Sunday, December 9, 2018

Trump Worse Than Nixon on White House Offenses

      The American people need to have, and deserve to have, confidence in the president. Richard Nixon famously said as much as the enormity of the Watergate scandal began to be disclosed. "People have got to know whether or not their President is a crook," Nixon declared at a meeting of the nation's newspaper editors on November 17, 1973. "Well, I'm not a crook."
      Nixon in fact was not a crook, as commonly understood, but worse that he had corrupted the office of the presidency by multiple criminal and political violations. He had used the power of his office to spy on political opponents and had impeded through various means lawful investigations into his illegal actions.
      Now, another embattled president, Donald Trump, is proclaiming his innocence and integrity as the evidence mounts that he was corrupting the political process as a presidential candidate and has used the power of his office to impede investigations into his actions, some of them patently illegal and others arguably contrary to law.
      The latest evidence is the filing by the government, specifically the U.S. attorney's office for the southern district of New York, that Trump — so-called Individual 1 — organized and directed the scheme to conceal hush-money payoffs to his former sexual partners. Those payoffs, in the form of buying the rights to the women's stories to suppress them, were made in the final month of the 2016 campaign for the specific purpose of benefiting Trump's candidacy.
      Federal campaign finance law requires candidates for federal office to disclose campaign expenditures. Trump's former fixer, Michael Cohen, is now headed toward four or more years in prison for multiple crimes, including the campaign finance violations that he said were "in coordination with and the direction of Individual 1." Trump is shielded from indictment for the offense, however, under the never-adjudicated Justice Department policy that precludes prosecuting the president while in office.
      Trump, who is counted by fact-checkers as having lied more than 6,000 times in less than two years in office, responded to the sentencing memorandum in Cohen's case with the demonstrably false tweet that he had been "totally cleared." Two presidents in recent memory, Nixon and Bill Clinton, have faced impeachment for lying, but the contemporary Liar in Chief shows both of them to have been inept pikers at deception.
      "Trump’s most important lies are not spin, or misleading statements," according to the Trump-critic political scientist Brian Klaas, author of The Despot's Apprentice. "They are the complete inversion of truth, an Orwellian assertion that the truth is what he says. The documents directly implicate Trump in directing multiple criminal conspiracies. A tweet doesn’t change that."
      Trump's most effective denial has been in the form of a repeated incomplete sentence, often rendered in all-caps "No collusion," aimed at discounting the legal significance of the proven and acknowledged contacts between officials in Trump's campaign and representatives or agents of the Russian government. The filing in Cohen's case adds new evidence that the contacts began earlier than previously known and that Trump had a personal stake in currying favor with the Russian government even as he repeatedly and insistently denied any business interests in the United States' most important adversary nation.
      In an acknowledged effort to avoid prison time, Cohen has cooperated, however incompletely, with the office of special counsel Robert Mueller by spilling some of the previously unspilled beans about Trump's campaign. Cohen, while still in Trump's good graces, acted as intermediary for an offer he received in November 2015 from an unnamed Russian with ties to the Kremlin for "government-level" synergy between Russia and the Trump campaign.
      At the time, Trump was scouting the possibility of opening a Trump Tower in Moscow, a project that would depend on favorable treatment from the Russian president, Vladimir Putin. The discussions about the project included the thought of offering Putin a $5 million penthouse in the planned edifice. News of the never-offered bribe sparked discussion among legal experts about invoking the anti-bribery provisions of the Foreign Corrupt Practices Act, but any speculation on that issue runs afoul of the president's practical immunity from criminal prosecution and his effective immunity from removal through impeachment as long as Senate Republicans turn a blind eye to what would be impeachable offenses for any other president.
      Nixon was forced to resign only after the White House tapes confirmed his personal role in the hush-money payments to the Watergate burglars to keep silent.. Trump is trying another tactic to buy silence from those who can implicate him: publicly demeaning any who cooperate with the special counsel's investigators and publicly raising the possibility of presidential pardons for any who need executive clemency. Nixon, it will be remembered, was counseled against any hint of pardons for the Watergate burglars or the architects of the later cover-up.
      Thus, it is imminently fair to make the comparison: Trump is worse than Nixon ever was, even with Mueller's investigation not yet complete. Unlike Nixon, Trump is a kind of crook: he is personally enriching himself in open and notorious violation of the Constitution's foreign and domestic emoluments clauses as his hotels rake in money from domestic and foreign lobbyists seeking his favors. And, unlike Nixon, he openly sought and accepted assistance from a foreign enemy in his campaign and since then as president. But Trump has so shattered political norms that none in his party will call for the only remedy: impeachment.

Sunday, December 2, 2018

An Unoriginalist Plea to Limit Civil Forfeiture

      The conservatives and libertarians who have long complained about governmental abuse of civil asset forfeiture in criminal cases are on the verge of a legal victory at the U.S. Supreme Court. The victory will be owed, however, not to the doctrine of constitutional originalism that so many conservatives view as sacrosanct, but to the theory of living constitutionalism that they view as legal and judicial heresy.
      The resourceful litigators at the libertarian Institute for Justice (IJ) found an appealing case to use to ask the justices to rein in the widespread practice that state and local law enforcement agencies employ to seize valuable property from accused offenders. The hour-long arguments in Timbs v. Indiana last week [Nov. 28] made clear that justices across the ideological spectrum are set to rule, for the first time, that the Eighth Amendment's Excessive Fines Clause applies to the states just as it limits the federal government.
      As the unfortunate victim of forfeiture abuse, the IJ lawyers found Tyson Timbs, a recovering opioid addict who fell into selling heroin and thus into the clutches of undercover police officers in Marion, Indiana. When arrested in 2013, Timbs was driving the $42,000 Land Rover SUV that he bought a few months earlier with the proceeds from his father's life insurance policy. Timbs was given probation after pleading guilty in 2015 to selling four grams of heroin for $385 in two separate sales, but the car was seized and three years later sits idle in a police parking lot.
      Like other states, Indiana authorizes the forfeiture of property representing the fruits or instrumentality of a crime. Civil asset forfeiture has been part of American law for 300 years, ever since the colonies seized ships from seafaring pirates. Under an especially abusive policy, the authorities in Marion outsourced the seizure of Timbs's vehicle to a private lawyer, who stood to reap a contingency fee for the service: "institutionalized bounty-hunting," as the IJ lawyer Wesley Hottot called it in his Supreme Court brief for Times
      After taking Timbs's guilty plea, Judge Jeffrey Todd found the seizure of the Land Rover "grossly disproportionate" to Timbs's offense: the car cost four times as much as the maximum $10,000 fine allowed under Indiana law. Indiana's intermediate-level Court of Appeals agreed, but on review the Indiana Supreme Court held that the Eighth Amendment's Excessive Fines Clause does not apply to states because the U.S. Supreme Court has never said so, in so many words.
      The Eighth Amendment's stipulation that "excessive fines" not be "imposed" comes straight from the English Bill of Rights, adopted in 1689 as part of England's Glorious Revolution. State constitutions have included similar language ever since the Founding Era. The amendment's other prohibitions — against "excessive bail" and "cruel and unusual punishments" — have been held to be incorporated against states, respectively in 1971 and 1947.
      Virtually all the other provisions of the Bill of Rights have also been applied to the states under the so-called incorporation doctrine, beginning in earnest with the First Amendment in the 1920s and 1930s and most recently the Second Amendment's right to keep and bear arms in 2010. For no particular reason, however, the Supreme Court has never explicitly incorporated the Excessive Fines Clause.
      The Court's newest justices, Neil Gorsuch and Brett Kavanaugh, were visibly impatient with any suggestion from Indiana's solicitor general, Thomas Fisher, that the clause does not apply to the states. "Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?" Kavanaugh asked, skipping over the unincorporated grand jury and civil jury rights in the Fifth and Seventh Amendments.
      Fisher seemed to make some headway, however, with his more nuanced argument that forfeitures are not fines at all. "Your argument is that it isn't a fine at all," Roberts said, summing up without rejecting the position. "History is four-square against [Timbs's] claim," Fisher answered.
      A quarter-century ago, the Supreme Court did invoke the Excessive Fines Clause in a forfeiture case brought by the federal government. The unanimous decision in Austin v. United States (1993) ordered a lower federal court to reconsider the government's seizure of a South Dakota man's mobile home and business in a relatively minor drug case. In a partial concurrence, however, Justice Antonin Scalia, the godfather of constitutional originalism, described it as a "closer question" whether the clause applies to "confiscations of property rights based on improper use of the property."
      In his argument, Hottot contended that modern-day forfeiture differs from the forfeitures of the Founding Era after having turned into a revenue source for financially strapped police departments. Indeed, an IJ report cited in his brief counted $254 million worth of civil asset forfeitures by law enforcement agencies in 26 states and the District of Columbia in a single year: 2012.
      Justice Sonia Sotomayor appeared sympathetic, based on examples cited in briefs filed in the case. "Many of them seem grossly disproportionate," she said. Fisher countered, however, that forfeitures have often been "draconian" from historical times to the present.
      The wide array of groups supporting Timbs in the case — from the American Civil Liberties Union to the U.S. Chamber of Commerce and many others — suggests the time has come to set constitutional limits on forfeiture abuse. But make no mistake: Timbs will owe any victory not to the dead Constitution that Scalia revered, but to the living Constitution that adapts as time and circumstances change.

Friday, November 16, 2018

Courts Still Needed to Curb Political Gerrymanders

      Chief Justice John G. Roberts Jr. made clear in two partisan gerrymandering cases earlier this year his plan to keep the Supreme Court out of that political thicket by disposing of the cases without settling the issues presented. Now comes another judicial intervention skeptic, the Washington Post columnist Charles Lane, to claim in a post-election column that successful anti-gerrymandering ballot measures in five states prove that federal courts are not needed to cure the acknowledged political problem.
      Redistricting reform advocates gained significant ground, to be sure, with ballot measures approved on Nov. 6 in Colorado, Michigan, Missouri, and Utah and a measure approved by Ohio voters earlier in the year, all aimed at reducing the partisan excesses of congressional and legislative districting. Colorado, Michigan, and Utah now join the 20 or so states with independent commissions empowered to draw or propose legislative or congressional districts or both.
      To be clear, however, the Wisconsin political gerrymander that Roberts helped preserve for the time being in Gill v. Whitford is still alive and well, according to a report in the Madison-based weekly Isthmus. Along with electing a Democratic governor, Democrats won a majority of the votes in state legislative races, but Republicans maintained a 63-36 edge in the legislature's lower chamber thanks to the politically skewed maps they drew nearly a decade ago. A three-judge federal court had ordered the maps redrawn, but Roberts concocted a technical legal issue in the Supreme Court proceedings to set aside the decision and leave the misdrawn districts in effect for one more election cycle.
      The ballot measure results show the political appeal of creating independent commissions to take redistricting away from state legislatures. Colorado voters approved Amendment Y and Amendment Z to create separate legislative and congressional redistricting commissions each with 71 percent of the vote. Michigan's Proposal 2 also won easily with 61 percent of the vote, while the successful margin for Utah's Proposition 4 was a scant 2,000 votes.
      Ohio and Missouri took different tacks to try to reduce the political excesses of drawing district maps. Ohio's Issue 1, approved with 75 percent of the vote in the May 8 party primaries, requires a 60 percent majority in the state legislature to approve congressional districting, including at least 50 percent of the members of each of the two major political parties. Two other states, Connecticut and Maine, require a two-thirds supermajority requirement for redistricting, but Ohio added a unique provision to specify minimum support from each of the two major parties.
      Missouri's Amendment 1, approved on Nov. 6 with 62 percent of the, creates the new office of nonpartisan state demographer to draw legislative and congressional districts subject to a statistical test to measure partisan fairness. The demographer's maps will be subject to approval by the previously created bipartisan redistricting commissions.
      Lane, a friend and colleague who covered the Supreme Court for the Post a while back, argued in his column [Nov. 13] that even without the new redistricting commissions, voters themselves thwarted gerrymandering politicians by breaking free from their partisan map-drawing. The mapmakers, he argued, had not reckoned with the changing views of the suburban voters who had been packed into supposedly safe Republican districts but instead broke Democratic in 2018.
      All told, Lane concluded that what he called the United States' "partisan gerrymandering problem" is now "on its way to being cured, with no need for federal judicial intervention." In an earlier column, Lane had seconded Roberts' view from the bench that the Supreme Court risks political crossfire if it tries to draws a line against partisan gerrymandering.
      The Supreme Court's 2017 term had been viewed as the year when the justices would finally settle on a workable standard, but the two cases that separately challenged the Republican gerrymander in Wisconsin and a Democratic gerrymander in Maryland ended only with whimpers. Roberts led the Court in sending the Wisconsin case back for plaintiffs to try to show legal standing to challenge individual districts instead of the statewide map.
      Roberts was surely the prime mover behind the unsigned decision in the Maryland case, Benisek v. Lamone, to dismiss the challenge as too close to the next election. On remand, the three-judge court in that case just ordered the state to redraw the districts, but the state has filed a notice of appeal.
      Redistricting reformers do not share Lane's sanguine view of the results of the Nov. 6 balloting in congressional races. Overall, Lane noted, Democrats won 52.5 percent of the vote in congressional races and — "wait for it" — 53.2 percent of the seats with some races still undecided. Lane conceded, however, that partisan gerrymanders performed just as intended in two states: Maryland, with one Republican in the eight-member House delegation, and North Carolina, with a reaffirmed 10-3 edge for Republicans in a closely divided state electorate.
      Partisan gerrymanders amount to "artificial walls to keep back the natural political tides," according to Justin Levitt, a professor at Loyola Law School in Los Angeles. The walls "held" in some states, including North Carolina, he explains in an interview. Democrats "managed to get over the wall" in others thanks to "extraordinary turnout," he acknowledges, but those successes "don't make it right that the obstacles were put there to begin with."
      In the meantime, the new redistricting commissions may give voters in those states some protection against political mischief. Voters in the majority of states, however, may still look to federal or possibly state courts —  notwithstanding Lane's reassurance to the contrary —  to offer some hope to cure the gerrymandering problem.

Sunday, November 11, 2018

Trump's Obstruction Must Not Succeed

      No president other than Donald Trump — however Republican, however conservative — would have given a moment's thought to appointing Matthew Whitaker as the chief law enforcement officer of the United States even temporarily. Whitaker is a con man with bizarre views about the federal judiciary and with no qualifications to be acting attorney general apart from his sycophantic loyalty to Donald J. Trump.
      Trump's installation of Whitaker, a pro-Trump talking head on CNN for the past year, is both unconstitutional and illegal, according to some but not all legal experts. The legal doubt about the appointment [Nov. 7] is not, however, the most important mark against it.
      Instead, Trump's selection of Whitaker must be seen as presidential obstruction of justice by indirection. Whitaker came to Trump's attention by using his CNN slot to echo Trump's denunciation of Mueller's investigation as a "witch hunt" and to deny with unprovable certainty any Russian impact on the outcome of the presidential election.
      Whitaker told friends he signed up for the CNN slot in hopes of gaining Trump's attention for a federal judgeship. On CNN, Whitaker outlined a scenario that Trump could use to quash the Mueller investigation by firing attorney general Jeff Sessions and then appointing a successor to kill Mueller's investigation by cutting his budget.
      As acting attorney general, Whitaker now exercises supervisory oversight over an investigation that he continued to call a witch hunt even after Mueller's successes in obtaining convictions against significant Trump campaign figures, including former campaign chairman Paul Manafort, and indictments against Russian election infiltrators. And if there were any doubt, Whitaker is signaling that he will not recuse himself from that role, as Sessions did, without yet consulting the Justice Department's ethics officers on the question.
      Sessions, an early Trump supporter, was fired after a tumultuous 21 months in office for having recused himself as a potential witness from any role in overseeing Mueller's investigation. He was fired, as the ACLU's national legal director David Cole aptly remarked on Saturday [Nov. 10], for the one good thing that he had done while attorney general.
      Whitaker caught a touchdown pass for Iowa in the 1991 Rose Bowl, but he had not much else on his resume until taking over the corner office at Main Justice last week. He served for four years as a Republican-appointed U.S. attorney for Iowa and then after several years as private citizen ran fourth out of a field of five candidates in the Republican primary for the U.S. Senate in 2014.
      In that campaign, Whitaker took the truly unconstitutional position that, if elected, he would screen nominees for federal judgeships based on whether they had "a biblical view of justice." Apparently, Whitaker's law school course on constitutional law skipped over the provision in Article VI, clause 3, that "no religious test shall ever be required as a qualification to any office or public trust under the United States."
      As another example of Whitaker's weak spots on constitutional law, he has called for overruling the very foundation of judicial review in the United States: Chief Justice John Marshall's landmark decision in Marbury v. Madison (1803). That decision gained support most recently from no less a conservative than the Supreme Court nominee Brett Kavanaugh, who applauded it in his confirmation hearing as one of the Court's "four greatest moments" in history.
      As private citizen, Whitaker served on the advisory board of a company that paid a $25 million fine to the Federal Trade Commission (FTC) for bilking would-be inventors out of thousands of dollars by promising help with their patent applications that never materialized. Whitaker's role in the Florida-based World Patent Marketing was featured in the company's promotional materials, but he was not named in the FTC's complaint.
      The White House apparently knew nothing about the case before Trump's appointment of Whitaker. After news of the case surfaced, however, the Justice Department spokeswoman Kerri Kupec issued a statement noting Whitaker's previous statement that "he was not aware of any fraudulent activity."
      The legal issue over Whitaker's appointment stems from the view of some legal experts that the Constitution requires any "principal officer," even in a temporary role, be Senate confirmed. The argument to that effect was set out in an op-ed article in the New York Times by two lawyers from opposite political camps: Neal Katyal, the Georgetown law professor and former acting U.S. solicitor general under President Obama, and George T. Conway III, the anti-Trump Republican lawyer who is married to senior White House counselor Kellyanne Conway. Stephen Vladeck, a respected law professor at the University of Texas, set out the contrary argument in a subsequent op-ed article also in the Times. He argued that the federal Vacancies Reform Act allows Whitaker to serve in an acting capacity for seven months.
      With no action on Trump's part, the post would have devolved on Rod Rosenstein, the Senate-confirmed deputy attorney general who has gained Trump's disfavor by failing to limit Mueller's authority. Thus, Trump's decision must be understood as deliberately aimed at curtailing the Mueller investigation. The president tried to distance himself from that evident conclusion on Friday [Nov. 9] by claiming, falsely, that he had not even met Whitaker before the temporary appointment.
      Trump's move has disturbing parallels to President Richard Nixon's firing of the special Watergate prosecutor in the so-called Saturday night massacre. Nixon's ploy failed in the face of a public and congressional backlash. Trump seemingly believes that he will be saved by his political base and compliant Senate Republicans. For the sake of the rule of law, he must not succeed and his lackey Whitaker must be thrown back into his well-earned obscurity.

Sunday, November 4, 2018

For Trump, Unconstitutional Is No Problem

      President Trump's plan to ban birthright citizenship with an executive order in direct contradiction of the plain language of the Fourteenth Amendment comes as no surprise to anyone aware of the president's limited respect for the Constitution. Trump took an oath to "preserve, protect, and defend the Constitution of the United States," but he has been in open violation of one of its provisions since his first day in office.
      The provision at issue, equally as plain as the Fourteenth Amendment's citizenship clause that Trump proposed to defy, prohibits the president or any federal official from accepting "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State" except with permission from Congress (Art. I, sec. 8, cl. 9). Trump is violating the so-called Foreign Emoluments Clause, according to a lawsuit filed by the attorneys general for the District of Columbia and the state of Maryland, by profiting from foreign governments' patronage of the eponymous Trump International Hotel that the president still owns even if removed from managing it.
      The lawsuit cleared a second procedural hurdle last week [Nov. 2] when a federal judge in Maryland rejected a motion by Trump's lawyers for an immediate pretrial appeal of legal issues in the case and a stay of any pretrial discovery. U.S. District Court Judge Peter Messitte rejected point by point all of the justifications Trump's lawyers offered for allowing the president a so-called "interlocutory appeal" to the Fourth U.S. Circuit Court of Appeals in advance of discovery or trial. "Judicial economy favors going forward with the case in this Court at this time," Messitte wrote at the end of his 31-page opinion.
      The case, District of Columbia v. Trump, PJM 17-1596, is now set for pretrial discovery that could include, according to D.C.'s attorney general Karl Racine, examination of some of Trump's federal income tax returns. Messitte ended his opinion by asking the lawyers to submit a proposed schedule for discovery within 20 days — that is, by the end of Thanksgiving week.
      Trump's lawyers contended, among other arguments, that the president ought not be burdened by a civil lawsuit and pretrial discovery given all the demands on his time. Messitte, a senior judge appointed to the federal bench in 1993 by President Bill Clinton, batted that claim away by noting that Trump has found the time while president to pursue or threaten lawsuits against, for example, the author Michael Wolff or his former aide Steve Bannon. "[T]he President himself appears to have had little reluctance to pursue personal litigation despite the supposed distractions it imposes upon his office," Messitte wrote.
      The D.C./Maryland suit now appears to be the farthest advanced of three Emolument Clause lawsuits filed against Trump. Messitte noted in his opinion that one of the suits, brought by the whistleblower advocacy group Citizens for Responsibility and Ethics in Washington (CREW), was dismissed by a federal judge in New York, George Daniels, for lack of legal standing. The other suit, filed in federal court in the District of Columbia on behalf of 200 members of Congress under the name Blumenthal v. Trump, survived a motion to dismiss after Judge Emmet Sullivan found the lawmakers had legal standing. Sullivan noted in his ruling that under the Emoluments Clause, Trump had the obligation to seek permission from Congress to receive any payments prohibited under the provision.
      Trump's lawyers have argued in all three cases that arms-length transactions with Trump properties are outside the Emoluments Clause. In their view, prohibited "emoluments" are limited to payments to an official "arising from an office or employ." Messitte rejected that "cramped" interpretation in his July 25 decision refusing to dismiss the case. As Messitte explained in the new opinion, the definition urged by Trump's lawyers would be "tantamount to a bribe," a significantly narrower definition than the broad reading of "emoluments" found in 18th century dictionaries.
      Messitte noted that Trump is still receiving foreign emoluments even within his narrow definition of the term. Several foreign governments, including as examples Kuwait and Saudi Arabia, "have expressly stated in the media that they are patronizing the President’s hotel precisely because he is the President." Those payments, Messitte continued, "constitute an 'emolument' foursquare within the President’s definition of the word, especially if, what appears likely, the payments to his hotel are being made with an expectation of favorable treatment by the President in matters of foreign policy."
      Trump's lawyers cited four legal issues they wanted to include in the midstream appeal, including the court's authority to issue either declaratory or injunctive relief against the president. Again, Messitte found the argument baseless. He repeated from his earlier opinion that there is "ample authority suggesting that even the President — in his official capacity — can be the subject of equitable relief, especially given a situation such as the one at hand." Put differently, the president is not above the law.
      The president previously demonstrated his shaky knowledge of the Constitution by claiming to have read all 12 articles: it has only seven. The supposed birthright citizenship executive order, unissued more than a week after Trump's boasting of it, needs no extended discussion here to underscore that the president has no power with the stroke of a pen to amend the Constitution that he swore to "preserve, protect, and defend." So far, Trump has gotten away with mocking and defying the Constitution, but the independent judiciary that the Framers created may yet be strong enough to hold him accountable.

Sunday, October 28, 2018

With 'Crisis of Legitimacy,' Rethinking the Supreme Court

      The transformation of the Supreme Court after the seating of two conservative justices in bitterly fought confirmation battles has generated anguished talks on the political left about possible reforms to depoliticize the Court. Despite reformers' earnest attempts, however, the smorgasbord of ideas discussed at a program sponsored by the liberal American Constitution Society (ACS) last week [Oct. 25] seem unlikely to be adopted or, even if adopted, to reduce the level of political conflict currently surrounding the Court.
      Even before Justice Brett Kavanaugh's historically narrow two-vote confirmation, public confidence in the Supreme Court was sagging to the point that Jeffrey Rosen, director of the National Constitution Center, asked whether the Court is facing a "crisis of legitimacy." Rosen noted in a recent podcast that a Gallup survey in early July found only 37 percent of respondents expressing high confidence in the Court: that figure has been below 40 percent for a decade, but traditionally higher all the way back to the early 1970s.
      The proposals for "reforming the Court" discussed at the ACS event by three longtime law professors and one veteran of the political world range from the simple and straightforward to complex and indirect. As one example of the former, Amanda Frost, a professor at American University's Washington College of Law, suggested requiring more than a one-vote margin to overturn a law passed by Congress or a state legislature. This longtime Court watcher can recall that idea from as far back as the 1950s, but it has never advanced beyond idle political science-type talk. One possible variation could be to require a supermajority to overturn a precedent
      By way of a more complicated reform, Ganesh Sitaraman, a professor at Vanderbilt Law School, pointed to proposals for a radical change in selecting the Supreme Court's personnel. These proposals envision a random lottery among federal appeals court judges to select the judges who would comprise the "one Supreme Court" specified in the Constitution. Another, more complex proposal envisions a Court deliberately engineered to maintain a partisan balance, with five justices appointed by Republican presidents, five by Democratic presidents, and five additional members selected with mutual agreement by both blocs. Sitaraman saw the benefit of either of these proposals as reducing the "cult of personality" around any individual justice.
      The panelists largely steered clear of two of the simplest and currently most often discussed reforms: term limits and changing the size of the Court. Some on the political left have been talking up the possibility of "packing the Court" in effect as a response to the Republicans' obstruction of President Obama's nomination of Merrick Garland in Obama's final year in the White House.
      Frost set the tone for the ACS panel by saying early on that she was "no fan" of either term limits or packing the Court. In any event, Democrats would pursue a change in the size of the Court only after hypothetically gaining control of both Congress and the White House after the 2020 elections. And, as evident political retaliation, a move to enlarge the Court to enable a Democratic president to appoint additional justices to change the Court's ideological balance of power moves in exactly the opposite direction of seeking to depoliticize the Court.
      Term limits for the justices have a bipartisan pedigree of sorts: law professors supporting the idea include some from the left and some from the right, for example, Steven Calabresi, co-founder of the Federalist Society. Supporters argue that fixed 18-year limits for active service on the Court would reduce the political stakes on any individual nomination by ensuring another vacancy two years afterward. In his remarks, however, Sitaraman suggested instead that term limits could make political problems worse. "It would mean that every election would be about the Supreme Court," he said.
      With structural changes such as these under consideration, some Court watchers see the politicization of the Court as the inevitable result of what many on both the right and the left consider the Court's outsized role in setting legal policy on contentious. "You need to depower the Court," the University of Chicago law professor Aziz Huq remarked at the ACS panel.
      David Kaplan, a longtime journalist and author of the new book The Most Dangerous Branch , laments what he, as a self-identified liberal, calls the Court's "aggrandizement of power" stretching from Roe v. Wade through Bush v. Gore and the Roberts Court. Barry McDonald, a professor at the generally conservative Pepperdine Law School, wrote in a New York Times op-ed that the Court has "lost sight of its limited role and the principle of judicial neutrality."
      At the ACS panel, Huq blamed liberals and progressives for relying too much on the courts. Yet in the past decade conservatives have also been quick to resort to courts. Senate Republican leader Mitch McConnell was in fact the named plaintiff in the first, unsuccessful attempt to gut the McCain-Feingold campaign finance reform. That effort eventually succeeded in the Citizens United case. Gun rights advocates made no serious attempt to repeal the District of Columbia's handgun ban before the Second Amendment challenge that ended with the Heller decision in 2008.
      However improbable the proposals for structural changes may be, it may be even more unlikely to rein in the Court's overarching role in legal and constitutional policy. In a system with a written Constitution, a written Bill of Rights, and a history of judicial review, rights-claiming parties will eventually find their way to the highest Court and the justices drawn into political conflict however they rule.

Sunday, October 21, 2018

In Georgia, Voter Suppression Seen in Governor's Race

      Welcome to the not-so-great state of Georgia, where a political candidate fox is running for governor while also supposedly protecting the integrity of the ballot box henhouse. Brian Kemp, the white Republican who superintends Georgia's election laws as secretary of state, is in a fiercely contested, racially charged contest for the governorship pitted against Stacey Abrams, the Democratic nominee who could be the state's first African American governor.
      Abrams' shot at the governorship in a red state attests to the changing demographics that have already started to turn some states from red to purple and to the strength of the anti-Trump blue wave even in states that Trump carried by substantial margins. With the Nov. 6 election now within sight and early voting already under way, the most recent poll shows Kemp with a statistically insignificant edge over Abrams: 47 percent to 46 percent, according to the Reuters/University of Virginia Center for Politics survey.
      In a race like that, every vote counts: so too every potential vote suppressed because of restrictive or inhospitable election procedures. Georgia was one of those states under special federal supervision for nearly 50 years because of its history of racial discrimination against would-be African American voters. Freed from the Voting Rights Act's preclearance requirement thanks to the Supreme Court's shamefully oblivious decision in Shelby County v. Holder (2013), Georgia has now adopted all of the second-generation devices used to suppress voting among racial and ethnic minorities.
      Despite the evident political conflict of interest, Kemp has refused pleas that he should resign as secretary of state or recuse himself from election procedure issues while he himself is on the statewide ballot. In an ordinary race or in other times, his stance might pass an ethical smell test, but not in the current partisan divide created by Republican-backed vote-suppression measures in Georgia and so many other red states.
      In the most dramatic example of voter suppression, Kemp's office supervised the purging of some 591,000 Georgians from voters rolls in summer 2017. Like other GOP election officials, Kemp refers to wholesale deregistrations as "voter list maintenance," ostensibly aimed at removing voters who have moved or passed away. A journalistic investigation showed, however, that a substantial number, around 107,000, were removed for not voting —  in arguable disregard of federal law.
      Ohio's Republican secretary of state Jon Husted was hauled into federal court and eventually to the Supreme Court for his aggressive voter purges. The Roberts Court, in its 5-4 decision in Husted v. A. Philip Randolph Institute in June, divided along partisan lines in upholding Husted's policies of initiating deregistration based on a voter's failure to vote in two successive federal elections. The applicable federal law specifies that states may not remove a voter based solely on failure to vote.
      Like Husted, Kemp follows a "use it or lose it" policy in initiating deregistration that, according to an investigation by American Public Media Reports, has disproportional impact on black voters. The APM investigation found that in six out of ten Georgia counties, black voters were removed at higher rates than white voters.
      Kemp is also now overseeing local election officials in enforcing a newly enacted Georgia law that blocks a would-be voter's registration if the applicant's information fails to perfectly match information from other sources: as inconsequential, for example, as a misspelled name or incomplete address. Some 53,000 registrations are on hold as a result: Kemp promises that the would-be voters can cast provisional ballots, but evidence from other states indicates that few voters who cast provisional ballots make the later trip needed to have their ballots counted.
      Georgia is also one of the red states to have passed restrictive voter ID laws, ostensibly aimed at the all-but-nonexistent problem of voter fraud by impersonation. In the current election, Democrats and voting rights groups have cried foul over the rejection of hundreds of absentee ballots in the minority-heavy Gwinnett County, outside Atlanta. To top it off, local election officials have closed some 214 precincts over the past six years — amounting to nearly 8 percent of the state's polling places — making it that much harder in some counties for would-be voters to cast ballots.
      Imagine, as the most dramatic example, Florida with a less punitive felon-disenfranchisement law on the books in 2000: among the 1 million-plus disenfranchised Floridians, a vote swing of fewer than 1,000 votes could have changed the course of history. In a concrete case, Wisconsin's strict voter ID law has been shown to have suppressed perhaps up to 200,000 votes in the Badger State: more than enough to have offset Donald Trump's 23,000-vote margin over Hillary Clinton in the 2016 election. In advance of the election, one Republican legislator openly boasted that the law "could make a difference."
      Strict voter ID laws held down the vote in other states as well, with results less easily to hypothesize. Again, the Supreme Court has given its ill-considered blessing to this voter-suppressive device. The 6-3 decision upholding Indiana's law Crawford v. Marion County Board of Election (2008) accepted with too little questioning the premise that photo IDs were needed to protect election security. In the years since, evidence — notably, in a Texas case — has shown that voter ID laws have disproportionate impact on racial and ethnic minority voters. The wheels of election law justice grind all too slowly, however, allowing Republicans, as in Georgia, to exploit these tactics as part of a truly un-American political strategy.

Sunday, October 14, 2018

In Death Penalty Cases, Race Still Matters

      Race has always played an imortant role in capital punishment in the United States and still does, according to contemporary evidence from death penalty challenges in two states. The two studies, one from Oklahoma and the other from Washington, both show that black defendants convicted of killing white victims are more than twice as likely to be sentenced to death as white defendants convicted of killing white victims.
      The Supreme Court was presented similar evidence three decades ago, but refused in McCleskey v. Kemp (1987) to take the logical Equal Protection Clause step in a death row challenge by a Georgia inmate. The 5-4 ruling, criticized by legal scholars as one of the Court's worst twentieth-century decisions, discounted a statistical examination of 2,500 murder cases in Georgia as showing no evidence of racial bias specifically in McCleskey's case. 
      In a unanimous decision this week, however, the Washington Supreme Court relied on statistics from a much smaller study to strike down the state's death penalty law on the ground that it was "imposed in an arbitrary and racially biased manner." The ruling  in State v. Gregory [Oct. 11] set aside the death sentence imposed on an African American defendant, Allen Eugene Gregory, for the home-invasion rape-robbery-murder of a white woman in 1996.
      In her opinion for the court, Chief Justice Mary Fairhurst cited statistical evidence from 1981 through 2014 that black defendants were between 3.5 and 4.6 times as likely to be sentenced to death after capital sentencing hearings as non-black defendants after other variables were taken into account. The authors of the study found no more than an 11 percent chance that what they called "the observed association between race and the death penalty" could have resulted from random chance rather than true association.
      In Oklahoma, the state's Court of Criminal Appeals refused to consider a similar statistical study as part of its decision in August 2017 to reject a similar challenge by an African American death row inmate on procedural grounds. Tremane Wood had been sentenced to death in 2004 after his conviction in a racially charged trial of killing a white man who had set up a New Year's Eve sexual assignation with the mother of Wood's son. 
      Wood relied in his third post-conviction challenge on a study, published in April 2017, that showed capital defendants in Oklahoma cases with white victims more than twice as likely to be sentenced to death as defendants in cases with non-white victims. The Oklahoma court had already refused to consider the study in an earlier case and devoted less than three full pages to reject Wood's plea.  
      Wood's case now gives the Supreme Court a chance for a do-over on McCleskey. In a petition for certiorari filed in November 2017, Wood's lawyers argued that the study showed that Oklahoma juries are "significantly more outraged when white lives are lost than when nonwhite lives are forfeited." That kind of "race-based discrepancy," the lawyers argued, "is repugnant to both modern societal mores and to the United States Constitution."
      In their response, the state's lawyers went beyond arguing procedural default on Wood's part to attack the study in their words as "fatally flawed." The study was incomplete, the state's lawyers argued, because it did not take into account all of eight of the aggravating circumstances listed in the state's death penalty law. The justices have shown no interest so far: the case, Wood v. Oklahoma, 17-6801, was listed for the justices' conference on March 2 and has been rescheduled 15 times since then with no action yet.
      With the decision in Gregory, Washington became the twentieth state to eliminate capital punishment. The state was already observing a moratorium on executions imposed by Gov. Jay Inslee in 2014 and had been a laggard in capital punishment even earlier, with only five executions since 1987. The state's death row housed only eight inmates, whose sentences were reduced to life imprisonment under the court's ruling. 
      In contrast to Washington, Oklahoma has been one of the leading death penalty states, with 112 executions carried out since 1990 — the third largest number of any state after Texas and Virginia. Forty-nine inmates now await execution, but the state imposed a moratorium in 2015 a year after a widely criticized botched lethal injection execution. The convicted murderer Clayton Lockett was pronounced dead of a heart attack 43 minutes after the execution began only after visibly and audibly struggling and writhing in what his lawyer described as akin to torture.
      Lockett was administered a sedative, midazolam, that has been criticized in successive Eighth Amendment challenges as failing to render an inmate unconscious during the final stages of a lethal injection execution. The Supreme Court refused to disallow the procedure, however, in an Oklahoma case, Glossip v. Gross (2015),  that followed Lockett's execution. 
      Four terms later, the Court is still not moved to step in to ensure humane executions. The justices rejected a similar challenge to the use of midazolam in a decision last week [Oct. 11] to deny a stay of execution sought by a Tennessee inmate, Edmund Zagorski. In a dissent, Justice Sonia Sotomayor, joined by Justice Stephen G. Breyer, said the hands-off decision amounted to "complicity in state-sponsored brutality." Sadly, the inaction in Wood's case implicates the justices as well in the racial bias all too evident in the United States' flawed death penalty machinery.

Sunday, October 7, 2018

No Mandate for Supreme Court to Turn to Right

      The Supreme Court that takes the bench on Tuesday [Oct. 9] will have the weakest political mandate of any group of justices in U.S. history. But with a conservative majority solidified by the razor-thin confirmation of Brett Kavanaugh, the Court is poised to make fundamental changes in American law more rapidly than at any previous time in the Court’s history and to test public confidence in the Court's legitimacy and impartiality.
      With Kavanaugh’s confirmation, the Court now includes four justices appointed by Republican presidents who gained the White House despite losing the popular vote: two named by President George W. Bush, after his popular-vote majority re-election in 2004, and now two chosen by Donald Trump. With no popular mandate, Trump in his two appointments and Bush in one followed the Republican model set by Richard Nixon in the 1960s by pushing the partisan envelope on Supreme Court appointments as far as the political system would tolerate.
      Kavanaugh joins three other justices who won Senate confirmation in narrow roll-call votes and, according to one political scientist’s calculations, from senators representing a minority of American voters. The Court may have been intended in the constitutional system to play a countermajoritarian role to some extent, but the Constitution envisions that the justices with that power be nominated and confirmed by political branches responsive to public sentiment.
      Here are the figures, according to Trinity College political scientist Kevin McMahon, from his article “Will the Supreme Court Still 'Seldom Stray Very Far'?: Regime Politics in a Polarized America,” in Chicago-Kent Law Review:
      * Clarence Thomas, nominated by the popular vote-majority president George H.W. Bush and confirmed by a Democratic-majority Senate by a 52-48 vote. Those 52 senators, including 11 Democrats from southern states with substantial African-American constituencies, had been elected with 43.2 million votes; senators voting no had been elected with 46.1 million votes (48.33 percent to 51.67 percent).
      * Samuel A. Alito Jr., nominated by George W. Bush in his second term and confirmed by a 58-42 Senate vote. Senators voting to confirm had been elected with 56.3 million votes; senators voting no had been elected with 61.1 million votes (47.95 percent to 52.05 percent).
      * Neil M. Gorsuch, nominated by Trump after his 2.9 million popular vote loss to Hillary Clinton and confirmed by a Republican-majority Senate in a 54-45 vote. In Gorsuch's case, senators voting against his confirmation had a substantial popular-vote edge over those supporting his confirmation: 73.4 million to 54.1 million (57.6 percent to 42.4 percent).
      In advance of Saturday's historically narrow confirmation [Oct. 6], the Washington Post’s Philip Bump provided a similar analysisby adding up the total populations represented by senators planning to vote for and by senators planning to vote against Kavanaugh. Senators voting no represented a majority of Americans: 55.8 percent, compared to the 44.2 percent of the populace represented by Kavanaugh's supporters.
      Kavanaugh has an added distinction, unlikely to be noted at his retirement ceremony several decades in the future. Nominated by a historically unpopular president, Kavanaugh is the most unpopular Supreme Court nominee in the history of modern polling. Bump cited an NPR-PBS NewsHour-Marist poll taken days earlier that found 40 percent of respondents supporting the nomination compared to 52 percent opposed.
      A CNN poll taken in August found a narrow plurality opposed to his nomination: 37 percent in favor compared to 40 percent opposed. Kavanaugh was the only justice to be under water shortly after his selection; he even fared unfavorably in comparison to the unsuccessful nominees Robert Bork and Harriet Miers, who both had positive ratings at comparable points in the process. Merrrick Garland, President Obama’s obstructed Supreme Court nominee in 2016, had a substantial positive rating: 52 percent in favor, 33 percent opposed.
      Among the Republican senators supporting Kavanaugh, Texas’s personally repellent Ted Cruz coupled his endorsement with a recycled denunciation of policy decisions being made by “unelected judges.” Cruz cited no examples, but he almost certainly was not thinking of the various Roberts Court decisions gutting campaign finance laws, such as Citizens United, or any of the pro-business, anti-consumer decisions crafted by 5-4 majorities.
      As successor to the generally conservative Anthony M. Kennedy, Kavanaugh will slide comfortably into lineups such as those; he signaled his pro-business views and his doubts about campaign finance laws in 12 years on the D.C. Circuit. In contrast to Kennedy, however, he may provide the needed fifth vote either to overrule or sharply restrict Roe v. Wade despite calling it an “important” precedent. Based on his vote to strike down a ban on assault weapons, Kavanaugh is also a likely vote for expanding Second Amendment rights beyond the narrow holding in Heller 10 years ago.
      Decisions along those lines by five unelected justices would be in defiance of public sentiment. The most recent poll indicates that three-fourths of Americans oppose overruling Roe v. Wade. On assault weapons, 70 percent of those polled favor stricter laws. And several polls indicate public concern about the Roberts Court’s pro-business orientation. With public confidence in the Court already slipping, Kavanaugh’s ascension as the Court’s fourth minority justice may embolden an activist conservative majority to put public confidence at greater risk unless Chief Justice John G. Roberts Jr. keeps them in check.

Sunday, September 30, 2018

Liar, Liar: Lying to Get on the Supreme Court

      William Rehnquist all but certainly lied under oath in his confirmation hearing in 1971 to become a Supreme Court justice. Clarence Thomas quite likely lied under oath in the same setting two decades later. And Brett Kavanaugh lied, repeatedly and blatantly, to bolster his claim to a Supreme Court seat as the most unpopular nominee in modern times after his selection by the most unpopular president ever in U.S. history.
      Each of the would-be justices lied to conceal views or conduct from his past considered socially or politically acceptable at the time but completely unacceptable decades later. And for Rehnquist and Thomas, the lies accurately foretold positions that they would later take in votes and opinions in their later Supreme Court careers.
      * Rehnquist lied to obscure his defense of racial segregation as a Supreme Court law clerk whileBrown v. Board of Education was before the court and racial segregation not yet viewed as a legal and moral wrong.
      * Thomas lied to deny Anita Hill's accusations of sexual harassment from a time before the conduct was recognized as a civil rights violation.
      * Kavanaugh lied to explain away the self-portrait he drew in his Georgetown Prep yearbook as a beer-chugging frat boy before lighthearted machismo was recognized as a toxic social disease.
      Rehnquist's memo for Justice Robert H. Jackson in defense of racial segregation was a focal point of his nomination as associate justice in 1971 and again as chief justice in 1986. He insisted that he wrote the memo at Jackson's request to frame the argument for legal segregation as well as possible. Other Jackson law clerks said, however, that the justice never asked for memos of that sort. And some of Rehnquist's contemporaries recalled that he defended racial segregation in out-of-chambers conversations. As a justice, Rehnquist consistently voted to limit federal courts' power to force school districts to dismantle racially separate schools.
      Thomas denied Hill's many specific memories of his vulgar language and leering behavior when she worked as his assistant when he was chairman of the Equal Employment Opportunity Commission (EEOC). His indignant denial of what he called a "high-tech lynching" devolved into a "he-said, she-said" swearing match when the then-Judiciary Committee chairman Joe Biden declined to call other female witnesses whose accounts would have tended to corroborate Hill's account. As a justice, Thomas has been a disaster for women's rights: he has voted not only to eliminate reproductive rights but also to limit remedies for sex discrimination in the workplace.
      Kavanaugh's various falsehoods and evasions are so numerous that the compilation in The New York Times filled a broadsheet page in the newspaper's print edition on Saturday [Sept. 29]. Some of those misrepresentations were on matters of political significance from his days as a Bush White House aide that came up in 2004 when the Senate considered his nomination to the D.C. Circuit Court of Appeals and that might have sunk his confirmation at the time.
      Under intense questioning from the Vermont Democratic senator Patrick Leahy, Kavanaugh lied about the issues again this month in the initial phase of his Supreme Court confirmation hearing [Sept. 5-6]. He lied to deflect responsibility for accepting and using political intelligence about pending judicial nominations that a Republican Senate staffer had stolen from Democrats' computer and forwarded to Kavanaugh with the subject line "spying." He also lied to minimize his involvement with one of Bush's most controversial judicial appointments, Charles Pickering's elevation from a federal district court to the Fifth U.S. Circuit Court of Appeals.
      The wrenching day-long hearing on Wednesday [Sept. 27] that began with Christine Blasey Ford's account of a sexual assault by Kavanaugh when both were teenagers in the Washington, D.C., suburbs in summer 1982 ended in a draw of sorts with Kavanaugh's indignant denial. Ford gave her account with calm poise and "100 percent" certainty, but without specific details, such as time and place. Kavanaugh denied the alleged assault, also with "100 percent" certainty, as a political smear, supposedly orchestrated by Democrats and perhaps intended as "revenge on behalf of the Clintons."
      Under questioning, Kavanaugh lied implausibly to explain away the image he drew for himself in Georgetown Prep's 1983 yearbook. He laid his record of teenaged vomiting as a member of the "Ralph" club not to beer drinking, but to a weak stomach for spicy foods. He claimed, wrongly, that his reference to "boof[ing]" was about flatulence when the term actually denotes anal sex or use of drugs. And he insisted that his membership in the "Renate Alumnius [sic] club" was a sign of affection toward a co-ed from a nearby girls' school rather than, as classmates told the Times, an insinuation of sexual conquest.
      These were, as one commentator remarked on Twitter, "casual" and "trivial" lies. But the lies brought to mind the jury instruction familiar to longtime courthouse reporters: jurors who disbelieve any part of a witness's testimony are free to disregard the testimony in its entirety. Thus, in the "he-said, she-said" swearing contest between Ford and Kavanaugh, Ford wins on points.
      A jury of Kavanaugh's peers could discount his denial altogether, even apart from the credibility-damaging contrast between Ford's poise and Kavanaugh's loss of control. In a hypothetical criminal trial, the prosecutor would ask jurors in final argument to consider whether Kavanaugh would lie to get a prestigious lifetime job with a six-figure salary and summers off. The obvious answer: of course, he would. And he did.

Sunday, September 23, 2018

With Credibility Blown, Kavanaugh Should Withdraw

      As Maine goes, so goes the nation, according to the well-established political maxim. So it was more than a local story last week [Sept. 19] when the Pine Tree State's largest newspaper, the Portland Press Herald, called on federal judge Brett Kavanaugh to withdraw his nomination to the Supreme Court as the state's moderate Republican senator, Susan Collins, remained undecided about her potentially decisive vote.
      The newspaper's editorial board saw no need to wait for what is shaping up as a truncated hearing on the accusation by the California research psychologist Christine Blasey Ford that Kavanaugh sexually assaulted her when they were teenaged students at nearby private schools in the Washington, D.C., suburbs. Instead, the editorial opined that Kavanaugh's credibility was already "blown" by his "evasions" during his two days of contentious questioning by a politically divided Senate Judiciary Committee.
      The editorial found Kavanaugh's promises to be "an impartial arbitrator" if confirmed hard to swallow in light of the fervent support of "right-wing activists at the Federalist Society" and "the far-right Judicial Crisis Network" with its dark-money funded TV advertising campaign. Kavanaugh seemed sincere, the editorial noted, but nobody believed him. "Not telling the whole truth about his politics makes his sexual assault denial harder to believe," the editorialists' headline-writer aptly explained.
      Through the week, the committee's chairman, Iowa's Charles Grassley, stubbornly resisted requests from Ford's lawyers, echoed by the committee's Democrats, that the FBI investigate her allegation that Kavanaugh, two years her senior, forced himself upon her in a drunken bedroom assault at a house party. In Ford's telling, Kavanaugh attempted to undress her and covered her mouth to muffle her screams as Kavanaugh's bad-boy schoolmate, Mark Judge, egged him on and eventually joined in.
      Without an FBI investigation, Ford's lawyers argued, a hearing with only Ford and Kavanaugh as witnesses would inevitably operate to her disadvantage by pitting a private citizen's uninvestigated accusation against the sworn testimony of a veteran federal appellate judge. President Trump could have asked the FBI to reopen its standard background investigation and document the available corroboration, such as Ford's 2012 session with a therapist. But instead Trump had his White House staff help Kavanaugh prepare for the hearing in two days of "murder boards" with questions he could expect to face.
      With the FBI on the sidelines, the Washington Post and multiple other news organizations stepped in to add important factual context that made Ford's accusation believable and Kavanaugh's categorical denial less so. Whatever his academic accomplishments at Georgetown Preparatory School may have been, Kavanaugh was shown in detailed stories to have been part of a hard-drinking, party-loving crowd with retrograde views about relations between the sexes. Screen saves from Prep's yearbook showed Kavanaugh bragging about underage drinking and his friend Judge recycling a Noel Coward quote that women should be "struck . . . like gongs."
      In his testimony, Kavanaugh quoted Georgetown Prep's motto, "Men for others." In a speech at Catholic University's law school in 2015, however, Kavanaugh told his audience of a different motto that put the school in a less favorable light. "What happens at Georgetown Prep stays at Georgetown Prep," Kavanaugh recalled. "That's been a good thing for all of us, I think," he added.
      Apart from Kavanaugh's partisans, multiple analysts and commentators saw indicia of credibility in Ford's accusation. Trump broke his Twitter silence eventually by questioning Ford's failure to report the episode until her summertime letter to her local congresswoman. Trump's complaint prompted a new Twitter hashtag,  #WhyIDidntReport, with dozens of explanations from sexual assault survivors about the personal embarrassment and real-world difficulties of reporting an offense.
      Kavanaugh painted himself in his testimony as a dedicated feminist, proud of hiring women for a majority of his law clerk slots over the past 12 years. But that boast was tarnished when the Yale law professor Amy Chua, responsible for placing 10 students in Kavanaugh's chambers, was reported to have advised female law students that Kavanaugh "likes a certain look" in his female applicants. Ironically, Judicial Crisis Network found a Barbie Doll-lookalike acquaintance of Kavanaugh's to feature in a TV ad that praised her longtime friend as, among other qualities, "empathetic."
      Kavanaugh's judicial opinions, however, show him to be anything but empathetic. He did what he could to prevent a Mexican teenager, impregnated by a rapist and detained by immigration authorities, from having an abortion. That contrast between political spin and Kavanaugh's actual record is only one of the many examples of dissembling from Kavanaugh, the White House, and the far-right lobbying machine.
      Next week's hearing could be another example: a phony show aimed at discrediting Ford more than finding the truth. The rush to judgment, arbitrary from the outset, now has more urgency for Republicans after an NBC-Wall Street Journal poll registered a 38 percent to 34 percent plurality of Americans opposed to Kavanaugh's confirmation, making him the least popular Supreme Court nominee in 30 years of polling.
      Even before that poll, the Press Herald saw Kavanaugh's possible confirmation as essentially anti-democratic. "An unpopular president and a two-vote advantage in the Senate is not a mandate for radical change on the Supreme Court," the newspaper concluded. "Republicans should convince Kavanaugh to withdraw, and start working with their Democratic colleagues on a list of nominees who the American people could really trust."

Saturday, September 15, 2018

With Questions Unanswered, Reopen Kavanaugh Hearing

         Update: Pressure to postpone a vote on Supreme Court nominee Brett Kavanaugh increased on Sunday (Sept. 16) after a California psychology professor, Christine Blasey Ford, identified herself as Kavanaugh's accuser and publicly detailed the alleged assault along with corroborating evidence of notes from therapy sessions in 2012. Two Republican senators, Judiciary Committee member Jeff Flake of Arizona and Tennessee's Bob Corker, both called for postponing the scheduled Sept. 20 vote to hear from Ford, but the White House said President Trump was stil committed to Kavanaugh's nomination and the announced schedule.
* * *
   The Senate Judiciary Committee owes it to the American public and to Judge Brett Kavanaugh himself to reopen its hearing on his nomination to the U.S. Supreme Court. The committee's dereliction of duty has been an essential element from the start of the narrow Republican majority's plan to railroad Kavanaugh's nomination through to confirmation before the Court opens its new term in October even without a full examination of his White House records.
      As an initial point, the Republicans' rush to get Kavanaugh confirmed before First Monday in October contradicts their decision two years ago to leave the Supreme Court short-handed for more than a year. Senate Majority Leader Mitch McConnell and the Judiciary Committee's chairman, Chuck Grassley, left the Court with one seat vacant in 2016 rather than open a hearing on President Obama's nomination of Merrick Garland in spring 2016.
      The consequences of the Judiciary Committee's planned rush to judgment -- the many unansweed questions about his White House service -- were clear even before the bombshell accusation that Kavanaugh allegedly committed a sexual assault on a fellow high school student more than 30 years ago. The accusation by an as-yet unidentified contemporary of Kavanaugh's now living in California stems from constituent correspondence with her representative in Congress that the Judiciary Committee's ranking Democrat, Dianne Feinstein, held for two months before finally deciding to forward it to the FBI for possible investigation.
      The events naturally brought to mind the belated accusation of sexual harassment against the then Supreme Court nominee Clarence Thomas in 1991. A lot has changed since law professor Anita Hill made that accusation against her former boss at the Equal Employment Opportunity Commission. Even with the #MeTooMovement as a backdrop, however, Kavanaugh's anonymous accuser apparently is trying to avoid the inevitable nationwide media firestorm of a public accusation.
      Initially, Feinstein disclosed only that she had forwarded an allegation of some sort to the FBI, but the accusation was unearthed with some measure of detail within 24 hours by the sexual harassment reporting team at the New Yorker: Ronan Farrow, a Pulitzer prize winner for his stories on the Hollywood mogul Harvey Weinstein, and Jane Mayer, a veteran of the Thomas confirmation hearing. In sum, the woman claims that Kavanaugh and another boy forced her into a bedroom at party and that Kavanaugh forced himself on her with the door locked and music playing to drown out her protests. Kavanaugh responded by "categorically and unequivocally" denying the accusation.
      Whatever one makes of the accusation, the committee owes it to the public and to the constitutional separation of powers to reopen the hearing to fully examine the parts of  Kavanaugh's testimony that were at the least disingenuous if not outright perjurious. Kavanaugh was unbelievable on the stand as he sought to explain away the apparent contradictions between his White House-era emails and his testimony in 2004 as a nominee for the D.C. Circuit Court of Appeals.
      Back then, Kavanaugh sought to minimize his role as a partisan operative in the White House by, for example, denying any involvement with one of President George W. Bush's most controversial judicial appointments: the nomination of Alabama's William Pryor Jr. to the Eleventh Circuit. Kavanaugh told the Judiciary Committee in 2004 that he was "not primarily involved" in Pryor's nomination while White House staff secretary, but an email from the partial release of his White House records confirm at least some involvement with the eventually successful push for Pryor's confirmation despite his intemperate remarks about the Roe v. Wade abortion rights decision.
      In his current testimony, Kavanaugh was unconvincing in trying to rebut the accusation from Vermont Democrat Patrick J. Leahy that he was complicit in the then-notorious theft of a Democratic memo on judicial nominations in 2004. Kavanaugh's email record showed that he received a copy of the Democrats' memo from the Republican committee staffer Manuel Miranda in an email with the subject line: "Spying."
      Kavanaugh sought to prove his innocence by contending to Leahy that he thought Republican staffers had obtained the information legitimately through the ordinary process of Capitol Hill intelligence-sharing. Leahy, an eight-term senator with a somewhat bipartisan record on judicial nominations, was not buying Kavanaugh's explanation. "I may have been born at night," Leahy quipped at the hearing [Sept. 6], "but not last night." With time to reflect, Leahy responded with an op-ed in the Washington Post [Sept. 14] stating that he would vote against Kavanaugh's confirmation. Kavanaugh, he said, had "cast aside truth in pursuit of raw ambition."
      The Judiciary Committee convened on Thursday [Sept. 13] after Kavanaugh had filed some 263 pages of answers to the 1,000 additional questions that Democrats had posed following the supposed end of the four-day hearing the week earlier. Democrats made a series of motions to reopen the hearing and to subpoena various witnesses, including Miranda, but the Republicans voted the motions down in partisan lock-step.
      None of the committee's Republicans — all of them male — evinced not a scintilla of doubt about Kavanaugh's truthfulness, his integrity, or his bona fides as a self-professed "independent federal judge." With the hearing completed, all eyes remained focused on the two uncommitted Republican senators, Alaska's Lisa Murkowski and Maine's Susan Collins, both of them pro-choice women unswayed so far by warnings that Kavanaugh would vote to overturn Roe v. Wade.

Sunday, September 9, 2018

On Kavanaugh, Some Answers Ring False

      Brett Kavanaugh's mother taught her young son an important lesson that he recalled for members of the Senate Judiciary Committee as the committee opened its hearing on Kavanaugh's nomination as a justice on the U.S. Supreme Court. "Use your common sense," Martha Kavanaugh, later a judge herself in Montgomery County, Maryland, advised. Consider, she went on, "what rings true, what rings false."
      Common sense points to the answers to some of the questions left hanging even after Kavanaugh's two long days alternately answering or dodging questions from a politically divided Senate committee. Political differences aside, a common-sense reading of Kavanaugh's testimony shows that he is ready if confirmed to vote to overrule the abortion-rights decision Roe v. Wade and that he is an uncertain vote at most to uphold any investigative procedures directed at the president who nominated him for the Supreme Court.
      On abortion, Kavanaugh' and his moot-court coaches devised phrasing designed to deflect questions about what his Democratic and progressive opponents saw as his greatest vulnerability. Roe v. Wade, Kavanaugh repeated time and time again, "is an important precedent and it has been reaffirmed several times." He went on to acknowledge that the Court in its later decision, Planned Parenthood v. Casey, considered overruling Roe but decided not to after the majority justices weighed the various factors traditionally considered before reversing a prior decision.
      Sticking to what he called "nominee precedent," Kavanaugh insisted that he could go no further in saying how he would rule in a case that presented the question. But abortion-right advocates zeroed in on Kavanaugh's use of anti-abortion language both in his testimony and in his only opinion to date in an abortion case.
      In recalling his dissenting opinion in the Priests for Life case, Kavanaugh blithely said that the Catholic group was resisting the Affordable Care Act's mandate to cover contraception because it opposed "abortion-inducing drugs." In his written opinion in the case of the Mexican teenager seeking an abortion while in immigration detention in Texas, Kavanaugh included another of the code words used by anti-abortion groups. He described the girl's legal position as amounting to "abortion on demand."
      Kavanaugh actually made his disagreement with Roe quite clear in his answers about other cases, as TPM's Ian Milheiser pointed out. Kavanaugh gave a qualified endorsement to the precursor privacy decision in Griswold v. Connecticut. He also embraced the restrictive "history and tradition" test from Glucksberg as the governing precedent for recognizing "unenumerated rights" as part of substantive due process. 
      With Kavanaugh's views so clear, Republican senators chose not to embrace him as fulfilling President Trump's pledge to appoint a justice who would overrule Roe. South Carolina's Lindsey Graham laid out the case against Roe in a colloquy with Kavanaugh, but the nominee refused to bite. As Martha Kavanaugh might remark, what rings true is Kavanaugh's disagreement with Roe and what rings false is his professed open-mindedness.
      Presumably, Republicans are silent because they know that polls consistently show substantial majorities opposed to overturning Roe. In addition, they know that a misstep on the issue might cost Kavanaugh one or both of the pivotal votes of the two uncommitted Republican senators, both of them pro-choice women: Maine's Susan Collins and Alaska's Lisa Murkowski.
      On presidential power, Kavanaugh has a written record in a law journal article opposing civil or criminal investigations of the chief executive while in office. With special counsel Robert Mueller's investigation still under way, Kavanaugh significantly never disavowed his previous view. Admittedly, Kavanaugh repeatedly praised the Court's 1974 decision in the Nixon tapes case as one of the "greatest moments" in history. But Kavanaugh declined, under questioning by Connecticut Democrat Richard Blumenthal, to specify that the decision would apply not only to a trial court subpoena but also to the more immediate eventuality of a grand jury subpoena to Trump.
      Kavanaugh anticipated questions about his independence from Trump but failed, by discreet silence, to dispel concerns. He noted that in his first year on the D.C. Circuit, he ruled against his former White House by rejecting the Bush administration's policy limiting judicial review for Guantanamo detainees.
      Given several opportunities, however, Kavanaugh stayed "three zip codes away" from any criticism of Trump's tweets mocking the federal judiciary and interfering with Justice Department criminal prosecutions. A "pro-law" independent federal judge, as Kavanaugh repeatedly professed to be, might have spoken up for the rule of law and the independence of the judiciary against a meddlesome president.
      On top of those issues, Democratic senators properly questioned Kavanaugh's truthfulness in his current testimony and in his testimony before his confirmation for the D.C. Circuit. With new evidence from Kavanaugh's emails while in the White House, Democrats showed that the Bush White House staffer was misleading at least in minimizing his involvement in one controversial judicial appointment and his knowledge of the warrantless surveillance and detention and interrogation programs. With most of Kavanaugh's White House records still unreleased, the disclosures showed that Democrats had good reason to keep up their fight despite the Republicans' intransigence.
      Common sense shows to anyone with an open mind what kind of justice Kavanaugh will be if confirmed. The warnings from Democrats ring true; the vacuous assurances from Republicans ring false. But common sense is a casualty in this all-out partisan war for the future of the Supreme Court.

Thursday, August 30, 2018

Kavanaugh's Threat to Equal Justice Under Law

      The Senate Judiciary Committee will be put to the test next week [Sept. 4-7] to determine whether senators can show what kind of Supreme Court justice Brett Kavanaugh would be if, as widely expected, he is confirmed for the lifetime position. Two groups opposed to the nomination produced detailed, documented reports this week [Aug. 29] that show, based on Kavanaugh's judicial record on the D.C. Circuit, that he would be friendly to business interests at the expense of workers, consumers, or environmental quality and receptive to arguments to increase presidential power at the expense of Congress and independent regulatory agencies.
      The hearing, set to open on Tuesday (Sept. 4) and continue for four days, will feature as always carefully rehearsed pledges by the nominee disclaiming any ideological agenda and pledging open-mindedness if confirmed. The Republican majority, led by the committee's chairman Iowa's Chuck Grassley, will follow with lengthy recitation of Kavanaugh's undisputed academic and professional credentials and judicial experience while passing over his earlier experience as a partisan Republican hatchet-man with Kenneth Starr's much maligned investigation of President Bill Clinton.
      With the gavel in Grassley's Republican hands, the 10 Democratic senators, led by the ranking member California's Dianne Feinstein, will need to use their time wisely with incisive questions based on Kavanaugh's record to show that he would not be writing and voting as a Supreme Court justice on a blank slate. Kavanaugh's record, carefully examined, shows the likely damage to equal justice under law if President Trump succeeds in installing a second conservative ideologue on the Supreme Court.
      As best to examine Kavanaugh's judicial record, the longtime consumer advocacy group Public Citizen specifically compiled the 101 divided decisions in which he has participated in his 12 years on the federal appeals court for the District of Columbia. The report written by the group's president, Robert Weissman analyzed 61 of those cases divided into five categories: consumer and regulatory affairs; environmental cases; worker rights; damage suits against police or human rights violators; and antitrust cases.
      In those cases with judges in disagreement, a clear pattern emerged in Kavanaugh's votes and opinions. In the 22 consumer and regulatory affairs cases, Kavanaugh sided with corporate interests and against agencies or public interests in 18, all but four. In 11 of 13 environmental cases, he voted in favor of states or private companies challenging actions by the Environmental Protection Agency (EPA). He voted for employers and against employees or the National Labor Relations Board in 15 of 17 worker rights cases. He voted against plaintiffs in all seven of the cases involving damage suits against police or abusers. And he voted to narrow antitrust remedies in the two antitrust cases studied.
      Along with other critical reports issued by People for the American Way and the NAACP Legal Defense Fund, Kavanaugh emerges as a judge with little regard for the role that federal courts play in protecting civil and constitutional rights or public welfare over business interests. To fully illuminate Kavanaugh's views, Democratic senators and witnesses testifying against the nomination need to make clear what Kavanaugh will do if confirmed:
      * He will vote to restrict reproductive rights and perhaps to overturn the landmark abortion-rights decision Roe v. Wade. The evidence: Kavanaugh's 2017 speech praising the then-associate justice William H. Rehnquist for his dissent and his further votes as chief justice to overrule the decision.
      * He will vote to limit the EPA's discretion in using its statutory authority to protect the environment. Evidence: his dissent in a decision upholding the agency's authority to regulate greenhouse gases as pollutants.
      * He will vote to make it hard for public interest groups to challenge regulatory agencies for failing to protect consumer safety. Evidence: his opinion in a split decision preventing Public Citizen from suing the National Highway Traffic Safety Administration for a weak motor vehicle safety standard that the group claimed would result over time in 130,000 more deaths than a stronger standard.
      * He will vote to limit independence of federal regulatory agencies. Evidence: his opinion for a divided panel, later reversed by the full court, holding the tenure protection for the director of the Consumer Finance Protection Bureau to be an unconstitutional limit on presidential power.
      * He will vote to limit worker safety protections. Evidence: his dissent from a decision upholding a Labor Department enforcement action against Sea World for failing to protect animal trainers from the risks of killer whales.
      * He will vote to give the government more discretion to withhold agency records' requested under the Freedom of Information Act. Evidence: opinions in three split FOIA decisions, including his majority opinion rejecting an effort by the National Security Archive to obtain the CIA's report from the 1980s on the Bay of Pigs debacle.
      * He will vote to impose obstacles for employment discrimination claims. Evidence: his votes against plaintiffs in each of the 10 split-decision discrimination cases studied.
      * He will vote to give police more discretion to harass innocent citizens. The evidence: his dissent from a decision that found a police officer guilty of an unconstitutional search by going beyond the limits of a permissible stop-and-frisk when he ordered a suspect to unzip his jacket.
      From all accounts, Kavanaugh, the car-pool dad and girls' basketball coach, is immensely likable, but the hearing must carefully examine his judicial philosophy, not his personality, and the consequences for justice if he is confirmed to create the "solid conservative majority" that his Federalist Society sponsors have long longed for.

Sunday, August 26, 2018

Trump's Presidency: The Cancer Spreads

      Donald Trump's worst day as president naturally prompted commentators, such as CNN's David Gergen, to recall John Dean's famous warning to Richard Nixon of a cancer on his presidency. In Trump's case, however, the many legal problems besetting him show not merely that there is a cancer on his presidency, but help show that his presidency itself is a cancer that is ravaging government policy and the body politic itself.
      Trump responded to the simultaneous federal court convictions of his one-time campaign chairman Paul Manafort and his former lawyer Michael Cohen [Aug. 21] not with concern or apology but with renewed appeals to his political base to shore up his unpopular presidency. The strategy requires a constant diet of red meat for the Trump base with little if any regard for public policy or political standards, so Trump's response was to change the subject to politically salable issues.
      Thus, Trump made no mention of the Manafort verdict or Cohen's guilty plea in a West Virginia rally marked by his denunciation of the  "illegal alien" charged with murder in the death of a female college student in Iowa. Americans have grown so accustomed to Trump's anti-immigrant rhetoric that hardly anyone noticed that the president he was trampling on the defendant's right to a fair trial and presumption of innocence.
      In like vein, hardly anyone remarked a few days earlier that Trump, as president of the United States, was criticizing the prosecution of his former campaign chairman Manafort while an unsequestered federal court jury was deliberating on the case. Only with the dust somewhat settled after the verdict did the Washington Post make the obvious point: "President undermining legal system, critics fear" was the headline on the page-one story. [Aug. 24].
      The legal threats to Trump's presidency increased with news that David Pecker, publisher of the National Enquirer, had been granted immunity, possibly to provide more evidence about the eve-of-election hush-money payment to porn star Stormy Daniels. In pleading guilty to two federal campaign finance violations, Cohen had explicitly implicated Trump —  "a candidate for federal office" —  in directing the payment to "influence a federal election."
      Trump responded to Cohen's guilty plea not with contrition but deliberate confusion. He told the friendly Fox News interviewer Ainsley Earhardt, incorrectly, that the payment to Daniels was legit because it came from his personal funds, not from the campaign. As for the Manafort verdict, he stated, correctly, that he longtime lobbyist's convictions for tax evasion and other charges "did not involve me." Still, critics could hardly fail to note the seeming contradiction of Trump's promise that he was hiring "only the best people."
      The legal pressure on Trump increased yet again on Thursday [Aug. 23] with the news that the Trump Organization's longtime chief financial officer Andrew Weisselberg had also been granted immunity after having testified before a federal grand jury. Weisselberg appears to be the "Executive #1" in the charging document in Cohen's case who is identified as having directed another Trump organization executive to reimburse Cohen from the charitable trust marked as  a "retainer." A federal prosecutor could readily make a criminal tax fraud case out of the directive. More broadly, Weisselberg is widely described as knowing "where all the financial bodies are buried."
      Trump's travails pale in comparison, however, to the physical and pscyhological toll on more than 500 immigrant children still separated from their parents one-month after a federal court ordered the administration to reunify the families. The family separation policy that Trump allowed Immigration and Customs Enforcement (ICE) to institute was so heartless that it even prompted a meek protest from First Daughter Ivanka Trump.
      Meanwhile, Trump's Environmental Protection Administration (EPA) is proceeding full-speed ahead with plans to weaken Obama-era regulation of dirty coal-fired power plants. "Trump digs coal" is a great slogan in West Virginia and elsewhere, but it is bad for climate change in the mid- to long term and, even sooner, to public health. The government estimates that the regulatory retreat will result in an additional 1,400 premature deaths annually between now and 2030.
      Cued by the Fox talk-show host Tucker Carlson, Trump found a new bone to throw to his white-power political base by lining up with white Afrikaners mobilizing against land reform efforts by the African National Congress-led government. Carlson aired a misleading segment that falsely claimed an increase in the killings of white farmers and mindlessly attacked the government's plan to expropriate apartheid-era landholdings without compensation for distribution to the still disadvantaged black majority.
      Trump tweeted instructions to Secretary of State Mike Pompeo to investigate as though the United States has some legitimate interest in post-apartheid land reform in South Africa. The "beloved country" of Alan Paton's poignant novel is still struggling with a full array of political, social, and economic problems two decades after the end of apartheid. The last thing South Africa needs is a tweet from Trump: a tweet that the  New York Times aptly described in an editorial as a "vile ploy" intended for domestic political purposes.
      With Trump under siege as never before, he can be expected to respond in kind with political tactics that divide the country further and distort government policy for short-term political gain. The cancer spreads, with no easy path to protecting the body politic from its ravaging advance.

Sunday, August 19, 2018

A Free Press: If You Can Keep It!

      Benjamin Franklin is famously quoted as giving a blunt warning when asked as he left the Constitutional Convention in 1787, "What have you given us?" His answer: "A Republic, if you can keep it." James Madison might have given the same answer four years later if asked about what became the First Amendment: "A free press if you can keep it."
      Barely seven years later, a partisan Congress and president demonstrated the ominous risks to freedom of the press in a poisoned political environment. The Federalist Congress and Federalist president John Adams combined to enact a law, the Alien and Sedition Acts, that resulted in the jailing of several Anti-Federalist journalists for opposing the government's policies.
      Two and a quarter centuries later, freedom of the press is again at risk in a politically poisoned environment. President Donald Trump tries to shore up his unpopular presidency by nonstop fake attacks on so-called "fake news" and on journalists that he labels as "the enemy of the people." As political scientist Brian Klaas noted in his book The Despot's Apprentice: Donald Trump's Attack on Democracy, Trump's attacks are too close for comfort to Hitler's attacks on the L├╝genpresse ("lying press") and to similar tactics of lesser autocrats.
      Distressingly, Trump's attacks have misled too many Americans, especially Republicans, into misunderstanding and devaluing the essential role that a free press plays in a democracy. Public opinion polls over the past year have registered declining support for the news media and, worse, increasing support for the government to have power to control or even shut down select news organizations.
      Here are some figures: 42 percent of self-identified Republicans surveyed in a Quinnipiac University poll released in June agreed with Trump that the press is "the enemy of the people;" 42 percent of Republicans surveyed in an NPR/PBS News Hour poll also released in June said the United States has gone too far in expanding freedom of the press.
      In an earlier poll in October, a survey of registered voters by Politico-Morning Consult found that 46 percent believed major news media fabricate stories about Trump. It is beyond irony that a president who has been found to have uttered lies and falsehoods thousands of times in the White House is believed when he claims, without any specific examples, to be victim of "fake news."
      The same survey found that 28 percent of registered voters favored allowing the government to revoke broadcast licenses of news organizations that the government accuses of fabricating stories about the government or the administration. Somewhat encouragingly, a majority — 51 percent — rejected the suggestion.
      America's newspapers, more than 300 of them, and the U.S. Senate gave a more thoughtful and more unified answer last week to Trump's calumnious charge that journalists are enemies of the people. For its part, the Senate adopted without dissenting vote a resolution sponsored by Hawaii's junior Democratic senator Brian Schatz declaring that the press "is not the enemy of the people." Without naming Trump, the resolution went to describe efforts to undermine the credibility of the press as "an attack on the democratic institutions of the United States."
      Trump has done more than criticize the news media; he has actively encouraged his followers to jeer and even threaten members of the news media. Bret Stephens, a conservative columnist with the New York Times, described in a recent column the graphic voice mail threat he received from a reader and that he viewed as the natural result of Trump's "demonization" of the media. In the Quinnipiac poll, 14 percent of the Republicans surveyed said it was sometimes appropriate for a politician to react to a member of the news media with violence.
      The 300 newspapers that joined in editorial denunciation of Trump's tactics and defense of the press's role in a democracy last week [Aug. 16] did so in part out of financial self-interest. Newspapers are hurting financially and cutting their reporting staffs. But newspapers are also rightly concerned about their reporters' safety. The shooter who killed five staff members of the Capital Gazette in Annapolis, Md., had been angry for years, but he resorted to deadly violence only with Trump in office.
      At their best, newspapers and other news media keep the politicians honest and the government in check. The two young reporters Bob Woodward and Carl Bernstein are rightly given much of the credit in bringing Richard Nixon's corruption to light and eventually forcing him from office.
       Reporters detailing Trump's career have helped highlight the low points of his career. It is not "fake news" that Trump and his father were sued for racist rental practices in the 1970s; that Trump imitated his P.R. spokesman in calls to reporters; that Trump has been sued countless times for failing to pay employees or subcontractors. And it is not "fake news" that Trump has been enriching himself and his family as president by spending so much of the government's money at Trump properties or that many of his appointees have equally glaring conflicts of interest.
      Again, it cannot be stressed often enough that Trump has failed to point to specific instances of supposedly false coverage of himself, his family, or his administration. His followers who parrot his unsubstantiated critique are undermining the free press, one of the vital institutions of American democracy. "[A]ll too often," Klaas writes in his book, "Americans take this fundamental freedom for granted."