Sunday, December 29, 2019

Trump Remaking Federal Bench in His Own Image

      President Trump rubbed Chief Justice Roberts the wrong way late last year by blaming what was then the most recent of the president's setbacks in federal courts on a well regarded jurist that he labeled as "an Obama judge." Roberts responded by putting in not merely a word, but an entire paragraph, in defense of the federal judiciary.
       “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a written statement issued by the Court's public information office just before Thanksgiving. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."
       Roberts is likely to extol the virtues of an ostensibly nonpartisan federal judiciary again this week when he releases his annual report on the state of the federal judiciary on Tuesday [Dec. 31].  But Roberts is likely to ignore the elephant in the room: Trump's overt politicization of the federal judiciary with a record-setting number of confirmed federal judges after three years in office, many of them without a shred of bipartisan support.
       In New York, the state's Democratic governor, Andrew Cuomo, cited the reality of Trump's judicial appointments rather than Roberts' idealized image when he vetoed a seemingly uncontroversial bill to allow federal judges to officiate weddings in the Empire State. " I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration,” Cuomo said in a veto message issued Dec. 27.
      In effect, Cuomo signaled his view that the handful of judges Trump has named to the federal bench in New York have ruined the good name for the others. “President Trump does not embody who we are as New Yorkers," Cuomo said in the veto message. "The cornerstones that built our great state are diversity, tolerance, and inclusion.”
       In fact, Trump's judicial appointments openly flout diversity, tolerance, and inclusion as goals, according to a study by the gay rights organization, Lambda Legal.  Out of 50 judges named to federal courts of appeals through fall 2019, white males comprise the overwhelming majority: 40 men and 10 women; 42 white judges, seven Asians, one Latinx, and no one of African American ancestry.
      With a Senate calendar driven by the hyperpartisan majority leader, Mitch McConnell, Trump has won confirmation for more circuit court judges in three years than any of the previous five presidents in their first three years in office: 25 for Obama, 30 for Bush43, 28 for Clinton, 31 for Bush41, and 23 for Reagan. Trump has almost equaled in just three years Obama's total of 55 for eight years: a number reduced by McConnell's refusal to act on Obama's nominations in the Democrat's final two years in the White House.
       Trump's record also has this distinction: the confirmed circuit court judges include three who were rated "not qualified" by the American Bar Association: Steven Grasz  and Jonathan Kobes for the Eighth Circuit and Lawrence Van Dyke for the Ninth Circuit. They are the first nominees deemed unqualified by the ABA to win confirmation to federal circuit courts in more than 30 years, according to the study. All three won Senate confirmation on party-line votes after strong opposition from traditional civil rights groups.
       Among Trump's 50 circuit court judges, 43 were or are members of the conservative-libertarian Federalist Society, according to Lambda Legal's compilation. No ideological interest group has ever enjoyed similar success in getting its members named to federal judgeships, not the progressive American Constitution Society under Obama and not the American Civil Liberties Union under any president.
       Given its mission, Lambda Legal naturally stressed the anti-LGBT records of many Trump judges: by its count, more than one-third of Trump's circuit court appointees. Van Dyke, for one, espoused the unproven claim that marriage equality for gays and lesbians harms children and society. Steven Menashi, confirmed for one of the New York seats on the Second Circuit, "denigrated" the Supreme Court's marriage equality ruling, according to Lambda Legal, and supported banning gays and lesbians from the military. Eric Murphy, a former Ohio state's attorney confirmed for the Sixth Circuit, argued against marriage equality in the case that reached the Supreme Court as Obergefell v. Hodges. Unmentioned in the report are the several Trump nominees who could not bring themselves to endorse the Supreme Court's landmark ruling in Brown v. Board of Education to outlaw racial segregation in public schools.
      The report also underscores the overall impact of Trump's appointments on the federal courts immediately below the Supreme Court. On eight of the 12 geographically-based circuit courts, Trump judges comprise at least one-fourth of the active membership —  all but the First, Fourth, Tenth, and D.C. circuits. In all, Republican-appointed judges comprise a majority in seven of the twelve.
      McConnell has enabled Trump's transformation of the federal judiciary, the study notes, by discarding procedural safeguards aimed at promoting a measure of bipartisanship in appointments to the federal bench. In addition to the 50 judges confirmed for federal courts of appeals —  more than one-fourth of the total number —  the Senate has confirmed 133 Trump nominees to federal district court, including 80 in 2019. With federal courts one of the few institutions willing and able to stand up to Trump, the stakes are high in his remaining year in office and even higher in a potential second term.

Sunday, December 22, 2019

For "Partisan" Impeachment, Republicans to Blame

       From start to the likely end, the present-day Republicans in Congress have flatly refused to take as serious the impeachment of President Donald Trump for "high crimes and misdemeanors." Instead, to a man and woman, every Republican in Congress is treating this true constitutional crisis as another political wrestling match, with nothing more at stake than one more year of Trump's presidency or the next election.
      Republicans simply deny Trump's proven guilt: his abuse of office by inviting a foreign government's interference in the 2020 election and his obstruction of Congress by refusing to provide information and instructing his aides to refuse to testify.
       To be sure, the three previous presidential impeachments — Andrew Johnson, Richard Nixon, and Bill Clinton — were each partisan in their origins and partisan in the political stakes for both parties. Yet the Nixon impeachment, left incomplete with his resignation, and Clinton's, with its eventual acquittal, both included faint traces of bipartisanship as seen in party line-crossing votes by a handful of House Republicans in 1974 and a few House Democrats in 1998.
      In the Nixon case, newly uncovered information shows that House Republican leaders were seriously considering the possible need to force Nixon from office as early as January 1974. In an article for The Atlantic, presidential historian Tim Naftali details information newly released from diaries of a key House Republican of the Nixon era, New York's Barber Conable.
      Naftali recalls that in the wake of Nixon's "Saturday Night Massacre" in October 1973, House Republicans joined with the Democratic majority in supporting an impeachment inquiry and, in contrast to the Trump-era Republicans, made no effort to thwart or stymie the inquiry. The vote to open the inquiry on February 6, 1974, was not merely bipartisan but, at 410-4, just short of unanimous.
      Conable's diary entries include his description of an overture from the House Republican leader, Arizona's John Rhodes, asking whether Conable,  then the fourth-ranking House GOP leader, would be open to demanding Nixon's resignation if the evidence warranted such a drastic step. Conable recalled in his diary that he agreed to Rhodes' request. “I said to him,” Conable wrote in the diary,  “that if he was asking me if I would be willing to stand up and be counted among those who would go to the President and demand such a resignation, that he could count on me.”
       When the House Judiciary Committee eventually drafted articles of impeachment against Nixon, several House Republicans in fact put constitutional law-and-order ahead of partisanship. Six Republicans voted on July 27, 1974, in favor of Article I (obstruction of justice), seven in favor of Article II two days later, (abuse of power), and two in favor of Article III on July 30 (contempt of Congress).
       Even earlier, the Senate's Republican leader, Pennsylvania's Hugh Scott, had turned on Nixon after realizing that Nixon had duped him by sharing a heavily edited transcript of Nixon's damning conversation with his principal accuser, the former White House counsel John Dean. Today, no Republican in Congress has been heard to object to Trump's analogous effort to protect himself by squirreling away the full transcript of his July 25 telephone call with the Ukrainian president, Volodymyr Zelensky.
       With the full extent of Nixon's criminality finally disclosed, Scott, Rhodes, and Arizona's Barry Goldwater went to the White House to tell Nixon directly that he faced certain impeachment in the House and certain conviction in an eventual Senate trial. Nixon, in an act of self-sacrifice unimaginable from Trump, decided on the night of Aug. 8 to resign and spare the country further turmoil. He even expressed a measure of contrition — a step also unimaginable from Trump.
       With the House under GOP control a quarter century later, congressional Democrats took Clinton's conduct seriously enough for 31 Democratic representatives to join in the House's 258-176 vote on Oct. 8, 1998, to initiate an impeachment inquiry. In the House Judiciary Committee two months later, five Democrats voted for three of the four articles of impeachment against Clinton. In the present-day impeachment, however, no Republican voted in favor of initiating the impeachment inquiry against Trump or in favor of impeachment in the Judiciary Committee or on the House floor.
      T he Senate's two party leaders at the time of the Clinton impeachment, Mississippi's Trent Lott for the Republicans and South Dakota's Tom Daschle for the Democrats, worked collegially and cooperatively to develop agreed-to rules for the Senate trials. By contrast, the present-day Senate Republican leader, Kentucky's Mitch McConnell, is spurning any and all suggestions from his Democratic counterpart, New York's Chuck Schumer.
       McConnell goes even further in raw partisanship by disclaiming any pretense of impartiality even though the oath he must take in an eventual Senate trial requires a promise to "do impartial justice according to the Constitution and laws, so help me God." By week's end, the course of future events was uncertain as the Democrats' speaker of the House, California's Nancy Pelosi, was delaying the formal submission of the articles of impeachment to the Senate while pressuring McConnell, with no luck so far, to call witnesses for the Senate trial, as was done in the Clinton impeachment.
       A lone voice for constitutional principle over partisanship emerged by week's end, however, in the form of an op-ed by Arizona's former Republican senator, Jeff Flake, urging his former colleagues to stop echoing the House Republicans in wrongly claiming that Trump has done nothing wrong. "If there ever was a time to put country over party, it is now," Flake wrote in the  article, published in The Washington Post [Dec. 20]. As Trump is wont to say, "We'll see what happens."

Sunday, December 15, 2019

As Attorney General, Barr Is Trump's Roy Cohn

      President Trump has been obsessed for the past three years by the belief that the FBI tried to sabotage his 2016 presidential campaign by opening an investigation of the campaign's links to Russian operatives. Now, the Justice Department's inspector general has published a massive, 448-page report [Dec. 9] that absolved the FBI of any political bias in opening the investigation and thoroughly debunked Trump's continued insistence that the FBI was out to get him.
       Political motives were in plain view, however, when Attorney General William Barr reacted to the inspector general's report not by embracing the refutation of Trump's narrative but by emphasizing the now documented errors that FBI agents and officials made in the eventual course of the investigation.
       Barr, appointed by President Trump after his first attorney general, Jeff Sessions, refused to do his bidding, is continuing in his comments to play the role of Trump's protector-in-chief at Main Justice. Barr, it will be recalled, responded to the Mueller Report on the Russia investigation first by withholding it and then by claiming, wrongly, that it exonerated Trump. Now, Barr is trashing the Russia investigation even though the thorough review shows that the FBI had sufficient grounds to open the investigation and did so without political bias or motive.
       Admittedly, the inspector general, Michael Horowitz, told a Senate committee last week in a prepared statement that the investigation did not amount to "vindication" for the FBI in conducting the investigation officially dubbed "Operation Crossfire Hurricane." And James Comey, the FBI director at the time who was later fired by Trump to try to thwart the Russia investigation, acknowledged his responsibility for the mistakes in an appearance on Fox News on Sunday [Dec. 15]. "I was wrong," Comey told the Fox anchor Chris Wallace.
      The 17 major errors cited in the report included confirmation of one of Trump's major talking points: misplaced reliance on inaccurate or unsupported assertions in the report on Trump prepared by the British intelligence agent Christopher Steele. The IG's report found that unsubstantiated representations from the so-called Steele Dossier were cited in three of the applications to the Foreign Intelligence Surveillance Act (FISA) Court for warrants to wiretap the one-time Trump foreign policy adviser Carter Page.
      Barr went much further than errors such as those, however, in criticizing the FBI investigation in contradiction to the IG report's finding that the launch of the investigation was proper and untainted by "political bias or improper motivation." In FBI-speak, the report found that FBI agents and the various signing-off supervisors had sufficient "predictation" for opening the investigation.
      Specifically, the report relates, the investigation stemmed from a report by an intelligence agency from a Friendly Foreign Government (FFG) — Australia, but unnamed in the report — reporting on communications between Page and Russian operatives. The report contradicts one of the Trump talking points — specifically, that Page was planted into the Trump campaign as part of a politically motivated political sting.
      In blatant disregard of actual facts, Barr responded to the report by saying, among other things, that the FBI "launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions . . . ." Contrary to the FISA court's decisions, Barr contended that those suspicions were "insufficient to justify the steps taken."
      Barr went on to describe the investigation as consisting of "spying" on the Trump campaign. In FBI-speak, "spying" would consist of placing a confidential informant inside a suspect organization; the term would not be used to describe court-authorized electronic surveillance, as occurred in Crossfire Hurricane. In a further rant, Barr contended that the country was "turned on its head for three years" because of the Russia investigation — in apparent preference for no investigation of Russian interference in the 2016 election.
      For Barr, his good deeds for the president did not go unpunished. Instead, Barr himself became the main story by week's end as critics emerged to contend that he had politicized the department in blatant disregard of its traditional if idealized independence from the White House. Among the critics was one of Barr's predecessors: Eric Holder, who served for eight years as President Obama's attorney general.
      In an op-ed article written for The Washington Post, Holder contended forthrightly that Holder was "unfit" to continue as attorney general. Barr's most recent remarks, Holder argued, continued "a series of public statements and . . .  actions that are so plainly ideological, so nakedly partisan and so deeply inappropriate for America’s chief law enforcement official that they demand a response from someone who held the same office."
      Others with lesser credentials made similar complaints. On MSNBC, Chuck Rosenberg, a former FBI official, called Barr's description of the IG report "absolutely false." Rosenberg said he was "disheartened" and "mystified" by Barr's statements. Appearing on the same newscast, John Heilemann, the veteran Washington political journalist, called Barr "a relentless political hack and a thug."
      Some on the political and legal left have gone so far as to suggest that Barr deserves to be impeached and removed from office. The Republican-majority Senate that confirmed Barr by a near party-line vote of 54-45 would never convict Barr even if the Democratic-majority House wanted to spend the time and political capital on impeaching him.
      Thus, Barr depends for office solely on the president, whose political bidding he gladly obliges. For Trump, it appears that his quoted wish has been fulfilled: "Where's my Roy Cohn?"

Sunday, December 8, 2019

A Lawless President Asking to Be Impeached

      With the House of Representatives on the verge of drafting articles of impeachment, President Trump has tried to undermine the credibility of the Democrats' impeachment inquiry by complaining in effect that they have been gunning for him since the start of his presidency three years ago. He is right, but he has only himself to blame.
      Trump has been inviting impeachment since the very first day of his presidency by, for example, his open violation of the Constitution's Foreign and Domestic Emoluments Clauses. And now, even after getting wrist-slapped in the Russia investigation on foreign interference in the 2016 election and accused of obstruction, Trump recklessly abuses the powers of his office even more blatantly by actively seeking Ukraine's assistance in the 2020 election and stiff-arming the House impeachment inquiry.
      On the Emoluments Clause issue, Trump has argued in federal court litigation that arms-length patronage of Trump properties by foreign governments or domestic groups does not constitute a prohibited "emolument." With the cases still pending, judges in three cases have rejected that argument. Heedless of the issue, Trump has failed to divest himself of his interest in the Trump Organization and has done nothing to discourage foreign governments from trying to curry favor by patronize the Trump Hotel in Washington.
      The Emoluments Clause issue was one of five counts included in the first impeachment resolution against Trump introduced in what was then the Republican-majority House in November 2017. A dozen presidents before Trump had been named in impeachment resolutions — not just Johnson, Nixon, and Clinton — but no previous chief executive had been charged with impeachable conduct as early as his first year in office.
      That unacted-on resolution by six Democratic representatives also charged Trump with obstructing justice by firing FBI director James Comey to thwart the then-ongoing Russia investigation by special counsel Robert Mueller. Mueller's eventual report cited the firing of Comey along with other actions as evidence of obstruction, but Mueller bowed to Justice Department policy by declining to bring a criminal charge against the president.
      Having gotten away with a warning, a law-abiding president might have taken care to avoid any obstructive conduct later on. Trump chose instead to double down on obstruction by declaring the House impeachment inquiry unconstitutional and refusing to cooperate in any way. The House Intelligence Committee report released last week [Dec. 3] notes at page 28 that Trump is "the first president in the history of the United States to seek to completely obstruct an impeachment inquiry undertaken by the House of Representatives . . . " He did so, the report explains, by "instructing witnesses and agencies to ignore subpoenas for documents and testimony."
      Trump escaped mostly unscathed in the Russia investigation after Mueller's staff failed to find evidence of direct collusion between the Trump campaign and the Russian operatives who were carrying out Vladimir Putin's undisguised preference for Trump in the election. As with his obstructive conduct, Trump decided to double down on foreign interference in U.S. politics by directly soliciting "a favor" from the new Ukranian president  Volodymyr Zelensky in the now infamous July 25 telephone — specifically, an investigation into Trump's political rival, former vice president Joe Biden.
      Trump may sincerely believe that the telephone was "perfect," but hardly anyone — not even most Republicans — agrees. The telephone call, the House Intelligence Committee report notes at page 10, was "not an isolated occurrence, nor was it the product of a naive president." Trump, the report notes, was elected "with the benefit of an unprecedented and sweeping campaign of election interference undertaken by Russia in his favor."
      With most of the facts in the Ukraine investigation undisputed, Republicans and Trump apologists were left at last week's House Judiciary Committee hearing [Dec. 4] to argue that the record is incomplete and the move to impeach rushed. Jonathan Turley, the George Washington University law professor who served as the Republicans' expert witness at the all-day hearing, wrongly claimed that the Trump impeachment would be the fastest presidential impeachment in U.S. history.
      Even with the hearing in progress, reporter Emily Singer showed in an article for the progressive news site The American Independent that Turley's assertion was "demonstrably false." In fact, Andrew Johnson was impeached in 1868 just three days after the House started the process; Bill Clinton was impeached in 1998 75 days after the GOP-controlled House started the process. House Speaker Nancy Pelosi greenlighted the inquiry into Trump on Sept. 24, Singer noted — 71 days earlier.
      Turley spoke after three other constitutional law experts — Harvard's Noah Feldman, Stanford's Pam Karlan, and the University of North Carolina's Michael Gerhardt — all agreed that Trump has committed impeachable conduct. Turley's performance drew a negative review from one of his former students, but at week's end he had yet to apologize for his misstatement or to convincingly reconcile his support for impeaching Clinton two decades ago with his stance toward Trump today.
      In asking the House committee leaders to proceed with drafting articles of impeachment, Pelosi maintained on Thursday [Dec. 5] that Trump "gave us no choice." For a deeply divided country, the forecast for months ahead is more division, as Republicans in the Senate are challenged to act as "impartial" jurors in a constitutional test unlike any in previous U.S. history.

Sunday, December 1, 2019

Kavanaugh Lines Up With Anti-Regulatory Stance

      Supreme Court Justice Brett Kavanaugh steered clear of controversy when he used the Federalist Society's annual meeting last month [Nov. 14] as the forum for his first public appearance since his contentious confirmation a year ago. Less than two weeks later, however, Kavanaugh went out of his way in a below-the-radar Supreme Court case to advance a major conservative issue by calling for federal courts to expand their role in reviewing regulatory initiatives by federal administrative agencies.
      Kavanaugh fired his shot across the bow last week [Nov. 25] even as he joined in shelving a case, Paul v. United States, that asked the Court to give new life to the so-called nondelegation doctrine as a limit on administrative agencies' powers. The petitioner in the case, Ronald Paul, wanted the Court to invalidate decisions by three U.S. attorneys general to extend the federal sex offender registration law to sex offenders like himself convicted before the law was enacted in 2007.
      The Court rejected that argument in a similar case, Gundy v. United States, decided on June 20 by a splintered 5-3 majority without Kavanaugh's participation because it was argued before his confirmation. In his "statement
 respecting the denial of certiorari," Kavanaugh said he agreed with the decision not to hear Paul's case because it raised "the same statutory issue resolved last term in Gundy . . . ."
      Kavanaugh went on, however, to praise Justice Neil Gorsuch's dissenting opinion in Gundy and to call for considering Gorsuch's view in a future case. Kavanaugh's position creates a potential five-vote majority in favor of what would amount to a mini-revolution in judicial review of regulatory policy. Under Gorsuch's approach, federal courts would be expected to strike down regulations that go beyond "filling up details" in congressional statutes and instead embody "major policy decisions" properly for Congress to make.
      Political conservatives have long complained that federal regulators often go beyond their powers delegated by Congress to promulgate regulations that ought to be enacted if at all by elected representatives in Congress instead of unelected federal bureaucrats. Despite the long history of these complaints, the Supreme Court has invoked the nondelegation doctrine only twice to strike down federal regulatory initiatives in two decisions in 1935 that dealt with New Deal enactments under President Franklin D. Roosevelt.
      The defendants in Gundy and Paul argued that attorneys general under Presidents George W. Bush and Barack Obama had gone too far in issuing regulations that applied the Sexual Offender Registration and Notification Act (SORNA) retroactively to sex offenders convicted before it was enacted. The law included a provision instructing the attorney general to cover pre-Act offenders "as soon as feasible."
      In Gundy, Justice Elena Kagan wrote for a plurality for four justices to find that provision sufficient authority for the regulations to extend SORNA's registration requirements. Justice Samuel A. Alito Jr. provided the fifth vote for the decision in a limited concurring opinion that he used to call for reviving the nondelegation doctrine in a future case with a full nine-justice bench.
      Gorsuch was joined in his 33-page dissenting opinion by two other conservatives: Chief Justice John G. Roberts Jr. and associate justice Clarence Thomas. Gorsuch argued for a stronger approach to nondelegation issues to prevent what he called "delegation run riot," invoking Justice Benjamin Cardozo's oft-quoted phrase from one of the 1935 decisions.
      Kavanaugh praised what he called Gorsuch's "scholarly analysis" of the nondelegation doctrine in a four-paragraph opinion that traced Gorsuch's view to a concurring opinion written almost 40 years ago by then-associate justice William H. Rehnquist. Rehnquist provided the fifth vote in the Court's decision in Industrial Union Department v. American Petroleum Institute (1980) to strike down strict benzene exposure standards promulgated by the Occupational Safety and Health Administration (OSHA).
      The four moderate-to-liberal dissenters in that case complained that the four justices in the plurality struck down the OSHA regulation based on "the plurality's own views of proper regulatory policy." Ian Milhiser, a friend and colleague, channeled this critique in a sharply written column for the online news site Vox. Kavanaugh's opinion, Milhiser wrote, "shows that there are almost certainly five votes on the Supreme Court to slash agencies’ regulatory power."
      From the opposite perspective, the libertarian commentator Damon Root hailed Kavanaugh's opinion in a short column for as evidence that the rookie justice "seems to have joined Gorsuch's campaign to put some judicial teeth into the nondelegation doctrine." Root called the development "welcome news." In his column, however, Milhiser warned that Gorsuch's approach, if adopted, would "severely weaken seminal laws such as the Clean Air Act and the Clean Water Act."
      Gorsuch took pains in his opinion to leave room for Congress to delegate fill-in-the-blanks power to regulatory agencies, for example, when based on specified factual findings. But the decisions he cited all struck down regulatory initiatives       for example, the regulations promulgated by the Food and Drug Administration (FDA) to limit marketing of tobacco products to minors.
      In his opinion, Gorsuch vigorously insisted on the need for important policy decisions to be made by the people's elected representatives. Yet his position would necessarily result in giving the five unelected Republican-appointed justices broad discretion to strike down regulations that run contrary to their political views. The irony is too thick to overlook.

Saturday, November 23, 2019

To Impeach Trump, No Need to Stop at Single Count

      No sensible prosecutor would start a criminal case by limiting the case to only one of several charges supported by the evidence, but that is what House Democrats have chosen unwisely to do in their impeachment inquiry against President Donald J. Trump.
      Following instructions from House Speaker Nancy Pelosi, the House Intelligence Committee devoted four days of public hearings this week [Nov. 19-22] only to a single charge against Trump, phrased alternately as bribery or extortion. The Intelligence Committee's Democrats guided eight witnesses in all through the details of Trump's decision to withhold military aid to Ukraine in order to pressure Ukraine's newly elected president to open an investigation into Trump's political opponent, former vice president Joe Biden.
      The nonpartisan political reform group Common Cause marked the end of the initial impeachment hearings last week [Nov. 21] by trying to remedy the Democrats' short-sighted decision with detailed drafts of nine articles of impeachment against Trump. The coauthors of the 64-page report, Common Cause president Karen Hobert Flynn and vice president for policy Paul Seamus Ryan, sought to bolster its credibility by noting that the group urged caution on impeachment even as Democrats and anti-Trump partisans clamored through most of the past three years to put him in the congressional dock.
      House Democrats have yet to draft articles of impeachment, but the Democratic majority seems certain to approve at least one article once it is drafted and approved by the House Judiciary Committee. Through four days of hearings, the Intelligence Committee Republicans showed no sign of wavering in their unquestioning defense of Trump.
      From the Ukraine episode itself, the Common Cause report fashions four separate articles of impeachment charging Trump with abuse of power, bribery, obstruction of justice, and campaign finance violations. The withholding of military aid amounts to abuse of power, according to the report, while the pressure on the Ukrainian president Volodymyr Zelensky for an investigation amounts to solicitation of a bribe. 
      Trump obstructed justice in the Ukraine inquiry, the report argues, by directing executive branch officials not to comply with congressional subpoenas and by intimidating those witnesses who did agree to testify. Trump is also obstructing justice, the report contends, by soliciting political contributions for U.S. senators "for the purpose of obtaining [their] acquittal votes in an impeachment proceeding."
      As for the claimed campaign finance violations, Common Cause has already filed a complaint with the Federal Election Commission (FEC) charging Trump with seeking a prohibited contribution from a foreign government — specifically, the requested investigation of the Bidens. The request itself amounts to a violation, the report argues, with or without a quid pro quo and even without an investigation undertaken.
      As a fifth article of impeachment, Common Cause proposes to fashion an obstruction of justice charge against Trump in regard to the Russia investigation. The report details the 10 separate instances of obstruction that special counsel Robert Mueller cited in his report while constrained from bringing an actual criminal charge.
      The bill of particulars, quoted directly from the Mueller report, include the firing of FBI director James Comey, the efforts to have Attorney General Jeff Sessions take charge of the investigation, and the never-acted-on instruction to White House counsel Don McGahn to fire Mueller. The report notes that Mueller specifically denied having exonerated Trump in regard to obstruction.
      As a separate article, Common Cause suggests that Trump could be impeached for abuse of power in connection with the Russia investigation and likens that article to charges approved by the House Judiciary Committee against Nixon in 1974 and included in the Clinton impeachment in 1998. Trump abused power, the report contends, by such actions as pressuring Comey to end the investigation of national security adviser Michael Flynn and "dangling the possibility of pardons" for under-investigation aides, including Flynn, ex-campaign chair Paul Manafort, and fixer-lawyer Michael Cohen.
      As a seventh article of impeachment, Common Cause urges that Trump be charged with accepting foreign and domestic emoluments in violation of an explicit constitutional command through his continued ownership interest in the Trump Organization and the patronage by favor-seeking foreign governments and domestic political groups. The report acknowledges litigation over the issue and points to the courts' reluctance so far to adjudicate the dispute as evidence that it is up to Congress to act.
      As two final articles of impeachment, Common Cause calls for Trump to be charged with abuse of power by failing to take steps to protect U.S. elections from foreign interference — indeed, by actively soliciting such interference in his 2016 campaign. The group also proposes to use the hush payments to porn star Stormy Daniels as a basis for a ninth article charging Trump with campaign finance violations by failing to report the expenditure.
      For each of the articles, Common Cause suggests language along these lines. Trump, the articles recite, "has undermined the integrity of his office, has brought disrepute on the presidency, has betrayed his trust as president and has acted in a manner subversive of the rule of law and justice in the United States to the manifest injury of the people of the United States."
      Nine articles of impeachment would be a bridge way too far for House Democrats, but surely the four suggested Ukraine-related articles could be drafted without further hearings or the obstruction of justice count in regard to the Russia investigation as well. It bears noting that Nixon and Clinton both faced multiple articles of impeachment; Trump deserves nothing less.

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.