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.