Sunday, May 30, 2021

Trump's Day of Reckoning Now at Hand?

                 Donald J. Trump, sulking at Mar a Lago with no access to his followers on Facebook and Twitter, is being drawn ever closer to his day of reckoning with the law now that New York City’s district attorney has convened a special grand jury to hear evidence from the prosecutor’s investigation of Trump’s businesses. The grand jury may be asked soon to consider possible criminal charges against the Trump Organization, Trump himself, and perhaps some of Trump’s family members and/or some of Trump’s former associates in the business.

                News of the empaneling of the grand jury, long anticipated, came last week [May 25] as first reported in The Washington Post on its home page on Tuesday and on the front page of its print edition on Wednesday. Quoting “people familiar with the development,” The Post’s Trump beat correspondents Shayna Jacobs and David A. Farenthold reported that the panel will meet three days a week over six months. Other news organizations reported that the grand jury consists of twenty-three members, randomly selected from New York City jury lists.

                Two former prosecutors quoted in news coverage assessed the news as signaling that the Manhattan district attorney Cyrus Vance Jr. views his office’s years-long investigation of Trump’s business to have reached “an advanced stage.”  “The prosecutors are convinced they have a case,” Rebecca Rophie, a former ADA in Vance’s office and now a professor at New York Law School, told the Post. “That’s at least how I read it.”

                Commenting on CNN, Preet Bahrara, the U.S. attorney for Manhattan fired by Trump early in his presidency, predicted on CNN that the move sets the stage for a “parade of witnesses” regularly going into the grand jury room. Bahrara is now a paid legal analyst with the cable news channel.

                Meanwhile, Trump was facing another spike of unfavorable legal news in a different venue as a federal judge in Washington considered ordering the release of the Justice Department memo that the then-attorney general William Barr cited in summarizing the Mueller Report as exonerating Trump of obstruction of justice in regard to the Russia investigation. [330]

                Those of us who have been hoping for the law to catch up with Trump for more than four years may be in for a disappointment, however, according to a former Watergate prosecutor writing in The Washington Post. An indictment of Trump is far from certain and a conviction even iffier, according to Philip Lacovara, counsel to the former Watergate special prosecutor and a former president of the District of Columbia Bar, in an op-ed written with John Martin, a former U.S. attorney and federal judge.

                Vance’s hopes for a successful prosecution may depend on flipping Allen Weisselberg, Trump’s longtime financial manager, who himself may face legal liability for failing to report income he received in the form of extravagant benefits bestowed over the years by Trump.

                Even with Weisselberg’s cooperation, however, former prosecutors are cautioning in print and on the air that financial fraud cases are difficult to present and difficult for untrained jurors to follow and grasp.

Trump, meanwhile, is using his “From the Desk of Donald J. Trump” blog to call Vance’s investigation a partisan witch-hunt. Trump’s pre-election boast that he could shoot someone on Fifth Avenue without losing any of his supporters underscores the very real possibility that a federal jury seated to try Trump could include one or more pro-Trump jurors unwilling to convict even in the face of damning evidence.

Long after the fact, it is now clear that Trump escaped prosecution for obstruction of justice back in 2019 for his attempts to thwart the Russia investigation not for lack of evidence but for the political views of his lapdog attorney general William Barr. 

Barr’s peremptory statement that special counsel Robert Mueller’s investigation had exonerated Trump could have been seen as palpably false at the time, but Trump and his partisans trumpeted Barr’s pronouncement as proof positive that Mueller’s detailed, 400-page report lacked substance.

The watchdog group Citizens for Responsibility and Ethics in Washington (CREW) has been trying for years to force the Justice Department to disclose the memo from DOJ’s Office of Legal Counsel that Barr claimed as the basis for his statement clearing Trump of any criminal liability.

Trump administration lawyers argued the memo was exempt from the Freedom of Information Act because of the privilege for deliberative, pre-decisional documents. Ruling on CREW’s efforts, U.S. District Court Judge Amy Berman Jackson bluntly accused Barr of practicing public relations rather than law. “ The suggestion that the Attorney General’s advisors were helping him make a decision about whether to initiate or decline a prosecution is contrary to the very memorandum at issue,” Jackson wrote, in a blistering opinion. Instead, she concluded, Barr was simply “girding for a preemptive strike against the Mueller report.”

The obstruction of justice count might seem to be moot, but not so, according to Andrew Weissman, a prosecutor on Mueller’s staff. In a guest essay in the New York Times, Weissman argued that it is not too late to prosecute Trump based on what he calls the “ample evidence” the office compiled to support such a charge.

            Trump may yet emerge unscathed from all these legal troubles, but those of us who believe in the rule of law must hope that the law may yet hold him accountable.

Sunday, May 23, 2021

Kavanaugh Plays Rough With Precedents

             As Supreme Court nominee two years ago, Brett Kavanaugh described the landmark abortion rights decision Roe v. Wade as a precedent entitled to respect under the doctrine known, in Latin phrasing, as stare decisis.

            In a seven-minute colloquy with California’s Democratic senator Dianne Feinstein, Kavanaugh resisted her efforts to get him to go further. Feinstein, stoutly defending Roe v. Wade, worried aloud about Supreme Court nominees who promise in confirmation hearings to follow stare decisis, but then “they get confirmed and they don’t.”

Kavanaugh undoubtedly thinks of himself as a judicious expert on the “law of judicial precedent,” as one of a dozen judge contributors to a scholarly 924-page treatise on the subject compiled by the noted legal writing expert Bryan Garner.

Within the past month, however, Kavanaugh has been less than judicious in leading the lopsidedly conservative Supreme Court in under-the-radar manhandling of two significant precedents that gave prisoners legal avenues for challenging convictions or sentences imposed years ago under laws and procedures now recognized under those precedents as unconstitutional.

In the first of those decisions, Kavanaugh led an ideologically divided 6-3 Court in Jones v. Mississippi (April 22) to gut two precedents from 2012 and 2016 protecting juvenile offenders from life-without-parole (LWOP) sentences. In the first of those earlier decisions, the Court ruled that a juvenile offender could not be sentenced to life without parole unless he was “permanently incorrigible.” In the second decision, the Court held in Montgomery v. Louisiana (2016) that that ruling applied retroactively to juvenile offenders challenging LWOP sentences imposed before the Court’s ruling.

In Jones, Kavanaugh led the Court in concluding that the judge who had earlier sentenced Jones to life without parole under the then-applicable Mississippi law acted properly in imposing the same sentence without finding that Jones was “permanently incorrigible,” the standard set out in the Supreme Court precedent.

Kavanaugh again led the Court last week [May 19] in another ideologically divided 6-3 decision, Edwards v. Vannoy (May 19), that threw a precedent under the stare decisis bus. The ruling in Edwards blocks prisoners convicted by non-unanimous juries in Louisiana or Oregon from taking advantage of last year’s decision in Ramos v. Louisiana (2020) to require jury unanimity in criminal cases nationwide.

Kavanaugh paid scant respect to precedents in both of this term’s new decisions. To the contrary, Kavanaugh left the juvenile sentencing precedents all but toothless in protecting juvenile offenders from the kind of severe sentence rejected by the Court’s precedents.

In the jury-unanimity decision, Kavanaugh denied hundreds of prisoners serving sentences in Louisiana or Oregon based on non-unanimous jury verdicts any legal recourse to overturn convictions now recognized as unconstitutional under the new precedent.

To reach that result in Edwards, Kavanaugh had to flatly overrule a precedent, Teague v. Lane (1989), that ostensibly allowed retroactive application of a new Supreme Court ruling in federal habeas corpus cases if the new ruling amounted to a “watershed” rule of criminal procedure.

In his opinion for the Court in Ramos, Justice Neil Gorsuch in fact described the decision as “fundamental.” In a concurring opinion in Ramos, however, Kavanaugh anticipated the retroactivity issue by describing the new rule as less than the kind of “watershed” decision to be applied retroactively under Teague v. Lane.

In the new decision, Kavanaugh avoided the semantic issue by overruling Teague v. Lane altogether on the ground that the Court had never found a new criminal procedure decision to qualify as a watershed ruling to be applied retroactively.

Writing for three liberal justices in dissent in Edwards, Kagan argued that Ramos clearly qualifies as a “watershed” decision to be applied retroactively. “If you were scanning a thesaurus for a single word to describe the decision,” Kagan wrote, “you would stop when you came to ‘watershed.’”

Kagan pointedly noted Kavanaugh’s sleight-of-hand to skirt the issue. “The majority cannot (and indeed does not) deny, given all Ramos said, that the jury unanimity requirement fits to a tee Teague’s description of a watershed procedural rule,” she wrote. “Nor can the majority explain its result by relying on precedent. . . . Search high and low the settled law of retroactivity, and the majority still has no reason to deny Ramos watershed status.”

Kagan also noted that Kavanaugh was less than careful in jettisoning Teague v. Lane despite the pains he took in Ramos to justify his vote for overruling the earlier precedent that had allowed non-unanimous verdicts in criminal cases,

“In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis,” Kagan wrote. “It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the ‘special justification’ our law demands.”

Together, Kavanaugh’s roles in Jones and Edwards suggest that he will need little persuasion to join in overruling Roe v. Wade if his fellow conservatives are determined to do so next term in the Mississippi case that the justices have teed up for argument in the fall. Feinstein’s warning two years ago about Supreme Court nominees who break their promises to follow precedent seems all the more prescient with that case now on the Court’s docket.

Saturday, May 15, 2021

Roberts Played 'Long Game' on Voter Suppression

             John Roberts is widely credited by, among others his biographer Joan Biskupic, with playing “the long game” as chief justice, focused not only on decisions in the current term but on creating legal precedents that will help advance his ideological agenda in years to come. If Roberts in fact has 20-20 foresight, it is reasonable to ask whether he anticipated as early as 2013 what is happening now in 2021: Republican lawmakers in politically competitive states, freed  by the Court from federal oversight, rushing to enact laws aimed at making it harder for minority voters to cast ballots.

            Roberts, it will be recalled, led the Court’s decision in Shelby County v. Holder (2013) to strike down the preclearance provision in the federal Voting Rights Act, the provision that required states with histories of racial discrimination in voting to submit any changes in election procedures for approval by the Justice Department or a federal court in Washington.

           Three of the states previously subject to the preclearance provision – Florida, Georgia, and Texas --  are among the Republican-majority states that have enacted new restrictions on voting in the past few months Republicans have advanced the laws on the strength of unsubstantiated claims that the 2020 presidential election was tainted by election irregularities and voter fraud.

          Outvoted Democrats have strongly opposed the laws, with their various provisions to make it harder to cast ballots by mail or to deposit ballots in “drop boxes” in advance of Election Day rather than wait in long lines to vote on Election Day itself. The Democratic opponents have argued that the laws will have disproportionate impact on Black and Hispanic voters compared to the impact on white voters.

       All three of the laws would be dead on arrival if submitted for “preclearance” under the former Voting Rights Act provision on the ground that each of them would evidently reduce voting rights for minority voters. To obtain preclearance, each of the states would have had the burden to show that the proposed changes would not disadvantage minority voters

          Two of my press corps colleagues, Joan Biskupic in a column for CNN in March and Bloomberg’s Greg Stohr in an article  published on May 8, have already pointed to Roberts’ decision in 2013 as the necessary basis for allowing those states to do what they are now doing. Stohr’s article appeared under this headline: “GOP’s Voting Curbs Show Long Reach of 2013 Supreme Court Ruling.”

            Neither of my colleagues made the additional point, however, that Roberts, a pretty smart guy after all, must have foreseen that the former preclearance states would use their newfound freedom to try to suppress minority voting.

            The political lines on voting restrictions had already been drawn by 2013. With the Supreme Court’s acquiescence, Republicans were enacting voter ID laws based on unsubstantiated claims of voter fraud even as Democrats and voting rights advocates were warning that the laws would pose obstacles for minority voters.

            Roberts had been part of the 6-3 majority in a decision from Indiana in 2008 that had upheld the first of those laws to reach the Court. Writing for the dissenters in the case, Crawford v. Marion County Election Board (2008), Justice David Souter argued that the Court should have required the state to produce actual evidence of voter fraud to justify the burden on voting rights. Roberts was evidently content to leave vote-suppressing states free to enact restrictions on any pretext they might devise.

Roberts’ rationale in his 5-4 decision in Shelby County five years later rested on the premise that the country had changed since the bad old days when Congress first enacted the Voting Rights Act in 1965. He reasoned that Congress should have updated the formula it enacted in 1965 for imposing the preclearance burden on nine states and some municipalities in three other states.

Writing for the dissenters in Shelby County, Justice Ruth Bader Ginsburg noted that states had moved away from the Jim Crow era of blatant racial discrimination by adopting what she called “second generation” election laws or procedures to suppress minority voters – for example, moving polling places in minority neighborhoods to make it just a little harder for minority voters to cast their ballots.

The new laws in present-day Florida, Georgia, and Texas fit Ginsburg’s description from eight years ago. On their face, the laws may appear to be race-neutral changes aimed at helping local officials administer elections. Texas’s law, however, specifically targets large metropolitan counties that saw high turnouts in 2020 thanks to various changes making it easier to use mail ballots.

            Voting rights groups are challenging those laws in federal court under the still-standing provisions of the Voting Rights Act. Without the preclearance provision, however, the plaintiffs have the difficult burden to show that the laws, if implemented, will disadvantage minority voters, just as the Republican lawmakers evidently intend.

            Republicans may have their complaints about Roberts’ votes in a handful of cases – notably, his vote in 2011 to save Obamacare. But Roberts has consistently toed the Republican line in campaign finance and election law cases throughout his tenure. As early as his years in the Reagan White House, Roberts was no fan of the Voting Rights Act and his legacy as chief justice needs to be remembered as giving a green light to the white supremacists who still today are intent on suppressing the minority vote.

The Texas law, significantly, included at one point the description of one of its purposes as protecting “the purity of the ballot box.” GOP lawmakers dropped the phrase after Democrats pointed out the racist history of the phrase from the days of Texas’s all-white party primaries, but the Republicans’ purpose remains unchanged..

Friday, May 7, 2021

Trump's ''Big Lie" Drives GOP's Foot Soldiers

Leading Republicans stepped up their efforts at voter suppression last week by advancing new restrictions on absentee and mail voting in two states that President Trump carried in November: Florida, with 51 percent of the vote, and Texas, with 52 percent of the vote.

In Florida, the state’s ambitious Republican governor Ron DeSantis turned the signing of what he called the nation’s toughest election security measure into a nationally televised event on Fox & Friends on Thursday morning [May 6]. DeSantis used the Fox News Channel booking as an excuse for excluding local news organizations from the event, but a Fox spokesperson denied that the network or the program had asked for exclusivity.

Florida followed three other Republican-controlled states in enacting new restrictions on voting against the backdrop of President Trump’s unsubstantiated claims that Democrats and left-wing groups stole the 2020 presidential election through widespread voter fraud. Trump has pursued those claims in more than fifty court cases since the Nov.3 election, and no court has validated any of the allegations.

In Florida, DeSantis in fact touted the state’s administration of the election until the Republican-majority legislature began moving the bill known as S.B. 90. The measure limits the use of drop boxes to receive ballots in advance of Election Day.

Some Republicans voiced buyer’s remorse about the bill by noting that the state GOP has encouraged mail voting over the past three decades and that mail voting has been critical for successful GOP candidates, including DeSantis in hjs 2018 race for the governorship.

The Florida law also requires voters to request a mail ballot every two years, instead of every four years. Local election supervisors opposed that provision because of the added administrative burdens.

In Texas, the Republican-majority House of Representatives completed action on an election reform measure on Friday [May 7] after Democrats used parliamentary tactics to secure some softening amendments.

As in Florida, evidence of any election irregularities or voter fraud in the 2020 election is all but non-existent. The state attorney general’s office reportedly spent 22,000 hours looking for voter fraud in 2020 but found only sixteen cases of false addresses on registration forms, according to coverage in the Houston Chronicle.

The Texas bill includes provisions specifically applicable to metropolitan areas with populations of one million or more, such as Austin, Dallas, Houston, and San Antonio. Trump’s Democratic opponent, Joe Biden, carried those counties in the 2020 election.

The Texas measuree still awaits reconciliation with the version of the legislation approved earlier by the state Senate. Texas’s Republican governor Greg Abbott, who described election security as a priority for the current legislative session, is expected to sign the bill when it reaches his desk.

The Texas bill would prohibit election officials from sending mail ballot applications to voters unless a voter asks for the ballot first. Among other provisions, the bill would give poll watchers more authority to challenge would-be votes. Democratic opponents of the measure say that provision will lead to partisan intimidation of voters.

Georgia was the first of the states in this legislative cycle to enact a broad election reform measure. Georgia’s measure drew critical scrutiny in news coverage because of a provision making it a crime to provide food or water to voters awaiting in line to cast ballots.

Republican legislators’ interest in enacting new restrictions on voting shows that the party’s foot-soldiers are fully committed to Trump’s “big lie” that he would still be president today but for widespread, never substantiated fraud in critical battleground states, such as Georgia.

In a recent poll conducted by Reuters in early April, 55 percent of Republicans said they believe Trump’s loss resulted from vote fraud or election rigging. The same poll, however, found that 81 percent of respondents think it important for the government to make voting easier.

Trump pressured Georgia’s chief election official in an hour-long recorded telephone call on Jan. 2 to recount ballots in the Peach State and “find” the 11,780 votes he needed to beat Biden in the final tally. The state’s Republican secretary of state, Brad Raffensperger, firmly rejected Trump’s allegations of irregularities and has continued to defend the count that showed Biden the victor as fair and accurate.[655]

Meanwhile, Arizona’s Republican-controlled state Senate has hired a private contractor with no experience in administering elections to conduct an audit of the presidential election results in Arizona’s most populous metropolitan area, Maricopa County.

Biden won Arizona’s 11 electoral votes on the basis of an 10,457-vote margin in the popular vote count. Biden beat Trump in Maricopa County by 45,000 votes out of more than 2 million votes cast. Thus, a significant recount after the audit could conceivably change the statewide result in Arizona, but Biden would still have a comfortable Electoral College majority.

A ranking Justice Department official, Pamela Karlan, the principal deputy assistant attorney general, notified the Arizona Senate by letter on Wednesday [May 5] that the auditors may be violating federal law by failing to safeguard the security of the ballots.   

The Arizona audit has itself become an article of faith for foot-soldiers in Trump’s Republican Party. New York’s Trump-supporting congresswoman, Elise Stefanik, bolstered her claim to succeed Liz Cheney as the House’s third-ranking Republican by voicing full support for the audit in an interview on Thursday [May 6] with Trump loyalist Steve Bannon on his “War Room” Podcast.




Saturday, May 1, 2021

Student Speech Case Falling Flat at Court?

              Brandi Levy, the frustrated high school cheerleader from Pennsylvania, got her free-speech case before the U.S. Supreme Court last week [April 28], but she seems unlikely to emerge as a poster child for the First Amendment in the way that Mary Beth Tinker is celebrated today for vindicating student speech rights with her anti-war protest in the 1960s.

Tinker was one of three Iowa teenagers who battled the Des Moines school district up to the Supreme Court in 1969 after they were suspended for wearing black armbands to school to protest U.S. policies in the Vietnam War.

Brandi Levy’s case against the Mahanoy Area School District evidently lacks the constitutional weight of Tinker’s case. She was disciplined not for an important political message, but for an expletive-filled rant that she posted on social media after she was passed over for promotion to her high school’s varsity cheerleading squad.

In Tinker’s case, the Supreme Court famously declared that students do not “shed their constitutional rights to freedom of speech or freedom of expression at the schoolhouse gate.” But the majority in the 7-2 decision, Tinker v. Des Moines Independent Community School District (1969), nevertheless concluded that schools may discipline students for speech that interferes with the rights of other students or “would materially and substantially disrupt the work and discipline of the school.”

With those provisos, school authorities around the country have come to live comfortably with Tinker as giving them some leeway, for example, to discipline students for wearing Confederate flag T-shirts that amount to bullying or harassment directed against Black students or anti-gay T-shirts that stigmatize LGBT schoolmates.

Brandi Levy’s case drew the American Civil Liberties Union’s interest as a test of whether school authorities may discipline a student for speech far outside the schoolhouse gate. Representing Brandi, ACLU lawyers won a broad victory from the federal appeals court in Philadelphia that schools have no authority whatsoever to punish students for off-campus speech, even if – as in Brandi’s case – the speech related to school programs and reverberated within the school’s walls.

Representing Brandi, the ACLU’s national legal director David Cole told the justices that all parties to the case agree that schools can punish bullying or harassment.

Supreme Court justices struggled  indecisively with the case during Wednesday’s oral arguments  as lawyers for the Mahanoy school board and the U.S. government argued against the ACLU’s position to exempt off-campus speech from school discipline altogether.

Brandi’s discipline consisted of a one-year suspension from the junior varsity cheerleading team. From the bench, Justice Brett Kavanaugh, a former basketball coach, asked whether the punishment was more severe than warranted even though that issue was not part of what the Court agreed to consider.

More generally, justices across the ideological spectrum seemed far from certain about how to approach the case. From the bench, Breyer remarked that he had no interest in using the case to write “a treatise” about the First Amendment. Alito worried about how to write a “clear rule” for off-campus speech and even went so far as to suggest that the Court might dismiss the school board’s appeal altogether without a ruling.

For this First Amendment hawk, Brandi’s case seems not only trivial, but weak. The geographical limit on school discipline is unrealistic in an age when, as one of the justices remarked, the Internet is “everywhere.” Cole went too far, in my view, in contending that allowing discipline for off-campus speech would force students to carry the school on their backs even in private conversations with schoolmates or with family inside their homes.

 The cheerleading coach surely had a good point in suggesting that given Brandi’s angry post about the cheerleading team, she ought not be the girl at the bottom of the pyramid. By week’s end, Court watchers were predicting that the Court’s eventual decision, due by the end of June, would be narrow and inconclusive in many respects.