Monday, May 29, 2017

At White House, Urgent Calls to Lawyer Up

      Trump was home alone, in the residence, tired of cable news and surfing around for one of those old movies that made America great. How the West Was Won: perfect. But then came one of those lawyer commercials. "If you have a phone, you have a lawyer."
      Then, it hit him: I have a phone! I need a lawyer! Sure, Trump said to himself, Don McGahn is White House counsel. He's a good man, but he keeps telling me what I should do instead of letting me do what I want to do. I'm calling Marc Kasowitz: he's been with me all these years, through the divorce, the bankruptcies, the Trump University fake lawsuit, on and on. Him, I can trust. Just like my friend Mike Flynn.
      Thus Kasowitz was brought in to head an outside legal team to help with the Russia investigations that are swirling ever more ominously around the White House. Not just the White House: now it's Jared too. Good son-in-law. Done nothing wrong. Fake news. But McGahn says he can't help. Bad precedent. White House counsel can't give away 'get out of jail free' cards to everybody.
      The Washington Post reports that Trump is looking at others to beef up the team: maybe Ted Olson, maybe Paul Clement. Surely, they understand that everyone's entitled to legal representation in this country. But already on the blogosphere some nigglers are suggesting that Olson and Clement have nothing to gain with this brief — and a lot to lose, like their reputations.
      Lawyering, it turns out, has been one of the Achilles' heels of this administration, now just past the 125-day mark. Yes, the Justice Department lawyers put up a good fight, but federal appeals courts appeared to have blocked the president's signature policy achievement of his first full week in office: Executive Order Protecting The Nation from Foreign Terrorist Entry Into The United States.
      The courts blocked the first version. Muslim ban, they said. "We all know what that means," Trump said as he signed the order. Apparently, yes, the so-called judges did.
      After the courts blocked the first version, Team Trump worked with the lawyers on a revised version. Significant tweaks. The new version exempted green-card holders —  lawful permanent residents, in legal speak. It also gave immigration officers discretion to waive the ban. And the lawyers added six paragraphs of "findings" to explain why these six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Again, the nigglers. Why not Saudi Arabia, they asked, since that's where the 9/11 hijackers came from?
      Despite all that lawyering, the courts still aren't buying it. The old saying is right: You can put a dress on a pig, but it's still a pig. The Fourth U.S. Circuit Court of Appeals, sitting en banc in Richmond, Va., came out with a 10-3 decision blocking Executive Order 2.0. More than 200 pages of opinions less than three weeks after oral arguments. The majority stopped just short of calling the president a liar.
      Trump takes note, of course, that the 10 judges who ruled against him are all Democratic appointees and the three on his side are Republicans. He thinks back to something Gorsuch said. "There are no Republican judges; there are no Democratic judges." Well, Trump thinks, he was half right. There are no Democratic judges for the next four years: that's for damn sure.
      Sessions is quick out of the box with one of those boilerplate responses: disagree strongly, you betcha. Will appeal, of course. At the Supreme Court, Gorsuch could be the fifth vote that the White House needs to reverse the ruling.
      Justice Neil Gorsuch is exhibit number one for Trump's accomplishments at the 125-day mark. Oddly, however, Team Trump had very little to do with it. Supreme Court vetting was turned over to the Federalist Society back in the campaign. Twenty candidates on the list: all of them Republican judges, naturally. All good candidates, but Gorsuch was head and shoulders above any of them. Look at those credentials: better even than Garland's, he muses.
      Once Gorsuch was nominated, it was McConnell's job to get him through. And he did: the Democrats came close to blocking him, but close doesn't count except in horseshoes. The Democrats decided to dare the Republicans to change the Senate rules to get him confirmed. Republicans took up the dare. Republicans won't need 60 votes next time either.
      Lawyering, of course, was never Trump's forte. Dealmaking was: The Art of the Deal was a best-seller: it was yuge. As for dealmaking, however, nothing yet to crow about. "Repeal and replace Obamacare" is stuck in the Senate; Ryan got that through the House, but McConnell says he doesn't know where he gets 50 votes, much less 60. As for the tax reform bill: not yet written. Why can't they just pass my talking points, Trump asks himself. This place really is a swamp.
      And the wall? Now Trump frets that he's being told some of it will be on private property. That means eminent domain lawsuits. They think that scares me, he says to himself. Real estate litigation is right up my alley, he assures himself. Just hire some more lawyers.

Saturday, May 20, 2017

As White House Counsel, McGahn Seen Failing in Role

      Rod Rosenstein took a major hit to his previously unblemished reputation by lending support as deputy attorney general to President Trump's decision to fire FBI director James Comey. Now, a lawyer who works right outside Trump's office is similarly taking hits to his admittedly somewhat checkered reputation. Don McGahn, Trump's pick to be his White House counsel, is now being blamed for what a wide range of legal observers are calling the ethical and legal disarray in the Trump presidency.
      McGahn now serves in the same behind-the-scenes role that John Dean occupied in the Nixon White House and used to warn Nixon, in vain, about the "cancer" on his presidency. Like Dean before him, McGahn has a client with a tin ear as to ethics and conflicts issues. Even so, legal observers say McGahn has to bear responsibility for such seemingly avoidable missteps as the delayed firing of Michael Flynn as national security adviser and the clumsy explanations for Comey's dismissal.
      "So much of what’s gone wrong in the Trump administration . . . might have been prevented by some good lawyering up front," reporter Jenna Greene wrote in a story for the on-line legal publication Litigation Daily with the provocative headline "The Case for Giving White House Counsel Don McGahn the Boot" [May 18]. "The president, no doubt, is an extraordinarily difficult client," Greene added, "but McGahn doesn’t seem willing or able to rein him in."
      McGahn came to the post as an expert on campaign finance and election law based in part on a combative five years as a Republican appointee to the Federal Election Commission (FEC). Back in private practice with the well-connected D.C. law firm Jones Day, McGahn gained entree into Trump's inner circle by becoming one of the first high-profile Washington lawyers to join the campaign. McGahn was credited with playing an important role in blocking efforts to block Trump from the ballot in New Hampshire's first-in-the-nation presidential primary early in 2016.
      As White House counsel, McGahn fits a Trumpian model of high-level appointments. For secretary of education, Trump picked Betsy DeVos, a sharp critic of public education as a leader of the school-choice movement. To head the Environmental Protection Agency, he named Scott Pruitt, an opponent of EPA policies as a former Oklahoma attorney general.
      At the FEC, McGahn had a reputation of being rude and abrasive to staff and even to fellow commissioners and worked single-mindedly to weaken or dismantle campaign finance restrictions. Ann Ravel, a Democratic appointee to the FEC after McGahn's term had ended, commented to Greene that she found McGahn's appointment as White House counsel "shocking." "His record indicates that he’s not particularly concerned about conflicts or ethics issues," Ravel told the reporter.
      As early as mid-February, Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel during part of President George W. Bush's second term, was blaming McGahn for some of the White House problems. “The multiple ethics problems swirling around the White House are squarely McGahn’s responsibility,” Goldsmith, now a professor at Harvard Law School, wrote in a post for the middle-of-the-road legal blog Lawfare.
      Within the past week, the New York Times strengthened the critique by disclosing that McGahn was informed on Jan. 4 that Flynn, who was already functioning as Trump's national security adviser, was under an FBI investigation for his contacts with the Russians during the campaign and his work as a paid lobbyist for the Turkish government. Matthew Miller, a Justice Department spokesman in the Obama administration, responded critically to the information in an appearance on CNN. "If you were under an FBI investigation," he said of Obama administration personnel policies, "you couldn't get hired as a staff assistant, much less national security adviser."
      Once Flynn's role emerged into headlines, the White House used McGahn, just as it was to use Rosenstein later, to try to defend its actions--in this case, the failure to fire Flynn immediately after learning that Flynn had lied to Vice President Mike Pence about contacts with Russians. "The White House Counsel reviewed and determined that there is not a legal issue, but rather a trust issue," press secretary Sean Spicer said at a briefing.
      Accepting that account, Goldsmith wrote in his blog post that McGahn had failed in his role. "The legality of Flynn’s actions was not McGahn’s call to make," Goldsmith wrote, "and if McGahn were properly carrying out his responsibilities to ensure lawful action in the White House and to minimize law-related political damage to the President, he would have acted differently."
      Goldsmith's critique was noted in an unflattering profile by reporter Nancy Cook in Politico in February. “McGahn will embolden Trump,” an unnamed former FEC official told Cook. “He is not going to be a truth teller. He’s going to be an enabler.”
      Rosenstein, the former federal prosecutor and Justice Department official, salvaged some of his reputation last week by appointing former FBI director Robert Mueller as special counsel to investigate "Russiagate." McGahn's reputation is likely to suffer more hits as his role draws more attention. He can protect his reputation, if at all, only by showing more moral courage than he has to date in telling a wayward president to try to straighten up.

Saturday, May 13, 2017

Trump's Arrogance, Deceit Fuel Constitutional Crisis

      President Trump's decision to fire FBI director James Comey was a calculated act of constitutional arrogance and political deceit: lawful on the surface but deeply damaging to the rule of law and possibly criminal or impeachable as an obstruction of justice.
      Trump's extraordinary comments to NBC's Lester Holt [May 11] make clear that he fired Comey in an attempt to truncate the FBI's investigation of possible collusion between his presidential campaign and Russian agents interfering with the U.S. election. Seemingly oblivious to the damning implications. Trump acknowledged to Holt that he had planned to fire Comey without regard to the pretext that he had arranged by ordering up a recommendation from the nation's two highest law enforcement officials at the Justice Department.
      Attorney General Jeff Sessions and deputy attorney general Rod Rosenstein are two of the collateral damage victims of Trump's deceit. Sessions' letter recommending Comey's dismissal violated his pledge during his Senate confirmation process to recuse himself from all investigations of the Trump campaign. Any self-respecting senator on either side of the aisle should rise in indignation and demand at the least an investigation of Sessions' action by the department's inspector general.
      Sessions had been damaged goods already given his false testimony to the Senate Judiciary Committee that he had never met with Russian officials as a Trump surrogate during the presidential campaign. Rosenstein, on the other hand, had an unblemished reputation as a U.S. attorney in Maryland that gained him Senate confirmation on a 94-6 vote for the Justice Department's second-ranking position.
      Presciently, however, the six Democratic senators who voted against Rosenstein's confirmation were troubled by his balking at a promise to appoint a special prosecutor for the Russia probe. Now, he has allowed himself to be co-opted into the president's plot to thwart the investigation.
      Rosenstein affixed his signature—and his reputation—to a slap-dash letter listing Comey's missteps that exaggerated the damage to the FBI's reputation and that ignored the inspector general's pending investigation of Comey's actions. As the always thoughtful Benjamin Wittes wrote on Lawfare, "Rosenstein was tasked to provide a pretext, and he did just that." Wittes's recommendation sums up the difficult choice Rosenstein now faces: appoint a special prosecutor and then resign.
      Trump also threw press secretary Sean Spicer and deputy press secretary Sarah Huckabee Sanders under the bus by letting them spin the press -- and the public -- on the basis of palpably false talking points. CNN ran a devastating compilation of sound-bites from Vice President Mike Pence, Spicer, and Sanders, all using the identically phrased description that Trump "took the recommendation of the deputy attorney general" in firing Comey.
      Deviously, Trump soiled Comey's reputation further by claiming in his own letter that the FBI director had personally assured him not once but three times that he himself was not under investigation  As Trump depicted the most specific episode, Comey asked for a dinner meeting because he wanted to keep his job and gave the assurance when the president asked.
      The account strains credulity. It is far more plausible, as those close to Comey recounted, that the president asked for the meeting and Comey felt obliged to accept. In any event, the meeting and the subsequent telephone conversations breached Justice Department protocols regarding pending investigations--and the claimed assurances, if given, all the more.
      In the wake of all these disclosures, legal experts mulled whether the president had committed an obstruction of justice, as broadly defined in federal law. To begin, it must be conceded that despite the fixed 10-year term for the FBI director, the president had the authority to fire Comey with or without cause. The post-Watergate tenure provision was designed more to limit the FBI director's power than the president's.
      On the surface, however, Trump's actions seem to fit the wording in 18 U.S.C. §1512, which makes it a crime if someone corruptly "obstructs, influences or impedes any official proceeding." The practical obstacles to such a charge would be daunting, according to a survey by Charlie Savage, the New York Times's Pulitzer Prize-winning correspondent who has been dogging presidential abuses since George W. Bush's years in the White House. The Justice Department is unlikely to bring the charge, Savage noted, and proof of motive would be very hard to prove in any event.
      With criminal prosecution improbable, critics and experts naturally turned to impeachment. Trump's description of the Russia probe as "a made-up thing" has echoes of the Nixonian description of Watergate as a "third-rate burglary." Trump's conduct seems to fit the wording in the first article of impeachment against Nixon that he has "prevented, obstructed, and impeded the administration of justice." Harvard's distinguished constitutional law expert Laurence Tribe was perhaps the most prominent expert seen to be tweeting that it was not too early to consider impeachment as the constitutional remedy for Trump's abuses in office.
      Impeachment is beyond the realm of possibility, however, unless House Speaker Paul Ryan and Senate majority leader Mitch McConnell decide to put country over party and stand up against the president. Trump remains popular with his minority political base even as a majority of Americans strongly disapprove his performance, according to the most recent poll. The path out of what amounts to a genuine constitutional crisis—a president who respects neither the law nor the truth—is nowhere in sight.

Sunday, May 7, 2017

Banks May Pay for Ravaging Minority Neighborhoods

      The nation's big banks got by mostly scot-free for the harm they did to the nation's economy and in particular the housing market leading up to the Great Recession of 2007-08. But the Supreme Court cleared the way last week [May 1] for the nation's cities to hold the banks at least somewhat accountable for the particular harm they did to minority homebuyers and the boarded-up minority neighborhoods left behind after waves of foreclosures.
      The Supreme Court's decision in Bank of America v. Miami clears the way for the city of Miami to use the Fair Housing Act to try to recover damages from BofA and Wells Fargo for financial losses the city blames on the banks' policies of targeting predatory mortgage loans to African American and Latino customers. The city's complaint, yet to be tested at trial, includes statistics and whistle-blower affidavits substantiating the banks' practices of steering minority homebuyers to mortgages with less favorable terms than those offered to white customers.
      The banks made money on the loans and then ended up with the houses by foreclosing on the properties when the would-be homeowners, predictably, defaulted on the lender-friendly mortgages. Miami was one of several big cities that claimed that boarded-up minority neighborhoods cost them property tax revenue and added to the cost of providing law enforcement and other municipal services. Two cities have won seven-figure settlements in such cases, but Miami's prospects in an eventual trial are uncertain.
      The racial discrimination was both more subtle and more pervasive than was practiced in the bad old days. Back before the Fair Housing Act was enacted in 1968 and still afterward, real estate agents helped create and maintain residential segregation in cities and suburbs alike simply by steering black clients away from white neighborhoods.
      The Fair Housing Act had been on the books for only a decade when the Supreme Court first confronted the question whether a city could use the law to sue real estate agents for financial losses attributable to residential segregation. The court answered in the affirmative in Gladstone, Realtors v. Village of Bellwood (1979) by broadly construing the statutory terms allowing any "aggrieved person" to sue for damages if "injured by a discriminatory housing practice."
      Bellwood, a tiny village in the Chicago suburbs, joined individual plaintiffs in suing two real estate firms that housing "testers" had shown to have been practicing racial steering. The court's 7-2 decision went so far as to allow suits by the individual testers even though they were gathering evidence and not actually looking for apartments. In its complaint, Bellwood claimed that the practices were lowering property values and robbing the village of racial balance and stability.
      Writing for the majority, Justice Lewis F. Powell Jr. accepted the village's standing to sue the two firms for damages. "A significant reduction in property values directly injures a municipality by diminishing its tax base, thus threatening its ability to bear the costs of local government and provide services," Powell wrote. "Other harms flowing from the realities of a racially segregated community are not unlikely," he added.
      In the new case, Justice Stephen G. Breyer led a 5-3 majority in relying on the Bellwood decision to uphold Miami's effort to sue the two banks. Miami's claimed injuries, he wrote, "arguably fall within the FHA's zone of interests, as we have previously interpreted that statute." Breyer's opinion was joined by Chief Justice John G. Roberts, who assigned the opinion to Breyer as the senior justice in the majority, and Breyer's three liberal colleagues: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Clarence Thomas, joined by Justices Anthony M. Kennedy and Samuel A. Alito Jr., dissented on the point.
      The justices were unanimous, however, in tightening somewhat the burden of proof that Miami will have to meet to prevail at trial. Breyer said that the Eleventh U.S. Circuit Court of Appeals had been too lax in allowing Miami to recover for any "foreseeable" losses. Instead, Breyer said, the city would have to show "some direct relation" between the banks' practices and the claimed losses. In his dissenting opinion, Thomas said that Miami's allegations were "extremely attenuated" and predicted that the city could not meet the "rigorous" standard laid out in Breyer's opinion.
      The banks both issued statements vowing to defend the suits and predicting eventual vindication. For his part, civil rights lawyer Robert Peck, who argued Miami's case at the Supreme Court, said he was confident that Miami could meet the causation standard. Peck will be arguing an appeal by the city of Los Angeles later this month seeking to reinstate a similar suit ordered dismissed by a district court judge.
      Erwin Chemerinsky, a leading liberal academic and dean of the University of California-Irvine School of Law, called the ruling "an important victory for civil rights." It is a measure of the court's retreat on racial justice that the justices reaffirmed a 7-2 decision only by a narrower 5-3 vote and only with an 8-0 burden of proof ruling casting some doubt on the city's eventual claims. But Amanda Kellar, general counsel for the International Municipal Lawyers Association, predicted cities would succeed in making banks pay. "There's plenty of evidence," Kellar said, "that discriminatory lending practices not only caused devastating losses to individuals but also had concrete effects on municipalities."