "vanished into obscurity" in contrast to Parks' later celebrity after the Montgomery bus boycott. Along with King, the leaders and foot soldiers of the civil rights revolution deserve at least as much recognition, if not more, than the Confederate generals and Silent Sams who fought with supposed honor for a far less honorable cause.

Friday, February 14, 2020

Trump Taking Revenge on Rule of Law

      President Trump is taking his revenge for his impeachment on witnesses in the proceedings and, more ominously, on the rule of law itself. Trump came under withering criticism this week [Feb. 12-13], except from complaisant Republican senators, for intervening by tweet in the criminal case against his convicted-felon friend and confidant, Roger Stone.
      Stone, it will be recalled, was convicted on Nov. 15, 2019, of seven felony counts for lying to congressional investigators and obstructing the congressional investigation into the Trump campaign's involvement with the Wikileaks disclosures of emails damaging to Hillary Clinton's campaign. Trump denounced the verdict at the time and stepped up his intervention in the case with an early-morning tweet [Feb. 12] after the career prosecutors in the case recommended a seven- to nine-year prison sentence for Stone under federal sentencing guidelines.
      Trump called the recommended sentence "horrible and very unfair" and added, without specifying a course of action, "cannot allow this miscarriage of justice." With the tweet reverberating through Washington, Trump later clarified to reporters that he had not spoken directly with his attorney general, William Barr, or anyone else at the Department of Justice about the sentencing.
      Even without direct communication, however, senior DOJ officials overruled the prosecutors' recommendation within the day and substituted a new sentencing memorandum with no specific recommendation for the judge on the prison term for the septuagenarian Stone. The career prosecutors from the U.S. attorney's office in Washington responded that day by withdrawing from the case; one went further by resigning from the Justice Department altogether.
      Former federal officials and prosecutors were among the many legal experts who denounced what the New York Times called in its news story the "extraordinary decision" to overrule the prosecutors who had handled the case. In an op-ed for the Washington Post, Chuck Rosenberg, a former U.S. attorney and senior FBI official, went beyond "extraordinary" to call the decision "deeply troubling" and "alarming."
      Rosenberg added praise for what he called the "principled resignations" by the prosecutors in the case. "We all understand that the leadership of the department is politically appointed," he wrote, "but being asked by that leadership to allow politics to corrode our work is not remotely normal or permissible."
      On Capitol Hill, Senate Judiciary Committee Chairman Chuck Grassley, Republican of Iowa, told reporters he had no concerns about Trump's tweet because Stone's sentence was ultimately up to the judge in the case, Amy Berman Jackson. Leaving no stone unturned, Trump followed the next day with a tweet attacking Jackson, wrongly, for having put his former campaign chairman, Paul Manafort, in "solitary confinement" after Manafort's August 2018 conviction for eight counts of financial fraud.
      Trump's tweets, combined with the firing of two of the witnesses in the impeachment inquiry, eliminated any lingering thoughts that he might have been chastened by the experience of having been impeached by the House of Representatives for abuse of office and obstruction of Congress. Following the Senate's acquittal, Maine's independent-minded Republican senator, Susan Collins, went so far as to "predict" that Trump would "learn his lesson" from the episode.
      The tweets prompted different assessments from Democrats of what Trump had taken away from his experience. "He learned that he could get away with corrupting his office without any consequences," Sen. Chris Murphy, D-Conn., said in an appearance on CNN.
      Trump himself emphasized for any who asked that he was unchastened by the experience. At the White House, he answered reporters' questions by saying that he had learned "that the Democrats are crooked." Later, in a telephone call to Fox and Friends on Thursday [Feb. 13], Trump repeated his grandiose view of presidential power. "This is my country and I will do as I please," Trump declared, with no contradiction from the Fox News hosts.
      Congressional Democrats were predictably outraged by Trump's intervention in Stone's case while Republicans on Capitol Hill turned away from reporters' questions or mumbled meaninglessly. Adam Schiff, the House's lead impeachment manager, complained in a tweet that Trump "urges lighter sentences and dangles pardons" for "those who were convicted of lying to cover up his crimes" and "retaliates against witnesses and public servants." Meanwhile, Schiff concluded, "Republicans' response? Silence."
      By week's end, however, Trump drew mild criticism for his tweet from a seemingly unlikely source: Barr himself. In an interview with ABC's Pierre Thomas on Thursday [Feb. 13], Barr maintained that he had already intervened to change the sentencing recommendation in Stone's case before Trump's tweet. Barr said he had met with U.S. attorney Timothy Shea, his former aide, on Monday and understood Shea to have agreed to change the recommendation.
      Barr called Trump's subsequent tweet "disruptive" and complained that the president's tweets "make it impossible for me to do my job and to assure the courts and the prosecutors in the department that we're doing our work with integrity." Barr's protestation did little to mollify critics, however, who charged him with politicizing the department by, among other steps, agreeing to investigate any information that Trump's personal attorney Rudy Giuliani turned up in Ukraine about the Bidens.
      Barr said he had no concerns about the mild pushback against Trump, but the president's actions earlier sent clear signals that anyone who crossed him did so at his peril. Trump fired his own ambassador, Gordon Sondland, the week before [Feb. 7] and followed the same day with high-profile revenge against Lt. Col. Alexander Vindman, the National Security Council aide who provided damning testimony about Trump's motives in the Ukraine episode. Vindman was fired and summarily escorted out of the White House with no time for farewells. Adding injury to insult, Trump even suggested that the military might want to consider disciplinary charges against Vindman.

Saturday, February 8, 2020

Trump's Acquittal Sets Dangerous Precedent

      With 20-20 hindsight, history has judged that the Senate voted wisely, even if along partisan lines, in acquitting President Andrew Johnson and President Bill Clinton in their impeachment trials in 1868 and 1999. History, however, is likely to render a different verdict on the Senate's party-line acquittal of President Trump last week [Feb. 5] on the two articles of impeachment brought by the House of Representatives: abuse of office and obstruction of Congress.
      As precedent, the Senate's one-vote acquittal of Johnson stands for the proposition that the president cannot be impeached for disregarding a constitutionally dubious law that would interfere with his constitutional power to appoint and remove members of his cabinet. Clinton's more conclusive acquittal, with less than a majority of senators voting to convict and remove, stands for the proposition that a president cannot be removed for personal misconduct unrelated to his conduct in office.
      Trump's acquittal stands instead for the unsettling propositions that a president can get away with abuse of office and obstruction of Congress as long as he retains and cultivates the support of senators of his party. Days before the anticipated vote, presidential historian Tim Naftali warned in an appearance on CNN [Feb. 2] that he feared the legacy of the Trump impeachment would be "that the president can do what he wants . . . because he will pay no price."
      Naftali, celebrated for insisting on a historically accurate depiction of the Watergate scandals when he was in charge of the Nixon presidential library in California, subtly underlined his warning by consciously channeling Trump's infamous distortion of the Constitution's grant of presidential power. "Article II gives me the power to do whatever I want," Trump declared in July 2019, with the House's impeachment inquiry not yet underway.
      Other historians were similarly downcast in comments on the likely legacy of Trump's anticipated acquittal published in an article earlier the same day in The Washington Post. "It's a dispiriting moment," historian Jon Meacham commented. "The president’s party, instead of being a check on an individual’s impulses and ambitions, has become an instrument of them.”
      Trump and his legal team encouraged Republican senators to stay in line with a combination of political hardball and legal malarkey. In the days before the Senate was to vote on the pivotal issue of calling more witnesses, a White House confidant was quoted by CBS News as having sent an unveiled threat. "Vote against the president," the unnamed source was quoted as saying, " and your head will be on a pike."
      Republicans generally disputed the account after the House Democrats' lead manager, Adam Schiff, quoted it during the Senate floor debate [Jan. 24]. But a Democratic senator, Ohio's Sherrod Brown, later described fear as a major motivation for Republican representatives and senators alike in opposing impeaching or convicting Trump.
      "They are afraid that Mr. Trump might give them a nickname like Low Energy Jeb' and 'Lyin’ Ted,'or that he might tweet about their disloyalty," Brown wrote in an <op-ed in The New York Times [Feb. 5]. "Or — worst of all — that he might come to their state to campaign against them in the Republican primary."
      Trump and his lawyers cultivated the GOP senators' support not only with a threatened stick but also with actual carrots in the form of financial assistance for senators facing re-election in November. Trump formed a joint fundraising committee with Georgia's David Perdue, for example, and was offering fundraising help to others, according to a report by the campaign finance watchdog group Open Secrets.
      The report noted that several GOP senators had also been received campaign contributions in years past from members of Trump's legal defense team. Kenneth Starr, for example, gave South Carolina's Lindsey Graham $2,700 in 2017; Jay Sekulow had contributed over the years to several others, including Texas's Ted Cruz and South Dakota's John Thune.
      The lawyers played a more important role, however, with hour after hour of nit-picking and pettifoggery. White House counsel Pat Cipollone and his deputy, Patrick Philbin, quibbled about some of the events in Trump's attempt to pressure the new Ukrainian president to dig up dirt on the Bidens but failed to challenge the essential account in the House's abuse-of-office article against the president.
     More troublingly, Alan Dershowitz, professor emeritus at Harvard Law School, gave senators legal rationalizations for voting to acquit Trump by telling them that impeachment requires proof of a federal statutory crime. That represented a change of position from his stance during the Clinton impeachment two decades earlier &#151 based, he said, on additional research.
      Dershowitz also made the truly astonishing claim that the president could solicit an actual quid pro quo with impunity if he thought it would advance his re-election. "[I]if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment," Dershowitz said in an argument that drew nothing but scorn from other legal experts.
      The Republican senators who voted for acquittal in near lockstep will bear the weight through history of accepting that argument and licensing what several of them acknowledged as Trump's "improper" conduct. As the lone Republican to break ranks, Utah's Mitt Romney, the party's presidential nominee in 2012, actually invoked history in an anguished speech explaining his decision. To ignore the evidence for a partisan end, he said, would "expose my character to history's rebuke . . . "

Sunday, February 2, 2020

Lies and Lame Excuses Complete Trump's Cover-Up

      Republican senators and White House counsel Pat Cipollone reacted with indignation when the House manager Jerrold Nadler accused Republicans of complicity in President Trump's cover-up by voting against calling witnesses in his Senate impeachment trial. Rather than refuting the accusation, however, Senate Republicans effectively proved it last week [Jan. 31] by voting down every Democratic proposal to call witnesses or subpoena documents to make Trump's impeachment trial something other than an open-and-shut sham.
      With only two defections, the Senate's Republican majority rejected, among other proposals, a motion by the Democratic leader Chuck Schumer to subpoena former national security adviser John Bolton to elaborate on his reported account of a direct, early conversation with Trump on Ukraine.
      Bolton's account in his tell-all book The Room Where It Happened: A White House Memoir could have filled the evidentiary gap that Trump's lawyers and Republican senators have repeatedly emphasized in challenging the articles of impeachment voted by the House of Representatives. Despite damning testimony before the House Intelligence Committee, Trump's defenders claim that no one has presented direct evidence showing that Trump pressured the new Ukrainian president to dig up dirt on his political rival Joe Biden in exchange for signing off on military aid to the embattled U.S. ally.
      Bolton claims in his book that Trump directed him in May, two months before Trump's notorious July 25 phone call with the Ukrainian president Volodymyr Zelensky, to cooperate with Trump's designated hatchet man Rudy Giuliani in digging up dirt on Biden and Biden's wayward son Hunter Biden. Bolton's account  not only fills in an evidentiary gap but also directly implicates Cipollone by placing him in the meeting as well.
      Cipollone's direct involvement in the events at issue should disqualify him from representing Trump in the proceeding under the well established legal ethics rule that a lawyer cannot be both a fact witness and an advocate. But legal ethics is not Cipollone's strong suit. Thus, he was guilty of a blatant falsehood in defending Trump on the Senate floor by claiming that Republicans were barred from the closed-door depositions conducted by the House Intelligence Committee.
      A second member of Trump's legal defense team added another falsehood in a bogus attempt to discredit the House proceedings. Jay Sekulow, a lawyer dubiously enriched by siphoning charitable donations for himself and family members, falsely claimed that the House committee had refused to allow Trump's lawyers to access evidence or cross-examine witnesses.
      Any procedural shortcuts in the House proceedings, however, pale in comparison to the unprecedented procedural flaw in the Senate trial, now apparently to be brought to an end with no witnesses whatsoever. Through history, the Senate has conducted 15 impeachment trials, with witnesses called in every previous instances, including the two presidential impeachments against Andrew Johnson in 1868 and Bill Clinton in 1999.
      To justify voting against witnesses, two Republicans once thought open to hearing more evidence offered the lamest of excuses. In the end, only two Republicans voted with the 47 Democrats to break Trump's cover-up by voting to call witnesses or subpoena documents: Utah's Mitt Romney and Maine's Susan Collins. Two others, Alaska's Lisa Murkowski and Tennessee's Lamar Alexander, explained their eventual decisions in statements that simply fall apart even on cursory examination.
      Both claimed to have worked with others to allow hearing witnesses before casting their pivotal votes the other way. In her statement, Murkowski acknowledged that additional witnesses might have cured the "shortcomings" of what she called the partisan House process, but said she decided in the end that "there will be no fair trial in the Senate" and that "the continuation of this process will not change anything."
      For his part, Alexander contended in his written statement that there was "no need for more evidence to prove something that has already been proven and that does not meet the U.S. Constitution's high bar for an impeachable offense." Alexander in effect presumed that testimony from the witnesses that Trump had prevented from testifying could not shed further light on Trump's motive in pressuring Zelensky to investigate the Bidens.
      Trump's lawyers had grounded their defense on Trump's supposed interest in combating corruption in Ukraine. By the time of the phone call with Zelensky, however, Hunter Biden had left the Ukrainian gas company Burisma and the U.S. State Department had given the new Ukrainian regime a clean bill of health on anti-corruption policies.
      The seeming contradiction could have been explored with testimony from witnesses such as Bolton, Trump's acting chief of staff Mick Mulvaney, or any others in direct contact with Trump. In short, additional testimony could have shown whether Trump's proven conduct — "inappropriate," in Alexander's judgment — met what the senator called the "high bar for an impeachable offense" if motivated solely by personal political benefit rather than any broader policy purpose as Trump and his lawyers claimed.
      With the course of the trial in the balance, Murkowski concluded, with professed sadness, that Congress "has failed." The failure, sad to say, is yet to come, but seemingly inevitable with Senate Republicans having decided to cast their lot with a president who has obstructed the impeachment inquiry at every step. With the cover-up complete, a deeply divided nation will be denied the closure that a full airing of the facts might have allowed.

Sunday, January 26, 2020

In Senate, Republicans Mock Impeachment Trial

      The Senate's Republican majority, unimpressed with the import of charging the president with impeachable offenses, are making a mockery of President Trump's impeachment trial in and outside the chamber even as House Democrats lay out the case against the president. Republicans are mocking the portentous event not merely by adopting the illogical position of trial first, witnesses later, but also by breaching the rules for decorum that the Republican leader Mitch McConnell had laid out for the trial. 
      Reporters in the press galleries recount that Republican senators were frequently absent, inattentive, or dismissive during the long sessions over three days when the House managers laid out the evidence of Trump's abuse of public office and obstruction of Congress. South Carolina's Lindsey Graham, for example, was said to have been absent from the Senate floor for 30 minutes at a time. Tennessee's Marsha Blackburn absented herself long enough one night to do an interview with Fox News. Kentucky's Rand Paul displayed a piece of paper with  "S.O.S." written on it as though he was being held hostage.
      Imagine a trial with jurors flitting in and out of the jury box or chatting amongst themselves at times. Chief Justice John Roberts, bound by the same constitutional oath as the senators to do "impartial justice," has observed all of these Republican shenanigans while presiding over the trial, but has said nothing to admonish them to behave themselves.
      By his lights, Roberts may think he is living up to his confirmation-hearing standard of being a neutral umpire, but he is not being even-handed by ignoring the misbehaving Republicans. An umpire who ignores the chirping from the home-team dugout while the visitors behave well in theirs would be giving the home-team an edge, just as Roberts is favoring the Republicans by letting them get away with their disorderly conduct.
      In fact, Roberts' only intervention in the trial so far amounted to putting his thumb on the scales of justice in favor of the Republicans' side, as commentator Elie Mystal wrote in a column for The Nation.  Roberts admonished both sides, the Democrats and Trump's lawyers, to be more civil after the House Democrats' manager Jerrold Nadler accused the Republican senators of being "complicit" in Trump's "cover-up" by voting against calling new witnesses.
      Roberts spoke up not on his own, but only after one of the Republican senators, Maine's Susan Collins, passed him a note to register a complaint about Schiff's remark. White House counsel Pat Cipollone had already complained about Nadler's remark. "This is the Senate, Mr. Nadler," Cipollone commented from the floor. "You're not in charge here."
      Before the trial began, some liberal commentators, Harvard law professor Laurence Tribe for one, had voiced the hope that Roberts would exert some influence in favor of calling witnesses and subpoenaing documents to fill in the gaps in the Democrats' case. But Roberts has said nothing as the 53 Republican senators, every single one of them, have voted in party-line lockstep against calling the non-testifying witnesses such as former national security adviser John Bolton or demanding documents on the Ukraine issue that have been withheld by the State Department and the Office of Management and Budget (OMB).
      In advance of the trial, three GOP senators — Maine's Collins, Alaska's Lisa Murkowski, and Utah's Mitt Romney — were reported to be open to calling new witnesses for the trial. But none of them deviated, not even once, from the party line. With those votes cast, evidence emerged that the White House has explicitly threatened any senators who break ranks. Quoting an unnamed Trump confidant, CBS News reported at week's end that the White House has sent this word to potential GOP defectors: "Vote against the president, and your head will be on a pike."
      Imagine, now, a trial in which the defendant's defense team openly threatens jurors with retaliation. Schiff noted the report in remarks from the floor while acknowledging that he could not verify it. Collins and Murkowski were both quoted later as saying no such threat had been conveyed; Oklahoma's James Lankford said all of the Republicans were "shaking our heads."
      The evidence that the House managers laid out over 24 hours spread out over three days showed, beyond dispute, that Trump had appealed to Ukraine and China, in remarks from the White House lawn, to open politically charged investigations of the business affairs of former vice president Joe Biden's son Hunter Biden. The evidence, in Trump's own words, is beyond dispute, but apparently not beyond Republicans' capacity for denial. "I'm not saying it's OK," Indiana's Mike Braun said when questioned by a reporter. "I'm saying that it didn't happen."
      In real trials, judges frequently admonish jurors to keep their minds open and avoid any discussion of the trial until they have heard all of the evidence and all of the arguments from both sides. With no such admonition from Roberts, Republican senators are making no effort whatsoever to keep open minds. "I've already made up my mind," North Carolina's Thom Tillis declared on camera.
      Democrats have been more circumspect, limiting themselves to comments more tentative. Interviewed by one of the cable news channels, Connecticut's Richard Blumenthal said simply that the House managers had presented "a compelling case." The White House defense team answered in a two-hour presentation on Saturday [Jan. 25] that White House counsel Cipollone opened by declaring, "The president has done nothing wrong" — nothing wrong, that is, in seeking foreign interference in the presidential election and in obstructing the House's impeachment inquiry.

Sunday, January 19, 2020

Roberts' Role in Impeachment Trial Debated

      Chief Justice William Rehnquist had a famous quip to explain his hands-off role in presiding over President Clinton's Senate impeachment trial in January 1999. "I did nothing in particular," Rehnquist remarked after leaving the Senate chamber for the last time, "and I did it very well."
      In advance of President Trump's impeachment trial, most Supreme Court watchers were expecting Chief Justice John Roberts, Rehnquist's former law clerk decades earlier, to follow Rehnquist's lead in minimizing his constitutionally assigned role to preside over a presidential impeachment trial.
      With the Senate trial about to begin, however, two leading figures from the legal left publicly called for Roberts to take a more active role by supporting Senate Democrats' efforts to call witnesses once the trial gets underway. For their part, Senate Republicans are flatly rejecting the Democrats' insistence on the need for witnesses in Trump's impeachment trial.
      Democrats have logic and precedent on their side. "I don't know how you have a trial if you don't have witnesses," Minnesota's Democratic senator Amy Klobuchar, herself a former prosecutor, remarked on MSNBC last week [Jan. 14]. In fact, witnesses testified in the two previous presidential impeachment trials — Andrew Johnson's in 1868 and Clinton's in 1999 — and witnesses were called in the 15 Senate impeachment trials through history that resulted in convictions and removals of federal judges.
      Working hand-in-glove with the White House by his own admission, the Senate's Republican leader, Mitch McConnell, has ruled out any need for additional witnesses by blaming House Democrats for an incomplete job of gathering evidence before voting the articles of impeachment against Trump. 
      The partisan divide on the issue creates a dilemma for Roberts in his presumed goal of steering clear of politics or limiting himself to the minimalist role for judges that he described his Senate confirmation hearing in 2005. Back then, Roberts likened judges to baseball umpires, their role limited to calling balls and strikes according to an agreed-upon strike zone.
      In this trial, however, the opposing sides flatly disagree on the underlying rules: Roberts may be forced to choose one side or the other. In an op-ed written for The Washington Post [Jan. 15], Caroline Frederickson, former president of the progressive American Constitution Society, suggested that Roberts' stated ideals called for him to take "a more assertive role" at the trial.
      "Now more than ever," Frederickson wrote, "Roberts must live up to his own vision of dispensing justice by ruling to admit evidence that will advance the goal of seeking the truth." Roberts, she went on to argue, should simply follow well established judicial standards for determining any claims of privilege by Trump's legal team or weighing the relevance of proposed testimony sought by Democratic senators.
      Anticipating Frederickson's position, the nationally prominent Harvard law professor Laurence Tribe predicted in an appearance on MSNBC [Jan. 14] that Roberts, his one-time student at Harvard, in fact would use his power, if asked, to issue subpoenas for witnesses sought by Democrats. "I would hope," Tribe remarked, "that his inclination would be to seek the truth."
      A leading impeachment expert appeared to dash Tribe's and Frederickson's hopes at week's end, however, with an op-ed in The Washington Post that envisions the Senate itself, not the chief justice, as the rule-making authority for the trial. "The Senate’s rules and history make clear the Senate makes all important decisions in the trial," according to Michael Gerhardt, a law professor at the University of North Carolina and author of Impeachment: What Everyone Needs to Know.
      Gerhardt acknowledged that Chief Justice Salmon Chase played a more active role in presiding over Johnson's trial, but he noted that the Senate stopped just short of stripping Chase of any decision-making role and later overruled him on two of his evidentiary rulings. Rehnquist was "a model of restraint" in Clinton's trial, Gerhardt added by contrast, and "was never overruled--because he rarely ruled."
      "Temperamentally, Roberts is likely to follow the example of Rehnquist," Gerhardt predicted by recalling Roberts' famous balls-and-strikes analogy. "That does not sound like someone planning to become the center of attention in Trump's trial," Gerhardt concluded.
      Roberts made his first appearance at the trial by taking his own oath of office on Tuesday [Jan. 14] from the Senate's president pro tem, Iowa's Charles Grassley, and then administering the same oath to do "impartial justice" for all 100 senators. The ceremonial opening followed the presentation of the two articles of impeachment against Trump by the seven designated House managers, brought in the name of "the people of the United States and the House of Representatives."
      The 10-minute recitation of the charges by the House's Intelligence Committee chairman Adam Schiff provided a valuable reminder, for anyone willing to listen, that this is more than a partisan food-fight. The impeachment trial is a veritable constitutional crisis brought about by Trump's brazen effort to enlist a foreign government's help to influence the 2020 election to his advantage.
      Trump's scheme, Schiff intoned, "ignored and injured the interests of the nation." In the words of the first article, Trump "abused the powers of the presidency . . . to obtain an improper personal benefit." Compounding the abuse, Trump engaged in "an unprecedented defiance of congressional subpoenas," according to the second article. Impartial justice demands that those accusations be seriously considered, but Republican senators have yet to indicate that they will take their oaths seriously. Even in a limited role, Roberts can at least remind senators of that oath as the trial proceeds.

Sunday, January 12, 2020

Electoral College: Reform or Chaos?

      The electoral college system for electing the president and vice president of the United States would not be adopted today if put up to a public vote. Public opinion polls dating from the 1960s have registered majority support for amending the Constitution to elect the president by direct popular vote instead of by the indirect electoral system that Hamilton and the other Founders created because they distrusted popular democracy.
      The goal of reforming or replacing the electoral college still lies in the distance. Two reform proposals currently under consideration include the so-called interstate popular vote compact; under this plan, signatory states would agree to cast electoral votes for the nationwide popular vote winner regardless of the vote in their individual states.
      A second proposal, advocated by among others Harvard law professor Lawrence Lessig, would replace the current winner-take-all allocation of electoral votes with a system of awarding electoral votes proportionally based on the popular vote in the state. Under that system, Hillary Clinton would have won five of Wisconsin's 10 electoral votes in 2016; Donald Trump would have won 16 of California's 55 electoral votes on the basis of winning 31 percent of the state's popular vote.
      Lessig argues, in part, that proportional allocation of electoral votes would mean that every vote counts: Republicans in Massachusetts and other blue states; Democrats in Tennessee and other red states. He also argues that the reform would make it less likely that the popular vote loser wins the presidency, as has happened in two of the last five presidential elections: George Bush in 2000, Trump in 2016.,
      One or the other of these changes, maybe even direct popular election, might be hastened by two pending cases at the Supreme Court that threaten to turn the current system into constitutional anarchy. Faithless electors from two states, Colorado and Washington, are hoping the Court will rule that states have no power to penalize them for voting contrary to their pledges to vote according to the popular vote in their states.
      Lessig is representing the faithless electors in the two cases, Chiafalo v. Washington and Colorado Department of State v. Baca: four Democratic electors in Washington, three of whom were fined $1,000 for casting their votes for Republican Colin Powell; and a Democratic elector in Colorado, whose vote for Republican John Kasich was nullified. The justices considered the cases at their conference on Friday [Jan. 10] and, if they grant review, could schedule briefing and oral arguments in time for a decision by the end of the term in late June.
      Lessig was trying to organize a sufficient number of what he called "Hamilton electors" to deny Trump the electoral college majority he appeared to have won on Election Night. Lessign believed that some Republican electors might defect if Democratic electors cast their ballots not for Clinton but for some Republican alternative to Trump. The effort bore some fruit: two Republican electors in Texas voted for Kasich and Powell, reducing Trump's actual count to 304 from his election night total of 306; Clinton's count was reduced to 227 from 232.
      Faithless electors have been part of the system at least since 1800. Federalist electors who refused to vote for John Adams' running mate threw the vice presidency to Adams' political rival, Thomas Jefferson. Through history, at least 179 faithless electors have voted contrary to their stated pledges, but never since with any actual impact on an election.
      Most of the defecting electors were making political statements: for example, the Washington elector who voted for Ronald Reagan in 1976 instead of the actual Republican nominee, President Gerald Ford. Washington passed its law penalizing faithless electors the next year. Other faithless electors cast purely symbolic votes, like the Democratic elector from the District of Columbia who withheld her vote from Al Gore in 2000 to protest what she called the District's "colonial status."
      At the Supreme Court, attorneys for the two states argue that presidential electors can be required to cast their votes as pledged and penalized for not complying with state law. But Lessig argues, in effect, that presidential electors have a constitutional office beyond a state's control.
      In an extreme case, broad discretion for presidential electors could transform the post-Election Night transition period into bare-knuckle political combat until the electors' votes are opened in Washington in January. Imagine, for example, what might have happened if Gore had concentrated in 2000 not on getting a recount in Florida but on shaking loose four Republican electors from Bush's apparent total.
      The 2020 presidential election between Trump and the eventual Democratic nominee could be that close. With the election still a year away, one political handicapper drew a completely plausible Election Night map with electoral votes tied dead-even at 269 apiece. In that hypothetical outcome, one faithless presidential elector could decide who wins the presidency.   
      In their briefs, Colorado and Washington argue that the faithless electors' real aims are to abolish the electoral college system. Lessig, through a self-styled organization Equal Citizens, argues to reform rather than replace. He goes so far as to argue that the Supreme Court could declare the "winner take all" allocation of electoral votes as unconstitutional under the Equal Protection Clause's mandate to treat all votes equally.