Sunday, July 14, 2019

Closing the Door to Establishment Clause Challenges

      The Supreme Court's eventual decision to leave a 40-foot Christian cross standing on government land as a memorial to U.S. soldiers killed in World War I was a foregone conclusion once the justices agreed to hear the case. Church-state separationists braced themselves for defeat with hopes that the Court would inflict as little damage as possible on the constitutional precedents limiting government support for religious displays and religious institutions.
      With the result fully anticipated, experts and advocates on both sides of the issue largely overlooked the damage that the ruling actually does to potential Establishment Clauses in the future. Taking language in the various opinions at the broadest sweep, the ruling in American Legion v. American Humanist Association [June 20] virtually closes federal courts to Establishment Clause cases by leaving potential plaintiffs with no grounds to object in the mine run of cases.
      Justice Samuel Alito's opinion in the case stops just short of formally overruling the much maligned decision in Lemon v. Kurtzman (1971) that set up a three-part test for judging government practices or policies alleged to amount to establishment of religion. In its place, Alito's opinion appears to prohibit only government practices that amount to coercion and gives a constitutional pass to longstanding government actions—as, for example, the 90-year history of the Peace Cross on a centrally located traffic island in suburban Bladensburg, Maryland.
      The Lemon test, adopted with only one justice dissenting, directed courts to determine whether a government practice had a secular purpose, whether a reasonable observer would see it as an endorsement of religion, and whether it resulted in government entanglement with religion. The test has been much maligned through the years, but seemingly only because the second prong actually put some teeth into what church-state separationists views as the religious neutrality promised by the Establishment Clause.
      Applying the Lemon test not at all strictly, the Bladensburg Peace Cross fails, just as the federal appeals court for Maryland ruled in the decision that the Supreme Court reversed. Anyone living in or visiting Bladensburg surely would view an immense cross standing on government property at a gateway to the city as an endorsement of the Christian faith. Try to imagine the monument standing on the grounds of the U.S. Capitol and try to think of it as something other than a singular endorsement of Christianity among any other religious faiths.
      Alito cast the cross as a universal symbol for those lost in World War I, but he overlooked not only the Star of David tombstones for Jewish soldiers but also the actual history of the monument. The Christian pastors who spoke at the dedication in 1925 viewed it in exactly those terms, as symbolic of Jesus' sacrifice at Calvary, which they likened to the sacrifices that fallen soldiers made in defense of liberty worldwide.
      In a separate opinion, Justice Neil Gorsuch drew an important corollary from what he called the Court's decision to scrap Lemon. Gorsuch found it wrong for the Court, in a string of prior decisions, to have allowed Establishment Clause plaintiffs standing based on what he called their status as "offended observers" under Lemon's second prong. "With Lemon now shelved," he wrote, "little excuse will remain for the anomaly of offended observer standing . .  ."
      The individual plaintiffs in the case—one Bladensburg resident and two members of the American Humanist Association or an affiliated group -- would have been knocked out of the case on Gorsuch's premise, perhaps the humanist association itself as well. The government entanglement with the Peace Cross was relatively minimal: a six-figure expenditure by the Maryland-National Capital Park Commission over the years to maintain the monument.
      An earlier Roberts Court decision would cut the legs off an Establishment Clause challenge based solely on the expenditure of government funds. It was Alito who wrote for the Court in a decision, Hein v. Freedom From Religion Foundation (2007), that virtually eliminated taxpayer standing to object to government expenditures to promote or endorse religion generally or one faith over another. The 7-2 ruling in that case gave the Bush administration free rein to reprogram White House expenditures to a newly created Office of Faith-Based and Community Initiatives tasked with promoting faith-based groups nationwide.
      In the new decision, Alito found the Peace Cross unobjectionable based in large part on "its historical importance." As constitutional logic, this reasoning would have undercut any number of important Supreme Court decisions. Imagine if the Brown v. Board Court had given racial segregation a constitutional pass because of the long-standing acceptance of the practice. School-sponsored classroom prayer would also pass muster under what Justice Brett Kavanaugh characterized as Alito's "history and tradition" test unless a court viewed the government-supported conformity as coercive.
      Oddly, Alito revives the idea of the "offended observer" as an additional reason for leaving the Peace Cross undisturbed. Many people, he argued, would view "destroying or defacing the Cross" as "aggressively" hostile toward religion, not neutral. In many other settings, the Court has correctly disregarded the risk of public criticism in weighing its responsibility to enforce the Constitution against prevailing public sentiment.
      The muted reaction to the Court's decision included a statement from the American Civil Liberties Union calling it a "blow against the separation of church and state." But even the ACLU failed to remark on the new barriers the decision appears to erect to enforcing the Establishment Clause.

Saturday, July 6, 2019

On Census, Trump Eyes Executive Order Amidst Chaos

       President Trump threw a tantrum on Twitter after the Supreme Court's decision [June 27] that blocked the administration for now from including a citizenship question as part of the 2020 decennial census. Chief Justice John G. Roberts Jr., hardly a critic of executive branch power, rejected in Department of Commerce v. New York what he called the "contrived" explanation that Commerce Secretary Wilbur Ross gave for including the question in the census form distributed to all U.S. households.
      The Census Bureau, along with Justice Department lawyers, responded to the decision a few days later [July 2] by instructing printers to start printing the questionnaire without the citizenship question. The government had told lower courts and the Supreme Court that the "absolute" deadline for starting the mammoth print job was June 30. Nevertheless, Trump falsely called the announcement "fake news" in a tweet and insisted the administration was still working on a way to include the citizenship question.
      Trump then gave his tweet substance by instructing the Justice Department to come up with some way to get the question in. Justice Department lawyers had to scramble their Fourth of July plans as they went before two federal judges, tails between their legs, to explain the new instructions from their client. By close of business Friday [July 5], the government's new rationale for the citizenship question had yet to emerge, but Trump had raised the possibility of circumventing the courts with an executive order to instruct the Commerce Department to put the question in after all.
      Ross's contrived explanation for the citizenship question, rejected by Roberts and the four liberal justices, rested on a letter from the Justice Department formally requesting a citizenship question supposedly to aid enforcement of the Voting Rights Act. The letter came only after Ross personally asked then-Attorney General Jeff Sessions to get a letter that he could use to justify the question — a letter that Roberts later dismissed as "pretext."
      Ross was forced to contrive an explanation because there is no legally or statistically legitimate reason to include the citizenship question apart from the illegitimate political motive to discourage responses from people living in the United States who are not citizens or are uncertain of their citizenship status. The Constitution requires an "actual enumeration," not an incomplete count. Experts at the Bureau of the Census, part of the Commerce Department, countered Ross's insistence on adding the citizenship question with documented studies showing the question could result in a seven-figure undercount, primarily among Hispanics and non-citizens.
      The Census Bureau answered Ross's continued pressure by showing that a citizenship question would do more than depress the response rate. It would also produce "less complete and accurate" data, they warned: some non-citizen households might lie; others might be mistaken about their status. A better option, the statistical experts advised, would be to match census responses with administrative records already maintained by the government showing citizenship status.
      In a separate opinion written for the four liberals, Justice Stephen G. Breyer related all this information in concluding that Ross's decision was "arbitrary and capricious," administrative law jargon for no good. Roberts would not go that far. Instead, he stopped just short of calling Ross a liar by stating that the secretary's explanation was "incongruent with what the record reveals about the agency's priorities and decisionmaking process."
      Trump further contradicted the administrative record on Friday [July 5] with a new explanation for the citizenship question. "You need it for Congress for districting,” he told reporters in an on-the-run question-and-answer session. “You need it for appropriations — where are the funds going? How many people are there?" That answer in effect validated the allegations by plaintiffs in the two cases that the citizenship question was aimed at reducing the population count in areas with substantial Hispanic communities, all for the purpose of reducing representation in Congress and cutting federal funds to some extent.
      The Supreme Court's decision came in the government's appeal of a decision by U.S. District Court Judge Jesse Furman in a case initiated by immigrant rights groups and joined by New York and other states. A federal judge in Maryland, Judge George Hazel, had similarly ruled against the citizenship question. Hazel added to the government's legal problems on Friday by deciding to expand the case before him into a racial discrimination case. Furman and Hazel had both rested their rulings on administrative law grounds without finding that the administration was intentionally seeking to reduce the population count of minority groups.
      In New York, Furman issued an order noting that the government had acknowledged that his injunction "remains in place" and that it had promised to notify the court before taking any steps to insert the citizenship question. With that said, Furman found no need for a status conference in the case pending further information on the proceedings before Judge Hazel. In Maryland, plaintiffs' attorneys were urging Hazel to issue an extraordinary order prohibiting the administration from saying anything to suggest that the census would include a citizenship question.
      The chaotic maneuverings were aptly described by election law expert Rick Hasen as "amateur hour," but some cynical observers saw a method to the administration's madness. With enough confusion, the response rate among Hispanic communities might be depressed even without the citizenship question. And the question remained whether the administration could get the case back before the Supreme Court and persuade Roberts in the end to go along after all.

Sunday, June 30, 2019

Republican Justices Boost GOP on Gerrymandering

      The Supreme Court's stunning decision to bar federal courts from hearing suits that challenge political gerrymandering whether practiced by Republicans or by Democrats has the misleading appearance of political evenhandedness. In a legal coup executed by five Republican-appointed justices, Chief Justice John G. Roberts Jr. slammed the federal courthouse door shut last week [June 27] to voters of any political stripe who object to having their votes count for nothing through the political skullduggery of partisan redistricting.
      Roberts took pains in announcing the Court's decision in Rucho v. Common Cause to make clear that the 5-4 majority was turning aside not only Democrats' challenge to a Republican gerrymander in North Carolina but also a challenge by Republicans to a Democratic gerrymander in blue state Maryland.
      History refutes any implication of political evenhandedness on the part of the Republican justices. Through three-and-a-half decades of political gerrymandering cases, all of the cases to reach the Court except Maryland's Lamone v. Benisek have been challenges to Republican-drawn district maps. In each of those cases, Republican mapmakers were credibly shown to have drawn congressional or legislative districts primarily for the purpose of helping elect Republicans at Democratic voters' expense: Indiana in Davis v. Bandemer (1985); Pennsylvania in Vieth v. Jubiler (2004); Texas in League of United Latin American Citizens v. Perry (2006); and Wisconsin in Gill v. Whitford (2018).
      Current political conditions reinforce the point that Republicans will benefit from federal courts being ordered to stay out of political gerrymandering cases. At present, Republicans control legislatures and gubernatorial offices in 20 states, while Democrats lag behind with unified control in only 12 states. More to the point, Republicans have been more aggressive in drawing district lines for political advantage in red states than Democrats have been in blue states.
      Indeed, Democrats and liberal advocacy groups have provided much of the political muscle behind the efforts that Roberts commends in his decision to create bipartisan or nonpartisan commissions to draw district lines. Thus, as political journalist David Freedlander remarked on Twitter, the likely effect of the ruling is for Republicans in red states to respond by "gerrymandering Democrats to a fare-thee-well"  and for Democrats in blue states to respond "by setting up a nonpartisan redistricting commission."
      Even in the two instant cases, North Carolina Republicans were guilty of a more serious offense than the Maryland Democrats. Partisan motivations were not disputed in either case. Maryland's Democratic governor Martin O'Malley acknowledged the new congressional map was designed to eliminate one of the state's two Republican House members. In North Carolina, state Rep. David Lewis, one of the chief legislative mapmakers, stated that his map was designed to preserve the Republicans' existing 10-3 edge in U.S. House seats.
      Lewis made no secret of his motivation. "I think electing Republicans is better than electing Democrats," he said. He offered the 10-3 map, he explained, only because he found it impossible to draw a map that would reliably elect 11 Republicans in a state closely divided between Republicans and Democrats.
      Roberts' answer to such political chicanery is to throw up the Court's hands and leave voter lambs to the mercies of political wolves. Reviewing the cases, Roberts wrongly concludes that history is destiny: the Court's failure in four cases to settle on a judicially manageable standard for gerrymandering cases proves, he says, that there is none.
      Writing for the Court's four Democratic appointees, Justice Elena Kagan followed Roberts' hand-down with an extraordinary fifteen-minute dissent, her voice cracking at times with emotion and as she said at the end "deep" sadness. She opened with a dramatic flair. "For the first time ever," she said, quoting her opening passage, "this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities." She answered Roberts by noting that lower federal courts have managed to rule on gerrymandering cases even if the Court's conservatives think they cannot.
      To be sure, it is not the first time that the Court has left a constitutional violation unremedied in the area of reapportionment and redistricting. To its lasting discredit, the Court in 1946 rejected a federal court suit by voters in Illinois seeking to force the state legislature to reapportion congressional districts as required by federal law to have equal populations. Justice Felix Frankfurter provided the pivotal vote in the 4-3 decision in Colegrove v. Green by urging his colleagues to stay out of what he called a "political thicket."
      Frankfurter is remembered today, unfavorably for the most part, as hard to get along with and indifferent to violations of constitutional rights. He remained on the Court long enough to see Colegrove overturned by a 6-2 decision in the seminal reapportionment case, Baker v. Carr (1962).  Chief Justice Earl Warren is today far better remembered and more honored than Frankfurter for leading the Court into remaking the political landscape by entrenching a seemingly obvious democratic principle: one person, one vote.
      After retiring, Warren claimed the Baker v. Carr line of decisions as the most important accomplishment of his 17 years as chief justice. Roberts, at age 65 and perhaps less than halfway through what could be a 30-year tenure, already ponders his legacy. This decision will be part of a legacy that mocks Roberts' insistence that the Court has no Republican justices nor Democratic justices and that, equally, mocks the promise carved in marble above the entrance to the Supreme Court building: "Equal Justice Under Law." 

Sunday, June 23, 2019

Thomas Declares War Against Stare Decisis

       Clarence Thomas has been taking pot shots at Supreme Court precedents ever since he joined the Court 28 years ago, but now has declared war against the legal doctrine known as stare decisis that calls for following precedents except in special circumstances.
       Thomas took the gloves off in a separate 17-page opinion last week [June 17] as he joined the Court in declining to overturn the so-called dual sovereignty doctrine, which permits a state and the federal government to prosecute a defendant for the same criminal episode without violating the Double Jeopardy Clause.  The 7-2 decision in Gamble v. United States proved to be a disappointment to the various critics of the dual sovereignty doctrine, including criminal defense lawyers and civil liberties groups on both sides of the political aisle.
       Thomas himself had previously been one of those critics, but he opened his concurring opinion by disavowing his past view. "I agree," Thomas wrote in a newfound realization, "that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine."
       Some other judge with a less exalted view of his own wisdom might take this episode as a lesson in judicial modesty, but not Thomas. Instead, he proceeded to reject a well established doctrine endorsed by all of the other justices, including the two newest justices, Neil Gorsuch and Brett Kavanaugh, in their recent Senate confirmations.
       In Thomas's view, the Supreme Court is constitutionally bound to give a precedent no weight whatsoever if the prior decision is, in his 20-20 hindsight, "demonstrably erroneous." Among those erroneous decisions, in Thomas's view, are such landmarks as the abortion rights decision in Roe v. Wade (1973) and the more recent marriage equality decision in Obergefell v. Hodges (2015).
       Thomas himself pledged allegiance to stare decisis in his Senate confirmation hearing back in 1991. He told the Democratic-majority Senate Judiciary Committee that he had no agenda to overrule precedent if confirmed. That promise was enough to help persuade 11 Democrats to join in the 52-48 vote to confirm Thomas despite the widespread assumption that he would vote to overrule Roe v. Wade at his first opportunity if confirmed.
       In fact, Thomas argued for overturning a prisoner rights' precedent in a case argued in his full month on the Supreme Court. Later in the 1991 term, he joined with three other so-called conservatives in the dissenting opinion in Planned Parenthood v. Casey that forthrightly called for nullifying constitutional protection for reproductive rights nationwide.
       The author of that dissenting opinion, Chief Justice William H. Rehnquist, is often quoted for his observation that stare decisis is "not an inexorable command." Rehnquist made that remark as the author of the 6-3 decision in Payne v. Tennessee (1991) that overturned nearly brand-new precedents to allow victim impact statements in death penalty cases. Two new justices, Anthony Kennedy and David Souter, provided the pivotal votes for scrapping the prior decisions.
       The adherents to stare decisis agree on one proposition at least: a prior decision should not be overturned merely because of a change in personnel at the Supreme Court. Instead, as set out by Justice Antonin Scalia for a 5-4 majority in Montejo v. Louisiana (2009), the Court should consider overruling a prior decision based on "the workability" of the prior standard, "the antiquity of the precedent, the reliance interests stake, and of course whether the decision was well reasoned."
       Scalia once remarked that, in contrast to his own view, Thomas did not really believe in stare decisis. In this new opinion, Thomas drops all pretenses and issues what amounts to a call to arms for conservative activists to take aim at prior decisions willy-nilly
       In his confirmation hearing in 2005, Chief Justice John G. Roberts Jr. famously remarked that overturning prior decisions amounts to a "jolt to the system." In Payne, Rehnquist touted stare decisis as promoting stability, predictability, and respect for the law.
       Thomas begs to differ. "[T]he Court's stare decisis doctrine," Thomas writes now, has the effect of "giving the veneer of respectability to our continued application of demonstrably incorrect precedents." The multi-factor "special circumstances" test, Thomas argues, "invites arbitrariness into judging."
       The current, universally acknowledged approach to stare decisis might have made sense, Thomas now argues, in a common law system that relied primarily on judges to develop the law. "Our federal system is different," Thomas explains, because the Constitution limits the Court's role to "faithfully interpreting laws enacted by [the political] branches." Thomas goes even further by quoting the revered English jurist Blackstone as himself calling to disregard precedents if "flatly absurd or unjust."
       The precedents that Thomas has found unworthy in the past include roughly three dozen that legal commentator Jason Rylander listed in a compilation in 2004. The list would be longer today. Three days after his Gamble concurrence, Thomas went so far as to call explicitly for overruling the 33-year-old precedent in Batson v. Kentucky (1986) that prohibits prosecutors from racial discrimination in jury selection. Thomas's call came in a dissenting opinion in Flowers v. Mississippi [June 21] that Justice Neil Gorsuch joined except for the attack on the prior ruling.
       Thomas's disquisition on stare decisis, if published as a law journal article, would have attracted some attention of course. As an opinion in U.S. Reports, however, the impact may be greater by encouraging various conservative advocacy groups to further politicize federal courts and the Supreme Court itself to the long-term detriment of law and justice in the United States.

Sunday, June 16, 2019

For Criminal Justice Reform, Go Local

      Voters in two suburban counties outside Washington, D.C., joined the growing criminal justice reform movement last week [June 11] by ousting two longtime prosecutors in favor of candidates who promised if elected to make fundamental changes in prosecutorial policies. Subject to Virginia's off-year general elections in November, Parisa Dehghani-Tafti and Steve Descano will join the growing number of criminal justice reformers elected around the nation as local prosecutors, notably in such major metropolitan areas as Chicago, Philadelphia, and Orlando, Fla.
      Dehghani-Tafti, a former public defender who had worked on exoneration cases for the Mid-Atlantic Innocence Project, won 52 percent of the vote in defeating two-term incumbent Theo Stamos for the Democratic nomination for commonwealth attorney in the close-in suburban jurisdiction of Arlington County. Steve Descano, a former federal prosecutor, won 51 percent of the vote to oust three-term incumbent Ray Morrogh in the well-to-do outer suburban jurisdiction of Fairfax County.
      Campaigning in Democratic strongholds, neither Stamos nor Morrogh presented themselves as old-style, law-and-order prosecutors. Stamos took credit for reducing the incarceration rate in Arlington County, while Morrogh campaigned under the slogan: "Effective. Fair. Progressive." Still, the Washington Post's story viewed the results as bellwethers: "Voters endorse new mandate on criminal justice," the headline read.
      Miriam Krinsky, executive director of the Los Angeles-based advocacy group Fair and Just Prosecution, estimates that more than three dozen reform-minded prosecutors have been elected in recent years. In comments to the Post, Krinsky described the election results as evidence of "a growing new normal in the world of prosecutions." More and more communities and more and more voters are "tired about the old thinking in the criminal justice system," Krinsky explained.
      Andrew Cohen, a senior fellow at the Brennan Center for Justice who also edits the daily report on criminal justice for the Marshall Project, similarly sees a trend in favor of reformers in local prosecutor races. "Clearly, a big part of the criminal justice reform movement over the past five years has been directed at these races as people realize how powerful local prosecutors have become at the local and state levels," Cohen says.
       Cohen cautions, however, that elections cannot guarantee thoroughgoing reform of themselves. Several of the high-profile reform-minded prosecutors, such as Larry Krasner in Philadelphia, Kimberly Foxx in Chicago, and Aramis Ayala in Orlando, encountered opposition as they sought in office to turn away from punitive, sentence-maximizing prosecution policies.
       Ayala, who is African American, declared her opposition to the death penalty upon taking office in 2017 after ousting the incumbent state's attorney in Florida's fifth most populous county the previous year. Florida's Republican governor, Rick Scott, responded by reassigning capital cases from Ayala's office to another state prosecutor — a move that the Florida Supreme Court upheld on a 5-2 vote. Politically battered, Ayala announced late last month [May 28] that she will not seek re-election in 2020.
       Krasner, a former federal public defender and longtime criminal defense and civil rights lawyer, won election as district attorney in Philadelphia in 2017 in a campaign that drew opposition from the city's police union. In office, Krasner stopped prosecuting marijuana possession cases and instructed prosecutors to stop seeking cash bail for defendants arrested for misdemeanors or nonviolent felonies. Some judges overruled some sentence recommendations as too lenient and resisted Krasner's initiative to shorten probation sentences.
       Kimberly Foxx, who is African American, won election as Cook County state's attorney in 2016 after having helped craft a criminal justice reform agenda as chief of staff to the Cook County Board president. In office, she has promoted bail reform by instructing prosecutors to agree to release on recognizance where appropriate and has raised the threshold for prosecuting theft offenses as felonies. The local police union has criticized Foxx's policies as soft on crime.
      With more than 2,400 local and state prosecutors nationwide, the three dozen or so reformers elected in recent years according to Krinsky are far outnumbered when district attorneys gather for conventions and training sessions. But Krinsky's group is promoting a comprehensive reform agenda under the title "21 Principles for 21st Century Prosecutors" that calls for, among other changes, de-escalating charging policies, making plea bargaining more transparent, and reducing use of cash bail.
      Krinsky acknowledges that the agenda "hasn't taken hold everywhere," but she believes that a "new paradigm" is beginning to form. "We are seeing candidates commit to the principles and commit to implementing them in office," she says.
      Listed twelfth among the 21 principle is an exhortation to "address racial disparity," which the report says "exists at every stage of the justice system." The audience for that recommendation is overwhelmingly white, according to a recent study. Among 2,437 elected local and state prosecutors in office in 2014, fewer than 5 percent were African American, according to the study.
       African Americans are also underrepresented among federal prosecutors, according to my review of the current officeholders. Among 93 U.S. attorneys nationwide, Louis Franklin, U.S. attorney for the middle district of Alabama, appears to be the only African American; my count found four Asian Americans and three Hispanics, all the others white.
       Congress and President Trump are also on board the criminal justice reform movement, at least to some extent. Trump was taking unwarranted credit last week [June 13] for the First Step Act, the federal sentence-reducing law he signed in December 2018 after it moved through Congress with bipartisan support. Among other provisions, the law retroactively reduced crack-related sentences for 1,150 offenders: a significant even if modest step toward moving away from "Incarceration Nation."

Sunday, June 9, 2019

On Supreme Court Reform, No Consensus

      Credit law professors Daniel Epps and Ganesh Sitaraman with thinking outside the box to try to save the Supreme Court from the historically unprecedented degree of politicization of the past several decades. But their offsetting proposals to depoliticize the Court are respectively needlessly complex or mind-bendingly unsettling in comparison to a potentially workable solution already adopted in many states.
      Epps, an associate professor at Washington University in St. Louis, and Sitaraman, a professor at Vanderbilt University in my former home town of Nashville, Tenn., have gained wide attention by detailing their two proposals in an article for the Yale Law Journal now being circulated on-line in draft form. Epps and Sitaraman go way beyond the other pending reform proposals, such as adding justices to restore balance on the Court and enacting term politics to de-politicize confirmations. Instead, they open their article with a blunt demand for "a complete rethinking of how the Court works and how the Justices are chosen."
      The two professors call their proposals, respectively, the Balanced Court and the Lottery Solution. The first of the proposals borrows the requirement for political balance in appointments to federal regulatory agencies: the Supreme Court, under this proposal, would consist of 10 justices, five from each of the two major political parties, who would then select by unanimous or supermajority vote five more from the pool of federal appellate judges to sit with them two years later for a period of one year.
      The Lottery Solution would go one step further by creating the "one Supreme Court" as specified in the Constitution by randomly selecting nine justices from the pool of federal appellate judges to sit for two-week periods. For good measure, the professors pair this proposal with the oft-discussed idea of a supermajority requirement to overturn a federal statute  not by a 6-3 vote as generally proposed in the past but by an even stronger 7-2 vote.
      These proposals were among others discussed in an opening plenary session when legal progressives gathered in Washington last week [May 7] for the annual convention of the American Constitution Society (ACS). Attendees were greeted outside the Capital Hilton by earnest ACS members handing out cards with the printed message: "It's Time to Unite Around Supreme Court Reform." The card listed the three narrower reforms: expanding the Court, enacting term limits, and adopting a code of ethics for the justices.
      Before considering the various proposals, it is necessary to explain how what is widely described as the Supreme Court's crisis of legitimacy has come to pass. Epps and Sitaraman list several factors, but the most important and chronologically the first is the overt politicization of the Court by a succession of Republican presidents and over time the Republican Party writ large.
      For the last half century, five Republican presidents — all except Gerald Ford  have used Supreme Court appointments deliberately to politicize the Court, unsettle precedent, and pursue a partisan conservative agenda. Democratic presidents, Bill Clinton and Barack Obama, have not responded in kind.
      To be sure, the four Democratic-appointed justices  Ginsburg, Breyer, Sotomayor, and Kagan — can all be described as liberals or progressives. But all of them with the possible exception of Sotomayor commanded wide support in legal and judicial circles before their appointments as consensus seekers rather than doctrinaire ideologues.
      Ginsburg and Breyer won Senate confirmation with 96 and 87 votes respectively, Sotomayor and Kagan each with more than 60. Compare that to the under-60 vote confirmations of Thomas, Alito, Gorsuch, and Kavanaugh. In a fair process, President Obama's blocked nominee Merrick Garland would likely have won confirmation  thus, McConnell's decision to deny him any hearing whatsoever.
      Indeed, Supreme Court watchers who do the numbers have shown that none of the four current Democratic justices is as "liberal" as the most "conservative" of the Republican appointees: notably, Rehnquist, Scalia, Thomas, and now Alito. The two Trump appointees, Gorsuch and Kavanaugh, can be expected to be equally conservative after being blessed as Supreme Court nominees by the ultraconservative Federalist Society.
      Epps and Sitaraman define the current crisis as "the rise of a Court polarized on party lines." They cite as additional factors the deeply divided political environment and the rise of competing schools of legal thought  think, originalists versus living constitutionalists  with opposing views corresponding to the two major political parties. The combination of these factors, in effect, lead Epps and Sitaraman to despair of any possible reforms other than a complete transformation of the Court as we know it.
      Thus, they give no consideration to the kind of nonpartisan merit selection systems adopted in a number of states, including my home state of Tennessee. At the federal level, one reform  outlined here for the first time as far as I know  could be the creation of a nine-member Supreme Court nominating commission, with two members each appointed by the party leaders in the House and the Senate and perhaps a ninth by the president.
      The president, under this plan of mine, could nominate as justice only a candidate deemed qualified by a two-thirds supermajority of the commission on the basis of professional qualifications, judicial temperament, and legal views. Epps and Sitaraman, I suppose, would view this idea as ineffective in reducing the now hard-wired politicization of the Supreme Court confirmation process.
      The ACS panel produced no consensus around any of the reform proposals. Epps and Sitaraman reject expanding the Court as inviting a tit-for-tat response in the future; they reject term limits as more likely to increase rather than reduce the politicization of the confirmation process. The lack of consensus on the legal left likely dooms any of the reforms, especially if Republicans think they will continue to have the upper hand in these debates. Thus, the message for Democrats and legal progressives is simple and direct: Elections have consequences; the path to Supreme Court reform begins and ends at the ballot box.

Sunday, June 2, 2019

At Harvard, Defending Truth in Age of Trump

      Angela Merkel, chancellor of Germany and leader of the Free World since President Donald Trump abdicated that role, came to Harvard University last week [May 30] to accept an honorary degree and to plead with Americans to rededicate ourselves to among other principles "the maxim of truth."
      Harvard's founders adopted truth — in Latin, Veritas — as the school's motto in 1640, four years after Pilgrim settlers founded the college in a former cow yard in a sylvan wilderness. The Harvard shield, with the letters of veritas superimposed on three opened books, adorns interior and exterior walls throughout the campus in what is now the 21st century metropolis of Cambridge, Massachusetts.
      Truth was on the minds of several of the speakers during Harvard's week-long "festival rites," to borrow the phrasing from Fair Harvard. Trump, a member of Harvard's extended family through his government major son-in-law, Jared Kushner, A.B. 2003, was not in Cambridge, but he was the unnamed target of thinly veiled swipes from Merkel and several other speakers for his ongoing war against truth.
      Merkel, in her 14th year as chancellor but politically battered by immigration politics, embraced global multilateralism in a 35-minute speech that would have been welcomed by any of the previous post-World War II American presidents but not by the "America First" Trump. "More than ever, our way of thinking and our actions have to be multilateral rather than unilateral, global rather than national, outward-looking rather than isolationist," Merkel declared. "In short, we have to work together, rather than alone.”
      Seventy years earlier, in a very different country from today's United States, the American secretary of state George Marshall had spoken from the same spot on Harvard's campus to propose what became the Marshall Plan: the $13 billion rebuilding of war-torn Europe by a prosperous and victorious United States. Merkel listed the benefits of what she called "a transatlantic partnership based on values such as democracy and human rights," specifically "an era of peace and prosperity, of benefit to all sides, which has lasted for more than 70 years now."
      Merkel received standing ovations at several points in her speech, perhaps the longest when she called on her audience "not to describe lies as truth and truth as lies." Calling on the audience to "be honest with ourselves," the former research chemist declared, "What better place to begin than here in this place, where so many young people from all over the world come to learn, to research, and to discuss the issues of our time under the maxim of ‘truth.'”
      Two days earlier, former vice president Al Gore had the importance of truth on his mind too as he delivered a 28-minute speech to graduating seniors and their families on Class Day [May 28]. Gore, participating in his 50th class reunion along with me and 500 other class of '69 classmates, used part of the speech to preach the importance of addressing what he labeled the "existential crisis" posed by climate change caused by dumping billions of tons of carbon dioxide into the atmosphere as though it is an open sewer.
      Without mentioning Trump by name, Gore also turned to domestic politics and what he saw as the threat to democracy in the age of Trump. "Veritas— truth — is not only Harvard’s motto," Gore declared, "but it is also democracy’s shield. And the right to pursue truth is the most fundamental right of them all, and that right is now at risk."
      "And as a result," Gore went on, "freedom itself is at risk, more so now than it was 50 years ago. The system of checks and balances that has protected the integrity of our American system for more than two centuries has already been dangerously eroded.”
      Truth was also on the mind of another classmate, Robert Post, professor and former dean of a certain unnamed law school in southern Connecticut, as he reflected in a speech to former classmates on the unrest and rebellion that marks the class of '69 in history and Harvard lore. That rebellion, Post recalled, was "infused with a constructive appreciation of the authority of disciplined thought and expertise." But today, he went on, contemporary populism in the United States and elsewhere comes with "profound disdain for the authority of knowledge."
      "Apparently the infinite gush of information now cheaply and easily available on the internet has made every person an authority on every possible subject," Post said. "The upshot is that truth is no longer the product of patient inquiry and disciplinary craft. It is instead merely the opinion produced in the echo-chambers of like-minded partisans."
      Post acknowledged the reasons for the growing distrust of elite centers of knowledge such as Harvard: for example, the growing economic inequality in the United States and the loss of upward economic mobility. The distrust, he went on, can be seen in "the refusal to credit scientific judgment" in matters such as climate change and vaccinations and in the "utter disrespect of economic theories in controversies like Brexit" — or, he might have mentioned, Trump's trade wars.
      Truth, it has often been said, is "the first casualty in war." And thus it is in the uncivil war between red state Trump supporters and blue state opponents. But this son of Harvard left the campus with renewed hope for what Fair Harvard describes in closing as, "Calm rising through change and through storm."

Sunday, May 26, 2019

Trump Loses Two Rounds in Subpoena Fights

      President Trump has no legal basis whatsoever for opposing the enforcement of subpoenas by congressional committees seeking information from his accountants and two of his banks about his business dealings. That much is clear from the two rulings issued this week [May 20, May 22] by federal judges flatly rejecting the arguments from Trump's lawyers alleging a congressional overreach into the personal affairs of private citizen Donald J. Trump.
      Despite an untenable legal position, Trump is using his accustomed tactics of delay, evasion, and obfuscation to try to confuse the public about the stakes in the dispute. More tellingly, he also is clearly trying to run out the clock on the congressional efforts to learn more from his business records about possible wrongdoing before his presidential campaign and potential conflicts of interest with his presidential duties.
      Trump's strategy may succeed, thanks in part to the time required for the promised appeals in the two cases. In addition, Trump surely believes that the Republican-majority Supreme Court will rescue him with temporary stays even if, as widely expected, he loses the two appeals. Court watchers are already speculating that the five Republican-appointed justices, all of them schooled in executive branch positions and invested more in presidential than in congressional power, are quite likely to side with Trump in any showdown with Congress.
      In the first of the two rulings, Judge Amit Mehta, a federal district court judge for the District of Columbia, issued a 41-page opinion rejecting Trump's request to block the accounting firm Mazars USA from complying with the House Oversight Committee's subpoena for Trump's business records. With a Democratic majority for the first time in Trump's presidency, the committee issued the subpoena after hearing testimony from Trump's former lawyer-fixer Michael Cohen that Trump "routinely" altered the valuation of his assets to better suit his financial purposes: inflating the supposed value in loan applications and deflating the stated value in tax filings.
      Two days later, U.S. District Court Judge Edgardo Ramos in Manhattan similarly upheld the enforcement of subpoenas issued by two House committees, Financial Services and Intelligence, for financial records from two of Trump's banks, Deutsche Bank and Capital One. The committee's stated purposes were to investigate "possible foreign influence" in the U.S. political process and possible money laundering abroad. 
      Ramos and Mehta, appointed by President Obama respectively in 2011 and 2014 and both Senate-confirmed by voice vote, made mincemeat of the arguments from Trump's lawyers that Congress was out of bounds in demanding Trump's business records. In his written opinion, Mehta acknowledged the Supreme Court's 19th century decision in Kilbourn v. Thompson (1880) that found a congressional investigation had ventured into judicial territory by examining the operations of a real estate partnership in the District of Columbia. 
      Mehta stressed, however, that the subsequent Supreme Court decision stemming from a congressional investigation into the Teapot Dome scandal in the 1920s took a broader view of congressional power. The Court in that case, McGrain v. Daugherty (1927), reversed a lower court decision that questioned the investigation by holding, instead, that an investigation is legitimate if "the subject . . . was one on which legislation could be had."
      The Supreme Court and lower federal courts have taken that approach ever since, Mehta noted. "[N]ot once has a court found a congressional investigation unconstitutional because directed at the personal affairs of a private citizen," he wrote. He dismissed the pleas from Trump's lawyers that the Oversight Committee's investigation was politically motivated and not plainly directed at some legislative purpose. 
      The court's role, Mehta explained, was not to question political motives or possible legislation. He noted, as a telling example, that the congressional investigations into the Watergate scandals yielded a laundry list of major enactments:  the Ethics in Government Act, the Congressional Budget and Impoundment Control Act of 1974, the War Powers Resolution, and the Independent Counsel Statute. He also specifically found that two of the issues listed by the Oversight Committee — Trump's possible violation of the Emoluments Clause and possibly false disclosures to the Office of Government Ethics —were indeed "subjects on which legislation could be had." 
      Ramos, delivering his ruling from the bench, also made short shrift of Trump's arguments by declaring the two committees' subpoenas "likely lawful" because of "a legitimate legislative purpose." He added: "Put simply, the power of Congress to conduct investigations is inherent in the legislative process."
      By week's end, supposed constitutional experts from the political and legal right were delivering talking points that insisted Congress had no general powers of investigation. On that score, they disagreed with the Framers themselves, who referred to Congress as "the grand inquest of the nation." The Framers borrowed that phrasing from William Pitt the Elder, who coined it in the English House of Commons as he launched an investigation into Robert Walpole's ministry.
      Anthony Lewis, the New York Times's celebrated legal affairs columnist, recalled that history in a column written in 1974 as President Richard Nixon was invoking executive privilege to resist congressional investigations. Nixon's stonewalling ended badly for him. As a legal matter, Trump's arguments fare no better even as he — of the hush-money payments to his former paramours — declares, "I don't do cover-ups." This cover-up may hold long enough to spare him political damage, but one way or another Trump appears likely to have to answer to Congress and to the courts. 

Saturday, May 18, 2019

Court's Conservatives 'Unmaking' Law Again

      The Roberts Court's refortified conservative majority stirred fears for the future of abortion rights last week [May 13] by flexing their muscles to discard in the name of federalism a 40-year-old precedent that had gone all but unnoticed ever since. Speaking for the four liberal justices in dissent, Justice Stephen G. Breyer rejected the majority's rationales for scrapping the old case and, pointing in particular to the most reaffirmation of Roe v. Wade, wondered in print about "which cases the Court will overrule next."
      The fate of Roe v. Wade apparently now turns on the predilections of Chief Justice John Roberts and the Court's newest justice, Brett Kavanaugh. The future of Roe v. Wade was the most important issue in Kavanaugh's confirmation hearing last year until the late-arising dispute over a 30-year-old accusation of sexual misconduct.
      Kavanaugh secured the influential vote of Maine's sometime maverick Republican Susan Collins only after convincing Collins that he was not dead set on overruling Roe if confirmed. Roberts too was questioned closely about the case in his confirmation hearing 14 years ago and allayed some fears among abortion-rights advocates by stressing the importance of precedent and calling it a "jolt to the system" to overrule a prior decision.
      Outside the Court, anti-abortion forces are working hard to provide a test case that the conservative bloc could use to flatly overrule Roe, notably in the new Alabama law that makes women and doctors alike criminally liable for abortions except in extremely rare circumstances. The new laws enacted in ruby-red Republican states validate their political strategy despite the still prevailing majority in the United States opposed to completely outlawing abortion.
      The Court's reversal of an old precedent in the new decision, Franchise Tax Board of California v. Hyatt, refocused attention on the Roberts Court's record on reversing prior rulings. Statistics compiled for the Supreme Court Database at Washington University's School of Law in St. Louis show that the Roberts Court actually has been scrapping old cases at a slower pace than any of the previous Courts under three chief justices: Earl Warren, Warren E. Burger, and William H. Rehnquist.
      A close examination of the overruled cases behind the statistics, however, shows that the conservative justices' policy slips are showing beneath their robes. Among 22 cases listed either in my Supreme Court Yearbook, the Supreme Court database, or both, nearly half divide neatly between five Republican-appointed conservatives and four liberal justices, currently the four Democratic appointees and earlier including the moderate Republican appointees Anthony Kennedy and John Paul Stevens.
      Twice, the Roberts Court reversed prior decisions to throw out provisions of campaign finance laws favored by Democrats and election reformers and opposed by Republicans and conservative groups. In both of those cases, the conservative majority acted more like legislators than judges by discounting the fears of corruption that Congress had cited in enacting the campaign spending limits.
      Among other 5-4 conservative reversals, the Roberts Court narrowed the scope of federal antitrust law by rejecting a century-old precedent and just last year threw out a 40-year-old precedent to limit the financial base for public employee unions. Another precedent-reversing decision limited, in the name of newly discovered Second Amendment gun rights, the power of local governments to regulate possession of handguns. The parallel to Republican Party platform positions cannot be ignored.
      The conservative justices all followed the Republican script in their confirmation hearings by promising to interpret the law instead of making law, as activist judges presumably do. In any number of cases, however, the Republican justices have turned out to be activists bent on unmaking the law. Look, for example, at the 5-4 decision in 2007 to uphold a federal ban on so-called partial-birth abortions just seven years after striking down an almost identical state law.
      In last week's decision, the Court threw an earlier ruling, Nevada v. Hall (1979), that allowed a California plaintiff to sue the state of Nevada in a California court for injuries sustained when hit by a car driven in California by a Nevada state employee. In the new case, the tables were reversed: a Nevada man, the wealthy investor Gilbert Hyatt, sued California's tax agency in Nevada court for alleged wrongdoing in an aggressive tax audit back in the early 1990s.
      The conservative majority led by Justice Clarence Thomas concluded that states enjoy sovereign immunity in other states' courts even though the Constitution never says so in so many words. Thomas recited, of course, the various rationales for overruling old decisions, including supposedly unfavorable consequences. But Breyer noted that the old case had been rarely used: only 14 cases in 40 years when a state was sued in another state's courts.
      Liberal justices have prevailed in only three of the Roberts Court's 5-4 reversals of prior decisions by picking up Justice Anthony Kennedy's vote in the same-sex marriage case and by picking up votes from Thomas or Justice Antonin Scalia in two criminal law decisions. Some of the other reversals have come by lopsided votes: two in unanimous decisions, two others by 8-1 votes.
      It bears noting here that the Warren Court was unanimous in two of its most important reversals of prior decisions. All nine justices joined in the decision in Brown v. Board of Education (1954) to overturn the separate-but-equal doctrine from Plessy v. Ferguson. A decade later, the Court was unanimous again in reversing a prior decision when it ruled, in Gideon v. Wainwright (1963), that indigent criminal defendants must be provided an attorney for their defense. History now judges both of those reversals to have been well considered and long overdue.
      As chief justice, Roberts has tried in vain to dispel the odor of political partisanship that hangs over the Court more than perhaps ever before in history, but he has gone along with his fellow conservatives in all of those overtly political cases To paraphrase Roberts from another context, perhaps the best way for the Court to stop being seen as political is, in fact, to stop ruling on the basis of politics.
      Many experts believe that Roberts will shy from providing the fifth vote to flatly overrule Roe v. Wade just as Republicans and President Trump have hoped for in packing the Court with doctrinaire conservatives. As Trump might say if asked, "We'll see what happens."

Sunday, May 12, 2019

The Unfinished Work of Reconstruction

      A day trip to Philadelphia's Independence Mall provides a valuable reminder of the unfinished work of racial justice in America. Slavery was America's original sin and recompense for that sin not yet fully paid, if at all.
      Philadelphia, it will be remembered, is the city where Thomas Jefferson drafted the Declaration of Independence in 1776 with its sweeping promise that "all Men [sic] are created equal" and "endowed . . . with certain unalienable rights, [including] Life, Liberty, and the Pursuit of Happiness." A decade later, delegates from 12 of the 13 states of the new nation gathered to draft a new Constitution in hopes of forming "a more perfect union" while tacitly bowing to the reality of human-chattel slavery in six of those states.
      The occasion for the visit was the opening of a new permanent exhibit at the National Constitution Center, "The Civil War and Reconstruction: The Battle for Freedom and Equality," a project spearheaded by the center's president, Jeffrey Rosen. The 3,000-square foot exhibit, accessibly designed and insightfully curated, features among more than 1,000 artifacts original copies of the three post-Civil War constitutional amendments that together amount to what many historians call "the Second Founding."
      Rosen, a friend and source for years, enthused as he welcomed invited guests for a preview of the exhibit on Tuesday [May 7]. The exhibit, he explained, "takes the story of the promise of the Declaration of Independence that was thwarted in the Constitution and then resurrected by Lincoln and Douglass and enacted in the Reconstruction Amendments." But Lincoln's promise of "a new birth of freedom" went unrealized as the three amendments were neutered by the connivance of white-dominated state governments and the shortsightedness of a Supreme Court that rejected Congress's attempts to enforce the amendments.
      The Thirteenth Amendment, approved by Congress with the war still going on and ratified barely eight months after the Confederacy surrendered, abolished slavery on paper. But it included a loophole, the "criminal exception clause," that allowed involuntary servitude "as a punishment for crime . . . ." That loophole, Rosen explained, effectively consigned many of the freed ex-slaves to servitude on the plantations still owned by the former slave masters.
      The Fourteenth Amendment, ratified in 1868 with its Equal Protection Clause, embodied the goal of equal rights long urged by Ohio's Republican representative John Bingham. It came to naught for a half-century and longer because of a series of Supreme Court decisions beginning with the ruling in the so-called Slaughterhouse Cases(1872) that the amendment protected only a limited list of federally guaranteed rights.
      All three of the amendments included sections specifically authorizing Congress to enact "appropriate legislation" to enforce their provisions. In 1876, however, the Court effectively nullified one of those laws: the Enforcement Act of 1870, which prohibited two or more persons from joining together to deprive anyone of constitutional rights. The 5-4 ruling in Cruikshank v. United States reversed the convictions of armed white insurgents who had ousted the elected black government in a Louisiana parish; the justices decided that the Fourteenth Amendment applied only to state action, not to private conduct.
      In a more serious setback, the Court applied the same rationale in striking down the law Congress had passed in 1875 to prohibit racial discrimination in public accommodations. The 8-1 ruling in Civil Rights Cases (1883) denied Congress the power despite the Fourteenth Amendment's Enforcement Clause to regulate private conduct. It took Congress another 80 years to try again by passing the Civil Rights Act of 1964, a law upheld the same year by a much different Supreme Court under Chief Justice Earl Warren.
      The Fifteenth Amendment, ratified in 1870, seemed on paper to guarantee black men, not women, the right to vote, but southern states found ways to get around it and block most blacks from voting until the Voting Rights Act of 1965. Some 80 percent of black men registered to vote as early as 1867 in southern states even before the Fifteenth Amendment, according to Henry Louis Gates Jr., the Harvard professor and author of the new bookStony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow.
      The Fifteenth Amendment notwithstanding, southern states began disenfranchising blacks not long after Reconstruction ended with the withdrawal of federal troops in 1877. Mississippi provided the template with a new constitution adopted in 1890 by an all-white constitutional convention that imposed literacy tests and poll taxes as requirements for voting. Gates, speaking with Rosen after touring the new exhibit, noted that in Mississippi's neighboring state of Louisiana the number of blacks registered to vote fell from 130,000 in 1898 to only 1,342 in 1904.
      Reconstruction produced "a violent backlash, a racist backlash," Gates explained. His book and his PBS series Reconstruction: America after the Civil War parallel the new exhibit in seeking to counteract the previously dominant view of Reconstruction as a misguided effort to subjugate the defeated southern states. It was instead an ambitious if short-lived effort to fulfill the revolutionary era's promise of equal rights that fell victim to violence, intimidation, and legal stratagems at the hands of resurgent white supremacy.
      With the present-day eruption of white supremacist ideology, Gates was stating the all-too-painful truth in saying, "We have never dealt with the issues raised by Reconstruction." Rosen appeared to agree: "We all share a collective responsibility to make our union more perfect."

Sunday, May 5, 2019

Trump's Lawyers Revive Imperial Presidency

      Three years after quitting the White House in disgrace, the former president Richard M. Nixon explained to the British interviewer David Frost his understanding that the president is not so much above the law as the personal arbiter of the law itself. Asked about the legality of his conduct in the Watergate scandals, Nixon answered as though stating the obvious, "Well, when the president does it, that means that it is not illegal."
      Nixon's claim was so audacious that the video clip has been replayed and viewed countless times as the simplest and most blatant expression of his constitutional offenses.  Four decades later, however, President Donald Trump's lawyers are now reviving the Nixonian theory of the imperial presidency in defending him against two of the many accusations against him of unconstitutional conduct.
      Attorney General William Barr had no compunctions whatsoever in using a nationally televised congressional hearing last week [May 1] to claim for Trump the power to shut down a criminal investigation into his own conduct. Political and legal historians immediately saw a parallel in Barr's view of presidential power to Nixon's ill-fated decision to fire Watergate special prosecutor Archibald Cox in October 1974.
      Admittedly, Barr was just starting law school at the time of the Saturday night massacre in fall 1974, but still he must know that the American public, Congress, and the judicial system decisively rejected Nixon's claimed power to shut down the Watergate investigation. A special federal court found Cox's dismissal illegal and then appointed Leon Jaworski to take over the investigation. The ensuing history gives no support for executive branch partisans such as Barr.
      Here, from Barr's testimony before the Senate Judiciary Committee as questioned by ranking Democrat Dianne Feinstein, is his explanation for Trump's power to remove special counsel Robert Mueller had he chosen to do so. Note at the outset that Barr misstates the Mueller report by depicting the evidence as conclusively disproving the accusations against Trump rather than falling short of provable obstruction of justice.
      "If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he knew they were false, and he felt this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for removing an independent counsel. So that's another reason we would say the government would have difficulty proving this [obstruction of justice] beyond a reasonable doubt."
      Barr went even further in his role as Trump's lapdog by contending that Trump's direction to his former White House counsel Don McGahn to lie about Trump's instruction to raise a phony conflict of interest issue to try to remove Mueller. "That's not a crime," Barr said without a moment's hesitation. He reasoned that McGahn's lie would not have impeded Mueller's investigation because McGahn had already testified about the episode.
      In the meantime, Trump's lawyers were advancing a similarly expansive view of presidential power in defending him in federal court against a lawsuit seeking to stop him from further violations of the Constitution's Emoluments Clauses. Ruling in a case brought by Democratic members of Congress, Blumenthal v. Trump, U.S. District Court Judge Emmet Sullivan rejected Trump's lawyers' various arguments for narrowing the definition of domestic or foreign "emoluments" that the president, along with other federal officers, are constitutionally prohibited from accepting without consent of Congress.
      Sullivan, a no-nonsense judge appointed to District of Columbia courts by two Republican presidents before being appointed to the federal bench by President Bill Clinton, devoted most of his 48-page opinionto a point by point refutation of the arguments for overlooking all the foreign governments booking expensive stays or events at Trump's Pennsylvania Avenue hotel. In sum, Sullivan found that the Framers understood emoluments broadly to include any financial benefits and viewed the clause as a safeguard against foreign influence on the president.
      Apart from those unsuccessful arguments, Trump's lawyers also argued that the court had no power to order the president to stop accepting foreign emoluments. Instead, they argued, the plaintiff lawmakers "can only obtain relief from the president"--totally up to the president, in other words, whether to comply with the Constitution or not. Sullivan answered by citing judicial precedents. "When there is no other remedy, courts have allowed suits against the President to proceed," he wrote.
      The president's duty under the Emoluments Clause, Sullivan went on, was clear and absolute. "The acceptance of an Emolument barred by the Clause is prohibited unless Congress chooses to permit an exception . . . ," the judge wrote at page 47. "Given the 'sweeping and unqualified' Constitutional mandate, the President has 'no discretion  . . . no authority to determine whether to perform the duty' to not accept any Emolument until Congress gives its consent."
      Trump's lawyers had one more argument: an injunction to block any further emoluments, they warned, would create a "significant burden" for a president who, it needs to be noted, refused to divest himself of entangling financial interests before entering the White House. "It may take judgment and planning to comply with the Clause," Sullivan wrote, "but he has no discretion as to whether or not to comply with it in the first instance."
      With lawless arguments such as these, it is no wonder that the disgruntled conservative commentator Max Boot now views Trump's presidency as "criminal" and Barr's "jaw-dropping" performance as reminiscent of Nixonian hubris. With the Mueller investigation over, Boot wrote in a column over the weekend [May 4], "we are left with the dismaying likelihood that the president will now feel emboldened to commit ever greater transgressions to hold onto power."

Saturday, April 27, 2019

On LGBT Rights, a Roll of the Dice at Court

      For several decades now, liberal advocacy groups have been wary of bringing test cases up to the Supreme Court for fear that the built-in conservative majorities would dash their hopes by turning an unsettled legal issue into a nationwide rule on the other side. That concern surfaced quickly after the justices agreed this week [April 22] to hear test cases later this year to determine whether the federal civil rights law enacted in 1964 prohibits employers from discriminating against LGBT employees or job applicants.
      "Supreme Court Will Smash Gay Rights Next Term" was the banner headline on the downbeat column that Elie Mystal, executive editor of the legal affairs blog Above the Law posted from his New York City watching post three hours after the Court's orders were issued in Washington. Mystal acknowledged that the Court had to take the cases, given a circuit split on the issue, but he warned that worse than a circuit split was "the Supreme Court deciding the issue poorly."
      Two other liberal Supreme Court commentators followed within a couple of days to warn more ominously that the Roberts Court conservatives might use the cases to scrap precedents that have extended the Civil Rights Act's prohibition against sex discrimination to cover sexual harassment — whether opposite- or same-sex harassment — and hostile work environments. In his column for the online magazine Slate, Mark Joseph Stern warned that the rulings in the three cases accepted for review "could demolish sex discrimination law as we know it." Ian Milhiser, legal affairs columnist for the progressive news site ThinkProgressMemo, similarly warned that the Court might be "on the cusp of rewriting decades of sex discrimination law" that interpreted the 1964 law to prohibit sexual harassment and gender stereotyping in the workplace.
      All three commentators, friends and colleagues of mine, argue that the provision in the 1964 law's Title VII that prohibits discrimination "on the basis of sex" naturally and inevitably prohibits discrimination on the basis of sexual orientation or gender identity. But they all fear that the five Roberts Court conservatives, including the chief justice himself, will reject what has become a jurisprudential consensus on a broader understanding of the law.
      With all that doom and gloom, the New York Times' former Supreme Court correspondent, Linda Greenhouse, stepped in to argue against making "a snap judgment" about the outcome of the cases before merits briefing even begins. Greenhouse analyzed the justices' protracted consideration of the cases before granting certiorari as a sign that, in fact, the conservative bloc's minds may not be fixed on ruling against LGBT rights.
      As a reminder, Title VII law broadly prohibits any job-related discriminatory treatment "on the basis of [an] individual's race, color, religion, sex, or national origin" (emphasis added.). The late-added prohibition against sex discrimination, intended by opponents as an impossible-to-swallow poison pill, was debated in Congress only cursorily before being signed into law as the first of the three major civil rights laws enacted in the mid-1960s.
      No one can seriously argue that Congress intended the law to protect gay men, lesbians, or transgender individuals against discrimination in the workplace. Gay rights advocates lobbied for years in Congress and in state capitals to add sexual orientation and gender identity to anti-discrimination laws with mixed results before concentrating their efforts on achieving their goal through the courts.
      By now, however, dozens of state and federal courts, including two of the federal circuit courts of appeals, have ruled that way, according to a compilation by the federal Equal Employment Opportunity Commission (EEOC). The judges who have adopted that position include a number of well-known conservatives, as Stern and Greenhouse both note. Greenhouse notes as one example that Judge José Cabranes concurred in the Second Circuit decision now under review by stating matter-of-factly that sexual orientation "is a function of [an individual's] sex."
      The plaintiffs in the three cases represent two of the initials in the LGBT alphabet. The former New York City skydiving company Altitude Express fired instructor Donald Zarda in 2010 after he sought to reassure a female customer by telling her that he was gay; he died four years later in an accident and the case, Altitude Express Inc. v. Zarda, is now litigated by his sister and his former partner. Gerald Lynn Bostock, petitioner in Bostock v. Clayton County, Georgia, says the county's juvenile court system fired him in 2013 on a pretext after supervisors learned of his participation in gay community activities.
      The EEOC is representing the interests of the plaintiff in the third case, R.G. and G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission: Amiee Stephens, a transgender woman, who was fired by a Detroit-area funeral home after reporting for work post-transition dressed in women's clothes.  Greenhouse spotted an encouraging sign in the Court's rephrasing of the question presented in the case to include whether Title VII "prohibits sex stereotyping . . . "
      With no inside information on the justices' months-long deliberation before teeing up the cases, the best that can be said now is that LGBT advocates are hoping for a favorable roll of the dice. They have been in this situation before. In 1986, a test case on anti-sodomy laws turned into the unfavorable, later-overruled decision in Bowers v. Hardwick upholding those laws. Four years ago, however, they marked their greatest legal victory to date with the Court's 5-4 decision in Obergefell v. Hodges (2015) guaranteeing marriage rights to same-sex couples nationwide.
      Justice Anthony Kennedy's retirement from the Court leaves LGBT rights advocate without their most effective ally among the nine. The four liberal justices can be counted on to support LGBT rights in the new cases, but the five conservatives — including Kennedy's successor, Brett Kavanaugh — have no record of supporting LGBT protections in any of their prior cases.
      Roberts' impassioned dissent in the marriage equality cases casts a dark cloud over hopes that he might help form a five-vote majority for LGBT rights in the new cases. But the doomsaying from liberal commentators makes clear this much: a ruling to limit Title VII protections for LGBT employees will come, if it does, at the expense of the conservatives' professed commitment to "plain text" statutory interpretation and respect for precedent. 

Sunday, April 21, 2019

With Trump's Lies Detailed, No Charges, No Exoneration

      Lies, lies, lies, and more lies. As president, Donald Trump's lies number in the thousands, according to the fact-checking news site PolitiFact. Now, thanks to the Mueller Report, we know that all the president's men are liars too — and White House press secretary Sarah Huckabee Sanders as well.
      With Trump complaining all the while about how long the special counsel's investigation was taking, several individuals associated with the Trump campaign were lying to FBI agents about the extent of their contacts with Russian-affiliated individuals. The lies "materially impaired the investigation," the 448-page report notes at page nine of the executive summary.
      Trump himself lied on several occasions as he sought to conceal the extent of his efforts to derail — or, in legal parlance, obstruct —  the special counsel's investigation. Trump lied, the report concludes, when he denied news reports that he had instructed White House counsel Don McGahn to fire Robert Mueller as special counsel.
      The Mueller Report cites Trump's purported directive as one of the ten episodes it identified as suggesting obstruction of justice. McGahn refused what he called a "crazy shit" directive. Trump's denials notwithstanding, McGahn's accounts of the after-hours telephone conversation were consistent and corroborated by his notes, according to the report.
      Sanders was fingered for one notable lie, which was also aimed at concealing Trump's obstructive efforts. She lied in the White House briefing room when she claimed to have heard from "countless" FBI agents voicing a lack of confidence in the fired FBI director James Comey. Sanders conceded to the special counsel's office that she had "no basis" for a statement that, in context, supported what was then Trump's explanation for firing Comey.
      Asked on Friday [April 19] by Good Morning America's George Stephanopoulos to explain herself, Sanders minimized the lie by describing it as an unscripted "spur of the moment" reply to a reporter's question. Put differently, Sanders instinctively makes up stuff as needed to deflect reporters' questions. As of the weekend,  Sanders appeared to be at no risk of admonition or dismissal for this lie or any of her others.
      Attorney General William Barr, still new to Trump's orbit two months after his party-line Senate confirmation, added to the Trump playbook of deception and misdirection with a 20-minute statement about the Mueller Report before it was even released. Once released, the report showed that Barr misled or flatly lied in among other remarks depicting Trump as cooperating completely with the investigation and in describing Mueller's decision not to seek to indict the president for obstruction of justice.
      Short of complete cooperation, Trump declined the special counsel's request for an in-person interview and gave written answers that the report describes as incomplete and filled with claimed lapses of recollection. Mueller considered a subpoena to force the president to testify under oath but backed off rather than take on a protracted legal fight.
      Barr was also misleading in suggesting, just as he had done in his initial summary of the report a week earlier, that Mueller had left it up to him to determine whether Trump could be indicted for obstruction. Instead, Mueller bowed to the never-tested Office of Legal Counsel memo that the president is not subject to indictment while in office and followed by saying that it was up to Congress to decide what to do. "We concluded that Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice," the report states.
      Barr misquoted the report when he said it found "no collusion" between the Trump campaign and the Russians. To the contrary, the report specified that "collusion" has no legal meaning and concluded more tentatively. "The investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities," the report states.
      Still, Barr deserves some credit for congratulating the special counsel's office for confirming what Trump has never acknowledged: the systematic efforts by Russian agents to interfere in the 2016 presidential election. With that said, Barr nevertheless passed lightly over what the report calls "numerous links between the Russian government and the Trump campaign."
      As the nation's chief law enforcement officer, Barr might have been expected to highlight what the special counsel's office actually accomplished by way of prosecutions. That record puts the lie to Trump's repeated description of the investigation as a witch hunt. In fact, five Trump associates have already pleaded guilty to or been convicted of lying to the FBI or Congress: former campaign chairman Paul Manafort, former campaign advisers Rick Gates and George Papadopoulos, former national security adviser Michael Flynn, and Trump's former personal attorney Michael Cohen. Meanwhile, Trump's close associate Roger Stone awaits trial on charges of making false statements.
      The report lists Trump's false pre-election denials of the links between his campaign and the Russians as the beginning of his arguably obstructive conduct followed by, among other actions, the firing of Comey and the thwarted effort to remove Mueller. With those episodes detailed, the report explicitly avoids exonerating Trump, the president's claims to the contrary notwithstanding: "[I]f we had confidence after a thorough investigation of the facts that the President did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment."

Saturday, April 13, 2019

At Southern Border, Malign Neglect for "Crisis"

      The so-called crisis at the United States' southern border is a challenging policy issue that President Trump has exaggerated for political purposes and that his administration has mishandled through legal mistakes and administrative indifference.
      In this, the most lawless presidency in U.S. history, news of another Trump administration policy initiative ruled illegal by a federal judge provokes nothing more than a "dog-bites-man" reaction. The administration's plan to send border-crossing asylum applicants back to Mexico was ruled late last month [March 27] to run afoul of immigration law and to have been adopted without following proper administrative procedure.
      Meanwhile, the Department of Homeland Security, the umbrella Cabinet-level department responsible for immigration and other important national security issues, has an acting secretary after Trump eased Kierstjen Nielsen out of the post. Nielsen resigned this week [April 7] under duress, according to anonymous friends quoted in various news accounts, after drawing Trump's scorn for nixing some of his tough-talking policy ideas as contrary to law.
      Trump has been whipping up hysteria about the growing number of migrants seeking asylum at the southern border ever since the months leading up to the 2018 midterm elections. In demagogic rhetoric, Trump tried with only limited success to whip up his political base by depicting the refugees fleeing violence and disorder in their Central American homelands as would-be invaders.
      Admittedly, the growing number of refugees at the border pose difficult challenges for an immigration system overburdened along the 2,000-mile long southern border and also in U.S. immigration courts. With 424 judges, immigration courts currently have a backlog of 850,000 cases. Asylum cases contribute to that backlog, but they account for fewer than one-third of the total, according to a report published last fall by the pro-immigration Migration Policy Institute.
      The institute's 35-page report, coauthored by Doris Meissner, the Clinton administration's commissioner of what was then the Immigration and Naturalization Service (INS), sought to cut through the political divisions on the issue by proposing a package of administrative steps to reduce the now customary long wait times in resolving asylum cases. The key to the streamlining package is to get more cases decided administratively within the U.S. Citizenship and Immigration Services (USCIS) asylum division without bucking them to the courts.
      The report notes that the backlog of asylum cases was reduced from more than 400,000 in the mid-1990s to fewer than 100,000 from 2005 through 2014, thanks in part to a doubling of the number of asylum officers within USCIS. The system had been "fair, timely, and well managed," the report concludes, until it fell behind as the number of asylum applicants increased fivefold from 28,000 in 2010 to more than 140,000 in 2017.
      The customary delays of anywhere from two to five years create what the report calls "incentives for individuals without qualifying claims to apply" because they can remain within the United States and perhaps obtain work authorizations while their cases are pending. In the meantime, individuals with qualifying claims for asylum wait in the queue. The results, the report concludes, "compromise both humanitarian protection and immigration enforcement missions."
      Francis Cissna, the Trump administration's USCIS director, spoke favorably about the institute's report at a program it cosponsored in November at Georgetown Law School. But Sharon Pierce, a policy analyst who works with Meissner at the institute, says they have heard nothing concrete from the administration since then.
      "The Trump administration is not interested in solving the problem," Sen. Chris Van Hollen, a Maryland Democrat, remarked on MSNBC on Friday [April 12]. "They're much more interested in the politics of it."
      The administration is focused not on making the system work better but making it tougher. Thus, Attorney General Jeff Sessions instituted a major policy change during his tenure at the Justice Department by eliminating domestic or gang violence as grounds for asylum. As a result, the percentage of asylum applications approved has fallen by more than half from close to 50 percent to less than 25 percent.
      Nielsen announced another policy change in December. The so-called Migrant Protection Protocols provided that asylum applicants apprehended after illegal entry would be returned to Mexico instead of being detained for expedited removal proceedings. Nielsen called it "an historic action to confront illegal immigration," but U.S. District Court Judge Richard Seeborg called it illegal in a 27-page ruling  issued early this week [April 8].
      Individual plaintiffs in the case, originally styled as Innovation Law Lab v. Nielsen, presented what Seeborg called "uncontested" evidence that they fled their homes in El Salvador, Guatemala, and Nicaragua to escape "extreme violence," including rape and death threats. He found that returning them to Mexico ran counter to an international protocol codified as U.S. law that prohibits returning aliens to "places where they face undue risk to their lives or freedom."
      As with the unbuilt border wall, Trump prefers sounding tough to being effective. He threatened to close the southern border completely, deterred not by Nielsen's warning that the move would be illegal but by predictions that it would result in economic chaos. Among other steps to address the problem, one would be to conduct asylum interviews in the migrants' home countries instead of at the border. Increased aid to those countries might help, but Trump instead threatens to cut it off.
     To make it worse, the administration's "zero tolerance" policy of arresting all illegal border crossers results in a true humanitarian crisis marked by kids locked up in cages and aduilts jailed in primitve conditions.So far, the administration's policy of malign neglect appears to be having no effect other than making the non-crisis worse.

Sunday, April 7, 2019

At Supreme Court, Open Door for Gruesome Executions

      Raymond Bucklew may deserve to die for the violent crimes he committed 30 years ago as his girlfriend was breaking up with him. But he does not deserve to die a torturous death as the state of Missouri carries out the legally upheld death sentence.
      The Supreme Court has just used Bucklew's case, however, to open the door to executions in the future that will mock the Eighth Amendment's prohibition against "cruel and unusual punishments." The 5-4 majority in Bucklew v. Precythe has apparently adopted a legal rule previously crafted only by Justice Clarence Thomas that the state can use a method of execution with a substantial risk of severe pain during the procedure as long as the state does not deliberately intend to inflict unnecessary pain.
      Bucklew's case drew only limited attention as he argued through three levels of federal courts over the past five years that he has a rare medical condition that will result in severe pain as he lies dying during a lethal injection. But Justice Neil Gorsuch's majority opinion turned the medical oddity of Bucklew's case into an invitation for gruesome deaths for condemned inmates in the future.
      Bucklew has a rare medical condition — technically, cavernous hemangioma — characterized by the formation of huge clumps of blood vessels in his head, neck, throat, and airway. That condition, he argued on the basis of detailed medical evidence presented in a federal court trial, would interfere with the sedative used in a lethal injection and in effect would cause him to suffocate to death on his own blood.
      "[T]he Eighth Amendment does not guarantee a prisoner a painless death . . . ," Gorsuch wrote in a critical part of the 31-page opinion rejecting Bucklew's claim. Gorsuch pivoted from that unremarkable statement to quote Thomas's passages from two prior decisions that would disapprove of only those methods of execution that "superadd terror, pain, or disgrace" in carrying out the death sentence.
      Thomas wrote that passage for the first time in an opinion joined by only one other justice, the late justice Antonin Scalia, in rejecting a Kentucky inmate's Eighth Amendment challenge to the state's three-drug lethal injection protocol. Chief Justice John Roberts' plurality opinion in Baze v. Rees (2008) set out a different test that death row inmates can challenge a method of execution if it carries a substantial risk of severe pain during the procedure.
      Gorsuch in effect incorporated Thomas's test, which garnered only two votes, on the ground that those two votes were necessary for the majority result in Baze. It was, as Slate's Supreme Court correspondent Mark Joseph Stern called it in a critical article, a remarkable "sleight of hand." Worse, it amounted to jurisprudential alchemy by converting a minority view into supposedly authoritative precedent.
      "Neil Gorsuch Just Made Death Worse," was the headline on a strongly argued critique
that Elie Mystal,  managing editor of the legal affairs blog AbovetheLaw, wrote for The Nation. "In an appalling majority opinion," the deck headline added, "Gorsuch endorses pain-filled deaths for people subjected to capital punishment."
      Under Baze, an inmate challenging a method of execution must offer a "feasible and readily implemented alternative method" that would reduce the risk of severe pain. Bucklew complied with that bizarre requirement by proposing lethal nitrogen gas; the state's lawyers answered that nitrogen gas is an untested method that no state has adopted.
      Gorsuch, it will be recalled, faced his most difficult hurdle in his Senate confirmation hearing in April 2018 for his lack of sympathy to the "frozen trucker" who was fired for driving his cab with inoperable heater to a place where he could escape from subfreezing temperatures. Thus, it is no surprise that Gorsuch had no sympathy for Bucklew, who shot and killed his girlfriend's male companion and then abducted her at gunpoint and raped her at a distant location.
      Gorsuch found Bucklew's evidence on the risks of Missouri's planned lethal injection too weak to avoid summary judgment at the trial level in the state's favor. Writing for the four liberal dissenters, Justice Stephen G. Breyer argued correctly butto no avail that Bucklew had "easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering."
      Not content with condemning Bucklew to a painful death, Gorsuch went on to criticize as well the cumbersome and treacherous procedures that death penalty lawyers must master and navigate to try to ensure that capital punishment is carried out, if at all, reliably and fairly. In truth, it is not, as seen in the scores of death sentences reversed over the past two decades and in the skewed racial and ethnic demographics of death rows nationwide.
      Judges, Gorsuch wrote in closing, should ensure that death penalty challenges are "resolved fairly and expeditiously" and should "police carefully against attempts to use such challenges as tools to interpose unjustified delay." Justice Sonia Sotomayor aptly chided Gorsuch for adding "inessential" dicta to an already contentious decision.
      "There are higher values than ensuring that executions run on time," Sotomayor wrote. "If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness."

Sunday, March 31, 2019

Trump's "Mass Deception" on Mueller Report

      Special counsel Robert Mueller dutifully submitted a 400-page report to Attorney General William Barr this month [March 23], but one week later Mueller is the only major figure in this constitutional melodrama yet to be heard from. President Trump and Barr have given differing interpretations of the report, and so too Capitol Hill Republicans and Democrats along with Trump's supporters and opponents all across the country.
      Trump, who has not read the report, called it a "total exoneration" in remarks from the White House lawn and in a gloating harangue to a campaign-style rally in Grand Rapids, Michigan, on Thursday [March 28]. Barr, who has read the report, had previously stated in a four-page letter [March 24] that the report "does not exonerate" the president. The fact-checking news site PolitiFact noted that discrepancy as one of Trump's misstatements to the crowd along with the false claim that the investigation into the Trump campaign's contacts with the Russians began only after the election and that the investigation had resulted in "framing innocent Americans."
      One week out, the battle lines have been drawn in what Brookings Institution expert Benjamin Wittes calls "the war of the narratives." Mueller's report will remain unseen for a couple of weeks as Barr, who apparently is quicker at reading than redacting, blacks out grand jury material, classified information, and any material bearing on the spinoff pending investigations. With the delay, Capitol Hill Democrats are demanding to see "the Mueller report, not the Barr report" and threatening to subpoena the document itself if necessary.
      Wittes, presiding over a panel discussion at Brookings on Thursday [March 28], noted with regret that Mueller had not taken his earlier advice to prepare an executive summary to be released as soon as he had submitted the full report to the attorney general. For now, Trump is winning "the war of the narratives" by wielding his patented WMD: "weapons of mass deception." Barr too is deceiving the public, according to one of the Brookings experts, by defending the decision that Mueller left to him essentially to absolve Trump of any obstruction of justice.
      Barr based his decision in part on the perverse logic that "many" of Trump's arguably obstructive actions "took place in public view"—thus ratifying Trump's campaign-time boast that he could shoot someone in full public view and get away with it. Barr also said that Mueller had "recognized" that the evidence "does not establish that Trump was involved in an underlying crime related to Russian election interference" and that "the absence of such evidence bears upon the President's intent with respect to obstruction."
      Barr said he reached this conclusion, in consultation with deputy attorney general Rod Rosenstein on the merits without regard to any question of whether the president is subject to a criminal indictment. But it must be noted that Barr had already absolved Trump of obstruction in the long memo he wrote months before his appointment as attorney general. House Speaker Nancy Pelosi complained that Barr was now doing exactly what Trump intended in choosing him to lead the Justice Department—that is, "to make sure the president is above the law."
      At the Brookings panel, one member of the audience asked whether it was "widely accepted" that there could be no obstruction of justice charge without proof of an underlying crime. "That's not the law," Mary McCord, a former Justice Department official now teaching at Georgetown Law School, responded. "Not only is it not widely accepted: it's not the law."
      Wittes and other panelists confessed some surprise that Mueller had in effect passed the obstruction issue to Barr without recommendation. "It's clear that there was considerable obstruction of justice," Wittes remarked in the opening. With the report still unseen, Wittes's Brookings and Lawfare colleague Susan Hennessey agreed. "They found lots and lots of stuff but just a hair below the threshold of a criminal indictment," she said.
      By now, much of the "stuff" that must be in Mueller's report is well known and no longer in dispute: the Trump Tower meeting that Donald Trump Jr. took with Russian agents promising dirt on Hillary Clinton; the "back channel" communications link with the Russians that son-in-law Jared Kushner wanted to establish at the Russian embassy itself; national security adviser Michael Flynn's pre-inauguration meeting with Russians to talk about easing U.S. sanctions. On and on.
      House Intelligence Committee Chairman Adam Schiff, under pressure to resign from Trump and the committee's Republicans, ran through the whole list in a dramatic reading as the committee opened a hearing on Russian interference in the election last week [March 28]. He called it "evidence of collusion" and challenged the Republicans for turning a blind eye. "I don't think it's OK," Schiff said. "And the day we think it's OK is the day we have lost our way."
      Mueller's supposed "witch hunt" ended with a string of guilty pleas, convictions, and still pending indictments against Trump associates and campaign aides, such as former campaign chairman Paul Manafort and confidante Roger Stone, and a dozen Russian agents, admittedly beyond the reach of U.S. law. The report presumably lays all that out, but for now Trump and his supporters are winning the war of the narratives while the other side waits, disarmed, for a truer accounting of the facts.