Sunday, May 26, 2019

Trump Loses Two Rounds in Subpoena Fights

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

Saturday, May 18, 2019

Court's Conservatives 'Unmaking' Law Again

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

Sunday, May 12, 2019

The Unfinished Work of Reconstruction

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

Sunday, May 5, 2019

Trump's Lawyers Revive Imperial Presidency

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