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.