Thursday, February 24, 2022

The People versus Donald J. Trump

             The law moved slightly closer last week to holding the former president, Donald J. Trump, accountable for his role in inciting the Jan. 6 attack on the U.S. Capitol by a mob of Trump supporters. Trump had urged his supporters to assemble in Washington and then to march on the Capitol as Congress was about to certify Joe Biden’s election as president.

In a massive, 112-page ruling, U.S. District Court Judge Amit Mehta declined last week [Feb. 18] to dismiss the civil suits filed against Trump by eleven members of Congress and two U.S. Capitol police officers injured during the attack: James Blassingame and Sidney Hemby. The suits named other defendants as well, including Donald J. Trump Jr.; Trump’s personal attorney, Rudy Giuliani; and various organized militia groups—the Proud Boys, Oath Keepers, and Warboys— as well as the leader of the Proud Boys, Enrique Tarrio.

As Mehta explained (at pp. 3-4), the plaintiffs filed suit under a Reconstruction-era law known as the Ku Klux Klan Act of 1871 and codified at 42 U.S.C. §1985(1). The Reconstruction Congress enacted the law to combat the extralegal violence committed by white supremacists and vigilante groups like the Klan. But the statute is more than a civil rights law. While quoting the act’s operative paragraph, Mehta noted that the law “safeguards federal officials and employees against conspiratorial acts directed at preventing them from discharging their duties or accepting or holding office.”

The law, Mehta added, allows “a party injured by such a conspiracy to sue any coconspirator to recover damages.” The plaintiffs trace the alleged conspiracy back several months to the actions by Trump and his allies that “sowed seeds of doubt about the validity of the presidential election and promoted or condoned acts of violence by the President’s followers, all as part of a scheme to overturn the November 2020 presidential election.”

Mehta, born in India in 1971, was appointed to the federal bench by President Obama in 2014 after graduating from Georgetown University with a B.A. in political science and economics and from the University of Virginia School of Law. Showing a keen awareness of U.S. exceptionalism, Mehta noted in his opinion that Jan. 6 marked the first time ever that violence had marred the peaceful transition of power in U.S. history. “Violence and disruption happened in other countries, but not here,” he wrote. “This is the United States of America, and it could never happen to our democracy.”

Mehta flatly rejected Trump’s arguments that the First Amendment protected him from liability for his Jan. 6 speech to the mob or that he was protected from liability for his conduct as president. On the other hand, Mehta did dismiss counts against the younger Trump and Giuliani and declined to dismiss the counts against the organized militia groups. The wheels of justice grind slowly, of course, so Mehta’s ruling merely sets the stage for a full trial before a properly selected jury. Mehta validated the plaintiffs’ claims for intentional infliction of emotional distress and rejected Trump’s claims that damages were recoverable only for injury to person or property.

Meanwhile, the more delicate legal question of criminally prosecuting the former president remains pending in limbo before Attorney General Merrick Garland, who has been circumspect on the issue since taking office. On the other hand, a former federal prosecutor, Barbara McQuade, laid out the basis for prosecuting Trump last week in what she called a model prosecution memo of the sort that a federal prosecutor would prepare for a supervisor before seeking an indictment.

McQuade served as U.S. attorney for the eastern district of Michigan under appointment by Obama until she resigned after Trump took office in 2017. McQuade, who appears on MSNBC as a legal analyst, published the 9,100-word “prosecution memo” on the ostensibly nonpartisan web site Just Security. The memo details Trump’s conduct in greater detail than possible in this column.

Her bill of particulars includes, for example, Trump’s telephone call to Georgia’s chief election official to “find” the 11,000 votes needed to reverse Biden’s apparent victory in the Peach State. She also cites Trump’s call to legislators in states that Biden carried urging them to designate alternate slates of presidential electors to nullify Biden’s popular vote victories. And she points to Trump’s pressure on Vice President Mike Pence to exercise his non-existent authority to discard electoral votes for Biden from states where Trump and his allies disputed results.

The evidence, McQuade concludes, “is sufficient to obtain and sustain convictions of charges for conspiracy to defraud the United States and for obstruction of an official proceeding.” Among other offenses, McQuade also suggests that Trump himself violated the federal voter fraud statute by attempting to defraud voters of “a fair and impartially conducted election process.”

McQuade also acknowledges that a prosecutor would necessarily weigh prudential considerations before bringing charges—specifically, whether a prosecution “would serve a substantial federal interest.” Her answer is blunt and clear: “[T]he safety of our democracy remains vulnerable to future attacks unless the criminal justice system pronounces this plot for what it was – a crime against the United States of America.”

McQuade concedes that a possible acquittal could embolden Trump and his allies. But nevertheless, she concludes, “The only thing worse would be not charging him.”

Saturday, February 19, 2022

Trump Judge's Ruling Could Decimate Voting Rights Act

             Another of President Trump’s federal judges took another bite out of the federal Voting Rights Act last week [Feb. 17] with a devastating ruling in a minority vote dilution challenge to legislative redistricting in Arkansas. The ruling, if eventually affirmed by the Supreme Court, would cripple enforcement of the law by holding that private plaintiffs have no right to bring suit to enforce the act’s general prohibition against election law changes that result in “a denial or abridgment of the right of any citizen of the United States to vote on account of race or color . . . .”

            The ruling by U.S. District Court Judge Lee Rudofsky, a 40-something judge appointed by Trump in 2019 after experience in Republican politics and two decades as a member of the Federalist Society, builds on two separate opinions by Trump-appointed Supreme Court justices in recent election law cases. The ruling goes against the great weight of authority at the Court and in lower courts that have assumed a private right of action to enforce the Voting Rights Act’s central provision, section 2.

             Rudofsky’s ruling in Arkansas State Conference of NAACP v. Arkansas Board of Apportionment torpedoed a factually detailed suit brought by the state NAACP challenging the relatively small number of black-majority districts in the Arkansas House of Representatives. Claiming associational standing on behalf of minority voters, the NAACP alleged that the new redistricting plan creates only eleven majority-black House districts in the 100-seat chamber even though it would be possible to create sixteen geographically compact, majority black districts in a state where black voters account for about 12 percent of the state’s population.

            Based on these calculations, the NAACP claimed that the legislative districting plan “dilutes Black voting strength in violation of section 2 of the Voting Rights Act.” In his ruling, Rudofsky acknowledged, as he had to, that the Supreme Court “has long held that the scope of §2’s prohibition encompasses the alleged dilution of Black votes.” Rudofsky also acknowledged what he called “a strong merits case that at least some of the challenged districts . . . are unlawful under §2 of the Voting Rights Act.” 

Significantly, the state defendants did not challenge the plaintiffs’ cause of action on jurisdictional grounds. Rudofsky raised that issue on his own, by invoking a separate opinion by Justices Gorsuch and Thomas in last year’s decision in an Arizona election law case, Brnovich v. Democratic National Committee (2021). Plaintiffs in that case contended that election law policies in Arizona, including a state law that bans so-called ballot harvesting, abridged minority voters’ right to vote on account of race. Five Republican-appointed justices combined in Chief Justice Roberts’ 5-4 decision to reject the DNC’s argument.

Gorsuch, the first of Trump’s three appointed justices, wrote a separate one-paragraph opinion joined by Thomas to “flag” a jurisdictional issue that Arizona officials had never raised themselves—specifically, “whether the Voting Rights Act of 1965 furnishes an implied cause of action under §2.” Gorsuch acknowledged that the Court had long assumed – “without deciding” ­that the law does authorize a private right of action, but he contended that lower courts have treated the question as open.

Rudofsky found other support for his unprecedented ruling in a separate opinion by another of Trump’s justices, Brett Kavanaugh, in the recent decision to allow the state of Alabama to implement a congressional redistricting plan that allegedly amounts to minority vote dilution by creating one but not a second majority-black district in the state. Trump’s three justices – Gorsuch, Kavanaugh, and Barrett – were critical to the 5-4 ruling in Merrill v. Milligan (Feb. 7). The Court wrote no full opinion in the case, but Kavanaugh wrote in a concurring opinion that the lower court order to require new congressional districts nine months before the election violated the so-called Purcell rule against court-ordered changes too close to an election.

Citing Kavanaugh’s opinion, Rudofsky saw a similar issue in the Arkansas case, even though legislative elections are also nine months in the future. Still, Rudofsky acknowledged that the plaintiffs alleged that Arkansas’ election schedule “would make judicially imposed changes easier to accomplish and less burdensome on state and county election officials” than in the Alabama case.

After what he called a “painstaking journey through relevant case law,” Rudofsky concluded bluntly that the instant case “may be brought only by the Attorney General of the United States.” With that view, Rudofsky gave the government five days to decide whether to join the Arkansas case to keep it alive.

Without suggesting any improper manipulation in assigning the case to the newest of the seven judges in Arkansas’s eastern district, it might be noted that the court includes four Democratic-appointed judges with longer experience and two other Republican-appointed judges. It is also worth noting that the GOP-majority Senate confirmed Rudofsky to his lifetime seat on November 7, 2019, by a 51-41 vote, with not a single Democrat voting in favor.

I should also note that my press corps colleague Ruth Marcus has also written a forceful commentary [Feb. 18] about the decision under a headline that calls the ruling “stark evidence of Trump’s toxic judicial legacy.”










Friday, February 11, 2022

'Conservative' Justices Rewriting Voting Rights Act

             The Supreme Court’s conservative majority took another bite out of the federal Voting Rights Act last week [Feb. 7] when it cleared the way for the state of Alabama to put into effect a congressional redistricting plan that a lower federal court found to consist of racial gerrymanders that improperly diluted the influence of minority voters.

            To his credit, Chief Justice John G. Roberts Jr. dissented along with the three liberal justices – Breyer, Sotomayor, and Kagan – in granting the state’s application to stay the injunction issued by a three-judge federal court two weeks earlier. The three judges on the panel—one Florida Republican appointed to the federal bench by President Clinton in 1997, and two Alabama Republicans appointed by President Trump – all agreed that the redistricting plan drawn by the state’s Republican-majority legislature violated the act by creating one but not a second majority-black congressional district.

            With seven congressional districts, Alabama has had only one black member of Congress since Reconstruction, a black Democrat elected from a majority black district created in 1993 under a federal court order. Alabama’s voting-age population is roughly 27 percent black, enough to create two districts in which black voters would have the opportunity to elect a representative of their choice.

            In his dissenting opinion in Merrill v. Milligan, Roberts found that the three lower-court judges “properly applied existing law in an extensive opinion with no apparent errors for our correction.” Roberts went on by citing the well-established precedent on minority vote dilution,  Thornburg v. Gingles (1986). Under that ruling, a minority group is entitled to a minority opportunity district if it can “demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.”

            To avoid creating a second majority-black district, the Republican redistricters engaged in the familiar practice known as “packing and cracking” minority voters. They packed black voters into the existing seventh district to give the district a black supermajority of nearly 70 percent, more than enough even against the historic pattern of racially polarized voting in Alabama. Other majority-black communities were “cracked” – that is, they were spread among three majority-white districts in central Alabama, with no chance to elect representatives of their choice.

            The five justices in the majority – Thomas, Alito, and Trump’s three appointees, Gorsuch, Kavanaugh, and Barrett – provided no full explanation for staying the lower-court injunction to allow this year’s congressional elections to be conducted according to a plan found to violate the Voting Rights Act. In a written opinion, however, Kavanaugh, joined by Alito, said he based his vote on the so-called Purcell principle, a rule derived from Purcell v. Gonzalez (2006) that cautions federal courts against ordering changes in state election law close to an election.

            In this case, the district court issued its injunction blocking the racial gerrymanders nearly nine full months before the November election and two months before the qualifying deadline for candidates in primary elections. In Kavanaugh’s estimate, the time frame was too close to allow election administrators to redraw voting precincts and prevent chaos and confusion for voters and candidates. In its ruling, the district court flatly rejected the Purcell issue. “This case is not like Purcell because we are not ‘just weeks before an election,’” the court wrote, quoting from the Supreme Court precedent.

Kavanaugh did not compare the risks of “chaos and confusion” to the loss of federally protected voting rights for Alabama’s black voters. Nor did he note that in applying for a stay, the state did not contend that it was impossible to redraw congressional districts in an orderly fashion for this year’s elections.

Kavanaugh noted, however, that the redistricting plan could be redrawn in time for the 2024 election. In short, Kavanaugh found little harm in conducting one round of congressional elections under a plan that tramples on the rights of Alabama’s black voters. Writing for the three liberal justices in dissent, Kagan answered Kavanaugh’s disregard in a blistering passage.

“Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year,” she wrote. The Court’s decision to grant the stay, Kagan continued, “does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.”

Liberal justices have been in futile dissent in two prior 5-4 decisions that gutted essential provisions of the Voting Rights Act. In the first of those decisions, Shelby County v. Holder (2018), Roberts led five Republican-appointed conservatives in nullifying the act’s preclearance provision that required states and localities with histories of racial discrimination in voting to obtain approval for any changes in election laws or procedures.

In a more recent decision, Brnovich v. Democratic National Committee (2021), Alito led five conservatives, including Roberts, in neutering a Voting Rights Act provision that Congress added in 1982 to prohibit any election law or practice that had a disparate impact on voting rights for minority voters. Plaintiffs in the case showed with statistical proof that two policies Arizona had adopted hampered the ability of minority voters, particularly Indians living on tribal reservations remote from post offices and most voting places. Alito found instead that the practices were not adopted intentionally to discriminate against minority voters and, on that basis, did not violate the act’s “disparate impact” test.

            In advance of President Biden’s pending Supreme Court nomination, one Republican senator has warned that Biden must avoid nominating a justice who will “legislate from the bench.” For now, however, it is professed conservatives on the Court who are legislating from the bench by rewriting a law that none of them ever liked anyway.