Sunday, November 17, 2019

Witnesses Detail Trump's Impeachable Offense

      The evidence of President Trump's impeachable offense, attempted bribery, has now been laid out in sworn, first-hand testimony by four U.S. diplomats, three of them in public hearings. The most incriminating evidence comes from Trump's own words, as recounted in the summary of his July 25 telephone call with the Ukrainian president Volodymyr Zelensky and an overheard cell phone conversation the next day with his own special envoy, Gordon Sondland.
      The evidence, circumstantial and now direct, confirms that Trump withheld vital military assistance from Ukraine in order to pressure Zelensky to open politically charged investigations into former vice president Joe Biden and Biden's son Hunter. The evidence fully satisfies even the demanding beyond-a-reasonable-doubt standard that would be applicable in a criminal trial but not in impeachment. Still, the evidence has yet to move any of the see-no-evil Republican lawmakers even after their repeated calls for first-hand evidence in public hearings have now been met.
      The House impeachment inquiry moved into high gear with testimony from three well respected veteran diplomats [Nov. 13, 14] that Trump obsessed for months over his efforts to get the new Ukrainian president to open investigations into the Bidens. In Trump's warped mindset, Biden was acting to protect his son's role with the Ukrainian natural gas company Burisma while carrying out official U.S. policy as vice president in December 2015 to pressure the Kyiv regime to fire the ineffectual and corrupt prosecutor general Viktor Shokin.
      Astonishingly, the same Donald Trump who still wants to put Hillary Clinton behind bars for forwarding classified material on a private email server conducted U.S. foreign policy with Sondland on a cell phone with the U.S. ambassador in a non-secure Kyiv restaurant. Trump spoke loudly enough to be heard by those in the restaurant, including a foreign service officer posted to the U.S. Embassy. David Holmes testified privately that he heard Trump ask Sondland whether Zelensky had agreed to open an investigation into the Bidens. Sondland answered yes, according to Holmes' written statement, as obtained by news organizations before Holmes' closed-door session late Friday [Nov. 15].
      Holmes said he heard Trump respond, "So he's going to do the investigation?" Sondland, a megadonor to Trump's campaign who was rewarded with appointment as U.S. ambassador to the European Union, assured Trump that Zelensky would do "anything you ask him to do."  Holmes later pressed for details from Sondland, who told him that Trump cared not about Ukraine but about "big stuff that benefits the president, like the Biden investigation."
      Republicans have belittled the evidence by noting that the diplomats who testified about Trump's attempted quid pro quo had no direct conversations themselves with the president. Sondland is scheduled to testify later this week [week of Nov. 18] and is certain to be pressed for details of the cell phone conversation and half a dozen other conversations he is now reported to have had with Trump.
      Sondland, it needs to be recalled, said in his initial deposition that he never thought there was any precondition on the U.S. aid to Ukraine. But with a perjury charge possibly in mind, he later recalled in a four-page sworn statement that he told a ranking Ukrainian official that aid was unlikely unless Zelensky delivered the so-called "anticorruption statement" that had been under discussion for weeks.
      Sondland's description of the statement being drafted for Zelensky was flatly contradicted in testimony by his superior, George Kent, deputy assistant secretary of state for European and Eurasian affairs. "That was not an anti-corruption statement," Kent testified to the House committee. Meanwhile, the president's personal attorney, Rudy Giuliani, was weighing in on the drafting process too, according to Kent's testimony. Giuliani told the Ukrainians that the statement would not be acceptable to Trump unless it specifically mentioned the Bidens.
      Republicans and other Trump apologists —  but I repeat myself — have tried out several lines of defense for the president's abuse of power. Mick Mulvaney, the acting White House chief of staff, embarrassingly acknowledged what a reporter described in his question as a quid pro quo and then went on to say, "We do that all the time." Not so, according to diplomat William Taylor, who was left as chargé d'affaires in the U.S. embassy in Kyiv after ambassador Marie Yovanovitch was peremptorily dismissed for as-yet unexplained differences with Trump.
      For a while, Republicans also appeared to be suggesting that Giuliani and his shady Ukrainian cronies were acting on their own, with Trump supposedly unaware. That dog simply won't hunt, given the direct evidence now of Trump's involvement.
      Equally unavailing is the line of defense put forward most succinctly in the hearing by the one-time Trump critic New York Republican Elise Stefanik, who emphasized that the deferred military assistance was eventually delivered without any move by Zelensky to open the asked-for investigations. The federal bribery statute, 18 U.S.C. §201, is instructive on the point. The law broadly makes it illegal to "give, offer, or promise anything of value to a public official . . . to influence any official act," whether or not the offered bribe is paid and whether or not the requested official act is completed.
      With hearings set to resume, Republicans need to be pressed to answer the rhetorical question that the committee's chairman, Rep. Adam Schiff, posed from the center chair. "If this is not impeachable conduct, what is?" Schiff asked. From the Republicans, crickets.

Saturday, November 9, 2019

Trump to Test Supreme Court's Republican Tilt

      The Republican-majority Supreme Court has yet to issue any decisions this term, but the justices' partisan tilt can be seen in several of the term's early case-selecting decisions.
       The justices have gone out of their way to tee up a conservative wish-list of cases on such topics as abortion rights, gun rights, and presidential power. Meanwhile, President Trump plans to ask the justices on Thursday [Nov. 14] to reverse the federal appeals court decision to enforce a New York prosecutor's subpoena for Trump's tax returns and financial records for use in a state criminal investigation.
      The ruling by the Second U.S. Circuit Court of Appeals in the subpoena case, Trump v. Vance, shredded all of Trump's arguments to block the subpoena issued by the office of the Manhattan district attorney, Cyrus Vance Jr., for Trump Organization records held by Trump's accounting firm, Mazars.
       Vance says the state grand jury needs the records to investigate possible criminal violations by Trump and his businesses, but Trump's lawyers argue that presidential immunity protects him not only from indictment but also from criminal investigation at all. That position, backed by Justice Department lawyers, contradicts the Supreme Court's decisions in two previous presidential immunity disputes.
      The Court's unanimous decision in the Watergate tapes case, Nixon v. United States (1974), upheld the special prosecutor's subpoena of Nixon's Oval Office tape recordings in the face of an executive privilege claim. Later, the Court ruled in Clinton v. Jones (1997), also unanimously, that a president has no immunity from being forced to testify in civil litigation relating to conduct before taking office.
      The Second Circuit's ruling, issued on Monday [Nov. 4], cites those decisions while emphasizing that the subpoena directed to Trump's accountants requires no action by Trump at all. The appeals court panel included three Democratic appointees, with the 34-page opinion written by the court's chief judge, Robert Katzmann, who is widely admired as a thoughtful and scholarly jurist.
      In a footnote, Katzmann noted that six previous presidents, dating back to Jimmy Carter, voluntarily released their tax returns to the public with no evident impact on their performance in office. Katzmann also emphasized that the subpoena seeks business records unconnected to Trump's presidency and thus implicates executive privilege not at all.
      Katzmann took pains to avoid ruling on an ultimate issue in the case: whether the president is subject to criminal indictment at all while in office. "Even assuming, without deciding, that a formal criminal charge against the President carries a stigma too great for the Constitution to tolerate," Katzmann wrote, "we cannot conclude that mere investigation is so debilitating."
      In their arguments, Trump's private counsel and Justice Department lawyers noted the oft-quoted Office of Legal Counsel (OLC) opinion written in the Watergate context in 1973 that the president is not subject to criminal prosecution while in office. Katzmann noted that the OLC opinion and a later DOJ memorandum in 2000 did not address the narrower issue in Trump's case: whether the president could claim immunity from investigation. In any event, Katzmann said that both issues were for courts to decide, not an executive branch agency.
      Trump's private counsel, Jay Sekulow, promptly vowed to take what he called the "constitutionally significant" issue to the Supreme Court. But one leading constitutional law expert, Harvard law professor Laurence Tribe, described the appeals court decision as "unmistakably correct" in an appearance on the cable news channel MSNBC and saw no basis for the Supreme Court to review it.
      Consider, however, these three cases that the Court has already agreed to hear despite factors that ordinarily would leave them on the cutting-room floor:
      Gun rights. The justices will hear arguments in New York State Rifle and Pistol Association, Inc. v. City of New York on Dec. 2 even though the city argues the case is moot after it amended the narrow ordinance at issue. The case gives the Court its first clear shot to expand Second Amendment rights and limit local and state gun safety laws after the 5-4 decision in District of Columbia v. Heller (2008) to bar local laws banning possession of handguns.
      Abortion rights. The Court is likely to hear arguments in February in Louisiana's effort in June Medical Services L.L.C. v. Gee to reinstate an abortion-related law comparable to a Texas law struck down by a 5-3 vote four years ago. The law requires physicians performing abortions to have admitting privileges at a hospital in the area. Anti-abortion forces hope that with two new justices, Neil Gorsuch and Brett Kavanaugh, the Court will depart from its decision in the Texas case and give states more leeway to regulate abortion clinics.
      Presidential power. The Court is also likely to hear arguments in February in a politically charged dispute over the single-director structure of the new Consumer Financial Protection Bureau (CFPB), as upheld so far by two federal appeals courts. The plaintiff in Seila Law LLC v. Consumer Financial Protection Bureau argues that the decision by the Democratic-majority Congress to vest the new agency's power in a single, tenure-protected director instead of a multimember commission unconstitutionally intrudes on presidential power.
      Given these three somewhat improbable cert-grants, it may be treacherous to predict that the Republican-appointed justices, all of them deferential to presidential power in previous cases, will pass up Trump's appeal on the subpoena once filed. So, as Trump is wont to say, "we will see what happens."

Sunday, November 3, 2019

For Ukraine: Cry, the Beleaguered Country

      Forget for a moment the domestic legal and political implications of President Trump's attempt to use U.S. military aid to force Ukraine's newly elected president Volodymyr Zelensky into investigating former vice president Joe Biden. Focus instead on the consequences for Ukraine as the fragile democracy struggles with its own problems: combating corruption at home and fighting a ground war against Russia in its separatist-leaning eastern reaches.
      Ukraine has troubles enough of its own, but democracy is on the ropes in several other European countries, 30 years after the fall of the Berlin Wall. Under President Trump, the United States has been at best indifferent to the challenges to the fledgling democracies or, at worst, even supportive of the rising autocrats, such as Hungary's Viktor Orbán.
       Concerns about Ukraine's well-being and its geopolitical importance in confronting Vladimir Putin's Russia were at the heart of the damning testimony that the National Security Council's top Ukraine expert Alexander Vindman gave last week [Oct. 29] to the House impeachment inquiry. Vindman, a Harvard-trained lieutenant colonel in the U.S. Army, confirmed in his six-page statement that Trump asked Zelensky to open politically charged investigations into Hunter Biden's role in the Ukrainian natural gas company Burisma in exchange for Trump's releasing the held-up delivery of U.S.-made antitank Javelin missiles.
      The Ukrainian-born Vindman, a refugee from the Soviet Union era, told the House committees conducting the impeachment inquiry that Trump's role in the call left him "worried about the implications for the U.S. government's support of Ukraine." An investigation of the Bidens and Burisma, he realized, "would likely be interpreted as a partisan play which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained."
      Vindman, who was awarded a Purple Heart for wounds suffered from an IED in Iraq, arrived at the Capitol for his closed-door deposition in full military uniform, with four rows of commendation-signifying ribbons plainly visible. He explained to the assembled lawmakers, Democrats and Republicans alike, that he worried that reduced U.S. support for Ukraine "would . . . undermine U.S. national security."
      Zelensky's "landslide" election as president in late April, Vindman explained, was an auspicious sign for Ukraine's political stability on the strength of his winning a majority in every region of the country. Zelensky's party won another landslide victory in parliamentary elections on July 21, prompting what was supposed to be Trump's congratulatory phone call four days later.
      For Trump, the withheld military aid was a bargaining chip to be used in shaking down Zelensky after he had taken office just two months earlier. For Ukrainian soldiers on the front lines, however, Trump's tactic was a psychological jolt that undermined confidence in U.S. support. "It was very unpleasant to hear this," one officer remarked in a story by the New York Times reporter Andrew E. Kramer.
      Trump also used Zelensky's hope for an invitation to the White House as a second inducement to bend the Ukrainian leader to his will. With no promise from Zelensky, the Ukrainian leader was denied a White House visit and given instead the sop of a meeting at the United Nations in New York City in late September. Sitting alongside Trump, Zelensky did the best he could to preserve his dignity and political standing at home by claiming, with lapdog obedience, that he had not felt pressured by Trump's phone call.
      Trump's seeming indifference to Ukraine's precarious political conditions is of a piece with his attitude toward the challenges to the other fledgling democracies that emerged from Soviet domination after 1989. "The Trump administration has moved away from human rights issues," according to Susan Corke, director of the Transatlantic Democracy Working Group at the German Marshall Fund of the United States in Washington. "It's pretty clear that they don't care about internal human rights issues."
      Corke was among a dozen experts at a recent Freedom House event in Washington [October 17] who fretted about the setbacks for democracy in Europe and the Trump administration's indifference. Trump "has no interest in promoting democracy," according to Timothy Garton Ash, a leading commentator on European affairs as a professor of European studies at the University of Oxford.
      The Obama administration was critical of autocratic tendencies in such countries as Hungary and Poland, but Trump decided instead to "warm up relations" with the anti-democrats. Hungary's autocratic Orbán got the White House visit that Zelensky was denied. In the meantime, the administration has failed to spend money that Congress has appropriated to counteract Russia's efforts to disrupt democratization in its former satellite nations.
      Corke calls for providing more funds to civil society groups, including independent media, to strengthen democratic impulses in the former Iron Curtain countries and to speak out against anti-democratic moves. "Where countries are actively flouting their democracy and human rights commitments," she explains, "there have to be repercussions by publicly holding them accountable and diplomatically raising those issues."
      Vindman closed his testimony with a vision of the United States and Ukraine as "strategic partners, working together to realize the shared vision of a stable, prosperous, and democratic Ukraine that is integrated into the Euro-Atlantic community." Trump's vision, sadly, was different, but his shameless shakedown appears to have backfired thanks to the backlash not just from Vindman but from others in the administration shocked to discover that Trump cared more about his political fortunes than Ukraine's.

Sunday, October 27, 2019

Under Trump, Lawlessness and Disorder

      Fifty years ago, Richard Nixon campaigned for the presidency in 1968 with a "law and order" platform that blamed the nationwide crime rates on liberal Supreme Court decisions on criminal law and procedure. The theme may have played a critical role in Nixon's narrow victory and continued to serve Republican candidates well in subsequent campaigns.
      Today, however, Trump has transformed the Grand Old Party into a party of lawlessness and disorder. Trump's lawyers were in a federal courtroom last week [Oct. 23], along with Justice Department lawyers, arguing that Trump is so far above the law that he cannot even be investigated much less prosecuted for run-of-the-mill criminal offenses.
      One day earlier, Trump had met at the White House with some of his Republican supporters in the House of Representatives to bless a plan to disrupt the ongoing impeachment inquiry being conducted by three Democratic-led House committees. Rep. Matt Gaetz, the Florida Republican and leader of the group, effectively delayed the inquiry for five hours by leading two dozen or so rule-breaking members into the secure, underground facility where the committees, with members from both parties, were to hear testimony from the next administration official called as a witness in the proceeding.
      Trump's lawyers were arguing before the federal appeals court in New York City to quash a subpoena issued by the Manhattan district attorney, Cyrus Vance Jr., for Trump's personal and corporate tax returns as part of a tax-related investigation by the state prosecutor's office. The three-judge panel in the case, Trump v. Vance, appeared to be taken aback by the extraconstitutional audacity of the argument.
      Inevitably, the arguments recalled Trump's campaign-time boast that he could shoot someone on New York's Fifth Avenue without losing a single vote from his supporters. Judge Denny Chin posed the hypothetical to Trump's lawyer, William Consovoy, to ask whether local authorities would be helpless to investigate. "Nothing could be done?" Chin asked, incredulously. "That's your position."
      Consovoy, a go-to Washington lawyer for conservative and Republican causes, stuck to the position, according to the New York Times' account. "That is correct," he said, repeating himself for emphasis. "That is correct."
      Trump's position contradicts the Supreme Court's 1974 unanimous decision in United States v. Nixon that ordered Nixon to turn over the White House tapes in a criminal proceeding in the face of a more carefully framed assertion of presidential privilege. It also contradicts the Court's decision in Clinton v. Jones (1997) that Clinton was subject to subpoena in a private civil lawsuit, a proceeding with much less public import than a criminal investigation.
      Trump's position also goes beyond the protections afforded to heads of government in other Western-style democracies. As one example, the Israeli prime minister Benjamin Netanyahu is currently facing possible indictment in a two-year long investigation for possible fraud, bribery, and breach of trust. The Israeli attorney general announced plans in February to bring indictments, but Netanyahu tried to derail the charges in a pretrial hearing earlier this month [Oct.2].
      Meanwhile, the House Republicans led by the Fox News regular Gaetz were making another argument unsupported by anything in the text or spirit of the Constitution. Gaetz, who represents part of Florida's Alabama-like western panhandle, has been one of the leading critics of the preliminary depositions that the three House committees are taking in closed-door meetings to prepare for public hearings on Trump's now all but certain impeachment.
      The closed-door evidence gathering follows the pattern that the House's Republican leadership used in the Clinton impeachment. Some of the cable news channels dramatized the Republicans' hypocrisy by digging up footage from then-Rep. Lindsey Graham, one of the House's impeachment managers, and contrasting it with Graham's denunciation of the same procedure now as a Trump-supporting Republican senator from South Carolina.
      Gaetz led some 40 House Republicans into the subterranean House room officially designated as "Sensitive Compartmented Information Facility" or SCIF that the Intelligence Committee uses to safeguard classified materials. The committee rules prohibit cell phones in the facility, but Gaetz carried his with him and sent boastful tweets from inside.
      Some of those who massed with Gaetz outside the closed doors were in fact members of one or the other of the committees in the inquiry and thus had no need to barge in. Given the blatant hypocrisy, it was easy for some Congress watchers to sneer at a political stunt stage managed for maximum effect on TV newscasts.
      However farcical, the episode was worse than a stunt, as Richard Primus, a law professor at the University of Michigan, noted in a long thread on Twitter. Primus described the demonstration as "an attempt by members of Congress to use physical disorder to block the work of Congress. That's terrifying. And completely inappropriate. Constitutional government can't function that way."
      Trump and his supporters, however, have little regard for constitutional niceties. Thus, Trump scoffed last week at what he called the "phony" Emoluments Clause, the constitutional provision that he has openly violated since his first day in office. And Trump, let it be remembered, once proclaimed that the Constitution's Article II gives him the power to do whatever he wants — separation of powers notwithstanding.
      Law and order are no help, but hindrance, as Trump's political and legal situation worsens, according to Primus. "As things come to look worse for Trump, he and his supporters will resort to increasingly desperate/destructive tactics," he tweeted. "That’s how institutions collapse."

Sunday, October 20, 2019

Needed in Senate: GOP Profiles in Courage

      Barry Goldwater earned his place in U.S. political history by launching the conservative movement that remade the Republican Party and paved the way for Ronald Reagan's two-term presidency. Before Reagan, however, Goldwater had a more immediate impact on political history by persuading Richard Nixon at the height of the Watergate scandal to resign in order to spare the nation the agony of an impeachment trial in the U.S. Senate.
      Goldwater, who titled his 1960 political manifesto The Conscience of a Conservative, displayed his conscience later by confronting Nixon in the White House with the reality that the president faced a certain conviction in the Senate unless he resigned. Goldwater acted, mostly on his own, after the release of the Watergate tapes proved beyond doubt Nixon's involvement in the hush-money payments to the Watergate burglars.
      Among present-day Republicans, Goldwater-like political courage has been conspicuous by its absence even as the evidence of President Trump's impeachable offenses has emerged in plain sight and beyond dispute. House and Senate Republicans mysteriously lose their voices when questioned by reporters or Democratic colleagues about President Trump's now proven effort to trade U.S. military aid to Ukraine for investigations into his political opponents.
      John Kasich, the former Republican congressman from Ohio, crossed the Rubicon last week [Oct. 18] by saying, with acknowledged sadness, that he would vote to impeach Trump if he were back in the U.S. House of Representatives. Kasich, promoting his new book on CNN and the PBS NewsHour, told interviewers that the acting White House chief of staff Mick Mulvaney had pushed him over the edge on the issue.
      Mulvaney, in his first ever turn at the pressroom lectern, tried to prove Trump's innocence the day before [Oct. 17] by denying that Trump had pressured the Ukrainian president Volodymyr Zelensky in the infamous July 25 telephone call to gather possible dirt on Trump's possible opponent Joe Biden. Instead, Mulvaney explained, Trump wanted Zelensky's help in investigating the debunked theory that Ukraine, not Russia, had interfered in the 2016 election, supposedly by hacking into a secret Democratic National Committee server.
      Mulvaney acknowledged various conversations with Trump that led up to the withholding of the military aid. “Did he [Trump] also mention to me in passing the corruption related to the DNC server? Absolutely,” said Mulvaney. “But that’s it. And that’s why we held up the money.”
      ABC's Jonathan Karl alertly underlined the significance of Mulvaney's statement. "What you just described,” said Karl, “is a quid pro quo. It is: Funding will not flow unless the investigation into the Democratic server happens as well.” Later, Mulvaney tried to take back the admission, but there it was, on tape,  replayed time and time again on news programs for the rest of the week.
      Kasich, in the CNN interview, called Mulvaney's supposedly innocent explanation of the events "totally inappropriate. It's an abuse of power." He went on: "Does this rise to the level of impeachment? I now believe it does." But, he added, "I say it with great sadness."
      Kasich may be ahead of the curve among Republicans — no GOP senator has openly supported impeachment to date —  but he is behind the curve among the American public according to the most recent polls. A majority of Americans support the Democratic-led impeachment inquiry in the House of Representatives, according to polls by Quinnipac University, Marist University, and CBS News.
      With support for impeachment and even conviction increasing, Trump's White House counsel and one out-of-office executive branch partisan John Yoo were grasping at straws last week in efforts to delegitimize the impeachment inquiry. Yoo, best known for writing the later-repudiated "torture memo" while at the Bush Justice Department, opined last week, with no evident basis, that the Framers would never have approved of an impeachment within a year of a presidential election.
      Clark Cunningham, a law professor at Georgia State University, refuted Yoo by citing an eerily prescient warning from William Davie, the North Carolina delegate to the Constitutional Convention who helped write the Impeachment Clause. "If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected," Davie explained. "I consider this as an essential security for the good behavior of the Executive.”
      Trump''s in-house counsel Pat Cipollone went further in a much-maligned, eight-page letter to House leaders dated Oct. 8 calling the entire impeachment inquiry illegitimate and vowing not to cooperate. Ten days later, 300 law professors had been found to sign a response saying that they disagreed with Cipollone's claim that the inquiry was unconstitutional because the House had not formally approved the inquiry and because Republicans were not being allowed to call witnesses.
      Seemingly oblivious to his worsening political status, Trump doubled down on abuse of office at week's end by authorizing an in-plain-view violation of the Emoluments Clause: specifically, designating his financially troubled Miami-area Doral resort as the U.S. site for the G-7 summit in 2020. With criticism from all quarters, Trump rescinded the decision late Saturday [Oct. 19], blaming Democrats and "the hostile media."
      By week's end, some political observers were counting potential GOP defectors in the Senate, but none of the counts came near to the number needed, 20, to produce a two-thirds majority along with 47 Democrats. In the Senate itself, Majority Leader Mitch McConnell was telling colleagues to be ready for an around-the-clock week-long trial, probably sometime around Thanksgiving.

Sunday, October 13, 2019

Title VII Applies to Sexual Orientation "Because of Sex"

      Five years before Stonewall, Congress passed a law prohibiting discrimination in the workplace "because of sex," with no thought about barriers facing gay men and lesbians in getting and holding jobs. Thus, the law, Title VII of the Civil Rights Act of 1964, did not explicitly cover discrimination based on sexual orientation or gender identity, phrases not even coined at the time much less in common use.
      As early as the 1970s, however, gay rights advocates began arguing in court that a law prohibiting discrimination because of sex necessarily applies, as a simple matter of statutory construction, to discrimination because of sexual orientation as well. At the Supreme Court last week [Oct. 8], the veteran LGBT rights advocate Pamela Karlan opened with a simple and irrefutable example to prove that point, but conservative justices resisted the necessary implication of their strict textualist approach to statutory construction.
      "When an employer fires a male employee for dating men but does not fire a female employee for dating men, he violates Title VII," Karlan explained. That discrimination is "because of sex," Karlan continued, because the employer's action "is based on the male employee's failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men."
      For most of the past 50 years, courts and the Equal Employment Opportunity Commission (EEOC) have found Title VII inapplicable to anti-gay discrimination on the ground that Congress in 1964 intended nothing beyond "traditional" notions of sex. Over the past 30 years, however, textualists led by the late Justice Antonin Scalia have insisted that words matter, not intentions, in the delicate judicial art of statutory construction.
      Courts stuck with this narrow approach even as the Supreme Court ventured beyond Congress's intent in decisions extending Title VII to issues unthought-of in the 1960s. The 9-0 decision in Meritor Savings Bank v. Vinson (1986) applied Title VII to a male supervisor's sexual harassment of one of the bank's female employees on the ground that the law was intended "to strike at the entire spectrum of disparate treatment of men and women' in employment."
      Three years later, the Court held in a 6-3 decision, Price Waterhouse v. Hopkins (1989), that Title VII also applies to adverse employment decisions based on an employee's failure to conform to gender stereotypes. The ruling allowed Ann Hopkins to sue after the accounting firm's male partners denied her a promotion because she was "too macho."
      A decade later, Scalia himself led a unanimous Court in extending Title VII even further. The ruling in Oncale v. Sundowner Offshore Services, Inc. (1998) applied Title VII to same-sex harassment suffered by the straight male plaintiff from his coworkers on an offshore oil rig. "[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils," Scalia explained in his opinion for the Court.
      The EEOC extended Title VII to anti-gay discrimination in a ruling in 2015 that favored a Federal Aviation Administration air traffic controller who was passed over for a promotion after mentioning to his supervisor that he and his partner had recently attended Mardi Gras celebrations in New Orleans. "We don't need to hear about that gay stuff," the supervisor reportedly told him.
      "Sexual orientation is inherently a sex-based consideration," the EEOC stated in its 17-page opinion in Baldwin v. Fox. "An allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII."
      The gay plaintiffs in the two cases argued before the Court, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda, were both fired after they were outed, inadvertently, by circumstances. Gerald Bostock was fired from his job as a child welfare specialist in Clayton County, Georgia, after the local gay paper showed him playing in the gay softball league. Donald Zarda was fired from a New York skydiving company after he tried to reassure a female student by telling her that he was 100 percent gay.
      The federal appeals court in New York ruled in Zarda's favor, but the federal appeals court in Georgia in Bostock's case stuck with the majority view that Title VII permits anti-gay discrimination. The EEOC gave both of the plaintiffs right-to-sue letters, but the agency was unheard from in either of the cases or a third case, Harris Funeral Homes v. EEOC, seeking to apply Title VII to protect transgender employees.
      With no independent litigating authority, the EEOC was sidelined by the Trump administration's decision to support the discriminating employers in the three cases. Representing the administration, Solicitor General Noel Francisco began simply but misleadingly, "Sex means whether you're male or female, not whether you're gay or straight."
      Two of the liberal justices, Sonia Sotomayor and Elena Kagan, hoisted Francisco on his textualist petard. "The text of the statute appears to be pretty firmly in Ms. Karlan's corner," Kagan told him. But Francisco gained ground with two of the conservatives, Samuel A. Alito Jr. and Neil Gorsuch, by warning that it would be "pernicious" for the Court to extend Title VII beyond what Congress intended.
      Alito and Gorsuch worried about "massive social upheaval" from a judicial ruling to extend Title VII to anti-LGBT discrimination. Oddsmakers were hedging their bets after last week's arguments, but take pity on the law clerks in the conservative justices' chambers assigned to show that sexual orientation has nothing to do with sex.

Sunday, October 6, 2019

Trump Off the Rails on Impeachment

      President Trump is now conceding that the House of Representatives is all but certain to impeach him by Thanksgiving for the high crime of soliciting foreign assistance to benefit him in his bid for reelection next year. His inability to control or manipulate events has driven the distractible Trump to new heights of distraction, even to the point of adding to the articles of impeachment by publicly soliciting China's help on Thursday [Oct. 3] in digging up dirt on his political rival, former vice president Joe Biden, and Biden's global business-dealing son Hunter.
      The president's defense strategy appears to turn on how he feels any given day and, recently, he has not been feeling well at all. Trump was "as riled up as any time in his presidency," according to the New York Times's senior White House correspondent Peter Baker, when he called on China as the second foreign country that should investigate Hunter Biden's business dealings for unspecified wrongdoing.
      On Capitol Hill, Florida's Republican senator Marco Rubio, the former Trump rival turned Trump lapdog, had no better answer to Trump's latest high crime than to insist that he was not serious. China, apparently, agreed; Beijing responded to Trump's veiled threat to step up the trade war unless it bowed to his demand by saying that it would not interfere in the U.S. election.
      Meanwhile, the email traffic between administration officials in Washington and embassy personnel in Kyev confirmed what Trump had initially denied until eventually defending as completely proper. The text exchanges, as shown on cable news programs and in the pages of the New York Times and other newspapers, show that the White House was slow-walking President Volodymyr Zelensky's hoped-for White House meeting until he delivered on the asked-for investigation of Hunter Biden's role in the Ukrainian natural gas company Burisma.
      With the former ambassador, Marie Yovonovitch, removed because she would not cooperate, it was left to the embassy's chief of mission, Bill Taylor, to try to make sense of the demands from Washington. "Are we now saying that security assistance and WH meeting are conditioned on investigations?" Taylor asked in a Sept. 1 text message. Eight days later, he put his objections into writing. "As I said on the phone," Taylor wrote in a Sept. 9 text, "I think it's crazy to withhold security assistance for help with a political campaign."
      It bears repeating that the risk of foreign influence on the new government was the very danger that led the Framers in 1789 to give Congress a method for removing the president. Only now, 230 years later, has the fear materialized. "We have never seen the president of the United States using his foreign policy power for his own political advantage," Mieke Eoyang, a former staff director for the House Intelligence Committee, remarked in a briefing sponsored by the progressive American Constitution Society (ACS).
      Trump continues to deny and to dismiss as unimportant Russia's documented interference in the 2016 election benefiting him by publicizing Hillary Clinton's emails and spreading cybersmears about her among targeted population groups and in targeted battleground states. In Moscow, the Russian president Vladimir Putin was pursuing this strategy eagerly, as one of several initiatives aimed at destabilizing Western democracies that he views as obstacles to Russia's rightful place in the world.
      Ukraine, on the other hand, had no interest in U.S. politics except its own sovereignty and transparency, but the emails before Trump's infamous July 25 telephone call with Zelensky make clear the pressure on him to bow to Trump. "I spike [sic] directly to Zelensky and gave him a full briefing," Gordon Sondland, U.S. ambassador to the European Union, wrote six days before the phone call. "He's got it."
      With the phone call concluded, the U.S. diplomats set about drafting the actual statement that Zelensky was to use in announcing the requested investigation. For Trump's lackeys, it was not enough that Ukraine had lost part of its territory to Russia; it also had to be turned into an actual client state for Trump to control.
      Trump's substantive defense to the looming charges against him consists mostly of confusion and deflection, according to Michael Gerhardt, the University of North Carolina law professor and author of Impeachment: What Everyone Needs to Know. Trump and House Republicans are insisting that House committees cannot conduct an impeachment inquiry without a formal House vote first. Not so, Gerhardt remarked in the ACS briefing. "The fact is that all the procedures are being properly followed," he said.
      In the meantime, Trump has hurled denunciations right and left. The still unidentified whistleblower is a spy in Trump's telling and perhaps deserves the punishment once reserved for spies, an apparent reference to execution. Trump is demanding the whistleblower's identity, in contravention of the law guaranteeing whistleblower confidentiality. As the law's main author, Iowa's senior Republican senator Charles Grassley broke GOP ranks over the issue. "We should always protect whistleblowers," Grassley said in a statement on Tuesday [Oct. 1].
      Judging from his conduct so far, Trump is all but certain to go even further off the rails as the House moves toward impeachment and the articles, however many there be, move toward trial in a Senate controlled by Trump-fearful Republicans. Trump is counting on division, just as he did in his campaign. "He's making it clear," MSNBC's Chris Matthews remarked on Hardball last week. "If he's going down, he's taking the country with him."

Sunday, September 29, 2019

Impeach Trump to Deter Future Presidents

      Before Watergate. few students of the American presidency would have thought that a president would send burglars into an opposing political party headquarters and then direct hush-money payments to the burglars to keep them from spilling the beans. But President Richard M. Nixon did those things and, after incontrovertible proof emerged, resigned in the face of a certain impeachment, conviction, and removal from office.
      Nixon's cut-short impeachment establishes a clear precedent of what constitutes "high crimes and misdemeanors" under the Impeachment Clause and serves to deter any future chief executive from repeating his misconduct. Today, President Donald Trump must be impeached for his attempt to solicit a foreign government's interference in the 2020 election to deter him from doing it again and to set the precedent for future chief executives.
      Trump actively solicited Russia's interference in the 2016 election and consciously benefited from the Putin government's disinformation campaign against Trump's opponent, Hillary Rodham Clinton. Trump escaped accountability for his actions after special counsel Robert Mueller failed to find prosecutable evidence that Trump and his campaign directly colluded with the Russians in their interference.
      Trump took from this episode the lesson that he could get away with it. Three years after the infamous Trump Tower meeting to gather dirt on Clinton from the Russians, Trump went so far as to tell ABC's George Stephanopoulos that he would take information on a future opponent from a foreign government. "There's nothing wrong in listening," he told Stephanopoulos. "I think I'd want to hear it."
      Long after the fact, it is now known that Trump actually told Russian diplomats during a meeting in the Oval Office four months after taking office that he had no concerns about the Russians' interference in the 2016 election. Unchastened, Trump directly asked for Ukraine's help in the 2020 election in his now infamous July 25 telephone call with Ukraine's newly elected president, Volodymyr Zelensky.
      The so-called "rough transcript" of that telephone conversation, as eventually released by the White House, confirms the incriminating account that the unidentified intelligence community whistleblower pieced together in the course of his official duties from others with direct information about the call. The "memorandum" of the call shows that Trump dangled military aid before Zelensky as he asked the Ukrainian head of state for his government's assistance in investigating former vice president Joe Biden, currently the leading Democratic candidate to oppose Trump in 2020.
      Even with the damning evidence for all in Congress and the American public to see for themselves, Trump has continued to insist the call was "perfect," not merely innocent. House Speaker Nancy Pelosi moved quickly to greenlight an impeachment inquiry in the Democratic-controlled House of Representatives. By midweek, more than 218 Democrats —  a majority in the 435-member House —  had publicly supported Pelosi's move, suggesting that Trump is now all but certainly facing impeachment by the House and a trial in the Senate for yet-unspecified high crimes and misdemeanors.
      With the 2020 election still a year away, the House must impeach Trump if for no other reason to warn him against any other election-related misconduct. Timothy Snyder, the Yale historian who raised alarms early in Trump's presidency of tyranny-creep, aptly noted Trump's lack of remorse in an appearance with MSNBC's Rachel Maddow on Friday [Sept. 27]. "Seeking foreign interference in two elections is a record unlikely ever to be broken," Snyder remarked.
      At Pelosi's direction, the Democratic strategy for now appears to be to gather evidence on Ukraine-gate quickly —  Secretary of State Mike Pompeo received strongly-worded subpoenas on Friday — and then move on after hearings to a single-count article of impeachment. That "short and sweet" strategy may be best politics for the steep uphill road that Democrats face in an eventual trial in a Senate controlled by Republicans who cower in fear of being "primaried" by Trump's base.
      Republicans and Trump apologists —  but I repeat myself —  have concocted a false narrative that Trump actually wanted to help Ukraine ferret out corruption of the sort that  he and the manic Rudy Giuliani falsely imagine Biden and his son Hunter committed.  To be clear, Ukraine's prosecutor has stated that Hunter Biden did nothing illegal as a board member of the Ukrainian oil company and Joe Biden, as vice president, helped oust the former prosecutor for lack of anti-corruption initiatives.
      A one-count article of impeachment against Trump would establish that a president's soliciting a foreign government's assistance in gathering dirt on a political opponent amounts to impeachable conduct even if, in the political circumstances, he is not convicted. The precedential value of an impeachment could be increased if other counts were added — for example, for Trump's open and notorious violation of the Constitution's Emoluments Clauses, as argued in this column as early as 2017.
      With the evidence not yet disclosed, Biden accurately described what we now know Trump did in the phone call. "That is not the conduct of an American president," Biden said. Sadly, it was, but one hopes never again.
      Trump has lowered the bar for presidential conduct from his first day in office, but Congress must at least draw a line against using the presidency for a shakedown in the manner of a Mafia don. The House's duty is clear even if conviction in the Senate is unlikely and the political effects of the process unclear. Yes, "Impeach Now."

Sunday, September 22, 2019

For Same-Sex Couples, No Equality Under 'Special Rules'

      Back in the day when anti-LGBT campaigns were in fashion, opponents tried to rally the public against gay rights with campaigns built around the powerful if misleading slogan, "No special rights." The anti-gay groups used the slogan to stall or block anti-discrimination measures by arguing to lawmakers and voters that equal treatment under the law would give gay folk a privileged status instead of the legitimate birthright guaranteed to all Americans.
      Decades later, LGBT advocates achieved a landmark victory with the Supreme Court's decision in 2015 guaranteeing equal marriage rights for same-sex couples nationwide. Four years later, however, some same-sex couples are discovering that their ostensibly equal rights come with an asterisk: "special rules" that grant them fewer rights than opposite-sex couples enjoy.
      Within recent days, the U.S. Department of State and the Arizona Supreme Court have given their stamps of approval to policies that reduce same-sex couples' unions to second-class marriages under the law. The victims of these decisions are same-sex couples shopping for wedding invitations in Phoenix and a married gay couple in Maryland seeking to establish U.S. citizenship for their Canadian-born infant daughter.
      The Arizona court's 4-3 decision in Brush and Nib Studio LC v. City of Phoenix marks the first time a state court has squarely held that a company serving the public has a constitutional right to violate an anti-gay discrimination law. The stationery store, owned by two self-identified Christians who cite religious beliefs in opposing same-sex marriage, sued the city in state court claiming a First Amendment right to refuse to print customized wedding invitations for same-sex couples.
      Writing for a majority that included four Republican-appointed justices, Justice Andrew Gould concluded that it would amount to unconstitutional "compelled speech" to require Brush and Nib's owners to customize invitations with the customary request to join in celebrating a marriage that they disapprove of. The dissenting justices, the Court's only Democratic-appointee and two Republicans, contended that the city's ordinance regulated conduct, not speech, with only "incidental" effect on the store owners' speech rights.
      Supreme courts in three other states have rejected similar claims by anti-gay marriage business owners: a baker in Colorado, a photographer in New Mexico, and a florist in Washington. The U.S. Supreme Court ruled for the Colorado baker in its  decision Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission in 2017 only by finding that the state agency's decision to fine the baker was tainted by religious bias.
      The Washington Supreme Court reaffirmed its decision in the florist's case after the U.S. justices sent the case back with instructions to reconsider the case in the light of Masterpiece Cakeshop. In short, the Arizona court's decision, filed on Monday [Sept. 16], breaks new ground by throwing same-sex couples under the religious-liberty bus when claiming rights to equal treatment under state or local anti-discrimination laws.
      The Maryland couple's dispute with the State Department marks the most recent skirmish for married same-sex couples raising children born through some form of assisted reproduction. Roee Kivit and Adiel Kiviti, Israeli-born U.S. citizens who married in California in October 2013, used a gestational surrogate to give birth to their second child, a daughter, in Calgary, Canada, earlier this year.
      K.R.K.'s birth certificate accurately lists Roee and Adiel as parents, not the surrogate mother. But the State Department has refused to issue a passport showing K.R.K. to be a U.S. citizen, just as a child of married U.S. citizen parents ordinarily would be even if born abroad. The State Department is ignoring the couple's marriage by invoking an immigration law provision that limits citizenship for an out-of-wedlock child born outside the United States.
      For an unmarried couple, a child born abroad to U.S. citizen parents is entitled to U.S. citizenship only if both parents satisfy a durational U.S. residency requirement: specifically, at least five years' residence in the United States prior to the birth. Adiel does not satisfy that requirement: he became a lawful permanent resident in 2015 and a U.S. citizen in 2019.
      Lawyers from Lambda Legal, representing the couple, argue in a 22-page complaint filed earlier this month [Sept. 12] in federal district court in Rockville that the State Department policy is contrary to law and unconstitutional as well. The policy, the lawyers argue, discriminates against the couple because of their sexual orientation and serves "no rational, legitimate, substantial, or compelling government interest."
      Admittedly, children born to married same-sex couples pose novel issues for the law, but the Supreme Court has already issued one ruling that, in effect, requires states to treat same-sex couples just as they would treat opposite-sex couples. The summary 6-3 decision in Pavan v. Smith (2017) required Arkansas to list two married lesbians as parents on their child's birth certificate: the biological mother as well as her female spouse.
      The Court noted that a married opposite-sex couple would both be listed as parents of a child born through assisted reproduction, even if the husband was not the biological father. The ruling emphasized that the Court's marriage-equality decision, Obergefell v. Hodges, entitles same-sex couples to marriage "on the same terms and conditions as same-sex couples."
      The State Department policy flies in the face of that command and illustrates the need to continue educating and pressuring officials at all levels of government to give same-sex couples the full measure of equality under the law. Until that day, the fight for LGBT rights is not yet won.

Saturday, September 14, 2019

Roberts Court Indulges Trump on Asylum Rules

      The Supreme Court played the role of President Trump's lap dog once again last week [Sept. 11] by allowing the administration to put into effect new asylum rules that effectively nullify the federal law guaranteeing asylum applicants the chance to make their case in U.S. immigration courts.
       Trump trumpeted the Court's action, with two liberal justices dissenting, as a "big win" for the administration. The Court's brief, unsigned order in Barr v. East Bay Sanctuary Covenant greenlighted new rules that a federal judge in San Francisco had found to be inconsistent with U.S. asylum law and that a federal appeals court had blocked pending the government's appeal.
      Apart from the merits of the issue, the episode is significant as the administration's most recent instance of asking the Court for "extraordinary" relief in high-profile legal disputes after losing in lower courts. Under ordinary procedures, the losing party in a lawsuit is not entitled to stay the effect of a lower court decision while pressing its appeal.
      The Trump administration, however, has resorted with what one expert calls "unprecedented frequency" to asking the Supreme Court to stay adverse decisions in lower courts  with the outcome on appeal uncertain. Steven Vladeck, a law professor at the University of Texas in Austin, shows in a new law journal article that the Trump administration has sought extraordinary relief from the Supreme Court more than 30 times in the past three years, more than twice the number of such instances by the previous two administrations over the previous 16 years.
      The Court's decision to allow the new asylum rules marks the second time in less than three months that the justices let this most lawless of presidents put into effect a policy on a highly charged political issue that a lower court had blocked. The justices divided 5-4 in an unsigned order issued on July 28 that allowed the administration to transfer Defense Department funds to Trump's southern border wall after Congress refused to appropriate funds for that purpose.
      In that instance, the Court gave a reason of sorts for its action. The unsigned, one-paragraph order noted "strong doubts" that the environmental groups challenging the reprogramming of military funds had legal standing to vindicate Congress's authority over federal spending. Vladeck criticizes both the administration's tactics and what he calls the Court's "acquiescence" in the unusual practice as short-circuiting ordinary appellate procedures to the disadvantage of private parties challenging the government.
      Ostensibly, the Court's rules requires an applicant seeking a stay of a lower court decision pending appeal to show it will suffer irreparable injury without a stay. Vladeck notes that Roberts has written that the government suffers an irreparable injury when blocked from putting its policies into effect during a legal challenge. Private plaintiffs unsuccessfully challenging a government policy do not get that kind of solicitude if they complain of irreparable injury while they suffer the effects of the challenged policy.
      The Trump administration has had what Vladeck calls a "middling" success rate on these extraordinary requests. Along with the latest wins on asylum rules and the border wall funding, the administration was also allowed to put into effect its limits on transgender military service members despite four lower court rulings to block it.
      The justices also favored the administration by blocking the federal judge in the census case from deposing Commerce Secretary Wilbur Ross under oath about his reasons for adding a citizenship question to the 2020 census. On the other hand, the Court refused to let the administration rescind the Obama policy known as DACA — deferred action for childhood arrivals —  pending a final decision in the cases challenging the administration's action.
      In the most recent instance, Justice Sonia Sotomayor cited Vladeck's study in criticizing the Court's receptivity to the administration's pleas. "[G]ranting a stay pending appeal should be an 'extraordinary' act," she wrote, quoting a prior decision. "Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively."
      Vladeck implicitly argues that the full Court should be objecting to the administration's tactics. The Court, he notes, has made "no suggestion . . . that the Solicitor General is abusing his unique position, is taking advantage of his special relationship, or is otherwise acting in a manner unbecoming the office he holds."
      The administration and its supporters defend the practice by complaining that federal district court judges have been freer than in the past in issuing nationwide injunctions to block administration policies pending appeals. Attorney General William Barr noted in an op-ed in the The Wall Street Journal that federal judges have issued 40 nationwide injunctions during the Trump years, but issued only 20 such rulings during the eight years of the Obama administration.
      Jonathan Turley, a frequent legal affairs commentator and law professor at George Washington University Law School, similarly sees the administration's tactics as a response to nationwide injunctions, which he says create "a dysfunctional element in the court system and a more direct avenue to the Supreme Court for the government." Some of the justices, he adds, appear to be "losing patience with national injunctions by trials . . . ."
      The Roberts Court has been less than evenhanded in the area. The Court took no action to allow the Obama administration to put its so-called DAPA policy — deferred action for parents of Americans — into effect after a federal judge in Texas issued a nationwide injunction to block the policy. The Court's solicitude toward Trump's policies is further evidence, alas, that the five Republican-appointed justices did not leave their party registration cards behind them after donning their judicial robes.

Sunday, September 8, 2019

In Carolina, GOP Nixes Racial Justice on Death Row

      North Carolina's legislative and gubernatorial elections in 2012 turned out to be matters of life or death for six of the 143 inmates currently awaiting execution on the state's death row.
      The elections that allowed the Republican Party to gain the governorship along with control of the state's legislature resulted less than a year later in the repeal of the state's widely hailed Racial Justice Act. That law, enacted in 2009 and signed by the Democratic governor Beverly Perdue, gave death row inmates a new path to overturn their death sentences by proving racial discrimination in the verdicts or sentences that condemned them to execution.
      Four inmates succeeded in reducing their death sentences to life imprisonment under the law before the Republicans repealed the law.  Perdue had vetoed a GOP-backed repeal in 2012, but the new Republican governor, Pat McCrory, signed a repeal after the Republicans voted again in 2013 to kill the law.
      The repeal included a provision eliminating any relief for inmates not yet final when the repeal took effect. Now, the North Carolina Supreme Court is considering whether the legislature violated constitutional rules in sending those four inmates back to death row and in blocking hearings for two other death row inmates pending at the time of repeal.
      The state high court, with a 6-1 majority of Democratic appointees, heard nearly four hours of arguments in the six cases over two days late last month (Aug. 26 and 27). The arguments from the inmates' attorneys made clear that the racial bias in the four reversed cases might have been strong enough to warrant relief under strict federal constitutional rules even without the easier path under the repealed state law, which required proof only that race was "a significant factor" in verdict or sentence.
      The four reversed cases all came from Cumberland County, which includes the state's sixth largest city Fayetteville. The county's overall population is around 55 percent white and 35 percent black. But the juries in all four cases were all white, thanks to tactics that state prosecutors are instructed to use to justify excluding black jurors.
      In Marcus Robinson's trial, for example, prosecutors rejected half of the qualified black jurors, but only 14 percent of the others. One black juror was disqualified after acknowledging that he had not graduated from high school and that he had difficulty reading — questions not asked of white jurors.
      In Christina Walters' trial, prosecutors excluded 10 of the 14 qualified black jurors, but only four of the 27 qualified white jurors. Tellingly, Walters' two white attorneys failed to preserve objections under the Supreme Court precedent, Batson v. Kentucky (1986), that bars the use of race in exercising peremptory challenges to exclude potential jurors.
      The trials of the two other inmates who won temporary reprieves from their death sentences, Quintel Augustine and Tillman Golphin, followed that pattern. In the arguments last month, one of the North Carolina justices openly acknowledged that the state has done very little to put Batson into effect. The non-profit Center for Death Penalty Litigation has reported that more than half of the state's death row inmates were sentenced by juries with no or little minority representation.
      For Andrew Ramseur and Rayford Burke, the repeal of the Racial Justice Act came as their cases were pending and not yet ruled on. Ramseur's trial in 2010 came against the backdrop of racial sentiment akin to the kind of public hysteria associated with the lynching era. One commenter on the local newspaper's website remarked, "He should be hanging from the nearest traffic light as a warning to the others." At trial, four rows for courtroom spectators were cordoned off by crime scene tape, ostensibly to protect Ramseur.
      In the oral arguments last month, attorneys for the inmates fashioned several arguments to challenge the legislature's authority to strip the inmates of the relief they had won before the Racial Justice Act was repealed or to deny hearings for the other two. The exact issue was unprecedented, as Cassandra Stubbs, the director of the American Civil Liberties Union's death penalty project, wrote in her brief for Robinson. “Never before has any legislature enacted a statute designed to remedy suspected systemic racial bias in capital sentencing,” Stubbs wrote, “only to repeal such a statute when the racial bias was found.”
      The closest precedent in North Carolina law is a 19th century decision that blocked the legislature from superseding a post-Civil War amnesty granted to former Confederate soldiers for crimes committed under orders during the war. Lt. Col. James Keith was accused of massacring 13 civilian prisoners, but the state supreme court ruled that he was entitled to the benefit of the legislative amnesty even though later repealed.
      The inmates' other arguments centered on traditional constitutional principles against ex post facto laws or double jeopardy. They also argued that the provision specifically nullifying any relief that the inmates had already won amounted to an unconstitutional bill of attainder — the term for legislative imposition of punishment.
      The state's lawyers responded, somewhat weakly, that the inmates still had avenues to seek new trials or new sentences even without the repealed state law. In four hours of arguments, the justices seemed to be inquisitive more than argumentative, but the political tinct to the cases suggests that the state is arguing uphill before the Democratic-majority court.

Monday, August 26, 2019

Courts Taking a Bite Out of Establishment Clause

      The Supreme Court took a bite out of the constitutional prohibition against establishment of religion in June by allowing a Maryland state agency to display and maintain a 40-foot Christian cross on public land as a World War I memorial. Writing for the majority in American Legion v. American Humanist Association, Justice Samuel A. Alito Jr. based the decision on the premise that the so-called Peace Cross in Bladensburg, Maryland, had historic significance as a memorial to fallen wartime service members apart from its symbolic affirmation of Christian doctrine.
      Alito's opinion tracked the central argument that Neal Katyal, the former acting U.S. solicitor general, made in defending the Peace Cross on behalf of the Maryland-National Capital Park and Planning Commission. Katyal emphasized that the cross had acquired an "objective meaning" as a memorial to the millions of service members from all sides killed in World War I, including the 49 men from Prince Georges County killed while wearing U.S. uniforms.
      Civil libertarian supporters of church-state separation had expected the Court, with its conservative Republican majority, to allow the cross to continue standing where it has stood for 90 years, but hoped for a narrow ruling that would maintain limits on how far the government can go in favoring or endorsing one specific religion. The American Civil Liberties Union issued a statement on the day of the ruling, June 20, describing it as a "narrow" decision.
      The Court sent a signal a week later, however, that the decision portends a relaxed view for future Establishment Clause challenges beyond the specific facts of the Peace Cross case. In a brief order issued on June 28, the justices told the Eleventh U.S. Circuit Court of Appeals to reconsider its decision to bar the city of Pensacola, Florida, from maintaining a stand-alone, 34-foot Christian cross in a public park in the city. 
      The wooden cross at issue in Kondrat'yev v. City of Pensacola was erected in 1941 by the National Youth Administration to serve as the focal point of what was to become an annual Easter sunrise program — in short, the setting for an annual religious service in a government facility. The appeals court found the cross to run afoul of the Establishment Clause in a decision issued in September 2018, but the Supreme Court gave the city a partial victory in its appeal by ordering the appeals court to reconsider its decision in the light of the justices' ruling in American Legion.
      By the way, the city of Pensacola's official seal includes a Christian cross as its central image. A cross is also the central image in the official seal that Lehigh County, Pennsylvania, adopted in December 1944. The Lehigh County seal is the focal point of an Establishment Clause suit filed by the Freedom From Religion Foundation but rejected on Aug. 8 by a panel of the Third U.S. Circuit Court of Appeals.
      In his opinion for the appeals court, Judge Thomas Hardiman, a two-time runner-up for a Supreme Court seat, applied American Legion in finding no constitutional violation. Hardiman conceded that the plaintiffs suffered legal injury as a result of "direct and unwelcome contacts" with the official seal, but he read the Court's new decision to give a presumption of constitutionality to "longstanding symbols" that incorporate religious imagery
      At the Supreme Court, attorney Michael Carvin, representing the American Legion, conceded that some governmental displays of a Christian cross would likely violate the constitutional prohibition against establishment of religion. In answering a question from Justice Brett Kavanaugh, Carvin adopted Justice Anthony M. Kennedy's suggestion in a decision in the 1980s that a Christian cross atop city hall would be unconstitutional, because, as Carvin explained, "it constitutes proselytizing."
      Carvin went on to reject some of the hypotheticals suggested by the other side in the Peace Cross case. "If they're putting up crosses at every courtroom, every DMV window, and all the parade of hypotheticals we've gotten on the other side, I can certainly understand why somebody would believe that they're trying to convert you to Christianity." he told the justices.
      Pensacola and Lehigh County both seem to have gone too far, under Carvin's reasoning and under the Court's fact-specific decision in the Peace Cross case. The Bayview Park cross in Pensacola serves as the stage for a religious service. The Framers of the First Amendment surely would have deemed it improper for the government to use public funds to build a church or an outdoor facility for the specific purpose of holding religious services.
      The city seals in these two municipalities also offend church-state separation by incorporating the preeminent symbol of Christian doctrine, just as much as a Christian cross atop city hall would give official imprimatur to one religion over all others. The non-believing Lehigh County plaintiffs complained of seeing the seal with its Christian cross, for example, when paying real estate tax bills or reporting for jury service, analogous to Carvin's hypothesis of a cross on every DMV window.
      The self-styled religious freedom advocates who defend these governmental displays of Christian symbols are no friends of the religious freedom embodied in the First Amendment. The Framers wanted nothing to do with government-established religion, but the self-styled originalists on the Supreme Court have lost sight of that original understanding of the Establishment Clause and may be leading lower courts to go farther afield from that original understanding as well.

Sunday, August 11, 2019

Trump's Responsibility for El Paso Massacre

      President Trump's perfunctory denunciation of "racism, bigotry, and white supremacy" after a young white supremacist's massacre of Mexicans in El Paso would have been too little, too late even if it had been believably sincere. But Trump's frozen features as he read prepared remarks from a teleprompter [August 5] made clear to everyone, white supremacists included, that he was merely going through the motions.
      Trump has been guilty of racist conduct from his earliest days in the family business, as seen in the settled fair housing discrimination case in the early 1970s. Moreover, he has used racist rhetoric from his first days as presidential candidate and, after his election, as president to hold and rally his political base--as, for example, in calling for three black, natural-born U.S. citizen members of Congress to go back to where they came from.
      With his re-election campaign under way, Trump now can ill afford to alienate any part of his political base, including those who make no secret of the racist views that motivate their anti-immigrant outbursts. Trump regularly promotes these views at his political rallies, as documented in a compilation by USA Today. The newspaper found that in 64 rallies since 2017, Trump had referred to Central American and Mexican migrants at least 500 times in "incendiary terms," such as "invasion," "animal," and "killer."
      Admittedly, Trump's reckless encouragement of anti-immigrant sentiment would not qualify as legal incitement for Patrick Crusius's deadly shooting spree in predominantly Hispanic El Paso [August 3]. But the president bears a degree of moral responsibility for propagating and normalizing the kind of anti-immigrant views that turned the young community college student into a vigilante taking up arms against what the white supremacist fringe calls "white replacement."
      In fact, Crusius aped Trump's terminology in what is believed to be his online posting before the shooting that he was trying to stop "the Hispanic invasion of Texas." That description of present-day immigration from south of the border can come from no other source than Trump: in three decades of sharp debates about immigration policy in the United States, anti-immigration politicians and advocacy groups had never before couched the issues in terms such as those Trump has used.
      Trump sought to absolve himself of any responsibility, legal or moral, by blaming Crusius' crime on mental illness, the favored explanation from the gun lobby and their supporters for mass shootings. With no psychological training nor any evident ability in self-analysis, Trump is peculiarly unqualified to diagnose Crusius at a distance. Indeed, mental health experts quoted in news coverage appeared to agree that Crusius showed no symptoms of diagnosable mental illness.
      As for policies to address mass shootings, Trump used his prepared remarks to bat away the natural thought that perhaps guns are to blame. "Mental illness and hatred pull the trigger. Not the gun," he recited. Statistics cited by the CNBC journalist John Harwood on Twitter suggest otherwise. Of the 40 deadliest mass shootings in the United States since 1949, 26 have occurred in the 15 years since the Republican-controlled Congress allowed the assault weapons ban enacted in 1994 to expire in 2004: only two during the decade when the assault weapons ban was on the books.
      With public opinion coalescing around some kind of legislative response, Trump appeared at week's end to be accepting some form of stronger background checks for gun purchasers. Even if enacted, stronger background checks might do very little to prevent the next mass shooting. Apart from a higher minimum-age requirement, Crusius seemingly had nothing that he would have needed to list on an application that would have disqualified him from purchasing an otherwise legal weapon.
      Trump went so as to claim credit for the yet-unenacted proposals to keep guns away from or take guns away from people who pose dangers to themselves or others. "“I think we’re going to come up with something, something really good, beyond what’s done so far," he remarked, referring to background checks or so-called red flag laws.
      As for an assault weapons ban, however, Trump saw no prospects. " “I can tell you is there is no political appetite for that at this moment," he told the White House press pool in unscripted remarks on Wednesday [August 7].
      The week ended with Trump reportedly resentful of the less-than-glowing reviews he received for his visit to El Paso, highlighted by the stinging criticism of his mugging for the cameras as Melania held an infant orphaned by the killing of his two parents in the massacre. As a reminder, President Obama showed more presidential leadership seven years ago after the mass shooting at the Sandy Hook School in Connecticut. He was somber and respectful at a vigil two days later and, four years later, was shown in photographs to be tearing up as he talked about the episode.
      Racism and violence have been inherent in Trumpism from the start of his preposterous claim to make America great again. Note that the crime Trump claimed during his campaign he could commit with legal and political impunity was itself a gun crime: shooting someone on Fifth Avenue in New York City. One step to try to prevent the next mass shooting would be at the least a change in presidential rhetoric or, better, a change in the presidency itself. For that, it appears a country in grief must wait yet another year.

Sunday, August 4, 2019

Time to Make the Supreme Court Great Again?

      President Trump and the Senate's Republican leader Mitch McConnell have both listed Trump's record-setting appointments of more than 140 federal judges as one of Trump's most important accomplishments in office. Many of those judges, like Trump's two Supreme Court justices, were confirmed by party-line votes in the face of strong opposition from Democrats and liberal advocacy groups, but the issue of judicial appointments went all but completely unmentioned in six hours of Democratic presidential debates last week [July 29, 30].
      The American Constitution Society (ACS), the liberal counterpart to the conservative Federalist Society, led a coalition of groups in urging CNN moderators beforehand to ask the assembled Democratic hopefuls about Supreme Court and judicial appointments, but to no avail. Media commentators noted critically afterward that the CNN moderators appeared to be selecting issues with an aim to highlighting disagreements among the Democrats instead of their shared disagreements with Trump and his policies.
      With the debates over and judicial appointments unmentioned, a truncated debate broke out on Twitter over the political value or risk for Democrats in making the Supreme Court and judicial appointments an issue in the 2020 campaign. Historically, a half-century of presidential campaigns shows that Republicans from Richard Nixon to Donald Trump have made the high court their winning issue time and again; Democrats have tried only weakly to use the issue to mobilize Democratic and independent voters.
      Democrats can and must do better in 2020, according to leading groups on the legal left. They want the eventual Democratic nominee to go beyond bland promises to appoint justices in the style of Brennan and Marshall and to go all in by backing structural reform, such as increasing the size of the Court, to neutralize the Republican justices' current majority.
      Aaron Belkin and Sean McElwee, director and polling director respectively of Take Back the Court, argued in an article written for Salon that Democrats must "recognize and reckon with the fact that the high court is a political institution that has been hijacked by the GOP to advance a partisan agenda on behalf of corporations and billionaires." Belkin and McElwee go on to say that it is "an imperative that  Democrats make the case to voters that democracy cannot be restored unless the court is reformed."
      Belkin and McElwee do not cite particulars, but the Court's end-of-term decision to close federal courts to legal challenges to the unpopular practice of partisan gerrymandering may leave it peculiarly vulnerable to attack for being uninterested in protecting voters' rights. Belkin and McElwee in fact promise a forthcoming report that will show Chief Justice John G. Roberts Jr. to vote just as conservatively as his conservative colleagues and his reputation for centrism "wholly at odds with his record."
      Among the two dozen Democrats currently in the running for the presidential nomination, 11 say they are open to expanding the size of the Court. One of those, Pete Buttigieg, has gone further by expressing interest in the proposal by two academics to expand the number of justices to 15. The balanced bench proposal by the two professors calls for five justices from each of the two major political parties and the other five chosen from sitting federal appellate judges by the other 10 by either unanimous or supermajority vote.
      Any discussion of changing the size of the Court will lead opponents to draw parallels to President Franklin D. Roosevelt's ill-fated "Court packing" proposal at the beginning of his third term in the White House. Present-day advocates of structural reform will be hard pressed to counteract the lesson drawn from that episode, but the distinction can be drawn by noting, for example, McConnell's role in blocking President Obama's nomination of the widely respected moderate appellate judge Merrick Garland in 2016.
      McConnell's role in keeping the vacancy open through the November election allowed Trump to use the issue to great effect, according to post-election exit polls. The Supreme Court was the most important issue for 21 percent of voters, according to the CNN poll, and more than half of those voters went for Trump.
      Democrats in 2020 need to make the Supreme Court their issue. They can do that by emphasizing the role that the Roberts Court has already played in weakening protections for workers and consumers and the role that an unreformed Court could play in undoing policies to address health care, climate change, and gun safety. Democrats should also promise to take judicial appointments out of the hands of the Koch Brothers-financed Federalist Society and promise to appoint fair-minded judges with no ideological agenda other than protecting liberty and justice for all.
      Senators from both parties are certain to accuse the other party of politicizing judicial appointments. History shows that Republicans have done that for 50 years, but Democrats not so much. Four of the Republican-appointed justices on the current Court were confirmed in party-line votes by historically narrow margins, with fewer than 60 votes each. All four of the Democratic-appointed justices came to the Court with reputations as judicial moderates and won confirmation by wide margins: Sotomayor and Kagan with more than 60 votes each and Ginsburg and Breyer with 96 and 87 votes respectively.
      It is time to make the Supreme Court great again. That could be and should be a winning message for Democrats in 2020, with or without a cap.

Sunday, July 28, 2019

In Border-Wall Dispute, Divided Court Bows to Trump

      The Supreme Court's newest justices, Neil Gorsuch and Brett Kavanaugh, both presented themselves to the Senate and to the American public as committed originalists and textualists, always true to the text and original meaning of the U.S. Constitution. But they showed those professed views to be mere pretense on Friday [July 26] in a behind-the-scenes separation of powers dispute between Congress and President Trump.
      Gorsuch and Kavanaugh voted along with their three Republican-appointed colleagues to allow the Trump administration to violate the text and spirit of the Constitution by diverting money Congress appropriated for the U.S. military to the building of President Trump's wall along the U.S.-Mexico border. The Court's 5-4 decision came on what the administration called an emergency request to lift an injunction issued and upheld by two lower federal courts and openly flouts Congress's constitutional control over federal spending.
      In their new book on the Kavanaugh confirmation, conservative journalist Mollie Hemingway and conservative activist Carrie Severino describe Kavanaugh's record on the D.C. Circuit appeals court as always faithful to "the text and original meaning of the Constitution." In fact, Kavanaugh's 300 opinions on the D.C. Circuit dealt mostly with the stuff of statutory interpretation and administrative rulemaking, not constitutional law.
      The dispute before the Court last week, however, was a pure question of constitutional law on provisions covered in the first week of Con Law I: Separation of Powers. Trump was claiming the authority to spend military appropriations on the non-military purpose of constructing the wall along the United States' southern border.
      The Constitution clearly gives Congress the power of the purse. "No money shall be drawn from the Treasury but in consequence of Appropriations made by law," according to Article I, section 9, clause 8. The president has no free-wheeling power to spend money unless Congress appropriates the money for the purpose at issue.
      This elementary separation-of-powers issue reached the Court in a case brought by the Sierra Club and a coalition of southern California communities. They sued Trump in federal district court in San Francisco, contending that the administration had no authority to redirect DOD funds to the border wall project.
      For legal standing, these plaintiffs claimed the border wall would harm the environment and interfere with their recreational interests. They argued that these claimed harms would satisfy the so-called "zone of interests" test often required to establish legal standing. But they also argued that a long line of precedents granted plaintiffs to challenge allegedly unauthorized governmental action without any need to satisfy that test.
      Those arguments satisfied Judge Haywood Gilliam, the Obama appointee designated to hear the Sierra Club case. He issued a permanent injunction prohibiting the transfer of funds on June 28; a few days later, a three-judge Ninth Circuit appellate panel rejected the government's request to stay Gilliam's injunction. The government headed straight to the Supreme Court, with its five-justice majority of Republican appointees, including the two named by Trump.
      The administration claimed authority to "reprogram" DOD funds to the border wall project under a section of the Defense Department appropriations act: specifically, section 8005 in the act. That section allows transfer of funds for "unforeseen" needs as long as the funds had not been "denied" by Congress. Solicitor General Noel Francisco argued implausibly in a written brief that the need for border wall funds was unforeseen and the funds for the wall had never been "denied" though vigorously debated in Congress and cut in half from the administration's request.
      Francisco went on to argue that the plaintiffs had no legal standing to enforce the limits on the president's discretion in reprogramming funds. But the administration had argued, in a separate case in federal district court in the District of Columbia, that the House of Representatives itself had no legal standing either. A Trump-appointed judge, Trevor McFadden, dismissed that suit in May on that ground.
      The Court's decision came in an unsigned, one-paragraph order issued late Friday afternoon granting the requested stay pending the government's appeal before the Ninth Circuit and later appeal to the Supreme Court itself. One of the "reasons" — no others were listed — was the government's "sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with section 8005." A weak reed, indeed, on an arguably inapplicable technicality.
      The four liberal justices voted to deny the stay. In an opinion, Justice Stephen G. Breyer said the administration had failed to show "irreparable harm," as ordinarily required to stay a lower court decision and short-circuit the appellate process. As a compromise, Breyer would have allowed the government to let contracts but not to begin actual construction.
      Trump issued a gloating tweet within the hour: "Wow! Big VICTORY on the wall!" From the opposite end of Pennsylvania Avenue, House Speaker Nancy Pelosi said the Court's ruling "undermines both the Constitution and the law." From all that appears, Gorsuch and Kavanaugh are working from a different version.
      So too, Trump himself, as seen in his explanation of presidential powers to a group of young conservatives last week [July 25]. "Then I have an Article 2," he told the young people wrongly, "where I can do whatever I want as president." The Supreme Court, sadly, missed a good opportunity to correct the president's misstatement, but apparently this Court will pretty much let this president do whatever he wants.

Sunday, July 21, 2019

In Final Months, Justice Stevens Had Regrets

      Supreme Court justice John Paul Stevens was fondly remembered after his death last week [July 16] as a judge's judge, a generous boss and mentor, and the very embodiment of courtly manners. The outpouring of tributes is an unpleasant reminder, however, of the Court's transformation in the final years of Stevens' long life from a safeguard for liberty and justice into an instrument of the Republican Party's legal and political agenda.
      Stevens aired his own regrets about that development in candid comments when NPR's Nina Totenberg asked him in May whether he thought the current Supreme Court had taken a radical turn to the right. "Yes," Stevens replied. "I really do. I think some of the decisions really are quite wrong and are quite contrary to the public interest."
      Stevens was President Gerald Ford's nominee for the Court based on the recommendation of Edward Levi, the former president of the University of Chicago who served as U.S. attorney general in Ford's accidental presidency. Ford had asked Levi to recommend a candidate who could win confirmation easily based on academic and legal credentials.
      Stevens' credentials were impeccable and, in contrast to most of the Republican nominees in the years since, completely apolitical. The Democratic-controlled Senate confirmed Stevens in a 98-0 vote, within weeks after Ford nominated him. Today, Stevens would have been vetted by the Federalist Society and his name never put forward.
      Stevens arrived at the Court after five years on the federal appeals court in Chicago, his record well regarded and his judicial demeanor and temperament unquestioned. He was a registered Republican and Midwestern conservative with not the slightest hint of an ideological agenda as the successor to the outspoken liberal justice, William O. Douglas.
      In his recently published memoir The Making of a Justice, Stevens stresses the importance as a judge to "learn on the job." And he did. In his first term on the Court, he joined two other centrist justices, Byron White and Potter Stewart, in casting the pivotal votes to allow the resumption of capital punishment four years after the Court had outlawed the death penalty as arbitrary and discriminatory. The ruling in companion cases prohibited mandatory death penalty laws but allowed capital sentencing schemes that gave juries sufficient guidance to guard against arbitrariness.
      Thirty years later, Stevens confessed that the legal experiment he helped launch had failed. Dissenting in an early method-of-execution case, Baze v. Rees (2008), Stevens voted to find the death penalty unconstitutional based on what he described as "my own experience." Stevens said he had concluded that the death penalty amounted to cruel and unusual punishment under the Eighth Amendment because it represented "the pointless and needless execution of life with only marginal contributions to any discernible social or public purpose."
      Stevens also changed his stance on another major issue during his tenure: affirmative action. He voted early in his tenure in Bakke v. Regents (1978) to bar a quota-like admissions system at the University of California-Davis medical school. A quarter-century later, however, Stevens cast a pivotal vote in the 5-4 decision in Grutter v. Bollinger (2003) to uphold a more narrowly tailored use of race in admissions at the University of Michigan law school.
      On and off the bench, Stevens was unfailingly polite, but he was sharply critical in any number of dissenting opinions. He famously complained in Bush v. Gore that the 5-4 decision to cut off the Florida recount prevented the country from ever being sure about who won the 2000 presidential election. A few years later, he dissented from Chief Justice John Roberts' decision in Parents Involved v. Seattle School District (2007) to limit school districts' ability to adopt pupil assignment policies to promote racial balance. In his dissent, he opined that none of the justices on the Court at the time of his appointment would have joined Roberts' opinion.
      Stevens retired from the Court in 2010 at age 90, one of nine justices to serve past that age; he marked his 99th birthday in April during the round of interviews for his memoir, nearly four years after he had become the longest lived justice ever. As noted in this space before, among several other long-serving justices Stevens stands out as having retired of his own accord when he sensed his stamina failing. Douglas was literally forced off the Court by his colleagues in 1975: so too with Stephen Field in 1897 and Oliver Wendell Holmes Jr. in 1931.
      Despite his age, Totenberg found Stevens mentally sharp and physically fit. But he was openly discouraged about the Court's current course. The Court, he remarked, "seems to be more ideological than it has been since the 1930s." The mantra that the justices are judges, not politicians, is "harder and harder to believe," he lamented.
      With the term's most important decisions of the term yet to come, Stevens observed somewhat hopefully that Roberts "occasionally takes a different position from the other Republicans." Asked if there was one takeaway from his book, his third,  Stevens obliged. "The world is changing much faster than I anticipated," he answered. For better or worse, Totenberg asked. "For the worse, I think."