Sunday, September 27, 2020

Donald Trump versus Democracy on November 3

            President Trump’s repeated refusal to abide by the results of the presidential election puts American democracy at risk to an extent unseen since the time of the Great Depression in the 1930s.

Republican senators who have enabled the worst of Trump’s excesses in the White House have tried to dispel doubts about a peaceful transition of power after Trump’s looming defeat. Those reassurances are empty of content, however, in the face of Trump’s ability to marshal federal resources and his political base to try to thwart the will of the American voters.

            Trump’s bag of tricks to neutralize a second popular-vote loss, possibly much larger than his 2.8 million vote deficit to Hillary Clinton in 2016, includes vote suppression, voter intimidation, and vote-counting litigation and confusion after Election Day. He set the stage for challenging election results at the Republican National Convention in August by declaring that the only way he could lose was to “a rigged election.”

            His Democratic opponent, former vice president Joe Biden, had already warned as early as the spring that Trump would try to steal the election. Biden’s Democratic primary opponent, Vermont’s blunt-spoken independent senator Bernie Sanders, stepped up the rhetorical heat on the issue in a speech last week [Sept. 24] at George Washington University.

            “This election is not about Joe Biden versus Donald Trump,” Sanders declared. “This is about Donald Trump versus democracy.”

            Level-headed election experts and historians are warning of a constitutional crisis that can spread through courtrooms in several states and even into the streets. “We could well see a protracted postelection struggle in the courts and the streets if the results are close,” says Richard L. Hasen, the nation’s pre-eminent election law expert and a professor at the University of California-Irvine Irvine School of Law.

Trump’s campaign organization is actively recruiting “an army” of supporters to help police potential voter fraud at polling place. Virginians in suburban Washington, D.C., got a taste of what is to come when early voters waiting in line for hours in Fairfax County were met by a throng of Trump supporters carrying Trump-Pence placards in seeming defiance of rules against electioneering at polling places.

Hasen has been warning of the dangers to electoral democracy all year, ever since he published his book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press) in February. Hasen identified four factors threatening the integrity of the 2020 election: voter suppression; incompetence in election administration; misinformation campaigns; and inflammatory rhetoric undermining faith in the integrity of elections.

A new threat to the election has now been reported in a disturbingly well-documented article by Barton Gellman, a staff writer with The Atlantic, published online last week [Sept. 23] under the headline “The Election That Could Break America.” Gellman envisions a scenario that leaves the results of the election in doubt not only for the days of late ballot-counting in November but even into an extended interregnum that ends in Congress or at the Supreme Court, with two or perhaps three Trump-appointed justices.

Republican-controlled legislatures in battleground states might designate Trump-pledged electors whatever the results of the popular vote in the state. States have until December 8, thirty-five days after the election to make those designations. In his story, Gellman reported that Republican legislators in Pennsylvania are already discussing this scenario. As of late September, Biden leads Trump by 5 percent or more in pre-election polls in the Keystone State.

Gellman went on to note that Republicans control both legislative chambers in six of the most closely contested battleground states: Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin. Four of those states have Democratic governors — all but Arizona and Florida — who might be in a position to thwart the GOP legislators’ effort by certifying electors in line with the popular vote.

Trump would remain as president throughout, up to January 20, with the power to direct his lapdog attorney general William Barr to send Justice Department attorneys into courtrooms to buttress challenges to vote counts. Vice President Mike Pence would be the presiding officer in a Republican-majority Senate with the power to rule on electoral vote challenges.

Gellman warns that whatever happens, Trump will not concede defeat, just as losing presidential candidates have done gracefully and respectfully ever since William Jennings Bryan acknowledged his loss in 1896 to William McKinley. Gellman, who worked in Al Gore’s 1988 presidential campaign, also recalls that Gore bowed to the Supreme Court’s decision in Bush v. Gore even with some avenues for legal challenges still open to him.

“Donald Trump may win or lose, but he will never concede,” Gellman writes. “Not under any circumstance. Not during the Interregnum and not afterward. If compelled in the end to vacate his office, Trump will insist from exile, as long as he draws breath, that the contest was rigged.”

Trump’s MAGA-wearing supporters will believe him, just as they now believe his contrafactual warnings that mail ballots inevitably entail widespread voter fraud. Trump continues to call mail ballots a “scam” even as military service members use the time-honored procedure to exercise their rights. Republican campaign aides have been out in force already criticizing “activist judges” who extend deadlines for mail balloting in deference to what is expected to be an unprecedented crush of by-mail voting.

Polls indicate that Democrats are more likely to vote by mail than Republicans; thus, any  challenges to late-arriving mail ballots are likely to disqualify more Democratic votes than Republican votes. In battleground states, those challenges could spell the difference between a Biden victory or a Trump victory: imagine a Florida-like recount that turns not on hanging chads but on voting-by-mail postmarks.

Saturday, September 19, 2020

Ruth Bader Ginsburg: Pioneer for Gender Equality

            Ruth Bader Ginsburg paid tribute to her mother when President Bill Clinton introduced her as his nominee for the Supreme Court in 1993. Celia Bader died of cancer when her pretty daughter Ruth was about to graduate from high school at her age 17. And now, after 27 impactful years as a Supreme Court justice, Ruth too has succumbed to cancer. 

            “I pray that I may be all that she would have been,” Ginsburg said of her mother, with Clinton smiling proudly beside her, “had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.”

            In her younger years, in her 40s, Ginsburg had already played the critical part in making a reality of that aspirational hope. She created, all but single-handedly, the constitutional principle that women are entitled under the law to equal rights, an intellectual revolution as significant as the still unfinished civil rights revolution for racial justice.

            Ginsburg made her mark as a gender equality pioneer and as judge and justice by determination and perseverance, a keen intellect, and fortitude in the face of adversity. Her only-in-America story took her to Cornell on a scholarship and then to Harvard and Columbia law schools. But after graduating from Columbia tied with first in her class, she found her career blocked, as she herself put it, by three marks against her: a woman, Jewish, and mother of a young child.

            In successfully litigating three cases in the Supreme Court in the 1970s, Ginsburg established the principle that the law can treat women differently from men only under limited circumstances and for some compelling reason. In the first of those cases, she overcame what seemed at the time the natural assumption that a father should be automatically favored over a mother as the executor of a deceased child’s estate.

            After her death on Friday night [Sept. 18], Clinton’s close aide Paul Begala recalled on CNN that the president introduced Ginsburg to him as “the Thurgood Marshall of the women’s movement.” In her obituary in The New York Times, the veteran Supreme Court correspondent Linda Greenhouse recalled that Ginsburg resisted the comparison by noting that she had never had to risk her life as Marshall had done in his cases in the 1940s and ‘50s.

            In introducing her, Clinton described Ginsburg as “scrupulous,” “balanced and fair,” and “too thoughtful” to be pigeonholed as conservative or liberal. She had already gained that reputation through twelve years of service on the federal appeals court for the District of Columbia Circuit. And she went on to enhance that reputation on the Supreme Court, where her opinions and her questions from the bench were always thoughtful, rigorously logical, to the point, and free of ideological rhetoric or recrimination.

            Among her majority opinions, Ginsburg most significantly fortified the gender equality principle by speaking for a 7-1 majority in striking down the all-male admissions policy at Virginia Military Institute (VMI). Ginsburg praised VMI in her majority opinion in United States v. Virginia (1996) as “an incomparable military college” and concluded that because of its excellence the school’s program must be equally available to “women seeking and fit for a VMI-quality education.”

            Other commentators have already recalled Ginsburg’s pointed dissents from decisions that cut back on women’s autonomy in reproductive choices. Dissenting for example in Gonzales v. Carhart (2007), Ginsburg complained that the majority opinion, joined by five male justices, "recalls ancient notions about women's place in society and under the Constitution—ideas that have long since been discredited."

            Among others that stand out in my mind was her dissent when the 5-4 majority in Missouri v. Jenkins (1996) cut a plan to remedy racial segregation in Kansas City schools. “Given the deep, inglorious history of segregation in Missouri,” Ginsburg wrote, “to curtail desegregation at this time and in this manner is an action at once too swift and too soon.”

            In her confirmation hearing, Ginsburg described herself as an advocate of judicial restraint. She was no judicial activist, as seen in her criticism of Roe v. Wade as going further than necessary to rule on the Texas law at issue. Instead, Ginsburg’s approach was as she described it in her confirmation hearing by quoting an admonition from Justice Cardozo. “Justice is not to be taken by storm. She is to be wooed by slow advances.”

            Her colleagues deferred to Ginsburg’s rigorous logic often by assigning her decisions that posed complex procedural issues. Thus, in what proved to be her final term, she led a slightly fractured unanimous decision in Monasky v. Taglieri (Feb. 25) that laid down guidelines for deciding child custody disputes among separated parents living in different countries.

            In her final opinion, Ginsburg complained in dissent in Little Sisters of the Poor v. Pennsylvania (July 8) of the effect on women’s health options of upholding an expansive religious exemption for employers to deny employees cost-free contraceptive coverage. “I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.”

            By Jewish tradition, it was fitting that Ginsburg, the most observant of the three Jewish justices, died around sunset on Rosh Hashanah, the first day of the Jewish new year. The Jewish tradition regards someone who dies on Rosh Hashanah as a “tzaddik,” a person of great righteousness. May her memory be a blessing!

Saturday, September 12, 2020

On Virus, a Presidential Duty to Warn?

            Anybody with a lick of sense knew back in February and March that President Trump was misleading Americans about the health risks from the novel coronavirus as it started to spread through the United States. Now, thanks to Trump’s own words in taped interviews by the legendary journalist Bob Woodward, we know for a fact that Trump was knowingly and intentionally downplaying the health risks even after a warning about the risks from his own national security adviser.

            Trump sprang to attention, according to Woodward’s reconstructed account after national security adviser Robert O’Brien warned in an intelligence briefing on Jan. 28 that the novel coronavirus would be “the roughest thing you face.” O’Brien’s deputy, Matthew Pottinger, went further by forecasting a worldwide pandemic that could equal the 50 million deaths from the flu pandemic of 1918.

            Trump acknowledged and actually boasted to Woodward, in a tape recorded interview on March 19, that he was deliberately downplaying the public health risks, supposedly to avoid a public panic. “I wanted always to play it down,” Trump told Woodward in the interview. Three weeks earlier, the president had declared at a news conference that the virus “was a little like the regular flu” and that a vaccine would be ready “in a fairly quick manner.”

Trump knew by then, according to Woodward’s tapes, that the virus was worse than a “strenuous flu” and that it spread rapidly and easily. “You just breathe the air and that’s how it’s passed,” he told Woodward in a phone call on Feb. 7. In a news conference later, however, Trump told Americans something else. “I think the one thing nobody really knew about this virus was how contagious it was,” he said in the March 31 presser.

Trump had no actual concern about reassuring fearful Americans, of course. His real concern was the effect that public panic might have on the stock market and thus on his chances for re-election. As political strategy, Trump’s focus on minimizing public panic has been a dismal failure: witness the 60 percent public disapproval of his handling of the pandemic. It has also been a public health catastrophe, as seen in the 190,000 deaths in the United States so far, the most of any developed nation.

Beyond politics, however, Trump’s knowing and deliberate deception of the American public implicates a legal principle that is central to contemporary American law: the duty to warn. Law students learn in their first-year torts class that a manufacturer that makes a dangerous product or a dealer that sells a dangerous product can be held liable for any injuries or deaths for failing to warn consumers of risks to health or safety.

            A company that adopted Trump’s strategy of playing down the safety risks of its product might be on the hook for millions of dollars in civil damage suits. In an egregious case, corporate executives might even face criminal prosecution for concealing health and safety risks.

For several reasons, however, Trump is beyond the reach of either civil law or criminal law. The Supreme Court held in 1982 that presidents enjoy absolute immunity from civil liability for any actions taken in their official duties (Nixon v. Fitzgerald). Roger Schechter, who teaches torts at George Washington University Law School, notes that apart from that decision, hypothetical plaintiffs would face legal hurdles in trying to prove in court that the president’s failure to warn was the “proximate cause” of their succumbing to the virus.

Apart from individual cases, it is impossible to know how many lives might have been saved with more forthright warnings from the White House. Researchers at Columbia University estimated that 36,000 lives could have been saved, while Thomas Haseltine a professor at Harvard Medical School, ventured his guess on CNN last week {Sept. 10] that 180,000 lives could have been saved.

 Trump himself is unfazed and unabashed by the statistics. “It’s an amazing job we’ve done,” he declared at a White House briefing as Woodward’s accounts were dominating the day’s news cycle. Whatever the number, this much is true: “Trump lied; people died.”

Thomas Frieden, who headed the Centers for Disease Control and Prevention under President Obama, used his appearance on CNN the same day to suggest what Trump should have done. “We know how to avoid panic,” Frieden said. “Give people concrete, practical things to do”—social distancing and masks, for example. “That means leveling with the American people and telling them what we know when we know it.”

As for criminal liability, Trump is also protected from any legal consequences from his deceptions. The Justice Department’s Office of Legal Counsel concluded during the Watergate era that the president is immune from criminal prosecution for official actions; the Justice Department reaffirmed that position during the events leading up to the Trump’s impeachment trial.

            With legal consequences ruled out, it’s up to American voters to hold Trump accountable for his leadership failures on Election Day. Woodward’s accounts may not move the needle, but they may blunt Trump’s efforts to reverse Biden’s seven percentage point nationwide lead in public opinion polls.

            Narcissistic to the end, Trump used his final interview with Woodward on July 21 to deny any responsibility for the disastrous consequences of his mishandling of the pandemic. “The virus has nothing to do with me,” Trump told Woodward. “It’s not my fault.” So much for Truman’s famous admonition: “The buck stops here.”

Sunday, September 6, 2020

Barr Peddles Misinformation in CNN One-on-One

          CNN promoted its one-on-one interview with Attorney General William Barr [Sept. 2] as though viewers would learn something from Wolf Blitzer’s questioning of President Trump’s henchman at Main Justice. Instead, despite the veteran newsman’s best efforts, Barr used the appearance to peddle misinformation about election security aimed at underlining Trump’s baseless warnings about likely fraud in the Nov. 3 presidential election.
            A few hours earlier, Trump had made the bizarre suggestion that his supporters in North Carolina should test election security procedures by voting twice in the presidential election—first, by absentee ballot and then on Election Day as well. “If their system’s as good as they say it is,” Trump explained in a briefing with reporters, “then obviously they won’t be able to vote.”
            Blitzer, with 30 years’ experience at CNN, used the transcript of Trump’s remarks to ask Barr whether the president’s plan would amount to a violation of the state’s election laws. Barr, the chief law enforcement officer in an administration deeply concerned about election fraud, ducked Blitzer’s questions by pleading ignorance of North Carolina law.
            In fact, the federal Voting Rights Act prohibits voting more than once in a given election, and most states have separate state laws that prohibit voting more than once in the same election within the state or in different states. The National Conference of State Legislatures lists North Carolina among 31 states with such laws.
            Admittedly, Barr had no forewarning of Trump’s ridiculous idea, so he could justifiably disclaim any knowledge of the president’s specific intentions. Even when shown the transcript, however, Barr ventured no opinion on whether his boss’s suggestion might run afoul of state election law. Instead, Barr appeared to endorse the plan as a permissible method of testing the potential for voter fraud in mail balloting procedures.
            With Blitzer pressing for an answer, Barr became more and more testy, as seen in a ten-minute excerpt posted on YouTube. He claimed that numerous studies—by government bodies and news organization—had showed in recent years that voting by mail is “open to fraud and coercion.” As an example, Blitzer related a completely inaccurate account of a supposed election fraud case in Texas.
In Barr’s telling, “we indicted” – that is, the federal government – a Texas man who “collected” 1,700 ballots and “made them out and voted for the person he wanted to.” Blitzer had no on-the-spot ability to check and correct Barr’s account, but the Washington Post and ABC News corrected Barr within the next two news cycles. In fact, Barr was referring to a local prosecution involving suspected mail-in voting fraud in a city council election in 2017 in Dallas County.
The local prosecutor in the case, Andy Chatham, told the Post that Barr’s account was all wrong. “That’s not what happened at all,” Chatham, now in private practice, said. Chatham went on to note that the Justice Department had never contacted the district attorney’s office about the case. “Unfortunately, it speaks volumes to the credibility of Attorney General Barr when he submits half-truths and alternative facts as clear evidence of voter fraud without having so much as even contacted me or the district attorney’s office for an understanding of the events that actually occurred,” Chatham added.
Queried about the discrepancy, the Justice Department’s spokeswoman Kerri Kupec blamed it all on staff, not on Barr. “Prior to his interview, the Attorney General was provided a memo prepared within the Department that contained an inaccurate summary about the case which he relied upon when using the case as an example,” Kupec told the Post. Pause now to feel sorry for the hapless DOJ lawyer who thought he was giving Barr just what his boss wanted: some really juicy dirt about voter fraud.
Blitzer continued in the interview to ask Barr whether Russia was attempting to interfere in this year’s election as they did four years ago. “It wouldn’t surprise me if Russia tries something again,” Barr answered without going further. When pressed, however, Barr told Blitzer that between Russia and China, he was more concerned about China’s possible meddling in this year’s election. Blitzer asked for an explanation, but Barr said no more. “I’ve seen the intelligence,” he said.
By giving Russia a kind of a pass and demonizing China instead, Barr was serving Trump’s interests: Trump’s base, like Trump himself, worries more about China than about Russia. Whenever asked about Russia, Trump has a one-word answer: “Hoax!”
Blitzer changed subjects again to ask Barr whether he believes there is “systemic racism” in criminal justice in the United States. Barr stopped short of a complete denial, but could not find the word to describe what he acknowledged as fact. “I think there are some situations where statistics suggest that they [Black and White Americans] are treated differently,” he said. “But I don’t think that that’s necessarily racism.”
            The Justice Department might be better able to answer the question if the Trump administration had continued the Obama-era policy of aggressively using its power to investigate local law enforcement agencies for “policies or practices” that entail excessive force or discriminatory harassment. Perversely, Trump now falsely accuses the Obama-Biden administration of having done nothing in regard to police reform when in fact his administration has shut down any federal oversight.