Sunday, April 11, 2021

At Harvard Law, Breyer's Farewell Address?

            Supreme Court Justice Stephen Breyer might or might not be contemplating his eventual retirement these days, but he delivered a lecture at Harvard Law School last week [April 6] that could well serve as his farewell address after twenty-seven years on the Supreme Court. Breyer used the two-hour lecture, the video available via YouTube, to warm against “the perils of politics” that threaten the Court’s authority and public confidence in the Court.

At age 82, Breyer is now the oldest of the nine current justices and the tenth oldest justice in history. He has no known health issues that interfere with his work or that might force him to step down in the near future. His questions to lawyers during the current term’s oral arguments have been unaffected by advancing age. He also demonstrated his mastery of legal craftsmanship by leading the Court’s 6-2 majority last week [April 5] in a factually complex decision that cleared Google of copyright infringement for copying parts of the Java platform when it set up the Android platform for smartphones beginning in 2005.

             Breyer, it must be remembered, was confirmed by an 87-9 Senate vote in 1994 based on his reputation for bipartisanship as a Senate committee staffer and as a judicial moderate on the federal appeals court in Boston. He has been a moderate liberal on the Supreme Court, siding with conservatives for example in some Fourth Amendment decisions favoring law enforcement over suspects or defendants.

            The speculation that Breyer might or perhaps should retire soon has increased with the election of an ideologically compatible president in the White House and Democrats in control of the Senate. Breyer made no reference to possible retirement in the Harvard lecture and has had no public comment since a liberal law professor called for his early retirement last month [March 15] in an op-ed in The New York Times.

The University of Colorado’s Paul Campos warned in the article that Democrats could lose control of the Senate if any one of the fifty Democratic senator were to die or retire and be succeeded by a Republican appointee. Under present circumstances, Campos wrote, “it would be a travesty if the Supreme Court seat occupied by Justice Breyer was not filled by a replacement chosen by Democrats.”

Breyer’s longtime colleague, Ruth Bader Ginsburg, responded to questions about her own tenure over the years by vowing to stay on the job as long as she was able to do the work. Her death last fall gave President Trump the chance to create a lopsided conservative majority on the Court, with the liberal bloc reduced from four to three justices. Breyer has been mum about possible retirement even to the point of avoiding any assurance that he is still up to the job and plans to stay as long as he is.

            In his lecture, Breyer noted that despite the political attacks of the past half-century the Court continues to do well in public opinion polls that show it has higher approval ratings than Congress. Public confidence in the Court, Breyer explained, was neither automatic nor foreordained. He relates the history of political conflicts with presidents—for example, between Jefferson and the Marshall Court, Jackson and the late Marshall Court, and FDR and the conservative Court Roosevelt inherited from Republican ascendancy in the 1920s.

            Recalling this history, Breyer appears to be pleading with whatever audience the lecture may gain to set aside their view of justices as politicians in robes. Judges, he acknowledges, take the bench with political views and legal philosophies well formed and shaped by their personal backgrounds. “I cannot jump out of my own skin,” he explains. “No one can.”

            Breyer’s pleading, unfortunately, will fall on deaf ears on the political right. Five Republican presidents – Nixon, Reagan, Bush 41, Bush43, and Trump – have pushed the ideological envelope in appointments to the Court and conditioned political partisans to view Democratic-appointed justices as activists even as conservative justices  have crafted new constitutional doctrines or overruled precedents to throw out laws enacted by Congress.

            True to his warnings against politics, Breyer cautioned against one of the Supreme Court reform proposals that has gained favor among some Democrats and many liberal Court watchers. Expanding the Court to ten justices, he warned, would feed the public perception that decisions are driven not by law, but by politics. Breyer’s opposition may well be moot., however As candidate and as president, Biden has not endorsed expanding the Court’s membership and any such proposal would be all but impossible to win filibuster-proof support in the 50-50 Senate.

            As for other Supreme Court reform proposals, the Washington Post editorial board weighted in this weekend [April 11] by arguing that term limits for justices would be more important than Court packing and more politically palatable as well. Those proposals too face an uphill road in the face of constitutional doubts and intricate questions about how to apply term limits to sitting justices.

 

Sunday, April 4, 2021

In Derek Chauvin's Trial, Lessons for All to See

            Two of the three major cable news channels have performed a valuable public service by providing live, daily coverage of the murder trial of former Minneapolis police office Derek Chauvin for the death of George Floyd. The five days of testimony that began on Monday [March 29] showed, painfully and wrenchingly, the degree of Chauvin’s malice and recklessness in pinning Floyd’s neck to the ground until after an agonizing nine minutes Floyd lay lifeless, with no pulse found by on-scene paramedics.

            By the time the trial began, ten months after Floyd’s death, the people of Minneapolis and all Americans had seen excerpts of the bystander’s video from that day, with Chauvin’s three colleagues standing by mute and the protesting onlookers pleading with Chauvin to let up. But the airing of the full nine-minute video from Chauvin’s body camera is, as the lawyers might say, the best evidence of what happened that day—not just for the multiracial jury, but for all Americans to judge as well.

            In an odd bit of journalistic rivalry, Tucker Carlson used his Fox News commentary one night last week to complain that the other news channels, CNN and MSNBC, were treating the trial as though it were the Super Bowl—seemingly to gain audience share and, in Carlson’s view, knowingly to further divide public opinion on the “Black Lives Matter” movement and the need to reform police policies and practices.

            Carlson appeared to be bragging that Fox was staying away from coverage of the trial, perhaps the first time in journalistic history that a news organization has bragged about failing to cover one of the most important events of the day. But Carlson may understand that the public viewing of the trial supports the central thesis of the Black Lives Matter movement on the need to redress racist stereotypes held by too many white police officers and the need to adopt and enforce strict policies on the use of force.

            This mini-debate on coverage of the trial brought to mind, for me, Chief Justice Warren Burger’s explanation of the importance of public criminal trials in an important decision four decades ago. Writing the main opinion in Richmond Newspapers v. Virginia  (1980), Burger reinforced the tradition of open criminal trials by citing as benefits “the significant community therapeutic value of public trials” and a public trial’s role in “providing an outlet for community concern, hostility, and emotion.”

            The people of Minneapolis need that outlet and so do the millions of Americans who sympathize with the Black Lives Matter movement, whether or not the Fox News opinion-mongers do. With the jury’s verdict necessarily uncertain, coverage of the trial may help Americans accept the eventual outcome of the trial as a legal judgment based on the evidence and the law rather than a political statement one way or the other.

            Viewers who stayed with the trial as the week continued had the opportunity to hear for themselves testimony from Chauvin’s superiors that his conduct was, whether or not criminal, out of line with best police practices. Testifying on Friday [April 2], Lt. Richard Zimmerman, the longest serving officer on the Minneapolis police department, testified bluntly for the prosecution that Chauvin’s knee on Floyd’s neck was “totally unnecessary.”

“Pulling him down to the ground facedown and putting your knee on a neck for that amount of time, it’s just uncalled for,” Zimmerman testified, after viewing the video in the courtroom. The veteran officer also answered any fear that Chauvin might have had of Floyd.  “Once a person is handcuffed,” Zimmerman went on to say, “the threat level goes down all  the way. They’re cuffed: how can they really hurt you?”

            Chauvin had been the subject of twenty-two complaints – eight of them involving use of force against arrestees -- in his nineteen-year career before he was fired within days after Floyd’s death on May 25, 2020. Only one of the complaints resulted in discipline: city records quoted in news coverage show that only a small fraction of adjudicated complaints against Minneapolis officers over the past decade resulted in discipline.

The prosecution wanted to introduce evidence of eight of those incidents, but Hennepin County District Judge Peter Cahill allowed only two of them. Whether or not the incidents were admissible in a criminal trial, Chauvin’s history raises the question of whether the department should have kept him on the force or, in any event, allowed him to assume a supervisory role over younger officers – like the three officers who deferred to Chauvin’s seniority as they watched him continue to kneel on Floyd’s neck even as Floyd pleaded, “I can’t breathe.”

            Chauvin is charged with second-degree murder and manslaughter, The other three ex-officers  at the scene – J. Alexander Kueng, Thomas K. Lane, and Tou Thao – face criminal charges themselves and are scheduled to stand trial on aiding-and-abetting charges beginning on Aug. 23. Cahill ordered a separate trial for the trial, over the objection of State Attorney General Keith Ellison, whose office is prosecuting the cases. Cahill voiced concern that a joint trial could be a superspreading coronavirus event, while Ellison contended that a second trial would be retraumatizing for the witnesses in the two cases.

            By week’s end, the trial was seen as ahead of schedule, with a second week of testimony set to begin on Monday [April 5]. Whatever the eventual verdict may be, police administrators around the country must take the lessons from Chauvin’s trial needed to prevent unnecessary deaths like Floyd’s in the future.

 

Saturday, March 27, 2021

Ford Plays Legal Hardball With Accident Victims

            The Supreme Court gave the back of its hand to the Ford Motor Company last week [March 25] by rejecting the company’s six-year legal effort to avoid product-defect suits in state courts in Minnesota and Montana stemming from serious automobile accidents in those states.

            The two accidents occurred a few months apart in 2015, six years ago. One mishap left a Montana woman, Markkaya Jean Gullett, dead after her 1996 Ford Explorer ran off the road because of a tire failure.The other accident left a Minnesota man, Adam Bandemer, with a severe brain injury because the air bag in the 1994 Ford Crown Victoria failed to deploy after Bandemer’s friend rear-ended a snowplow as they were en route to a favorite ice-fishing spot.

The two accidents had one thing in common: plaintiffs quickly filed product liability suits against Ford in their home state courts that blamed the injuries on dangerous defects in the Ford-manufactured vehicles. Ford, a Fortune 500 company incorporated in Delaware and headquartered in Michigan, responded to the suits as though the company was being hauled into court in some remote territory with an unfamiliar and unfriendly legal system. In fact, Ford is well familiar with Minnesota and Montana law since the company advertises in both states and sells thousands of cars in both of the states every year.

            Ford crafted a legal strategy that only a law school graduate could see as sensible. Ford argued all the way to the U.S. Supreme Court that Minnesota and Montana courts had no power to force Ford to trial for injuries to their citizens stemming from accidents within their state boundaries. Ford argued instead that the state courts had no jurisdiction over the company because the vehicles involved in the two accidents had not been designed, manufactured, or sold in those states.

            Under Ford’s theory, Bandemer or Gullettt’s personal representative needed to come to Michigan to try to hold the company accountable for the injuries that the allegedly defective Ford vehicles caused. The lawsuits would have been a heavy lift for the plaintiffs, requiring expensive expert testimony to prove the claimed defect and to prove the defect as the proximate cause of the victims’ injuries.

            Ford has an army of in-house lawyers and outside counsel well familiar with defense of product liability lawsuits. Product liability law is no recent or radical innovation in the United States and actually dates back to the early 20th century. In an opinion by the future Supreme Court justice Benjamin Cardozo in 1916, New York’s highest state court established the principle that a manufacturer can be held liable for injuries resulting from a dangerously defective product that the manufacturer introduces into the stream of commerce.

            The defendant in that case, the Buick Motor Company, tried to escape liability for injuries resulting from a defective wooden wheel on two grounds, both as artificially contrived as Ford’s legal strategy in the present-day cases. Buick disclaimed responsibility for the defective wheels by noting that Buick did not manufacture the wheels but only installed them. In addition, Buick argued that the plaintiff needed to sue the dealer, not the manufacturer.

            A century later, neither of those arguments would hold water in a U.S. court today. But Ford’s team of legal pettifoggers saw an opening in the present-day cases by looking to the somewhat complex rules governing a state court’s jurisdiction over an out-of-state company. An out-of-state company can be subject to a state’s general jurisdiction based on its contacts with the forum state—for example, advertising and sales in the forum state. Under a 1945 Supreme Court precedent, however, “specific jurisdiction” in an individual case requires evidence that the out-of-state company’s activities in the state relate to the events at issue in the litigation.

            Justice Elena Kagan made short shrift of Ford’s arguments in her mostly unanimous opinion for the Court in Ford Motor Co. v. Montana Eighth Judicial District. “Allowing jurisdiction in these cases treats Ford fairly,”  Kagan explained, given Montana’s and Minnesota’s interests in the events. “An automaker regularly marketing a vehicle in a State,” Kagan wrote on behalf of five justices, “has ‘clear notice’ that it will be subject to jurisdiction in the State’s courts when the product malfunctions there.”

Three conservative justicesThomas, Alito, and Gorsuch—agreed with the result but  argued in separate opinions that the five-vote opinion improperly stretched the Court’s prior decisions governing jurisdiction over out-of-state companies.

            Ford had influential allies in making its case. The U.S. Chamber of Commerce, several other business lobbies, and the Trump administration all filed friend-of-the-court briefs urging the Court to rule for Ford. Trial lawyers groups, civil procedure professors, and thirty-nine states weighed in with friend-of-the-court briefs on the other side. The states’ brief warned that Ford’s proposed rule “would undermine principles of fair play and substantial justice.”

            As for justice, the plaintiffs in the two states have been put on hold for six years now, still waiting for their day in court before a jury of their peers in their home states. Ford, which proudly touts its vehicles as “built tough,” ought to pay a price in the marketplace for its callous treatment of the accident victims in these cases.

            So far, however, Ford has escaped widespread attention to the case. The case drew limited news coverage when the justices heard oral arguments in October and only back-page coverage when the Court issued its decision on Thursday. But would-be car buyers might want to keep Ford’s anti-consumer position in these cases in mind when they start shopping.

 

Sunday, March 21, 2021

Republicans Play Politics With Anti-Asian Hate

     Robert Aaron Long’s motives for shooting and killing six Korean American women who worked at massage parlors that he frequented for quick sex are less important than the urgent need to stop Donald Trump and other Republicans from stoking and exploiting anti-Asian prejudices for their political purposes.

            The political stakes lurking in debates about the case became manifest two days later [March 17] when Republican members of Congress accused Democrats and others of trying to deny Republicans the right to criticize China. Rep. Ted Lieu, a California Democrat and a Taiwanese immigrant, reacted sharply, according to the Washington Post’s coverage when the Texas Republican Chip Roy aired that complaint during a House Judiciary subcommittee hearing convened to examine the spike in anti-Asian hate crimes over the past year.

            “You can say racist, stupid stuff if you want,” Lieu snapped. “But I’m asking you to please stop using racist terms like ‘kung flu’ or ‘Wuhan virus’ or other ethnic identifiers and describe them as a virus. I am not a virus.”

            Republican politicians will not stop, however, because the racist tropes are part of a political strategy that serves their purpose by stirring their political base and justifying the anti-immigration polices that are part of the GOP’s current platform. Indeed, Trump, as former president, used the killings not as an opportunity to condemn anti-Asian prejudice but instead as another occasion to blame the current pandemic on what he insists on calling “the China virus.”

            To their credit, President Biden and Vice President Kamala Harris traveled to Atlanta three days after the killings [March 19] precisely for the purpose of meeting with Asian American leaders to address the crisis in anti-Asian hate crimes. “Hate and violence often hide in plain sight and so often met with silence,” Biden said after the meeting. “But that has to change because our silence is complicity. We cannot be complicit. We have to speak out. We have to act.”

A close examination of Long’s life and his actions on the day of the killings [March 15] indicates that he acted less out of anti-Asian animus than out of tortured guilt for his pornography-fueled sex addiction. A faithful parishioner at a fundamentalist church in the Atlanta area, Long nevertheless filled many waking hours by watching Internet pornography and satisfied his sexual appetites by patronizing massage parlors where attractive Asian women provided muscle-relaxing massages finished off with “happy endings.”

            Even if Long’s killing spree is eventually prosecuted as simple murder without a hate-crime enhancement, the shootings cannot be separated from the economic and sociological reality that the Asian American writer May Jeong described in an op-ed in the New York Times [March 20]. Jeong, currently writing a book about sex work, aptly described the victims of Long’s killing spree as living “at the nexus of race, gender, and class”—working in a somewhat seamy business to satisfy the sexual fantasies of hyper-priapic white men.

            Jeong details the long history of anti-Asian prejudice in the United States dating from the late 19th century with the 1882 passage, for example, of the Chinese Exclusion Act, the first and only major federal law to exclude a specific ethnic group from entering the United States. That history makes clear that Trump cannot be accused simply of creating anti-Asian prejudice, but he can be blamed for inexcusably feeding anti-Asian racism as a political strategy for gaining the presidency and perhaps regaining power in the future.

            To be sure, the novel coronavirus can be traced back to Wuhan, China, and the Chinese government has been less than forthcoming with World Health Organization investigators seeking to establish the origins of the virus and the pathways that the virus traveled in creating perhaps the worst global plague in human history. But Trump’s racist trope serves his purpose in blaming China for the plague and deflecting blame from the White House and his administration for failing to move swiftly to contain the virus and continuing to give his supporters license to ignore the measures that public health authorities recommend to stop the spread—steps as simple as mask wearing and social distancing.

            Indeed, even as Trump touts and exaggerates his role in the rapid development of effective vaccines, he declines to join with other former presidents in urging Americans to get vaccinated as soon as time and circumstance allow. Public opinion polls indicate that as many as 40 percent of Republicans do not plan to get vaccinated, apparently valuing their personal freedom and distrust of medical authorities over the need to do their part in creating “herd immunity” that will protect themselves and their families as well as their neighbors and the rest of us.

            Appearing on the PBS NewsHour on Friday [March 19], the New York Times columnist David Brooks acknowledged, regretfully, that the policy response to the pandemic has been infected with politics from its earliest days. But he voiced the hope that at the personal and community level, politics will become less important as the now skeptical Republicans consult with their own doctors and consider more carefully how best to defeat the virus while protecting themselves and their families as well.

On that score, as the always-cautious analyst might say, time will tell. But the outcome will  turn in part on whether Republicans decide to show more interest in public health than in political points and political posturing. The outlook, as the Eight Ball might say, is “cloudy.”

 

 

Sunday, March 14, 2021

Biden: A "Just Tell Me the Truth" President

            With Joe Biden’s first primetime address to the nation fresh in mind, it is worth recalling that Donald Trump marked his first day as president by propagating the bald-faced lie that the crowd that witnessed his inauguration from the National Mall was the largest in history. Television networks quickly disproved his claim by showing side-by-side photos of the sparse crowd for Trump’s inauguration and the much larger crowd for Barack Obama’s inauguration eight years earlier.

            Kellyanne Conway, a senior adviser to Trump, dismissed the easily refuted untruth as “alternative facts.” Journalists mocked her nonchalant reply, without fully appreciating the insidious political intent behind the phraseology.

Trump’s lies were not a bug, but a feature of his presidency. He realized from the outset that he could propagate lies from the White House that his rabid followers would believe and incorporate into an alternate reality. He took this tactic to an extreme in his post-Nov. 3 insistence that he had actually won the election, Polls indicate that around three-fourths of Republicans in fact believe Trump’s lie that Biden was not legitimately elected as president.

            Biden promised a different approach in his primetime address Thursday night [March 11] by recalling the campaign vignette when he asked a voter in Philadelphia, “What do you need most?” Her reply was simple and straightforward: “I just want the truth. The truth. Just tell me the truth.”

            Biden’s 25-minute address marked the first anniversary of the outset of the coronavirus pandemic. He recalled, without naming “That Other Guy,” the slow and ineffectual response from the then president. “Denials for days, weeks, then months that led to more deaths, more infections, more stress, and more loneliness.

            Trump, it will be recalled, minimized the pandemic even as the death toll climbed steadily to surpass half a million while he was still in office. By contrast, Biden went to empathetic lengths to avoid sugar-coating what he called “the “collective suffering” and “collective sacrifice” that all of us have experienced over the past year. He noted that he carries in a pocket a card showing the current number of COVID19 deaths in the United States: as of March 11, 527,726, more he said than the number of American deaths in World War I, World War II, the Vietnam War, and 9/11 combined.

The Washington Post’s fact-checker Glenn Kessler spotted a discrepancy within two hours after Biden had finished. In fact, the number of deaths in those conflicts totals more than 583,00 by including the World War I deaths from the Spanish influenza epidemic then sweeping the world. Kessler noted that in previous statements, Biden had been more careful to refer to “combat” deaths in the four conflicts. Compare this discrepancy to any of Trump’s 60,000 lies during his four years as president.

Apart from his chastening recollections, Biden made real news in the address by announcing that he would order all states to make the coronavirus vaccine available to all adults age 18 and over by May 1. On Fox News, opinion hosts such as Laura Ingraham and Sean Hannity complained that Biden had failed to credit Trump for spearheading the accelerated development of the vaccine. Biden instead gave credit in his address to “researchers and scientists.”

            The Fox News acolytes failed to note, however, that Trump and Melania declined to join the country’s four other living ex-presidents and ex-first ladies in urging all Americans to get vaccinated. Trump himself was vaccinated secretly while still in the White House. A PBS poll conducted in early March found that 49 percent of Republican men say they have no plans to get vaccinated. By contrast, 87 percent of Democrats included in the survey said they had already been vaccinated or planned to be vaccinated.

            Biden accurately and regretfully noted the political divisions that the pandemic has engendered among Americans. “Too often,” he said, “we’ve turned against one another. A mask—the easiest thing to do to save lives—sometimes it divides us. States pitted against one other instead of working with each other.”

            “My fellow Americans,” Biden said with reassuring confidence, “you’re owed nothing less than the truth. And for all of you asking when things will get back to normal, here is the truth. The only way to get our lives back, to get our economy back on track is to beat the virus.”

            Significantly, Biden did not call it the “Kung-Flu” virus, as Trump did, or the China virus. Without specifically blaming Trump, Biden instead noted the “vicious hate crimes” against Asian Americans, many of them front-line workers trying to save lives but forced to live in fear. “It’s wrong, it’s un-American, and it must stop,” Biden said.

            Defeating the virus, Biden said, was his top priority and requires – with an acknowledgment of the seeming hyperbole – a “war footing.” He detailed the steps he had taken in his first 50 days in office to work with vaccine manufacturers in expanding the vaccine supply. By now, the number of seniors over age 65 who have been vaccinated has risen from 8 percent to 65 percent. For seniors over age 75, the numbers have increased from 14 percent to over 70 percent.

            “I need you to get vaccinated,” Biden said, pleadingly, “when it’s your turn and when you can find an opportunity, and to help your family and friends and neighbors get vaccinated as well.”  

Sunday, March 7, 2021

United States 'Less Free' Under Trump

             President Donald Trump ended his fourth year in the White House not by making America great but by leaving it less free, according to the respected human rights watchdog Freedom House. The group’s annual report on global democracy – titled this year “Democracy Under Siege” – lowers the United States’ score on political freedom and civil liberties by three points on a 100-point scale from 86 in 2019 to 83 in 2020, down from a B to a B-minus.

            The United States’ score fell in large part because of policies Trump carried out or supported while in office and in part because of his refusal to concede defeat in an election that Freedom House assessed as free, fair, and transparent. As in previous annual reports, dozens of countries — forty-nine by my count — surpassed the United States’ overall score, including all of Western Europe and such major U.S. allies as Australia, Canada, Japan, and Taiwan.

            The United States’ score dropped in three broad categories: functioning of government; freedom of expression and belief; and freedom of assembly. Freedom House attributed the downgrade in regard to governmental functioning to what it called “a pattern of politically motivated disinformation and attempts to control or manipulate official findings related to the COVID-19 pandemic” and “the president’s abrupt dismissal of several inspectors general who had documented or investigated malfeasance by administration officials . . . .”

            The decline in freedom of expression and belief was attributed to “a dramatic increase in arrests of and physical assaults on journalists across the country during the year, with most cases linked to coverage of protests.” Relatedly, Freedom House blamed the decline on freedom of assembly to “excessive police and federal agency responses to racial justice protests during the year, including thousands of arrests and numerous documented instances of police brutality . . . .”

            Freedom House opens its country report on the United States by citing its “vibrant political system, strong rule-of-law tradition, robust freedoms of expression and religious belief, and a wide array of other civil liberties.” Critically, however, the report notes that those democratic institutions “have suffered erosion” in recent years, “as reflected in partisan manipulation of the electoral process, bias and dysfunction in the criminal justice system, flawed new policies on immigration and asylum seekers, and growing disparities in wealth, economic opportunity, and political influence.”

            By ironic coincidence, Freedom House released its report last week [March 3] just after the Supreme Court, with three Trump-appointed justices, had heard arguments in an election law case that threatens to weaken federal protections against state laws that limit voting rights for minorities. The three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—seemed unsympathetic along with other conservatives to the Democratic and minority groups challenging the Arizona laws at issue in the case.

            The group’s report also voices concern about what it calls “de facto disenfranchisement . . . among racial and ethnic minority communities, which are disproportionately affected by laws and policies that create obstacles to voting.” The report blames those obstacles on, among other factors, “various state election-management policies.”  The report also notes that state laws denying voting rights to citizens with felony convictions “disproportionately disenfranchise black Americans, who are incarcerated at significantly higher rates than other populations.”

            President Trump is faulted in the report for having presented “a number of challenges to existing norms of government ethics and probity.” As one example, the report noted criticism from anticorruption watchdogs of Trump’s decision to ”shift management of his real-estate development empire to his children rather than divesting himself or establishing a stronger structural barrier between himself and his businesses.”

            The report noted that the president, his staff, and special interest groups “frequently visited and held events at Trump-branded properties in the United States . . . .generating publicity and income.” It also noted the potential conflicts created by appointing daughter Ivanka Trump and son-in-law Jared Kushner as presidential advisers, given their own business interests and relationships.

            Trump is also faulted in the report for  “frequently” making false or misleading statements and failing to correct them when challenged by the press or others. Overall, the Trump administration governed with “greater opacity than its immediate predecessors,” according to the report, “by making policy and other decisions without meaningful input from relevant agencies and their career civil servants.”

            Freedom House was downbeat not only about the United States but about the rise of anti-democratic trends worldwide. The report cited 2020 as the fifteenth consecutive year of global decline in freedom. The global map shows Russia, the Middle East, and most of Asia as “not free” and, discouragingly, India— the world’s most populous democracy­–as “partly free.” The African continent is mostly “not free,” with a dozen countries rated as “partly free,” and only four as “free” – Botswana, Ghana, Namibia, and South Africa.

            In the western hemisphere, most of Central and South America is rated as free, including three countries with higher scores than the United States: Argentina, Chile, and Uruguay. The only countries rated as “not free” are Cuba, Nicaragua, and Venezuela. Mexico and the Andean countries from Colombia to Paraguay are rated as partly free.

            The Freedom House report notes that the global decline in freedom dates from the end  of George W. Bush’s presidency and continued through the Obama era, but it faults Trump for “four years of neglect, contradiction, or outright abandonment” of the U.S. tradition of global leadership on democracy. The report adds, encouragingly, that President Biden “has indicated that his administration will return to that tradition.”

Sunday, February 28, 2021

Lady Justice Back in Charge at Main Justice?

             President Biden signaled the end of Trumpism in U.S. foreign policy by assuring our European allies this month [Feb. 4]   that “America is back” and diplomacy “is back at the center of our foreign policy.” Biden’s nominee as attorney general similarly served notice last week [Feb. 22-23] that the Trump era of a politicized Department of Justice is also over by promising, in effect, that the blindfolded Lady Justice will be back in charge at Tenth and Pennsylvania if he is confirmed as attorney general.

            Merrick Garland, who earned his spurs as a federal prosecutor a quarter-century ago by superintending the death-penalty prosecution of the Oklahoma City terrorist bomber Timothy McVeigh, performed flawlessly in his confirmation hearing as he maneuvered around probing questions from the Senate Judiciary Committee’s now-out-of-power Republicans.

            Fresh from his trip to Mexico, Texas’s insurrection-leading senator Ted Cruz asked Garland whether he would be President Biden’s “wingman” at the Justice Department. Garland hit the question out of the park with his answer. “I do not regard myself as anything other than the lawyer for the people of the United States,” Garland said. “I am not the president’s lawyer. I am the United States’ lawyer.”

            “I do not plan to be interfered with by anyone,” Garland added later, without citing any of the several cases in which Trump, as president, signaled instructions to the Justice Department in politically sensitive prosecutions against the president’s allies. Trump, it must be recalled, publicly criticized the long prison sentence that career prosecutors recommended for Trump’s longtime political adviser, Roger Stone, for obstructing the Mueller probe into Trump’s 2016 campaign. Trump also criticized the prosecution of his former national security adviser, Lt. Gen. Michael Flynn, for lying to the FBI during the Mueller probe. The Justice Department, under Trump’s attorney general William Barr, dismissed the case.

Garland, with lifetime tenure as a federal judge, has no need for work nor any need at age 68 for another line on his  resume. Why then, senators asked, did he agree to be nominated as attorney general? Garland answered, overcome with emotion, by recalling that his parents immigrated to the United States to escape anti-Semitic persecution in Eastern Europe. “I feel an obligation to the country to pay back,” Garland said. “This is the highest, best use of my own set of skills to pay back.”

Garland’s skill set apparently includes a measure of political tact in dealing with sensitive cases. He signaled a hands-off policy toward the investigation headed by special counsel John Dunham into whether Obama administration officials erred in 2016 by opening an investigation into cooperation between Trump’s campaign and its ties to Russia. Garland said he would consult with Dunham, a former U.S. attorney tasked with the investigation by Barr, before making any determination how to proceed.

 In answer to Republican senators’ questions, Garland said he has not discussed the investigation of  Hunter Biden with the president. He noted that the Trump-appointed U.S. attorney in Delaware has been asked to stay on and continue overseeing the investigation. “I have absolutely no reason to doubt that was the correct decision,” Garland said.

            On broader policy issues, Garland promised in his opening statement to put civil rights and racial justice issued at the top of his agenda. “Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system,” Garland stated. The committee’s only African American senator, the New Jersey Democrat Cory Booker, followed up with an appreciative line of questions. In reply to the Missouri Republican Josh Hawley, however, Garland specified that he does not support the “defund the police” slogan adopted by the Black Lives Matter movement and some others on the political and legal left.

            Garland also  put domestic terrorism, including investigations into the Jan. 6 riot at the U.S. Capitol,  at the top of his prosecutorial priorities. In answer to Rhode Island’s Democratic senator Sheldon Whitehouse, Garland said the investigation should encompass any “upstream” funders, organizers, or ringleaders even if they were not present at the Capitol on Jan. 6. “We will pursue these leads wherever they take us,” Garland said.

            Garland voiced no second doubts about having sought the death penalty in the Oklahoma City bombing case, but said he had become aware over time of flaws in handling of capital cases. Biden has said he will support efforts to end the death penalty. Garland said he would support a moratorium on federal executions if President Biden adopts such a policy. Garland avoided any specific criticism, however, of the Trump administration’s policy of renewed federal executions: with more than a dozen since last summer.

            Garland was explicitly critical, however, of the Trump administration’s policy of separating migrant children from their parents after arrests at the southern border. He called the policy “shameful” and promised to cooperate with a congressional investigation into the policy.

            Garland’s credentials  and his pledge of independence may lend credibility to the most delicate question he will face after taking office: whether to open criminal investigations of the former president. For the immediate future, however, the issue rests with the Manhattan district attorney Cyrus Vance Jr., who last week finally got Trump’s tax returns and financial records to look for tax fraud or other possible financial offenses. Vance specified no timetable for the case. “The work goes on,” he said when pressed by reporters.

Sunday, February 21, 2021

Supreme Court May Trim Voting Rights Safeguards

            The Roberts Court appears to be poised again to narrow federal safeguards for voting rights in the states. The justices are scheduled to hear arguments next week [March 2] in an important legal challenge brought by Democrats and minority group voters aimed at nullifying two Arizona laws that the challengers say have the effect of suppressing minority votes.

            The Grand Canyon State, it must be noted, has a history of racial discrimination in voting procedures comparable to the worst of the states in the pre-civil rights South. With its substantial Hispanic population, Arizona adopted an English literacy test as a prerequisite for voting when admitted as a state in 1912 and maintained that requirement until 1972. In fact, Arizona was one of the two states outside the South that were singled out for special federal scrutiny in the federal Voting Rights Act (VRA) because of their histories of racial discrimination.

            The two consolidated cases at the Supreme Court, Brnovich, Attorney General v. Democratic National Committee and Republican Party of Arizona v. DNC, pose the important, recurrent issue of whether the later-amended 1965 law prohibits election laws and policies that hurt minority group voting even if race-neutral on their face. In its ruling in the cases, the Ninth U.S. Circuit Court of Appeals found Arizona’s laws in violation of the federal law by following three other federal circuits that had similarly adopted a “results” test in applying the VRA.

            The Arizona laws at issue include one enacted in 2016 that was sponsored by a Republican legislator concerned with suppressing the minority vote in his politically competitive district. The law, known as HB 2023 and codified at Ariz. Rev. Stat. § 16-1005, prohibits the practice known as “ballot harvesting,” a get-out-the-vote tactic used by Arizona’s Democrats but not by the state’s Republicans.

            Arizona already had a law on the books that prohibited actual fraud in third-party ballot collection. The new law goes further to make it a low-level felony, punishable by fines or imprisonment, for anyone other than a family member or caregiver to collect a voter’s “voted or unvoted early ballot.” The other law at issue, codified at Ariz. Rev. Stat. §16-584, adopts a strict “out-of-precinct” (OOP) policy of discarding provisional ballots cast by voters outside their assigned voting precinct.

            The law requires that the out-of-precinct voter’s ballot be discarded in its entirety, not only for local races but also for district- or statewide races for legislative seats, Congress, or president. In a close race, the discarding of thousands of ballots under that policy could change the result, as plaintiffs argued through the four-year course of litigation and as dramatized by Joe Biden’s narrow 11,000-vote margin over President Trump in the 2020 election.

            Arizona may be thought of as a Republican state, based on the role that the state’s five-term senator Barry Goldwater played in birthing present-day Republican conservatism in the 1960s. The state’s longest serving senator, however, was Carl Hayden, a Democrat who served in the U.S. Senate from 1927 to 1969. Hayden’s colleague for two terms was a fellow Democrat, Ernest McFarland, who lost to Goldwater in seeking a third term in the 1952 election.

            Today, Arizona again has two Democratic senators: Krysten Sinema defeated her Republican opponent in 2018 by 56,000 votes and Mark Kelly beat his Republican opponent in 2020 by about 80,000 votes. Biden’s victory over Trump marked the ninth time the state voted for the Democratic presidential candidate out of twenty-seven elections since statehood.

            The evidence in a ten-day bench trial before U.S. District Court Judge Douglas Graves in October 2017 showed that the ballot collection and out-of-precinct laws affected minority voters, Hispanics and Native Americans, more than they affected white voters. But Graves accepted Arizona’s argument that the laws held up because they served the state’s interests in ballot security and administrative efficiency. On appeal, a panel of eleven Ninth Circuit judges voted 7-4 to find that H.B. 2023 had been enacted “with discriminatory intent” and that both policies “unduly burden minorities’ right to vote.”

            The Supreme Court agreed in October to hear Arizona’s appeal of that decision. The Court, it will be recalled, gutted the Voting Rights Act in a 5-4 decision eight years ago by effectively nullifying the act’s so-called preclearance requirement. That provision required states or counties with histories of racial discrimination to get approval from the Justice Department or a federal court for any changes in election laws or procedures. With that provision in effect, the three covered Arizona counties were frequently blocked from instituting proposed election law changes.

            At the Supreme Court, conservative groups and civil rights organizations have filed more than three dozen amicus briefs in the current cases to underline the high stakes for future voting rights cases. Even with the cases pending, however, Arizona lawmakers are working to make voting more difficult with pending proposals, for example, to eliminate no-excuse absentee voting and to bar election officials from sending ballot applications to voters except on the voter’s request.

            Supreme Court handicappers might view Arizona as a likely winner in the cases, given Roberts’ pivotal vote in the 2013 decision and the Court’s current 6-3 conservative majority after  President Trump’s three appointments. Conservative textualists can rule that way, however, only by ignoring Congress’s decision in 1982 to amend the law specifically to prohibit any voting practice that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

           

Saturday, February 13, 2021

Courts Can Still Hold Trump Accountable for Riot

       President Trump’s team of second-string lawyers began their defense in his 2021 impeachment trial by contending that the former president should be held accountable for the January 6 Capitol riot, if at all, not in the United States Senate but in criminal courts.

            With the Senate evenly divided between Democrats and Republicans, six Republican senators joined the Democrats in rejecting the Trump lawyers’ plea to bar the impeachment trial altogether. The evidence expertly presented by the House managers showed, to any sworn-to-impartiality juror, that Trump incited the mob that he had summoned to Washington to stage what proved to be a deadly insurrection at the seat of the United States government.

The U.S. Department of Justice, under a new attorney general unbeholden to Trump, should take Trump’s lawyer, Bruce Castor, at his word and open a criminal file against citizen Trump, no longer protected by presidential immunity. The former U.S. solicitor general Neal Katyal, commenting on CNN midway through the trial, suggested that Attorney General-designate Merrick Garland should put the case at the top of his to-do list.

With the trial over, former White House adviser David Gergen, also on CNN, agreed. “Certainly, the Department of Justice and the FBI have grounds to investigate Trump,” Gergen remarked.

Most significant in the House managers’ offer of proof was the new disclosure that the organizers of the Jan. 6 rally at the ellipse had initially gotten a permit only for a rally, not for a march to the Capitol. The additional permit for the march was sought only after the White House took charge of the event. Trump himself directed the mob to march to the Capitol, initially promising that he would join them but backing out apparently because of security objections from the Secret Service.

            The path to the two-thirds majority needed for a conviction was never open to the House of Representatives even though ten Republicans joined in approving the article of impeachment on Jan. 13, making it the most bipartisan House vote on impeachment in U.S. history. Trump’s acquittal by a 57-43 vote on Saturday was likewise the most bipartisan impeachment vote in U.S. history as seven Republicans joined in voting to convict Trump of incitement and potentially disqualify their former president from ever again holding office in the national government.

            The Trump lawyerscourtroom pit bulls rather than constitutional law expertscontested the “incitement to insurrection” with a mix of political vitriol, legal poppycock, whataboutism, gaslighting, evasion, and outright falsehoods, as documented by fact-checkers at the New York Times. Their opening argument failed when the Senate voted 56-44 on Feb. 9 that Trump, though out of office, was “subject to a court of impeachment for acts committed while president.”

            The argument, rejected by the vast majority of nonpartisan legal experts, failed on the basis of constitutional text and historical precedent, as shown by the House managers. The Impeachment Article itself (Art. I, sec. 3, cl. 7) lists after removal from office by conviction a second available sanction “disqualification to hold and enjoy any Office of honor, Trust, or profit under the United States.” The House managers also noted as precedent the 1875 impeachment of the Grant administration’s secretary of war, William Belknap, who had already resigned after being caught up in a corruption scandal. The Senate voted 37-29, after full debate, to try Belknap on the article of impeachment approved by the House, but he avoided conviction on a 35-25 vote, short of the two-thirds majority needed for conviction.

             Impeachment is not a criminal proceeding, but lawyers on both sides devoted lots of words during the five-day trial (Feb. 9-13) to a Supreme Court precedent applicable to a criminal case. The Court’s decision in Brandenburg v. Ohio (1969) held, in a case brought against a speaker at a Ku Klux Klan rally, that the First Amendment permits criminal prosecution for political advocacy only if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

            The House managers introduced as evidence on the first prong the “big lie” that Trump propagated over a two-month period that he failed re-election only because the election was stolen. They also emphasized Trump’s role in summoning supporters to Washington on the very day that Congress was scheduled to complete the Electoral College vote count to confirm Joe Biden’s victory in the presidential election.

            The evidence that the Capitol riot followed promptly after Trump’s speech to the crowd on the morning of Jan. 6 speaks for itself as satisfying the second prong of the Brandenburg test: “likely to incite or produce such [lawless] action.” The House managers also introduced evidence from some of the rioters themselves that they marched to the Capitol in response to Trump’s instructions. The violence on Jan. 6, according to the lead House manager Jamie Raskin, was “a culmination, not an aberration.”

            The House managers also showed Trump’s “propensity for violence” in political rallies and in tweets throughout his presidency. Would the evidence suffice for a beyond-a-reasonable-doubt criminal court jury? Juries are hard to predict, as any veteran court reporter can attest, but this courtroom observer is confident that a reasonable jurist would find this evidence sufficient to let the case go to the jury. And the case belongs in the courts, the one branch of the United States government that Trump has failed to pressure into submission.