Trump's Election Commission: A Fraud on the Public

      Justice John Paul Stevens delivered an impassioned dissent when the Supreme Court voted 5-4 in Bush v. Gore to block a complete recount of Florida's vote in the 2000 presidential election. "[W]e may never know with complete certainty the winner of this year's Presidential election," Stevens said. He added regret at what he saw as a loss of public confidence in the court as "an impartial guardian of the rule of law."
      With the wounds of the 2016 presidential election still fresh in mind, both of the rival candidates — Donald Trump and Hillary Rodham Clinton — are doing what they can to undermine confidence in the results of the election. Trump has peddled the blatant lie that he would have won the popular vote if not for a supposed 3 million to 5 million votes cast illegally by non-citizens.
      Clinton, in her sour grapes memoir What Happened, has complained with more substantiation that she might have won at least one other state, Wisconsin, and perhaps others if not for the vote-suppressive effects of  newly enacted state voter ID laws. Clinton lays blame for the Wisconsin law not only on the state's Republican legislature and Republican governor but also on the Republican-majority Roberts Court for allowing the law to stay on the books despite legal challenges.
      The effects of the various voter ID laws passed in Republican-controlled states over the past two decades would be a good subject for detailed, bipartisan examination by a presidential or congressional commission. But Trump's Presidential Advisory Commission on Election Integrity is intent instead on following its creator in perpetuating the completely fraudulent charge of widespread voter fraud in U.S. elections.
      Kris Kobach, the Kansas secretary of state who is the commission's vice chair and eminence grise, set the stage for the commission's second public session last week [Sept. 12] by describing the state's junior senator, Maggie Hassan, as holding a "stolen seat" because of supposed voter fraud in her 743-vote margin in the November balloting. Kobach's accusation is easily debunked, but it takes a paragraph or so.
      To start, the ostensibly bipartisan 12-member commission is fraudulent in its very composition: "flawed from the very start," according to the good-government group Common Cause. The seven Republican members are for the most part veterans of the voter ID law movement, which depends for its very existence on the imaginary epidemic of voter impersonation fraud. Besides Kobach, the other Republicans include Vice President Mike Pence, the nominal chair; Ohio's former secretary of state, Kenneth Blackwell; Indiana's current secretary of state, Connie Lawson; and two former officials in the Bush administration's Justice Department: Hans von Spakovsky, now with the Heritage Foundation, and J. Christian Adams, president of the self-styled Public Interest Legal Foundation.
      Before the selections, Von Spakovsky wrote an email to Attorney General Jeff Sessions urging him to keep Democrats or moderate Republicans off the commission entirely. Von Spakovsky denied writing the email after it surfaced in response to a Freedom of Information Act, but a Heritage spokesperson acknowledged his authorship. Von Spakovsky's advice may have been rejected, but the five Democrats on the commission are mere tokens: only two have statewide election responsibilities, Maine's Matthew Dunlap and New Hampshire's Bill Gardner, while the other three have only minimal expertise in the area.
      Kobach's imputation of fraud in New Hampshire stems from his discovery of 5,313 votes cast by individuals who same-day registered with out-of-state driver's licenses. But, surprise: New Hampshire allows anyone living in the state to vote even if their legal residence is another state. For example: college students. New Hampshire Public Radio easily ascertained that most of Kobach's supposedly fraudulent votes were cast in college towns. End of story.
      The commission's other evidence of voter fraud is a Heritage Foundation database that goes back to 1948 to identify 1,071 "proven instances" of election fraud cases. Out of nine categories, however, only two — and those with the fewest in number — might be prevented by voter ID laws: impersonation fraud and false registration. The other categories included absentee ballot fraud, vote-buying, vote-counting alteration, and so forth.
      In a detailed dissection, the Brennan Center on Justice concluded that the voter impersonation and false registration cases represented "a molecular fraction" of the total in the Heritage Foundation compilation. Heritage's database "undermines its claim of widespread voter fraud," according to Brennan Center senior counsel Rudy Mehrbani. Among ineligible voters who cast ballots, most had prior felony convictions and could have been unaware of their disqualification, Mehrbani suggested.
      In its critique, Common Cause recalled that three previous election commissions over the past two decades came up with useful recommendations that could be adopted by red or blue states alike. Those commissions were truly bipartisan, the group explained: the current commission "an aberration."
      The Trump commission's congenital defects are all the worse because of the many issues that Common Cause and others have identified as needing substantive and bipartisan attention. Those issues include "how to ensure access for all eligible voters; enhancing enthusiasm for and participation in our electoral processes; and modernizing voting machines and systems to ensure their safety from external interference."
      That last point deserves emphasis. Despite evidence of Russian election hacking attempts in 2016, state and federal election officials have done little to study the problem or prevent it in the future.

For Workers, Trump's Policies Hurt More Than Help

      President Trump marked Labor Day with a perfunctory tweet that sounded "Make America Great Again" themes with only a glancing recognition of American workers. "We are building our future with American hands, American labor, American iron, aluminum and steel," Trunp tweeted. "Happy #LaborDay!"
      The tweet passed silently over the foreign-made goods sold by first daughter Ivanka Trump's company and similarly omitted any specific benefits for U.S. workers from Trump administration policies. Just as well: Nearly eight months into his presidency, Trump has done more to hurt than to help U.S. workers, as the New York Times former labor correspondent Steven Greenhouse pointed out in a Labor Day weekend article.
      Trump's photo-op events taking credit for keeping jobs in the United States have mostly been debunked. In addition, as Greenhouse and others have pointed out, many of the administration's deregulatory moves have actually weakened protections for workers in the workplace and reduced protections for workers' savings and retirement plans.
      Now, the administration is set to open the Supreme Court's new term next month [Oct. 2] by siding with business interests and against organized labor in a case testing employees' ability to join with other workers in contesting workplace policies that violate state or federal law. In a critical legal showdown, the Trump administration's solicitor general's office reversed the position previously taken by the Obama administration and decided to support employers' right to dictate contract terms that prevent workers from collective or class actions in job-related disputes.
      The three consolidated cases the justices will hear in its first argument of the October 2017 term pose a conflict between the pro-arbitration policy of the Federal Arbitration Act and the National Labor Relations Act's protection for workers' rights to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." The three employers involved in the cases — Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil Co. — all required employees to sign contracts agreeing to individual arbitration of any disputes.
      Federal appeals courts in Epic Systems and Ernst & Young ruled that the labor law's "concerted action" provision, enacted in 1935, overrides the provision in the 1925 law safeguarding enforcement of arbitration clauses in private contracts. The National Labor Relations Board (NLRB) similarly blocked enforcement of an arbitration clause in the third case, but on appeal the Fifth U.S. Circuit Court of Appeals cited the earlier law in rejecting the position that the agency had adopted in a 3-2 vote with the commissioners divided along partisan lines.
      The issue of seeking relief in individual arbitration versus class action whether in arbitration or in court may seem like the extra-credit question on a civil procedure exam. But the employer-dictated prohibition against any class or collective action can effectively prevent an employee from seeking any relief whatsoever.
      The employees in Epic Systems and Ernst & Young claimed that the companies had wrongfully classified them as exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) and sought to file class action suits in federal court on behalf of all other similarly situated employees. Business interests rail about the abuses of class actions, but as a practical matter employment law attorneys are unlikely to take on an FLSA case just to win a few hundred or maybe a few thousand dollars for an individual worker improperly denied overtime pay.
      The Roberts Court has continued the legal trend that first emerged under Chief Justice William H. Rehnquist of allowing the Federal Arbitration Act to take precedence over legal remedies allowed under other federal or state laws. Many of the decisions came on 5-4 votes with the justices divided along the usual conservative-liberal lines. The late justice Antonin Scalia was the most outspoken of the conservatives in criticizing the supposed abuses of class actions and defending the supposed advantages of arbitration.
      The labor law issue simmered at the NLRB for several years until several cases reached federal courts of appeals with decisions that resulted in a conflict between circuits: the Seventh and Ninth Circuits siding with employees in Epic Systems and Ernst & Young respectively and the Fifth Circuit ruling against the NLRB in Murphy Oil.
      Under the Obama administration, the solicitor general's office represented the NLRB in urging the justices to back the agency's position. In June, however, the solicitor general's office filed a new brief — "after the change in administration" — rejecting the agency's position. The NLRB did not give "adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA," the brief stated.
      For Trump, the change in position continued the trend of siding with business interests on regulatory issues over the forgotten American workers that he claimed in his campaign as his base. In other contexts, the administration has rejected an Obama era policy aimed at extending overtime protections to an estimated 4 million U.S. workers. Greenhouse also noted that the administration postponed rules to protect workers from silica dust; scrapped rules to require federal contractors to disclose labor law violations; and indicated likely rejection of the so-called "fiduciary rule" to require Wall Street to manage retirement funds in workers' best interests.
      In the Times, Greenhouse's article appeared under the headline, "Is Trump Really Pro-Worker?" Trump's tweets to the contrary notwithstanding, the answer is a resounding no.

Trump's Bid to Drop Arpaio Case Worse Than Pardon

      The disturbing news of President Trump's unprecedented pardoning of Arizona's federal court-defying sheriff Joe Arpaio reached me in Europe while trying to enjoy a vacation undisturbed by legal news. Back home, however, I learned the pardon was not the worst of Trump's offenses against the rule of law.
      Before the pardon, Trump violated a well established political and legal norm by personally asking Attorney General Jeff Sessions to drop the criminal charge against Arpaio. Trump apparently backed off after Sessions demurred, but in breaking the story, the Washington Post quoted Chiraag Bains, a former senior counsel in the Justice Department's civil rights division, as calling Trump's call to Sessions "beyond the pale."
      Former Attorney General Eric Holder had an apt if snarkier comment on Twitter. "Number of times over six years that President Obama called and asked me to think about dropping a case: ZERO." But a tone-deaf White House press secretary Sarah Huckabee Sanders saw nothing amiss. "It's only natural the president would have a discussion with administration lawyers about legal matters," Sanders was quoted as saying.
      The president has the broadly stated power under Article II, section 2 of the Constitution to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The impeachment exception implies a separation-of-powers concern, limiting the president's power to override a congressional judgment to remove a federal official after a conviction for "high crimes and misdemeanors."
      Trump's pardon of Arpaio for criminal contempt of court is apparently the first instance of a presidential pardon for violating a federal court order. The same separation-of-powers concern that underlies the impeachment exception ought to caution a president against using the pardon power to undermine a federal court's power to enforce its orders.
      Instead, Trump has absolved Arpaio of flagrantly defying a federal judge's order to drop the Maricopa County sheriff's unconstitutional policy of racial profiling against suspected illegal immigrants. In Trump's eyes, his onetime comrade in arms in the birtherism controversy is not a scofflaw but a "patriot," his documented abuses in running the Maricopa County jail not worth a mention.
      Presidential pardons are typically granted to defendants convicted under dubious circumstances, given unduly harsh sentences, or seen to be rehabilitated based on model conduct in prison. Politically motivated pardons, however, are not unheard of. The first president Bush granted pardons in his final month in office to six former Reagan administration officials who had been convicted of, for example, withholding information from Congress in the Iran-contra investigation.
      Frank Bowman, a law professor at the University of Missouri, argued in an article in the online magazine Slate that Trump's pardon of Arpaio amounts to an impeachable offense. Bowman called the pardon "a direct attack on the constitutional powers of the judiciary." Trump's action, he went on, "threatens to undercut one of the indispensable, foundational norms of American constitutional order: the rule of law."
      Bowman is legally correct, of course, in the sense that the House of Representatives has broad discretion to determine what counts as an impeachable offense. Politically, however, the current Republican-majority House of Representatives has shown even less interest in challenging Trump than the largely supine GOP-controlled Senate. Even with Trump's approval at the historic low level of 34 percent, impeachment is a dead letter in the House and conviction equally impossible in the Senate.
      Apart from the pardon, Trump's personal intervention in a pending criminal case ought also to be listed as an impeachable offense. Recall that the House Judiciary Committee in 1974 listed President Richard M. Nixon's intervention in the criminal justice system and the Internal Revenue Service's enforcement of tax laws as one of the particulars in Article II of the four articles of impeachment.
      Nixon, who famously maintained an "enemies list" of political critics and opponents, was accused of having directed the IRS to initiate or conduct tax audits "in a discriminatory manner." He was also charged with having "knowingly misused the executive power by interfering with agencies of the executive branch," including the CIA, the FBI, the Justice Department's criminal division, and the Watergate special prosecution force.
      Trump's interference in Arpaio's case represents abuse for the opposite purpose: preferential treatment for a political friend rather than discriminatory treatment for a political enemy. But his action represents the same constitutional violation laid to Nixon. As the ex-DOJ official Bains put it to the Post, Trump "has a sense that the chief executive controls everything in the executive branch, including the exercise of criminal power. And that is just not the way the system is set up."
      Trump's prospective pardon of Arpaio played well to the crowd at the campaign-style rally he held in Phoenix before the formal announcement, but it has played poorly in virtually all other quarters. The conservative Washington Times gave its blessing a week before the actual pardon, but House Speaker Paul Ryan distanced himself after the fact by saying that it would have been better for Trump to have allowed the appellate process to continue.
      Among prominent columnists, criticism came from both sides. The conservative Michael Gerson called the pardon "a further step in Trump’s normalization and entrenchment of bigotry in our public life," while the liberal E. J. Dionne called it Trump's "largest single step toward autocracy." Bigotry and autocracy: reprehensible, no doubt, and impeachable but for the lack of will on Capitol Hill.

Up From Racism: An Autobiography

            As a young boy growing up in segregated Nashville, Tennessee, I harbored racial prejudice. But an offhand remark by my third-grade teacher helped to dispel the prejudice against Negroes, as African Americans were then called, and to instill in me what became a lifelong commitment to the cause of racial justice.

            Born in 1948, I lived in an all-white working-class neighborhood and attended an all-white church. every Sunday. I enrolled in an all-white public school four months after Brown v. Board of Education and, with the slow pace of desegregation, had no black classmates through ninth grade or in the all-white private high school from which I graduated in 1965.

            In my early life, the only "Negroes" I knew personally were Barnell and Fannie, the married couple who were the custodians at my elementary school. We called them by their first names, not their surnames. I thought kindly of them, but I disliked the musty smell of the janitors' room and must have associated that smell with blacks generally.

            From age six or so, I can recall being careful not to touch or accidentally brush up against a Negro on the street, in an elevator, or at a store. I must have thought of their black as "dirty" and my white as "clean."

            My epiphany came in third grade thanks to a chance remark by my teacher, not in the classroom but in the hallway. With race relations in the news, she said something like, "They're no different from us." She influenced me more than she ever knew or might have expected.

            My parents were not overt racists: I never heard the "n" word in the house. We drove past a black church every Sunday on the way to ours: nothing was said, one way or another.

            By age 15, I had become a civil rights liberal, thanks in part to the influence of friends at my new school and in part to the hopeful excitement of the civil rights movement itself. My parents disapproved of the marches and protests, but I wrote a story for the school newspaper in spring 1963 on the college student-led effort to desegregate the nearby diner.

            I must have watched President Kennedy's televised civil rights address in June 1963. As my school's representative to the American Legion's civic education program All-State that summer, I ran for governor and echoed JFK by calling for enactment of a state public accommodations law.

            Five people had signed my petition, but the reaction to my speech was so strongly negative that I had to withdraw. One of my signers did not get the word, so I ended up with one vote: not mine.

            Back in school, I became the editor of the school newspaper and drafted an editorial calling for the school to integrate. The editorial was censored; I responded with an editorial attacking the censorship. That editorial was published and then the earlier one as well. Unbeknownst to me at the time, the principal had begun before my graduation in 1965 to notify parents and alumni that the school was preparing to admit its first black students, in the elementary grades.

            As a student at Harvard College in the late 1960s, I had black classmates of course: but acquaintances only, none of them "close" friends. I covered the "smash ROTC" student strike in 1969 as a journalist for the student radio station, WHRB. Black students added a call for an African American studies department to the list of demands; I was an observer, not a participant, but I thought the proposal worthwhile and still do.

            After college, I came back to Nashville as a reporter at The Tennessean, which strongly supported civil rights under the leadership of a great American journalist, John Seigenthaler. The Tennessean newsroom included three black reporters during my six years there. All three were friends, but not among my closest friends. The racial divide is that hard to get across.

            In four decades as a journalist, the struggle for racial justice has been a recurrent topic, never far from my mind. My current beat is the Supreme Court. I am glad when the court advances racial justice and was distressed when, for example, the Roberts Court gutted the Voting Rights Act by falsely denying the present-day reality of racism.

            In the end, my story illustrates that Lieutenant Cable is only partly right when he sings in South Pacific, "You've got to be taught to hate and fear." We are born, I fear, with some innate aversion to others unlike us: in color, nationality, religion, or the like. But my third-grade teacher also shows that one can be "carefully taught" a broader tolerance and appreciation of diversity. That lesson cannot be taught often enough: by parents, by teachers, by preachers, and by public officials—up to and including, one would hope, the president of the United States. 

Charlottesville Marchers: Few Remedies for Losing Job

      Nigel Krofta, self-identified white nationalist, was neither surprised nor upset when he learned that he had been fired from his job back home in South Carolina for participating in the "Unite the Right" rally in Charlottesville, Va.  Krofta learned the news through social media, he explained in a story posted by the Charleston television station WCSC, because he lost his phone during the tumultuous events of Aug. 12-13.
      Limehouse & Sons, the Ladson, S.C., industrial contractor where Krofta had worked, announced the firing on its own Facebook page. Krofta "is no longer an employee of Limehouse & Sons," the post read. "We do not condone the actions of the people involved in this horrific display that has taken place in Charlottesville," the post went on.
      The company's managers spotted Krofta in a picture in the New York Times standing next to James Fields Jr., the Nazi-sympathizing 20-year-old accused of killing one person and injuring 19 others by driving his car into a crowd of counterprotesters. "It was a sick feeling to know that we had somebody like that working here alongside the rest of us," a Limehouse official who asked not to be identified told the TV station.
      Krofta, who appears from his picture to be in his 20s or early 30s, took it mostly in stride. "If they're going to lose business for it, I don't blame them for it," he told the station's reporter. But he also complained that the demonstrators were being mischaracterized. "What do I say to people who say we stand for hate?" he asked rhetorically. "I just say broaden your horizons and maybe read some opposing views."
      Others in Krofta's situation — and at least three other Charlottesville marchers have lost their jobs under similar circumstances — might have immediately sought out a lawyer to get their job back or sue for damages. But David Yamada, a labor law expert at Suffolk Law School in Boston, says employers generally can fire an employee for political activities — for anything ranging from a campaign contribution up through a demonstration turned violent.
      In general, most U.S. workers are "at will" employees, as Yamada explains in a post on his blog Minding the Workplace. A worker can be fired, without notice or cause, unless the firing would violate a specific protection written into federal, state, or local law or a provision of a collective bargaining agreement or an individual contract with the employer. "Many of the civil liberties we enjoy as citizens stop at the company door," Yamada explains.
      Some states do have laws restricting an employer's ability to fire a worker because of political participation, but those laws, it appears, are not enforced or observed as strictly as the well known civil rights laws prohibiting discrimination in the workplace based on race, religion, or sex or in nearly half of the states sexual orientation. In any event, Yamada cautions that employers should be wary about monitoring their employees' off-site political activities. "We don't want employers doing much of that," he says. "It's not good for the country if people can't participate."
      The Charlottesville-related firings come in the nearly immediate wake of the heated controversy over Google's decision to fire a software engineer for writing an internal memo critical of the company's efforts to get more women into leadership roles. James Damore attributed the underrepresentation of women to inherent "personality differences" between men and women and called the company's affirmative action policies "unfair, divisive, and bad for business." Google explained the Aug. 7 decision to fire Damore by saying that he was ''advancing harmful gender stereotypes.''
      News of Google's actions generated front-page news and provoked sharp criticism of the company from the so-called "alt right," the loosely defined conservative political movement tinged with white nationalist views. Alt-right forces also sponsored the Charlottesville demonstration, but a few days after some of the marchers lost their jobs no protests have been heard about the firings.
      Yamada is somewhat critical of Google's decision to fire Damore, but he finds the virtual silence about the Charlottesville marchers' fates unsurprising. "The Google situation looks like child play compared to the issues raised by Charlottesville," he says.
      California is one of the states with laws prohibiting workplace discrimination based on political expression. One of the Charlottesville marchers who lost his job is Cole White, fired from his job at a Berkeley hot dog place, Top Dog. "The actions of those in Charlottesville are not supported by Top Dog," the company said in a sign it posted during the weekend of the demonstration.
      Trump's white working-class workers might be surprised to learn that the National Labor Relations Board, part of the much-maligned "deep state," helped a white worker get his job back after he was discharged for racist slurs directed against picket-line crossing African American replacement workers. The NLRB found that Cooper Tire & Rubber Co. had violated federal labor law by firing Anthony Runion for the picket-line slurs during a lockout at its Findley, Ohio, plant in January 2012.
      In a decision earlier this month [Aug. 8], the Eighth U.S. Circuit Court of Appeals upheld the board's ruling. The majority rejected the company's defense that it was seeking to prevent a hostile work environment after the lockout ended. In dissent, however, Judge C. Arlen Beam stated what appears to be a correct statement of the general law on the issue. "No employer in America is or can be required to employ a racial bigot," Beam wrote.

Courts Asked to Examine Trump's 'Emoluments'

       Jimmy Carter placed his peanut farm into a blind trust before moving into the White House to eliminate any risk of conflict of interest with his presidential powers and duties. As candidate and then as president, Donald Trump made a pretense, but no more than that, of separating himself from a still undisclosed web of business interests not only in the United States but also in countries throughout the world.
       As candidate, Trump's refusal to detail his financial interests was a political issue that failed to block his path to the White House. As president, however, Trump's continuing profit from businesses patronized by foreign and state governments alike amounts to a legal issue and, according to many legal experts, an ongoing violation of two provisions of the Constitution: the domestic and foreign emoluments clauses.
      Trump is facing three separate lawsuits that accuse him, in effect, of making a personal profit out of the White House from state and foreign governments seeking to curry favor with him. The Framers of the Constitution were concerned enough about the risk of such corruption to write two separate clauses to prevent it. (For the text, see Art. I, § 9, cl. 8; Art. II, §1, cl. 7).
       Con law courses mostly skip over the Emoluments Clauses because the Framers did their jobs so well that the feared risk of official corruption has mostly failed to materialize. But the Trump presidency now challenges the Framers' handiwork with the question of how to apply the clauses to a president unwilling to accept established political norms limiting personal profit-making at 1600 Pennsylvania Avenue.
      At the six-month mark, Trump must be rated as a mostly failed president with record-high disapproval ratings and nothing by way of major legislation. But the White House has been very good for business at the Trump Hotel just down the street.
       The Trump Hotel had been projected to lose $2 million in the first four months in 2017, but instead turned a $2 million profit, according to an account in the Washington Post (Aug. 11). Rooms at the hotel rent for $600 a night and cocktails sell for as much as $100 to patrons who include foreign diplomats, political figures, and business interests. In another instance of price gouging, fees at Trump's Mar a Lago golf resort were doubled in January over what they had been a year earlier.
      The Emoluments Clause lawsuits may be misunderstood by some as asking courts to oust Trump as president; they are not. The lawsuits ask courts to define the scope of the clauses broadly, find Trump in violation of the clauses, and prohibit any further violations. The remedy would be a huge judicial undertaking, but it would not entail a reversal of the 2016 election even if some of those cheering the lawsuits on would welcome that result.
      The lawsuits serve a salutary purpose even if ultimately unsuccessful. If the plaintiffs are allowed broad discovery, the public can finally learn the details of Trump's finances that he refused to disclose during the campaign.That information would help the public judge his presidency and would also help members of Congress in considering their own powers, up to and possibly including impeachment.
      For now, questions such as those are months down the road as the three pending lawsuits move slowly through separate courts. In the first of the three, the Washington-based Citizens for Responsibility and Ethics (CREW) in Washington is leading an assortment of private plaintiffs in a suit filed in January in federal district court in New York City. Other plaintiffs include a hotel and restaurant owner in New York City and an event booker in Washington, who say they are hurt by the competitive advantage Trump enjoys thanks to being president. The two other suits are pending in federal court in Washington: one brought by the District of Columbia and Maryland and the other by a record 196 members of Congress (Blumenthal v. Trump).
      CREW's suit is now set for an initial hearing before Judge George Daniels on October 18 after opening legal briefs from both sides and from various friends of the court. In the interest of brevity, the briefs will be crunched down here to the major points of disagreement.
      The first issue is the very definition of the word "emolument," so little used in common parlance. The Justice Department lawyers representing Trump argue that it does not encompass profits from arms-length commercial transactions, only compensation for official services. Both sides cite dictionary definitions, but etymology favors the broader construction argued in the plaintiffs’ brief. The root is the Latin verb "molere" meaning to grind. In Middle French, an emolument was the fee the farmer paid to the miller for grinding: an arms-length commercial transaction of the sort Trump's lawyers say is excluded.
      Trump's lawyers naturally argue the plaintiffs have no standing, but the competitively disadvantaged business operators make a good case that they are being hurt right now. Just as naturally, the Justice Department argues that courts have no power to enjoin the president: they cite a 150-year-old Supreme Court decision as authority, but skip lightly over more recent decisions. Like so much of Trump's unpredictable presidency, the outcome defies predictions. For court watchers and public alike, the best advice: stay tuned.

As AG, Justice Not on Sessions' Agenda

      Attorney General Jeff Sessions might have had a momentary chill when his assistant told him last weekend [July 29] that the White House was on the line. But the caller, it turned out, was not his berating tweeter in chief, President Trump, but the new White House chief of staff, John Kelly, calling to assure Sessions that he could rest easy about staying in office.
      Thus reassured, Sessions still spent the next week doing what he could to raise himself in Trump's esteem with, among other policy moves, a full-scale press op to detail a resource-fed crackdown on leakers. Trump had recently taken to describing Sessions in tweet storms as "weak" and "beleaguered" based on apparently inadequate prosecutorial attention to a rash of unauthorized disclosures weakening his already weak presidency.
      The press conference that Sessions convened along with two top Trump administration intelligence officials [Aug. 4] followed news from earlier in the week that the Justice Department was deploying its civil rights division to crack down on racial preferences in college and university admissions. Ironically, news of the policy shift emerged not from an official announcement but from a leak to the New York Times's well-sourced reporter, Charlie Savage.
      The leak helped renew the vigorous debate over affirmative action in political, legal, and media circles: the pros and cons of racial preferences for minority applicants themselves; the larger role of "legacy preferences" in favoring white applicants; and the possible effect of preferences for African American and Hispanic applicants on Asian American applicants. In political terms, however, the details of that debate are less important than the signal that Sessions' policy shift sends to Trump's political base and to the conservative legal movement.
      Those constituencies undoubtedly view Sessions' latest policy shift favorably as a clear sign that Alabama's favorite son is on their side in the culture war against the coastal elites —  the "cosmopolitans," as White House aide Stephen Miller might call them. Already in just six months, Sessions has shifted Justice Department policy on civil rights by backtracking from the Obama administration's opposition to Texas's voter ID law as racially discriminatory and by formally opposing the Equal Employment Opportunity Commission's position treating anti-LGBT discrimination as illegal under existing federal civil rights laws. In his confirmation hearing, Sessions endorsed voter ID laws and disclaimed any knowledge of anti-LGBT discrimination.
      The anti-leaking event gave Sessions the chance to rail about "the culture of leaking" only a week after Trump's latest tweet that Sessions had "taken a VERY weak position" on "Intel leakers. In contrast to the reversals of Obama policies, Trump told the assembled reporters in the department's seventh-floor conference room that the department is following and actually outstripping the previous administration by tripling the number of leak investigations over the number ongoing as Obama left office.
      The leak investigations that the Justice Department identified for the Washington Post's reporters covering the event are not the kind that Trump is complaining about. Only one of the four related to the media: the leak of a top-secret National Security Agency document to a news organization from Reality Leigh Winner, a 25-year-old government contractor. The other three cases listed by the DOJ spokesman all related to contacts with or disclosures to foreign intelligence agents.
      Journalists naturally flinch when the government talks about cracking down on leaks. Tellingly, Sessions declined at the news conference to repeat previous Justice Department reassurances that journalists would not be prosecuted for publishing truthful information or that journalists would be subpoenaed to disclose sources only under limited circumstances.
      Sessions' silence on those concerns is troubling of itself, but more troubling is the extravagantly broad view that Trump and his supporters are taking of what constitutes an "illegal" leak. Trump and any number of his cable news apologists constantly complain about James Comey's supposedly illegal leak of his conversation with Trump while still FBI director in January: the conversation in which Trump allegedly asked Comey to end the investigation of former national security adviser Michael Flynn.
      Comey's divulging of that conversation, through an intermediary, was embarrassing to the White House certainly, but in no way illegal. No classified information was released, nor any details as to the FBI's pending investigation: only the president's views and his policy directive. Consider how often government officials, members of Congress, or private citizens go straight from an Oval Office conversation to recount the conversation to reporters waiting just outside the mansion. That is not a felony, only part of governance in a free-press, democratic republic.
      Sessions won confirmation as attorney general on a 52-47 vote in the Senate, with the support of his 51 Republican colleagues and one Democrat: West Virginia's Joe Manchin. Sessions remains the same hard-line conservative that he was before that vote and in his confirmation testimony, but today he enjoys support from both sides of the partisan aisle thanks to Trump's criticism of him for failing to recuse himself from the Russia investigation.
      Kelly's call to Sessions may show that Trump has either dropped or been dissuaded from any idea of firing him as a first step in removing Robert Mueller as special counsel for the Russia investigation. For the sake of that investigation, Sessions may still be needed in his post. But make no mistake: as attorney general, justice is not on Jeff Sessions' agenda.