Sunday, December 30, 2018

In Worst of Times, Rule of Law Survives

      Two years into Donald Trump's possibly short-lived presidency, the rule of law survives in the United States, bruised and battered but still a strong bulwark for liberty and justice for all. As president, Trump has shown the same contempt for the legal and judicial systems that he displayed in the campaign that ended with his winning 46 percent of the popular vote, nearly 3 million votes behind his front-running rival, Hillary Rodham Clinton.
      Trump's tweet storms have failed so far to dislodge or deflect special counsel Robert Mueller in his continuing investigation of the Trump campaign's contacts with Russian agents in advance of the November 2016 election. And the federal judiciary has proved to be independent enough to reject many of the Trump administration's legally suspect initiatives, including most recently separate moves to make it harder for would-be refugees to apply for or to win approval for asylum in the United States.
      With Trump in the White House, the American people continue to vote against him in public opinion polls by an unprecedentedly wide margin for a new president. His approval rating has never passed 45 percent, according to the Gallup organization, and stood at 39 percent in late December, lower than any of the previous nine presidents at the end of their second years after election.
      As candidate, Trump famously boasted that he could shoot someone on New York City's Fifth Avenue without losing any of his supporters. Now, as president, his minority-strength political base appears to be sticking with him even after a federal court indictment identified him as "Individual 1" in the criminal case against his former lawyer, Michael Cohen, for lying to Congress about his campaign-time contacts with Russian agents.
      Trump has tweet-stormed non-stop about the Mueller investigation, calling it a "witch-hunt" and repeatedly denying any collusion with the Trump-loving Russian government. Despite the incessant sniping from the White House and Capitol Hill Republicans, however, Mueller's investigation has won an impressive number of convictions through guilty pleas or jury verdicts against figures from the Trump campaign, including his former campaign chair Paul Manafort and his former national security adviser Michael Flynn.
      Plotting against Mueller, Trump fired his attorney general, Jeff Sessions, after complaining about Sessions's ethics-bound decision to recuse himself from overseeing Mueller's investigation. In Sessions place, Trump installed Matthew Whitaker, a Trump surrogate on CNN, who rejected an ethics office recommendation that he follow Sessions' example in recusing himself from any role in overseeing Mueller's work.
      Mueller's final report remains a work in progress, but his conclusions about Trump's possible collusion and obstruction of justice will be received and read on Capitol Hill in political circumstances significantly changed from the first two years of Trump's presidency. Americans went to the polls in November in record numbers for a mid-term election to give Democrats a record success in gaining 40 seats in the House of Representatives. With a Democratic-controlled House, Trump now faces the threat of serious congressional oversight for the first time in his presidency.
      Americans also favored Democrats over Republicans in Senate races around the country by a wide margin, with 59 percent of the votes cast in 33 races for Democrats compared to 39 percent for Republicans. But with Democrats and Democratic-caucusing independents defending 25 seats, Republicans managed to increase their 51-49 majority by winning 10 seats and ousting four Democratic incumbents in states that Trump had carried in 2016.
      With a fortified 53-47 majority, the Senate is poised to be even friendlier territory for Trump in filling federal court vacancies. The 116th Congress ended after confirming a record number of Trump appointees to federal courts of appeals, 30 in all, as well as Trump's two Supreme Court appointees: Neil M. Gorsuch and Brett Kavanaugh. Trump relied heavily on the avowedly conservative-libertarian Federalist Society in recruiting and vetting would-be federal judges.
      Many of the new judges are distinctively young, in their 30s or 40s. And they come predominantly from establishment-oriented careers such as corporate law, private practice, or prosecutors' offices; hardly any have experience in civil rights groups, legal aid, or public defender offices. Some are already making their presence felt, according to a story by Buzzfeed News reporter Zoe Tillman, by staking out conservative positions on such issues as abortion rights, campaign finance, and gun control.
      Trump's impact on the Supreme Court, after the narrow Senate confirmations of Gorsuch and Kavanaugh, remains to be seen. With Kavanaugh's nomination still pending, Trump won his most important Supreme Court showdown in June as Chief Justice John G. Roberts Jr. led a 5-4 majority in upholding the president's Muslim travel ban. Roberts held back from questioning Trump's motives in issuing the executive order, but Trump stirred Roberts to a mild rebuke five months later by denouncing "an Obama judge" for a decision to block the administration's new restriction on asylum applicants.
      Trump had raised hackles during his campaign by attributing political bias to the the Mexican-American judge presiding over the civil lawsuit against Trump university. Trump's criticism of the Obama-appointed federal judge Jon Tigar on Nov. 21 prompted Roberts the next day to speak up for the federal judiciary. "We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts told the Associated Press when asked for reaction. "The independent judiciary is something we all should be thankful for," he added.

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