Friday, August 18, 2017

Charlottesville Marchers: Few Remedies for Losing Job

      Nigel Krofta, self-identified white nationalist, was neither surprised nor upset when he learned that he had been fired from his job back home in South Carolina for participating in the "Unite the Right" rally in Charlottesville, Va.  Krofta learned the news through social media, he explained in a story posted by the Charleston television station WCSC, because he lost his phone during the tumultuous events of Aug. 12-13.
      Limehouse & Sons, the Ladson, S.C., industrial contractor where Krofta had worked, announced the firing on its own Facebook page. Krofta "is no longer an employee of Limehouse & Sons," the post read. "We do not condone the actions of the people involved in this horrific display that has taken place in Charlottesville," the post went on.
      The company's managers spotted Krofta in a picture in the New York Times standing next to James Fields Jr., the Nazi-sympathizing 20-year-old accused of killing one person and injuring 19 others by driving his car into a crowd of counterprotesters. "It was a sick feeling to know that we had somebody like that working here alongside the rest of us," a Limehouse official who asked not to be identified told the TV station.
      Krofta, who appears from his picture to be in his 20s or early 30s, took it mostly in stride. "If they're going to lose business for it, I don't blame them for it," he told the station's reporter. But he also complained that the demonstrators were being mischaracterized. "What do I say to people who say we stand for hate?" he asked rhetorically. "I just say broaden your horizons and maybe read some opposing views."
      Others in Krofta's situation — and at least three other Charlottesville marchers have lost their jobs under similar circumstances — might have immediately sought out a lawyer to get their job back or sue for damages. But David Yamada, a labor law expert at Suffolk Law School in Boston, says employers generally can fire an employee for political activities — for anything ranging from a campaign contribution up through a demonstration turned violent.
      In general, most U.S. workers are "at will" employees, as Yamada explains in a post on his blog Minding the Workplace. A worker can be fired, without notice or cause, unless the firing would violate a specific protection written into federal, state, or local law or a provision of a collective bargaining agreement or an individual contract with the employer. "Many of the civil liberties we enjoy as citizens stop at the company door," Yamada explains.
      Some states do have laws restricting an employer's ability to fire a worker because of political participation, but those laws, it appears, are not enforced or observed as strictly as the well known civil rights laws prohibiting discrimination in the workplace based on race, religion, or sex or in nearly half of the states sexual orientation. In any event, Yamada cautions that employers should be wary about monitoring their employees' off-site political activities. "We don't want employers doing much of that," he says. "It's not good for the country if people can't participate."
      The Charlottesville-related firings come in the nearly immediate wake of the heated controversy over Google's decision to fire a software engineer for writing an internal memo critical of the company's efforts to get more women into leadership roles. James Damore attributed the underrepresentation of women to inherent "personality differences" between men and women and called the company's affirmative action policies "unfair, divisive, and bad for business." Google explained the Aug. 7 decision to fire Damore by saying that he was ''advancing harmful gender stereotypes.''
      News of Google's actions generated front-page news and provoked sharp criticism of the company from the so-called "alt right," the loosely defined conservative political movement tinged with white nationalist views. Alt-right forces also sponsored the Charlottesville demonstration, but a few days after some of the marchers lost their jobs no protests have been heard about the firings.
      Yamada is somewhat critical of Google's decision to fire Damore, but he finds the virtual silence about the Charlottesville marchers' fates unsurprising. "The Google situation looks like child play compared to the issues raised by Charlottesville," he says.
      California is one of the states with laws prohibiting workplace discrimination based on political expression. One of the Charlottesville marchers who lost his job is Cole White, fired from his job at a Berkeley hot dog place, Top Dog. "The actions of those in Charlottesville are not supported by Top Dog," the company said in a sign it posted during the weekend of the demonstration.
      Trump's white working-class workers might be surprised to learn that the National Labor Relations Board, part of the much-maligned "deep state," helped a white worker get his job back after he was discharged for racist slurs directed against picket-line crossing African American replacement workers. The NLRB found that Cooper Tire & Rubber Co. had violated federal labor law by firing Anthony Runion for the picket-line slurs during a lockout at its Findley, Ohio, plant in January 2012.
      In a decision earlier this month [Aug. 8], the Eighth U.S. Circuit Court of Appeals upheld the board's ruling. The majority rejected the company's defense that it was seeking to prevent a hostile work environment after the lockout ended. In dissent, however, Judge C. Arlen Beam stated what appears to be a correct statement of the general law on the issue. "No employer in America is or can be required to employ a racial bigot," Beam wrote.

Saturday, August 12, 2017

Courts Asked to Examine Trump's 'Emoluments'

       Jimmy Carter placed his peanut farm into a blind trust before moving into the White House to eliminate any risk of conflict of interest with his presidential powers and duties. As candidate and then as president, Donald Trump made a pretense, but no more than that, of separating himself from a still undisclosed web of business interests not only in the United States but also in countries throughout the world.
       As candidate, Trump's refusal to detail his financial interests was a political issue that failed to block his path to the White House. As president, however, Trump's continuing profit from businesses patronized by foreign and state governments alike amounts to a legal issue and, according to many legal experts, an ongoing violation of two provisions of the Constitution: the domestic and foreign emoluments clauses.
      Trump is facing three separate lawsuits that accuse him, in effect, of making a personal profit out of the White House from state and foreign governments seeking to curry favor with him. The Framers of the Constitution were concerned enough about the risk of such corruption to write two separate clauses to prevent it. (For the text, see Art. I, § 9, cl. 8; Art. II, §1, cl. 7).
       Con law courses mostly skip over the Emoluments Clauses because the Framers did their jobs so well that the feared risk of official corruption has mostly failed to materialize. But the Trump presidency now challenges the Framers' handiwork with the question of how to apply the clauses to a president unwilling to accept established political norms limiting personal profit-making at 1600 Pennsylvania Avenue.
      At the six-month mark, Trump must be rated as a mostly failed president with record-high disapproval ratings and nothing by way of major legislation. But the White House has been very good for business at the Trump Hotel just down the street.
       The Trump Hotel had been projected to lose $2 million in the first four months in 2017, but instead turned a $2 million profit, according to an account in the Washington Post (Aug. 11). Rooms at the hotel rent for $600 a night and cocktails sell for as much as $100 to patrons who include foreign diplomats, political figures, and business interests. In another instance of price gouging, fees at Trump's Mar a Lago golf resort were doubled in January over what they had been a year earlier.
      The Emoluments Clause lawsuits may be misunderstood by some as asking courts to oust Trump as president; they are not. The lawsuits ask courts to define the scope of the clauses broadly, find Trump in violation of the clauses, and prohibit any further violations. The remedy would be a huge judicial undertaking, but it would not entail a reversal of the 2016 election even if some of those cheering the lawsuits on would welcome that result.
      The lawsuits serve a salutary purpose even if ultimately unsuccessful. If the plaintiffs are allowed broad discovery, the public can finally learn the details of Trump's finances that he refused to disclose during the campaign.That information would help the public judge his presidency and would also help members of Congress in considering their own powers, up to and possibly including impeachment.
      For now, questions such as those are months down the road as the three pending lawsuits move slowly through separate courts. In the first of the three, the Washington-based Citizens for Responsibility and Ethics (CREW) in Washington is leading an assortment of private plaintiffs in a suit filed in January in federal district court in New York City. Other plaintiffs include a hotel and restaurant owner in New York City and an event booker in Washington, who say they are hurt by the competitive advantage Trump enjoys thanks to being president. The two other suits are pending in federal court in Washington: one brought by the District of Columbia and Maryland and the other by a record 196 members of Congress (Blumenthal v. Trump).
      CREW's suit is now set for an initial hearing before Judge George Daniels on October 18 after opening legal briefs from both sides and from various friends of the court. In the interest of brevity, the briefs will be crunched down here to the major points of disagreement.
      The first issue is the very definition of the word "emolument," so little used in common parlance. The Justice Department lawyers representing Trump argue that it does not encompass profits from arms-length commercial transactions, only compensation for official services. Both sides cite dictionary definitions, but etymology favors the broader construction argued in the plaintiffs’ brief. The root is the Latin verb "molere" meaning to grind. In Middle French, an emolument was the fee the farmer paid to the miller for grinding: an arms-length commercial transaction of the sort Trump's lawyers say is excluded.
      Trump's lawyers naturally argue the plaintiffs have no standing, but the competitively disadvantaged business operators make a good case that they are being hurt right now. Just as naturally, the Justice Department argues that courts have no power to enjoin the president: they cite a 150-year-old Supreme Court decision as authority, but skip lightly over more recent decisions. Like so much of Trump's unpredictable presidency, the outcome defies predictions. For court watchers and public alike, the best advice: stay tuned.

Sunday, August 6, 2017

As AG, Justice Not on Sessions' Agenda

      Attorney General Jeff Sessions might have had a momentary chill when his assistant told him last weekend [July 29] that the White House was on the line. But the caller, it turned out, was not his berating tweeter in chief, President Trump, but the new White House chief of staff, John Kelly, calling to assure Sessions that he could rest easy about staying in office.
      Thus reassured, Sessions still spent the next week doing what he could to raise himself in Trump's esteem with, among other policy moves, a full-scale press op to detail a resource-fed crackdown on leakers. Trump had recently taken to describing Sessions in tweet storms as "weak" and "beleaguered" based on apparently inadequate prosecutorial attention to a rash of unauthorized disclosures weakening his already weak presidency.
      The press conference that Sessions convened along with two top Trump administration intelligence officials [Aug. 4] followed news from earlier in the week that the Justice Department was deploying its civil rights division to crack down on racial preferences in college and university admissions. Ironically, news of the policy shift emerged not from an official announcement but from a leak to the New York Times's well-sourced reporter, Charlie Savage.
      The leak helped renew the vigorous debate over affirmative action in political, legal, and media circles: the pros and cons of racial preferences for minority applicants themselves; the larger role of "legacy preferences" in favoring white applicants; and the possible effect of preferences for African American and Hispanic applicants on Asian American applicants. In political terms, however, the details of that debate are less important than the signal that Sessions' policy shift sends to Trump's political base and to the conservative legal movement.
      Those constituencies undoubtedly view Sessions' latest policy shift favorably as a clear sign that Alabama's favorite son is on their side in the culture war against the coastal elites —  the "cosmopolitans," as White House aide Stephen Miller might call them. Already in just six months, Sessions has shifted Justice Department policy on civil rights by backtracking from the Obama administration's opposition to Texas's voter ID law as racially discriminatory and by formally opposing the Equal Employment Opportunity Commission's position treating anti-LGBT discrimination as illegal under existing federal civil rights laws. In his confirmation hearing, Sessions endorsed voter ID laws and disclaimed any knowledge of anti-LGBT discrimination.
      The anti-leaking event gave Sessions the chance to rail about "the culture of leaking" only a week after Trump's latest tweet that Sessions had "taken a VERY weak position" on "Intel leakers. In contrast to the reversals of Obama policies, Trump told the assembled reporters in the department's seventh-floor conference room that the department is following and actually outstripping the previous administration by tripling the number of leak investigations over the number ongoing as Obama left office.
      The leak investigations that the Justice Department identified for the Washington Post's reporters covering the event are not the kind that Trump is complaining about. Only one of the four related to the media: the leak of a top-secret National Security Agency document to a news organization from Reality Leigh Winner, a 25-year-old government contractor. The other three cases listed by the DOJ spokesman all related to contacts with or disclosures to foreign intelligence agents.
      Journalists naturally flinch when the government talks about cracking down on leaks. Tellingly, Sessions declined at the news conference to repeat previous Justice Department reassurances that journalists would not be prosecuted for publishing truthful information or that journalists would be subpoenaed to disclose sources only under limited circumstances.
      Sessions' silence on those concerns is troubling of itself, but more troubling is the extravagantly broad view that Trump and his supporters are taking of what constitutes an "illegal" leak. Trump and any number of his cable news apologists constantly complain about James Comey's supposedly illegal leak of his conversation with Trump while still FBI director in January: the conversation in which Trump allegedly asked Comey to end the investigation of former national security adviser Michael Flynn.
      Comey's divulging of that conversation, through an intermediary, was embarrassing to the White House certainly, but in no way illegal. No classified information was released, nor any details as to the FBI's pending investigation: only the president's views and his policy directive. Consider how often government officials, members of Congress, or private citizens go straight from an Oval Office conversation to recount the conversation to reporters waiting just outside the mansion. That is not a felony, only part of governance in a free-press, democratic republic.
      Sessions won confirmation as attorney general on a 52-47 vote in the Senate, with the support of his 51 Republican colleagues and one Democrat: West Virginia's Joe Manchin. Sessions remains the same hard-line conservative that he was before that vote and in his confirmation testimony, but today he enjoys support from both sides of the partisan aisle thanks to Trump's criticism of him for failing to recuse himself from the Russia investigation.
      Kelly's call to Sessions may show that Trump has either dropped or been dissuaded from any idea of firing him as a first step in removing Robert Mueller as special counsel for the Russia investigation. For the sake of that investigation, Sessions may still be needed in his post. But make no mistake: as attorney general, justice is not on Jeff Sessions' agenda.