Sunday, March 24, 2019

At Supreme Court, Racial Justice an Elusive Goal

      Keith Tharpe and Curtis Flowers are two African American defendants convicted of capital murder and sentenced to death in southern states after trials infected with racial bias. The Supreme Court considered both of their cases last week by ending Tharpe's effort to overturn his conviction [March 17] while appearing receptive during arguments [March 19] on Flowers' plea for a new trial based on the white prosecutor's blatant racial bias in jury selection.
      The two Supreme Court cases, with one loss for racial justice and not yet a vindication for racial justice in the other, are the most recent evidence that racial discrimination remains widespread in criminal justice systems — certainly in the South and just as certainly elsewhere. Dating as far back as the Scottsboro Boys case in the 1930s, the Supreme Court has stood guard against the most blatant examples of racial injustice, but too often the present-day Court is either unwilling or unable to ensure the goal carved in the pediment above its main entrance: Equal Justice Under Law.
      To their credit, eight of the nine justices were all evidently disturbed by the blatant racism practiced by District Attorney Doug Evans in his protracted efforts over six trials dating over 13 years to convict Flowers of killing four people in 1996 at the small-town store where Flowers had formerly worked. In two of those trials, Evans, the longtime district attorney for a seven-county judicial district in north central Mississippi, was found to have violated the Supreme Court-established rule against excluding potential jurors because of their race; a third conviction was overturned because of other prosecutorial misconduct.
      The two other previous trials ended in mistrials with the predominantly white juries unable to agree on a unanimous verdictthus, suggesting that the evidence against Flowers was less than clear-cut. Those trials with hung juries were the only ones with more than one African American jurorthus, suggesting the reason for Evans' unrelenting efforts to use so-called peremptory challenges to keep blacks off the jury.
      The 2010 conviction under review in Flowers v. Mississippi came after a trial in which Evans used all but one of his six peremptory challenges to strike black potential jurors. Viewed in isolation, Evans' actions in the sixth trial would seem less than remarkable to courthouse reporters with experience in covering racially charged criminal trials in the South or elsewhere.
      White prosecutors routinely question black jurors more aggressively than white jurors to try to develop what can pass for "race-neutral" reasons for keeping blacks off juries. The Supreme Court's precedent-setting decision in Batson v. Kentucky (1986) held that exercising peremptory challenges against potential jurors based on their race in state court trials violates the Fourteenth Amendment's Equal Protection Clause.
      Over time, lower courts have developed and the Court has accepted a three-part test to determine whether Batson has been violated. The party raising the issue, normally a black defendant, has the initial burden to show a prima facie case of discrimination; with that standard met, a court can order the other party, normally the prosecutor, to provide race-neutral reasons for excluding black jurors. The burden then shifts back to the defendant to argue and prove purposeful discrimination.
      As a practical matter, trial judges routinely defer to prosecutors' explanations: Evans may be one of the few prosecutors ever to have two adjudicated Batson violations on his resume. But Evans has been consistent in racial profiling of potential jurors, according to statistical evidence compiled by American Public Media reports. As part of a path-breaking podcast, the APM reporters found that in 225 trials in Evans' tenure, he had used peremptory challenges to strike 49.81 percent of black jurors — nearly half —  but only 11.21 percent of white jurors.
      Representing Flowers, the NAACP Legal Defense Fund's lawyer Sheri Lynn Johnson opened her argument on Wednesday by saying that the "only plausible explanation" for Evans' conduct over six trials was that he was pursuing "an unconstitutional end . . . to seat as few African American jurors as he could." From the bench, Justice Samuel A. Alito Jr., perhaps the most prosecution-oriented of the five conservatives, called the history of the case "very troubling," but he joined later with others in struggling for a general rule to craft for Batson cases in this most discreditable of cases.
      By the end of the hour-long argument, eight justices, all but Clarence Thomas, had registered their concerns about Evans' conduct. But with Johnson at the lectern for rebuttal, Thomas asked a question for the first time in three years: a gotcha question aimed at eliciting Johnson's admission that Flowers' trial counsel had exercised her peremptory challenges to exclude white, not black, jurors.
      Two days before the Flowers argument, the Court had turned aside Keith Tharpe's plea for a new trial based on late-developed evidence that one of the jurors in his capital murder trial in Jackson, Georgia, in 1991 had made blatantly racist statements in jury room arguments for sentencing Tharpe to death. Without dissent, the justices declined on procedural grounds to review the most recent federal appeals court decision to let the conviction and death sentence stand. 
      Justice Sonia Sotomayor went along with shelving Tharpe's case but only after saying she was "profoundly troubled" by the facts of the case. Quoting from a prior decision, she ended with a blunt warning: "The work of 'purg[ing] racial prejudice from the administration of justice' is far from done."

Sunday, March 17, 2019

At Harvard, a #MeToo Clash With Lawyers' Role

      The #MeToo Movement is colliding on the Harvard University campus with the time-honored tradition in American law that lawyers do not shirk from representing unpopular clients or unpopular causes. The clash emerged as Ronald Sullivan, a Harvard Law School professor and resident faculty dean of one of Harvard's undergraduate houses, came under fire for joining the dream team of lawyers representing the Hollywood producer Harvey Weinstein in his upcoming criminal trial on sexual misconduct charges.
      Sullivan, director of the law school's criminal justice institute and the first African-American to serve as faculty dean of one of Harvard's undergraduate houses, is under pressure on the Cambridge, Mass., campus from among others a student group critical of Harvard's record in combating sexual misconduct. Some students have called for him to step aside from his role as Winthrop House faculty dean, but 52 of Sullivan's law school colleagues defended his participation in the Weinstein case in a joint letter and warned the college administration against dismissing him from his residential deanship.
      Sullivan's on-campus critics are right, however, in seeing a conflict in the dual roles of defending Weinstein and ensuring a supportive climate on campus for victims of sexual misconduct. Sullivan has added to the conflict with comments denigrating the #MeTooMovement and casting doubt generally on the credibility of accusations of sexual misconduct. That conflict will inevitably grow if Sullivan emerges as the public voice for challenging the credibility of all of Weinstein's accusers.
      The tradition of representing unpopular clients dates back as far as John Adams' defense of the British soldiers accused in the Boston Massacre despite Adams' anti-royalist views. The lawyers' obligations have been celebrated not only in legal ethics classes but also in fiction and film adaptations such as To Kill a Mockingbird and John Grisham's A Time to Kill.
      The heroes of those two films, Atticus Finch and Jake Tyler, portrayed by Gregory Peck and Matthew McConaughey respectively, represented wrongly accused black defendants in predominantly white towns in the racially polarized South. Real-life lawyers, black and white, similarly risked public disapproval and scorn in representing black defendants and white civil rights crusaders in the civil rights era. So too the left-leaning lawyers who represented public figures and government officials caught up in the anti-communist McCarthyite hysteria of the 1950s.
      Sullivan has wrapped himself in this tradition ever since the New York Post first reported in mid-January that he was joining two high-profile criminal defense attorneys in representing Weinstein in his forthcoming criminal trials. Weinstein is admittedly unpopular: he has been public enemy number one for the #MeTooMovement ever since the bushel basket of sexual misconduct accusations began to surfaced in October 2017.
      Weinstein does not lack, however, for top-notch lawyers willing to provide him the kind of defense needed to assure a fair trial. Before enlisting Sullivan, Weinstein had already secured the services of two of the nation's most prominent and successful criminal defense lawyers: New York's José Baez and Denver's Pamela Mackey. Baez is best remembered for his successful defense of Casey Anthony in the 2011 trial for murder in the drowning death of her young daughter. Mackey gained national prominence for successfully defending the basketball star Kobe Bryant against rape charges in 2003.
      Sullivan has paid his dues in reform-minded criminal defense work by, for example, helping to design an indigent defense system in Louisiana after hurricane Katrina and helping to build a conviction integrity unit for the Brooklyn district attorney's office. He has represented in sexual misconduct cases accusers and defendants alike. But with no compelling need for his services in Weinstein's case, cynics are entitled to view the reasons for Sullivan's participation to be less than idealistic: the fee and the publicity.
      All of Sullivan's experience and good deeds cannot offset the discomfort that any sexual misconduct victims among his undergraduate charges would feel in bringing their cases to Sullivan as their resident faculty dean. By now, more than 300 students have signed a petition that cites this issue as their reason for calling him to step aside from his Winthrop House role.
      Sullivan has acknowledged the concern at least in part by designating a female assistant as the point person at Winthrop House for receiving complaints of sexual misconduct. But he has also cast himself as the innocent victim of students unmindful of the presumption of innocence and the importance of legal representation for even the worst of the worst of criminal defendants. He has complained of what he called incendiary coverage of the issue by the student newspaper, the Harvard Crimson, including a signed op-ed by two undergraduates calling for him to be replaced as Winthrop House dean.
      The Harvard administration has responded to the controversy by instituting a so-called "climate survey" of Winthrop House's several hundred undergraduates. Along with playing the "blame the messenger" card, Sullivan is playing the race card by noting that the college has never before conducted a similar survey to check on a white faculty dean's performance. The controversy took an ugly turn recently when someone painted the graffito "Remove Sullivan" on one of Winthrop House's redbrick walls.
      The controversy can only turn uglier for undergraduates and Sullivan alike once he engages actively in Weinstein's defense. For all concerned, the best course now is for Sullivan to withdraw and turn full attention to his full-time job as professor and in loco parentis to his students.

Sunday, March 10, 2019

In Census Case, No Basis for Citizenship Question

      Wilbur Ross's various ethics issues as secretary of Commerce place him among a gaggle of President Trump's discreditable Cabinet members. But Ross may belong at the top of that list now that two federal judges have found that he lied to Congress and violated executive branch regulations, congressional statutes, and at least one constitutional clause in his obsessive effort to add a citizenship question to the 2020 national census.
      Ross began hectoring his staff within his first weeks at Commerce about adding a citizenship question to the short-form Census questionnaire due to be distributed to all U.S. households early next year. He needed a full year in office before getting his ducks in a row to make the decision in a memorandum dated March 26, 2018. He had been egged on by, among others, the former White House aide Steve Bannon, the vote fraud-obsessed former Kansas secretary of state Kris Kobach, and at least two Republican senators: Arkansas' Tom Cotton and Texas's John Cornyn.
      With no expertise himself in demographics or statistics, Ross persisted in the face of unanimous advice from former Census Bureau directors, academic demographers, and the American Sociological Association that a citizenship question will inevitably result in an undercount of several millions among individuals in hard-to-count group such as immigrants and non-English speakers. The resulting undercount could have real-world consequences for some states and some localities in the form of reduced federal funding or proportionate reduction in local funding from state coffers.
      Federal court judges in New York and San Francisco have blocked Ross's efforts so far in suits brought respectively by a coalition of 18 states, 15 municipalities, and various immigration advocacy groups; and by the state of California, the city of San Jose, and the Black Alliance for Immigration. The Trump administration fast-tracked the New York case, Department of Commerce v. New York, to the Supreme Court by asking the justices to schedule the appeal for argument in April without waiting as usual for a ruling by a federal appeals court.
      Trump administration officials and supporters have correctly noted that the once-every-decade census required under the Constitution to apportion seats in the U.S. House of Representatives included questions about citizenship beginning in 1820 and continuing until 1950. The longer-form American Community Survey, distributed to randomly selected households, does include a citizenship question, but the Census Bureau, part of the Commerce Department and thus subject to Ross's direction, dropped the citizenship question from the more comprehensive survey by the 1960 census because of evidence that it would reduce participation and thus result in a significant undercount.
      Judge Jesse Furman in New York was the first of the two Obama-appointed judges to find Ross's decision to add the citizenship question illegally "arbitrary and capricious" as violating not only the Administrative Procedure Act (APA) but also a Census Act provision enacted in 1976 to require three years' prior notice to Congress before adding questions to the all-household short-form questionnaire. Furman's admittedly long 277-page decision issued on Jan. 15 opened by noting that the government's own experts and documents confirmed that a citizenship question "will result in a significant reduction in self-response rates among noncitizen and Hispanic households."
      Furman, formerly an aide to the Republican attorney general Michael Mukasey and later a clerk to the centrist-leaning federal appeals court judge José Cabranes and Supreme Court justice David Souter, also found Ross's decision in violation of guidelines issued by the Bush administration's Office of Management and Budget (OMB) in 2006. Those guidelines, applicable to all federal statistical agencies, impose among other requirements a prohibition against "political and other undue external influence in developing, producing, and disseminating statistics."
      The plaintiffs in the New York case also alleged that Ross's decision amounted to "invidious discrimination" in violation of the equal protection component of the Fifth Amendment's Due Process Clause, but Furman found they had not produced sufficient evidence on that count. On the other hand, Furman found that Ross had violated the APA in any number of respects by failing to follow required procedures and by making a decision that was "unsupported by, or even counter to, the evidence before the agency."
      Judge Richard Seeborg's 126-page decision in the California case, issued last week [March 6], went one step beyond Furman's by finding Ross's decision to violate the requirement in the Constitution's Enumeration Clause (Art. I, sec. 2, cl. 3) for an "actual enumeration" of inhabitants every 10 years to apportion members of the House of Representatives among the states. Seeborg, like Furman a former federal prosecutor appointed to the bench with no history of liberal Democratic politics, went further than Furman in refuting one of the justifications Ross claimed for his decision.
      Ross claimed, in testimony before a congressional committee, that he added the citizenship question at the request of the Justice Department, which purportedly saw the information as useful in enforcing the federal Voting Rights Act. In fact, the then attorney general Jeff Sessions forwarded the request only after Ross and his staff had repeatedly importuned Justice to make it.
      With all these legal defects, Ross's decision ought not stand after serious judicial review at the Supreme Court. With two Trump appointees added to a Court already dominated by executive branch-leaning justices, however, that outcome of the case is far from certain.

Sunday, March 3, 2019

Atheists Get No Respect in Peace Cross Case

      Supreme Court justices struggled last week [Feb. 27] with the issue of how to reconcile the constitutional prohibition against establishment of religion with the prominent display of a 40-foot Latin cross on a public right of way to memorialize fallen U.S. soldiers from the First World War. By the end of the expanded 70-minute oral argument in the Peace Cross case, a majority of justices clearly had no inclination to interfere with the war memorial cross at its present location in the middle of a busy traffic intersection in Prince Georges County outside Washington, D.C. 
      The atheists and nonbelievers who brought this lawsuit seven years ago were fated to lose once it reached a Supreme Court that has been increasingly uninterested in policing the separation of church and state. Still, they might have expected more respectful treatment in oral arguments in American Legion v. American Humanist Association than to hear two of the justices suggest from the bench that they had no business bringing the suit in the first place and were nothing more than obstinate troublemakers. 
      The belittling of the American Humanist Association's suit seeking to move the cross from its present location on property claimed by the National Capital Park and Planning Commission began with the opening words of the American Legion's attorney, the invariably pugnacious conservative Supreme Court advocate Michael Carvin.  The Peace Cross "should be upheld under any sensible Establishment Clause analysis," Carvin told the justices, disrespecting not only the plaintiffs but the two Fourth Circuit judges who found the cross to be an unconstitutional establishment of religion. 
      The Legion and the park and planning commission both base their defense of the cross on the argument that it has, in the words of the commission's attorney former U.S. solicitor general Neal Katyal, "independent secular meaning" as a memorial apart from its religious significance. In their decision in the case, the two-judge majority on the Fourth U.S. Circuit Court of Appeals acknowledged the cross's secular purpose but went on to carefully review the history of the cross and judge it under the Supreme Court's existing precedent: the established if controversial test set out in Lemon v. Kurtzman (1971). 
      The Lemon test has been criticized by a majority of justices over the years, as Justice Neil Gorsuch noted during arguments, but "never at the same time" and thus never overruled. Applying that test, Fourth Circuit judges James Wynn and Stephanie Thacker found in Thacker's detailed opinion that the cross failed the second and third prongs of the test because it would be reasonably seen as endorsing a specific religion and because it resulted in government entanglement with religion. 
      Thacker emphasized that the fundraising for the cross in the early 1920s rested on Christian rather than ecumenical themes and that the dedication and later observances at the memorial have been exclusively Christian. She acknowledged that passive religious displays are given deferential treatment under Lemon but noted that the governmental planning commission has spent tens of thousands of taxpayer dollars on maintenance and upkeep since assuming responsibility for the cross. 
      Instead of Lemon, Carvin urged the Court to apply a more lenient test, drawn from the recent decision in Van Orden v. Perry (2005) to uphold the placement of a Ten Commandments monument on the grounds of the Texas state Capitol, that finds no Establishment Clause violation unless the government is effectively coercing nonbelievers into religious observance. 
      In her turn at the lectern, the humanists' lawyer Monica Miller was forced to spend valuable time defending the decision to bring the suit after the cross had stood, seemingly without controversy, for nearly 90 years. The suit was about nothing more than the atheists' view that the cross was "too loud," Gorsuch suggested.  "Why shouldn't we apply our normal standing rules and require more than mere offense to make a federal case out of these?" Gorsuch asked.
       "I don't think it's mere offense," Miller replied. "We're talking about the government being the speaker and essentially giving you the message as the non-Christian in your community that you are a lesser citizen."
      A few minutes later, Justice Samuel A. Alito Jr. similarly saw no reason for the suit. "In a pluralistic society," Alito remarked, "ordinary people get along pretty well — and are not at each other's throats over religious divisions." As for the need for civility, Miller answered indirectly after exchanges with other justices by noting that she herself had received death threats because of her role in the case and her clients threatened as well.
      By the end of the argument, Court watchers counted no more than two justices, Ruth Bader Ginsburg and Sonia Sotomayor, as probable votes against the cross, with perhaps one of their liberal colleagues, Elena Kagan, but probably not with Stephen Breyer, author of the pivotal opinion in the Ten Commandments case.
      For the majority, however, the case will pose a difficult task of threading a 40-foot cross through the needle of Establishment Clause jurisprudence. The challenge for the assigned author will be to find a "sensible" way, to borrow Carvin's phrase, to find it no establishment of religion for the government to maintain what is concededly the preeminent symbol of Christianity as a memorial to fallen soldiers with none of the symbols of the many other faiths represented in this pluralistic society.

Sunday, February 24, 2019

All Eyes on Roberts as Court's Man in the Middle

       Twice within the span of two weeks, Chief Justice John G. Roberts Jr. joined this month with the Court's liberal justices in rulings over sharp dissents from his conservative colleagues on two of the Court's perennially divisive issues: abortion rights and capital punishment. In both actions, Roberts was reversing his previous positions on the issues — not necessarily because of a change of mind but because of a need to enforce the Supreme Court's precedents on recalcitrant appellate courts down in Texas.
      Roberts' decisive vote in the first of the two cases, June Medical Services v. Gee [Feb. 7], helped block Louisiana for the time being from putting into effect a law regulating abortion clinics identical to a Texas law the Court struck down three years ago. Two weeks later, Roberts sided with the liberal justices in Moore v. Texas [Feb. 19] to spare a Texas inmate from the death penalty by reenforcing the Court's previous ruling in his case two years ago.
      These previously unaccustomed lineups came as Roberts moved into a new role on the new Court created when the hard-line conservative Brett Kavanaugh took his seat in October as successor to the moderate conservative justice Anthony M. Kennedy. With Kennedy's retirement, Roberts now finds himself as the man in the middle between two well-defined ideological blocs of four moderately liberal justices and his four aggressively conservative colleagues.
      The Court's order in the Louisiana abortion clinic case came without any written opinion. The five-justice majority refused the state's request to stay the decision by the Fifth U.S. Circuit Court of Appeals to uphold the law; four justices said they would have granted the stay: Clarence Thomas, Samuel A. Alito Jr., and President Trump's two appointees, Neil M. Gorsuch and Brett Kavanaugh. With no written opinion, it was left to Court watchers, such as the former New York Times reporter Linda Greenhouse, to assume that Roberts acted to protect the Court's authority over lower tribunals. "[C]ircumstances compelled the chief justice to stand up to a stunning act of judicial defiance," Greenhouse wrote in a column on the Times' website.
      Roberts was explicit in the Texas death penalty case in bench-slapping the Texas Court of Criminal Appeals for finding Bobby Moore eligible for the death penalty despite the Court's instructions that the appeals court reconsider the issue. "On remand, the court repeated the same errors that this Court previously condemned . . . ," Roberts wrote in a concurring opinion in the 6-3 decision. Detailing the errors, Roberts added: "That did not pass muster under this Court’s analysis last time. It still doesn’t." In a dissenting opinion, however, Thomas, along with Alito and Gorsuch, complained that the majority had engaged in "factfinding" that the justices usually leave to lower courts.
      The actions gave substance to Court-watchers' speculation that Roberts may use his new position to rein in the conservative bloc's interest in establishing new conservative precedents and discarding or neutering old liberal rulings. And well he might, but Roberts' actions up to now in his 14 terms as chief justice of a majority conservative Court provide limited evidence at most of his favoring institutional stability over conservative ideology.
       Conservatives felt more than disappointed, actually betrayed, seven years ago when Roberts deserted his four conservative colleagues to craft a five-vote majority in National Federation of Independent Business v. Sebelius (2012) to uphold President Obama's Affordable Care Act. Even while upholding the law as a tax, however, Roberts backed up the four conservative justices in their opinion that rejected any authority for Congress to enact the law under its power over interstate commerce.
       Roberts' role in the Obamacare case is the exception that proves the rule. Ever since he took the reins at the start of a new term in October 2005, Roberts has been a consistent vote for leading his conservative colleagues in closely divided, precedent-bending decisions that cheered Republicans and other conservatives on issues ranging from abortion rights and civil rights to campaign finance and gun rights.
       The winds of change could be seen in Roberts's first term as soon as Sandra Day O'Connor's retirement took effect midway through the term in January 2006. With Samuel Alito as O'Connor's successor, the Court reheard arguments in a significant exclusionary rule case, Hudson v. Michigan, that found no need to suppress evidence police found in home search after an acknowledged violation of the so-called "knock and announce" rule.
       The Roberts-Alito Court — with Kennedy succeeding O'Connor as the only justice in the middle — essentially held sway for another decade until the hiatus after Justice Antonin Scalia's death in February 2016. President Obama's two appointments to the Court — Sonia Sotomayor as David Souter's successor and Elena Kagan as John Paul Stevens' successor — may have changed the dynamics among the justices but without changing the balance of power.
       By the time of those appointments, Roberts had already led the Court in a 5-4 decision that limited local school districts' power to design pupil assignment plans to promote racial balancing (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). He also spoke for a 5-4 majority in a decision, Herring v. United States (2009),  that significantly changed the rationale for suppressing evidence after an illegal police search.
       In other decisions, Roberts provided a fifth vote for explicitly overturning precedents despite his professed respect for the principle of stare decisis. He supported the 5-4 decision in District of Columbia v. Heller (2008) to change Second Amendment law to recognize a personal right to possession of firearms. Two years later, he voted with the 5-4 majority in Citizens United v. Federal Election Commission (2010), to overturn two precedents in order to give corporations free rein to spend money on federal election campaigns.
      With that record in mind, two experienced Court watchers are still predicting that Roberts will turn into a judicial pussy cat at times in his newfound role. "We anticipate that the chief justice will sometimes embrace narrow minimalism in order to seek to build a bipartisan consensus," Neal Devins and Lawrence Baum said in a recent interview on SCOTUSblog. They added, nevertheless, a second prediction that Roberts "will back maximalist rulings" on issues where he has "strong legal policy preferences . . . even if those rulings divide the Court's Democrats and Republicans." As President Trump would say, less than insightfully, "we'll see what happens."








Sunday, February 17, 2019

Courts Need to Block Trump's 'End Run' on Constitution

      President Trump knew he was on shaky legal ground when he declared a national emergency in order to build his southern border wall with funds Congress appropriated for other purposes. The Justice Department warned of likely holdups from the inevitable legal challenges in the courts, but Trump went ahead confident of getting a "fair shake" at the Supreme Court with two justices owing their posts to him.
      Opponents had no difficulty in refuting the rationales that Trump claimed for declaring an emergency at the country's southern border and for claiming miles and miles of some kind of barrier as the solution to the smuggling of illegal drugs into the United States. Illegal border crossings in 2016 were 91 percent below the level in 2001, according to the Department of Homeland Security — hardly evidence of a national emergency. And, as several studies have shown, the crime rate for legal or illegal immigrants is lower than the crime rate for native-born citizens — in contradiction of Trump's demagoguery about murderers and rapists flooding into the United States across the southern border.
      In addition, more than 80 percent of the illegal drugs smuggled into the United States enter undetected through official ports of entry, not at the supposedly open southern border. Whether solid concrete or slatted steel, a border wall will have little effect on drug smugglers other than to divert funds from more productive detection and interdiction techniques.
      Tellingly, Trump himself gave the critics legal grounds for attacking his action toward the end of the rambling hour-long announcement of the move in the White House Rose Garden [Feb. 15]. "I could do the wall over a longer period of time," Trump said. "I didn't need to do this, but I'd rather do it much faster."
      Lawyers with Public Citizen included Trump's quote in the 19-page complaint they filed challenging the president's move hours later in federal district court in Washington. The suit, filed as Alvarez v. Trump in behalf of South Texas landowners and the local Audubon Society chapter, traces the history of Congress's refusal in December and again in February to approve the $5.7 billion Trump requested to construct the wall.  "[A] disagreement between the President and Congress about how to spend money does not constitute an emergency authorizing unilateral executive action," the suit states.
      Trump helped critics even more by his own actions after signing the declaration back in the Oval Office. Critics quickly noted on Twitter and elsewhere that Trump followed the declaration of a national emergency by flying to Florida for golf. Other critics took to Facebook to mark themselves "safe" during the national emergency on the southern border.
      However weak and laughable Trump's action may be, the legal challenge is by no means a slam dunk. The National Emergencies Act of 1976 establishes a procedure for the president to follow but imposes no specific requirements for a supposed national emergency. On that score, even critical observers speculated that federal courts were unlikely to second-guess the president's determination.
      The administration is more vulnerable, observers agree, in taking money that Congress has appropriated to the Defense Department for stated purposes and redirecting the funds to a purpose that Congress has specifically rejected. That would seem to run afoul of the leading Supreme Court precedent on how to resolve a clash between Congress's Article I powers and the president's Article II powers.
      The United States was at war in Korea in 1952 when the Supreme Court laid down the principle in Youngstown Sheet & Tube Co. v. Sawyer (1952) that the president has no inherent or emergency power to contradict a law enacted by Congress. President Harry Truman had ordered his secretary of Commerce to seize the nation's steel mills to keep them operating despite a strike, but the Court found he had no authority to do so after Congress had specifically refused to grant the president that power to deal with nationwide strikes.
      Justice Robert H. Jackson's famous concurring opinion in the case acknowledged what he called a "zone of twilight" of presidential authority if Congress has not addressed a particular issue. But the president's power "is at its lowest ebb," Jackson concluded, "[w]hen the president takes measures incompatible with the express or implied will of Congress."
      Trump's move also seems to run afoul of the Supreme Court's more recent decision to bar the president from exercising a so-called line item veto. The 6-3 decision in Clinton v. City of New York (1998) found that the president has no power to pencil out individual budget items from a law as passed by Congress even if Congress itself had passed a law authorizing that procedure. Trump's plan to take $6 billion from Defense Department appropriations to build the wall seems equally outside his authority.
      Trump acknowledged a likely setback at the circuit court level, but he predicted a win at the Supreme Court like the 5-4 ruling that upheld his Muslim travel ban in June 2018 after a string of defeats in lower courts. Chief Justice John Roberts's majority opinion in that case, Trump v. Hawaii, relied heavily on immigration laws with broad discretion for presidential power. Trump thinks the national emergency law vests him with equally broad power, but the New York Times pointed to Trump's fallacy with a headline that described the national emergency power as having been invoked "many times before, but never before as an end run."

Saturday, February 9, 2019

Under Trump, Democracy in Retreat

      The state of the U.S. economy may be strong in some respects, as President Trump boasted in his State of the Union address this week [Feb. 5], but two years into his presidency democracy is in retreat in the United States and around the world. Trump takes unjustified pride in the economy's continued upswing that dates from the last years of the Obama's presidency, but the nonpartisan human rights organization Freedom House puts the blame squarely on Trump for accelerating the decline in democracy in the United States and around the world.
      The United States fell on a 100-point scale to a record low score of 86 at the end of Trump's first year in office and remained stuck there at the end of 2018, according to Freedom House's annual report Freedom in the World. In all, 59 countries score higher on the Freedom House scale than the United States, including most of Western Europe, several formerly Communist-ruled countries in Eastern Europe, and such now democratic countries as Chile and Portugal that emerged from right-wing dictatorships late in the 20th century.
      The decline in U.S. democracy predates Trump's presidency, but Trump's influence is seen as especially damaging to "our core values" and to the "stability of our constitutional system," according to an overview by Freedom House's president Michael Abramowitz. "No president in living memory has shown less respect for its tenets, norms, and principles," Abramowitz writes, citing as examples Trump's attacks on separation of powers, the judiciary, and the press.
      Abramowitz, a former Washington Post reporter, traces the decline in U.S. democracy from the beginnings of the post-9/11 surveillance state under President George W. Bush and also tars the Obama administration for what he calls its "overzealous crackdown on press leaks." Trump's assaults on U.S. democracy are more numerous and more pervasive in Abramowitz's telling and date back to his presidential campaign.
      Trump has been guilty of "assailing the rule of law," in Abramowitz's account, ever since he attacked the judge overseeing the civil lawsuit against Trump University on the basis of the American-born judge's Mexican ancestry. Trump doubled down on the tactic early in his presidency by denigrating the "so-called judge" who ruled against his Muslim travel ban and more recently by criticizing the "Obama judge" who blocked the administration's illegal plan to consider asylum applicants only at official ports of entry.
      Trump's renewed attack on the impartiality of federal judges drew a rebuke last fall from the normally circumspect Republican-appointed chief justice, John Roberts. An independent judiciary, Roberts declared in a Thanksgiving week statement, "is something we all should be thankful for."
      The president's attacks on the rule of law, as enumerated by Abramowitz, go far beyond these occasional tweets against individual judicial decisions. Trump has politicized the federal government's law enforcement responsibilities by urging the Justice Department to prosecute his political opponents and critics and by expressing contempt for witnesses who cooperate in investigations in cases that threaten his interests. He has also used his pardon power to reward political and ideological allies and to encourage targets of investigations to refuse cooperation with the government.
      Trump's practice of "demonizing the press" also dates from his campaign and is now a hallmark of his presidential playbook. "Previous presidents have criticized the press, sometimes bitterly," Abramowitz acknowledges, "but none with such relentless hostility for the institution itself." Indeed, Trump's "slurs" against journalists as "enemies of the people' are now a calculated political tactic that undermines democracy by "accelerating the breakdown of public confidence in journalism as a legitimate, fact-based check on government power."
      The bill of particulars against Trump continues with his "self-dealing and conflicts of interest," in defiance of what had been strong antigraft protections. Trump "has broken with his modern predecessors," Abramowitz writes, "in flouting the ethical standards of public service." Abramowitz notes Trump's nepotism-defying hiring of daughter Ivanka and son-in-law Jared Kushner as White House aides despite their own financial conflicts of interest, but without specifically treating it not only as a political issue but as the kind of practice associated with antidemocratic authoritarian leaders through the years.
      The global decline in democracy detailed in Freedom House reports for more than a decade also dates from before Trump's presidency, but Trump has turned policies away from what had been a commitment by Republican and Democratic presidents alike to seek to promote democracy abroad. "Trump has refused to advocate for America’s democratic values, and he seems to encourage the forces that oppose them," Abramowitz writes, citing what he calls Trump's "frequent, fulsome praise for some of the world's worst dictators," Russia's Vladimir Putin among them.
      Trump cannot be blamed for the economic and political malaise that has led to declines in democracy for a thirteenth consecutive year in what the Freedom House report calls a "consistent and ominous" trend. But Trump has surely given aid and comfort to what the report calls "the antiliberal populist movements of the far right" in such backsliding countries as Hungary and most recently Brazil. "These movements damage democracies internally through their dismissive attitude toward core civil and political rights, " the report states, "and they weaken the cause of democracy around the world with their unilateralist reflexes."
      The unilateralist theme of "Make America Great Again," imitated worldwide, contributes to what the Freedom House report calls "real alarm" for democracy worldwide. "Democracy needs defending," the report concludes, but with Trump in office the report ends with a plea for Americans to recognize that "no one else will do it for us."

Saturday, February 2, 2019

Republicans' Fake Statistics on Illegal Voting

      David Whitley had barely settled into his new job as Texas's secretary of state last month [Jan. 25] when he put out a seriously flawed study suggesting that 95,000 noncitizens had voted, illegally, in Lone Star state elections over the past 20 years. Within the week, however, Whitley's office was acknowledging errors in the lists of supposed noncitizen voters that it had sent to county election offices to use in purging their voter rolls.
      Whitley, a longtime aide to Texas's Republican governor and former state attorney general Greg Abbott, is the latest GOP politician to take up the monomaniacal pursuit of mostly imaginary illegal voting by noncitizens. President Trump is the leading victim of this clinical obsession with his repeated claim that he would have won the popular vote in the 2016 presidential election but for the supposed millions of noncitizen voters who, apparently, broke overwhelmingly for Hillary Clinton.
      As with so many of Trump's utterances, the Liar in Chief has no evidence whatsoever to support this preposterous claim about noncitizen voting in the 2016 election. Whitley, on the other hand, deserves at least partial credit for finishing up a study authorized under a recent Texas law aimed at gathering actual evidence of noncitizen voting in the state.
      The study, immediately touted by the state's Republican attorney general Ken Paxton, raised alarms nationwide after Trump and conservative commentators began citing it as the long-sought proof of noncitizen voting. On the surface, the study seemed sensible enough by correlating noncitizens who applied to the state's Department of Public Safety for driver licenses with names on county election registration rolls.
      The logical flaw, however, results from the extended time period covered by the study since many of the noncitizen drivers could have become naturalized citizens by the time they registered to vote years later. In fact, Texas secretary of state officials involved in the study learned before releasing their results that other states had encountered this very problem with similar studies and had acknowledged their results to be questionable.
      The obsessive search for illegal voting by noncitizens naturally brings to mind Captain Ahab's self-destructive pursuit of the white whale in Moby Dick or the Bush administration's empty-handed search for Saddam Hussein's weapons of mass destruction in Iraq. Among the other recent victims of this neurosis is the Senate's Republican leader, Kentucky's Mitch McConnell, who wrongly claimed in an op-ed essay [Jan. 18] that California election officials had recently allowed 23,000 ineligible voters to register. Five days later, the Washington Post ran a correction to note that the figure "referred to registration errors such as wrongly recorded party affiliations, not ineligible voters."
      McConnell cited the fake statistics in the course of a broad attack on the Democratic-sponsored bill in the House of Representatives aimed at making it easier to vote by requiring, among other practices, automatic voter registration and early voting in federal elections. The Democratic sponsors call H.R. 1 the "For the People Act," but McConnell dismisses it instead as "the Democrat Politician Protection Act" on the wrongheaded premise that it is designed to allow federal workers to take a day off to campaign for Democratic candidates.
      Meanwhile, local election officials in Texas were dealing with the serious issues resulting from a wrongheaded directive from the state elections chief to purge supposed noncitizens from their registration rolls. In Harris County, the state's largest, election officials reported that they had cleared 18,000 voters who had been wrongly identified in the secretary of state's study as potential noncitizens, as reported in the Texas Tribune.
      The Tribune reported that four other large counties had received messages from Whitley's office acknowledging possible errors in identifying some of the voters as noncitizens. By week's end, Whitley had not officially acknowledged the errors, but the office's spokesman backpedaled somewhat by explaining that the office was "continuing to provide information to the counties to assist them" in verifying voter eligibility.
      The long-established Latino advocacy group known by its acronym as LULAC sued Whitley's office in federal court by claiming that the enforcement steps taken based on the flawed study amounted to voter intimidation. "Voter fraud is a lie," LULAC's president Domengo Garcia said at a news conference announcing the lawsuit. "It's a big lie made to disenfranchise primarily African-American, Latino voters in Texas."
      By now, any court can take judicial notice of the fact that Republican lawmakers and officials have enacted laws and adopted policies over the past two decades deliberately aimed at making it harder to vote so as to disadvantage groups likely to favor Democratic candidates at the polls. As one datum, a judge could note that Mississippi's newly elected Republican U.S. senator Cindy Hyde-Smith told a rally after her election in November that it would be "a great idea" to "make it just a little more difficult' to vote."
      The Supreme Court has been complicit in the Republicans' voter suppression by upholding state voter ID laws despite the lack of any measurable evidence of fraudulent voter impersonation at the polls. In today's poisonously polarized political climate, the right to vote no longer enjoys bipartisan support nor strong judicial protection. The fake statistics spread around by Republicans in state capitals and Washington alike undercut what should be a sacred privilege. More than ever, federal courts need to step in boldly when called on to police the politically driven tactics to devalue this most precious of rights in our democracy.

Saturday, January 26, 2019

Kavanaugh Drives Court's Turn to the Right

      For the first three months of the Supreme Court's new term, the narrowly confirmed rookie justice Brett Kavanaugh appeared to be playing the role of Sherlock Holmes' proverbial non-barking dog. The anti-abortion groups that had so heavily invested in Kavanaugh's hard-fought confirmation voiced disappointment in December, for example, after Kavanaugh failed to give three conservatives the needed fourth vote to hear appeals from two states seeking to reinstate bans on funding for Planned Parenthood clinics.
      That was then, but this is now. Kavanaugh apparently helped provide the critical votes needed for a pair of decisions announced in orders this week [Jan. 22] that signal a possible hard turn to the right in coming months and future terms. He was part of a 5-4 majority that reinstated the Trump administration's restrictive policy on transgender military service members and likely one of the four votes needed to hear a new case on Second Amendment gun rights.
      The interim action in the transgender military cases, Trump v. Zaronski and Trump v. Stockman, came with no written opinion on a 5-4 vote with the four liberal justices in dissent. Two federal courts had issued injunctions to block the policy. The conservative justices voted to grant the administration's request for a stay, an extraordinary remedy, usually disfavored in Supreme Court practice, while the liberals would have left the injunctions in place pending full appeals.
      Kavanaugh's presumed stance is also the likely explanation for the Court's decision to take on a gun rights case for the first time since its pair of decisions in 2008 and 2010 striking down laws banning possession of handguns in the name of a Second Amendment right for self-defense in the home. In the new case, New York State Rifle and Pistol Association v. City of New York, the justices are being asked to extend that carefully limited right outside the home. That step could set the stage for a broad constitutional right to go armed in public that could supersede gun licensing requirements enacted in a host of states and cities.
      The case tests an unusual local ordinance that prohibits transportation of firearms even if licensed, unloaded, and locked to shooting ranges outside New York's city limits. Still, Adam Winkler, a pro-gun control law professor at UCLA, told The New York Times's Supreme Court correspondent Adam Liptak that he viewed the case as a likely "landmark . . . with major implications for gun policy."
      The Court's actions in the transgender service members cases have a more immediate impact than the foreboding certiorari grant in the gun rights case. The policy may be less than a ban, as the Pentagon stressed, but it casts doubts over the thousands of transgender service members who have been serving openly according to their gender identity under an Obama administration policy.
      Trump initiated the takedown of the Obama policy with a tweet on July 26, 2017, stating that the government "will not accept or allow . . . transgender individuals to serve in any capacity in the U.S. military." Instead of a complete ban, the then-Defense Secretary James Mattis responded to Trump's directive by fashioning a policy that included a "categorical reliance exemption" for transgender service members who entered or remained in service after the announcement of the Obama policy.
      Federal district court judges in Seattle and Los Angeles, ruling in cases brought by transgender service members, issued injunctions blocking the policy. In the first of the injunctions — issued on Dec. 22, 2017 — U.S. District Court Judge Marsha Pechman in Seattle rejected the administration's arguments for "military deference" to the policy. She went on to find the justifications for the policy change to be "not merely unsupported but actually contradicted" by the Obama administration's study of the issues.
      Facing other cases in California, Maryland, and the District of Columbia, the administration adopted a less-than-urgent appellate strategy. The government applied for limited stays only to allow the military to reject new transgender recruits and then dropped the appeals altogether. Pechman made her preliminary injunction permanent after a contentious hearing on March 27, 2018. She rejected the administration's defense of what government lawyers described as an "exception" to allow transgender service members to serve according to their biological sex.
      After batting 0-for-4 in district courts, the government stepped up its game with extraordinary petitions asking the Supreme Court to grant "certiorari before judgment" in the Washington and California cases without waiting for the Ninth Circuit appeals court to rule. As an alternative, the solicitor general's office filed parallel applications in those two cases to stay the district court injunctions. A stay is a form of extraordinary relief that, under Supreme Court Rule 20, is justified only in "exceptional circumstances."
      Supreme Court justices take pride in the role that written opinions play in explaining and justifying their decisions. In this instance, however, none of the justices wrote or uttered a single word to explain the deference to a policy, on the basis of an incomplete record, that federal judges in four different cases had rejected.
      The inference is clear: five Republican-appointed justices, including the Trump appointees Kavanaugh and Neil Gorsuch, decided simply to back the Tweeter in Chief in an animus-driven decision to consign brave and honorable transgender service members to the limbo of separate and unequal status. They deserved better: thanks for your service, indeed.

Saturday, January 19, 2019

Barr Falls Short in Promises on Mueller Probe

      As President Trump's nominee to be attorney general, William Barr proved himself in his Senate confirmation hearing testimony last week [Jan. 15] to be a smart guy and a good lawyer. But Barr came across as too lawyer-like to dispel the legitimate doubts about his leading the Justice Department at a critical time in the special counsel's investigation of his White House sponsor.
      Barr distanced himself from Trump at the start of his Senate Judiciary Committee appearance by regretting the government shutdown then in its record-breaking twenty-fifth day and voicing sympathy, un-Trumplike, for furloughed government employees. Later, however, he quibbled over a Democratic senator's reference to the "Trump shutdown" with a bit of false equivalence aimed at Democrats. "It takes two to tango," Barr retorted.
      More substantively, Barr supported his longtime friend and former Justice Department colleague Robert Mueller by emphatically rejecting Trump's familiar characterization of the special counsel's investigation. "I don't believe Mr. Mueller would be involved in a witch hunt," Barr said even while acknowledging Trump's criticisms as "understandable."
      Disagreeing with Trump, however, Barr said that it was "vitally important" that Mueller be allowed to complete the investigation without interference. "If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interference with or any other investigation," he said. "I will follow the Special Counsel regulations scrupulously and in good faith and, on my watch, Bob will be allowed to complete his work."
      Barr's qualifications for the Justice Department post were praised by Republican senators and acknowledged by Democrats. He rose in the Justice Department under President George H.W. Bush from the Office of Legal Counsel in 1989 to deputy attorney general and attorney general in Bush's last two years in office, 1991 to 1993. Critics, however, underscored that nothing in Barr's previous tenure at Justice demonstrated a willingness to assert independence from the White House.
      In any event, Barr's credentials went unremarked on when Trump interviewed him for attorney general. Trump's only question, according to Barr, was how well he knew Mueller. The president's single-focus curiosity added to the impression that Barr's principal qualification for the post in Trump's mind was the unsolicited 19-page memo that he wrote and then distributed to Justice Department officials questioning Mueller's apparent interest in a possible obstruction of justice charge against the president.
      The memo eventually found its way to Trump, but Barr batted away any insinuation that he wrote the memo to curry Trump's favor in hopes of landing the Justice Department job. At age 68, he told the senators, he had no need to pad his resume and no desire to disrupt a comfortable life with political grief. Barr unsettled those reassurances, however, by fudging on two critical issues: whether he would recuse himself from overseeing Mueller's investigation, given his prior views, and whether he would promise to release the eventual report.
      In a different context, Barr's lawyer-like reluctance to address both questions in advance might have seemed reasonable. The job came open, however, only after Trump berated and then fired Attorney General Jeff Sessions for Sessions' ethics-bound decision to recuse himself from the Russia investigation. Pressed by Democrats, Barr refused to promise to recuse himself even if the Justice Department's ethics office recommended.
      Barr retreated to the Special Counsel regulations to avoid a firm promise to release Mueller's eventual report. He did promise he would not allow the White House to edit the report, but as to releasing the report he went no further than to state that his goal would be to "provide as much transparency as I can consistent with the law." With Barr's testimony finished, the committee's ranking Democrat, California's Dianne Feinstein, opined the next day [Jan. 16] that she found Barr's description of his intentions to be "confusing."
      Feinstein said that her eventual vote would depend on the public release issue. She had already conceded to reporters, however, that Barr seemed on the path to "easy confirmation." With Republicans holding a fortified 53-47 majority in the new Senate, Barr's confirmation had been treated as a certainty from the outset. Thus, Democrats used the hearing as best they could to secure commitments. The Democrats' leader, New York's Chuck Schumer, echoed Feinstein in describing Barr's stated goal of transparency as "not good enough."
      As often happens, Barr had moments of confirmation conversion when questioned critically about some of his prior views. He assured the Iowa Republican Chuck Grassley, for example, that he would heed Grassley's advice to support enforcement of the False Claims Act despite previous doubts about the law, which incentivizes whistleblowers to sue fraudulent government contractors in the government's name. Barr also promised to implement the sentence-reducing provisions of the newly enacted bipartisan criminal justice reform despite his previous support for policies that fueled late 20th century mass incarceration.
      Barr stuck to his previous view, however, and the official Justice Department position that the president is not subject to criminal indictment while in office. Hypothetically, however, Barr said that witness tampering by a president could constitute obstruction of justice.
      That colloquy gained special attention at week's end after BuzzFeed News reported [Jan. 17] that Trump's former attorney Michael Cohen had told Mueller's office that Trump directed him to lie to Congress about the status of Trump's hoped for Trump Tower in Moscow. "If true," House Democrat Joaquin Castro of Texas remarked on MSNBC, "Trump should either resign or be impeached." From Capitol Hill Republicans, however, only crickets.

Saturday, January 12, 2019

Manafort's 'Smoking Gun' on Collusion With Russia

      Paul Manafort, while serving as chairman of Donald Trump's presidential campaign, met with a Russian spy and gave him confidential polling data from the campaign even as reports were already swirling of Russian interference in the U.S. presidential election. The stunning, unintentional disclosure in a court filing by Manafort's own lawyers struck some legal experts and Democratic politicians alike as the long-sought proof of the Trump campaign's collusion with Russian agents that Trump has repeatedly and insistently denied.
      A "smoking gun," the prominent Harvard law professor Laurence Tribe tweeted after the Washington Post story went online on Tuesday [Jan. 8]. Sen. Mark Warner, the Virginia Democrat and the party's ranking member on the Senate Intelligence Committee, had a similar reaction the next day. "This appears as the closest we've seen yet to real, live, actual collusion," Warner told CNN's Manu Raju in a corridor interview.
      The White House, consumed with the impasse over Trump's border wall and partial government shutdown, had little reaction beyond Trump's perfunctory denial two days later. "I didn't know anything about it," he told reporters when questioned on the White House lawn. Trump apologists began intimating, however, that Manafort was freelancing in his own interest when he passed on valuable political data to a Russian he knew from representing the pro-Russian elements in neighboring Ukraine.
      The disclosure of Manafort's campaign-time gift to his Russian associate, Konstantin V. Kilimnik, came from a filing by Manafort's lawyers aimed at limiting the eventual prison sentence for their convicted felon client. Manafort is due to be sentenced in March, but special counsel Robert Mueller's office has charged him with lying as part of a plea deal and warned on that basis of asking for more prison time.
      Manafort's lawyers deny that their client has been lying to Mueller's office and apparently included the information about the meeting with Kilmnik to prove their client's bona fides. They intended to redact that sentence from the court filing, but it emerged unredcated apparently because of a formatting error on their part.
      The disclosure of Manafort's meeting with a Russian well known to have ties to the Kremlin's intelligence services makes unavoidable the inference that Russia used the information better to target its interference in the 2016 presidential campaign for the benefit of Vladimir Putin's preferred candidate, Trump. The many questions unaddressed so far include, for example, whether Manafort told Trump in advance, after the fact, or never at all.
      With those questions pending, however, a leading election law expert surmises that the disclosure shows an apparent violation of federal campaign finance law. Paul Ryan, vice president for policy and litigation at the venerable campaign finance watchdog group Common Cause, notes that federal law flatly prohibits foreign nationals from directly or indirectly making contributions to U.S. campaigns and likewise prohibits U.S. campaigns from soliciting or receiving contributions from foreign nationals.
      Campaign experts interviewed by various news organizations over the next few days emphasized that the information Manafort acknowledges turning over apparently went beyond publicly available polling data and instead included the kind of "analytics" useful in precision targeting of political messages. Manafort's anonymous apologists suggested that he was providing the information to his Ukrainian clients by way of buttressing their backing of a pro-Russian "peace plan" for the region.
      Other experts emphasized that the Ukrainians had no real use for the data, but the Russians — based on their now confirmed interference in the 2016 campaign — clearly did know how it could be used and presumably used it for Trump's benefit. On that basis, Ryan posits that the Trump campaign violated federal law by receiving an "in-kind contribution" from foreign nationals in the form of "coordinated expenditures' and by failing to report those contributions and expenditures.
      As with the Trump campaign's failure to report the hush-money payment to Trump's porn-star accuser Stormy Daniels, this apparent campaign finance violation is no inadvertent bookkeeping oversight, but deliberate concealment of information that voters had a right to know before casting their ballots. President Obama, it will be recalled, backed away at the time from disclosing the intelligence community's assessment of Russian interference in the 2016 election. A Trump campaign filing with the Federal Election Commission would have been proof positive of the campaign's dalliance with the United States' most significant geopolitical adversary.
      Now, more than two years after the fact, the evidence shows that Trump campaign operatives had more than 100 contacts with Russian agents during the course of the 2016 campaign despite warnings from the FBI of the Russians' attempts at insinuation. Trump's response as candidate and later as president was so inexplicable, the New York Times has now disclosed in a stunning report, that the FBI opened a counterintelligence investigation after the firing of FBI director James Comey to determine whether Trump was consciously or unwittingly doing Russia's bidding as president.
      In a parliamentary system, the time would be ripe for a vote of no-confidence from the people's elected representatives in what is now a Democratic-majority House of Representatives. In the United States' presidential system, the constitutional remedy is impeachment, a procedure the Framers devised in part to guard against improper foreign influence on the chief executive. That remedy awaits the final report from Mueller's office but faces a seemingly insuperable obstacle in the Senate unless Republicans realize that Trump's presidency threatens not just the country but perhaps their own political fortunes as well.

Sunday, January 6, 2019

For New Congress: Impeachment, Voting Rights, Ethics

      To impeach or not to impeach: that is the question now that the House of Representatives' Democratic majority and any conscientious Republicans are in a position to exercise that constitutional remedy for an abusive president. Impeachment hearings would suck a lot of political air out of Capitol Hill cloakrooms, but Democrats can and should pursue a progressive and reform-minded policy agenda at the same time.
      The House Judiciary Committee, under the chairmanship of Rep. Jerrold Nadler, D-N.Y., may be best advised to await the final report from special counsel Robert Mueller before broaching the issue. In the meantime, however, the committee could open hearings on the omnibus voting rights and ethics bill, introduced symbolically as H.R. 1 by Rep. John Lewis, the Georgia Democrat and hero of the great voting rights movement of the 1960s.
      The committee could also join with other House panels by looking into the ambitious agenda for rule of law and ethics reform that the Brennan Center for Justice unveiled in October under the auspices of a bipartisan task force. The 60-page report, replete with 30 pages of footnotes, includes more than two dozen proposals to prevent White House interference with Justice Department investigations and strengthen ethics requirements and official accountability.
      In an alternate political universe, the voting rights and ethics reform proposals would gain bipartisan support from Democrats and Republicans alike. In present-day Washington, however, any of these democracy-enhancing proposals would face a steep uphill fight in the Republican-controlled Senate after hypothetical approval by the Democratic-controlled House.
      Lewis, arrested and beaten as he participated in the voting rights march at Selma, Alabama, in 1965, was joined by House Speaker Nancy Pelosi and a dozen other Democrats in unveiling the voting rights bill from the House floor on Friday [Jan. 4]. The 571-page bill includes provisions, among others, to require automatic voter registration for federal elections, expand early voting, and limit the kind of aggressive cancellation of registered voters seen in Lewis's home state in the run-up to the hotly contested gubernatorial race in November.
      Republican Brian Kemp, running for governor while serving conflicted as the state elections chief, won that election by besting Democrat Stacey Abrams with a margin of 55,000 votes out of 3.9 million cast. Lewis said he is convinced that the results in Georgia and its neighbor state Florida were changed by "the way votes were not counted and purged" in both states. "That must never happen again in our country," he said.
      Voting rights need not be a partisan issue, but Republicans have turned it into a political background over the past two decades after concluding that steps to increase voter registration and participation help Democrats and hurt Republicans. They masquerade this partisan imperative with utterly bogus claims of rampant voter fraud that independent election law experts uniformly reject.
      The ethics reforms proposed by the Brennan Center, the New York University Law School think tank established as a living memorial to the late Supreme Court justice, are likewise not inherently partisan. Indeed, several fit well within the "drain the swamp" mantra mouthed by Donald Trump while a candidate and then forgotten in the White House, such as tightening financial disclosure requirements and strengthening the enforcement powers of the Office of Government Ethics.
      Other proposals, however, are aimed directly at positions that Trump took as candidate and continues to defend as president. The eight-member task force, co-chaired by former U.S. attorney Preet Bharara and the former Republican governor and Cabinet member Christine Whitman, proposed, for example, that Congress pass a law requiring all candidates for president and vice president to disclose their personal and business income tax returns.
      Trump broke with a 40-year-old precedent in refusing to disclose his income tax returns and, despite vague assurances of eventual disclosure, has continued to shield those returns as president. Transparency advocates in Congress, however, are being urged to invoke congressional oversight powers to demand the returns from the Internal Revenue Service (IRS).
      The task force also recommended that Congress pass legislation to enforce the Constitution's Foreign and Domestic Emoluments Clauses, the provisions that prohibit the president or other federal officials from profiting in their positions through payments from foreign or state governments. Trump currently faces three lawsuits for his notorious violations of these two clauses, but the strongest of three — brought by the District of Columbia and the state of Maryland — was put on hold after the judge approved subpoenas for Trump Organization business records.
      In addition, the task force called for Congress to eliminate the ethics exemption for presidents and vice presidents and require divestment of any personal holdings unless placed in a blind trust. As candidate, Trump made a big show of turning his businesses over to his sons, but he continues to have an interest in the businesses while refusing to disclose the details.
      These issues are more than enough for Congress to work on without taking on impeachment however urgent that issue. Despite her locker-room language, Rep. Rashida Tlaib, the newly elected Democrat from Michigan, was right to point in an op-ed in USA Today to the "overwhelming evidence" that Trump has committed such impeachable offenses as obstructing justice, violating the Emoluments Clause, and conspiring to illegally influence the 2016 election. Mueller's final report on those questions may be too much even for the craven Republicans on Capitol Hill to ignore.