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.”

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.”

 

 

 

 

 

 

 

 

 

'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.

 

Breyer to Retire as Court Is Set for Dramatic Changes

             The Supreme Court ended its 2006 term with a bitterly divided, 5-4 decision that limited school districts’ ability to design pupil assignment systems in a way to break down de facto racial segregation and engineer some measure of racial diversity in individual schools. Justice Stephen Breyer led the four liberal justices in dissenting from the decision in Parents Involved in Community Schools v. Seattle School District No. 1 (June 28, 2007).

            The majority in the case consisted of five Republican-appointed justices, including the two most recent appointees: Chief Justice John G. Roberts Jr., who wrote the main opinion, and Samuel A. Alito Jr., serving together for their first full term. The ruling effectively gutted a line of Supreme Court precedents that recognized the ill effects of racial imbalance in public schools and allowed or required steps to ensure racial balance in pupil assignments.

            From the bench, Breyer described his 72-page opinion as the longest dissent he had written in what was then his twenty-third term on the Court. He also added from the bench a trenchant line not included in the formal opinion. “It is not often that so few have so quickly changed so much,” Breyer remarked with ominous regret.

            Breyer finally yielded last week to the practical realities of retiring with a politically compatible president in the White House to nominate his successor and favorable political terrain in the Senate. He leaves with the Court’s muscular conservative majority set to change so much, even more quickly than the Roberts Court did in its first several terms.

            With six Republican-appointed conservatives, including President Trump’s three appointees, the Court appears ready to end the 2021 term with precedent-shattering decisions to limit abortion rights, to limit the ability of state and local governments to control permits to carry firearms in public, and to limit the ability of state governments to deny public subsidies to parochial schools.

            Breyer is likely to lead dissenting opinions in those cases on behalf of the reduced liberal bloc of three justices: himself, Sonia Sotomayor, and Elena Kagan. Breyer has publicly acknowledged that he has been grateful for the opportunity since Justice Ginsburg’s death to be the senior justice in the liberal bloc. He will retire at the end of the term in June at age eighty-three, the eighth oldest justice in history, and with twenty-seven years on the Court, the twenty-third longest tenure in history.

            The decisions likely to make headlines as the term ends will, unfittingly, amount to a repudiation of sorts to Breyer’s jurisprudence. He believes that the law evolves slowly, step-by-step, not by sudden leaps or reversals. In contrast to the conservative bloc, Breyer is a committed pragmatist, who has no brook for the blind-to-consequences originalism and textualism that the conservatives espouse.

            The three biggest decisions will solidify the Court’s role over the past decade as an instrument of Republican Party policies: limiting abortion rights, expanding Second Amendment rights, and increasing legal and taxpayer support for religious schools.

            In the abortion case, Dobbs v. Jackson Women’s Health Organization, the Court appears likely to uphold a Mississippi law that bans abortions after the fifteenth week of pregnancy, in direct contradiction of the Court’s Roe v. Wade line of decisions that guarantee a woman’s right to terminate a pregnancy until later in the pregnancy when the fetus is capable of surviving outside the womb. As Ginsburg’s unfitting successor, Justice Amy Coney Barrett, an outspoken critic of abortion rights decisions, has given anti-abortion forces confidence that this is the year when Roe v. Wade is formally overruled.

            There is no practical need to revisit Roe v. Wade, issued in 1973 as a compromise of sorts that legalized abortion nationwide but also allowed states to limit abortions in the late stages of pregnancy to protect the government’s interest in preservation of potential life. The Roe v. Wade viability line is relatively easy to apply, whether in medical facilities or in courtrooms.

            The gun rights case stems from a challenge to a New York law that requires applicants for a concealed carry permit to show “proper cause” for needing go carry a firearm outside the home. This case, New York State Rifle and Pistol Ass’n v. Bruen, stems like the abortion case from persistent political lobbying and results-oriented legal scholarship to throw out settled law and settled practice in regulating firearms.

            The parochial schools case, Carson v. Malkin, stems from a challenge to a Maine law that provides tuition subsidies to students attending private schools in areas with no public schools but denies those subsidies to students attending private, church-affiliated schools that provide religious instruction as part of the curriculum. In arguments in that case, Breyer warned, as he has done in other Establishment Clause-related cases, that government subsidies to religious organizations inevitably lead to sectarian strife of the sort that the First Amendment’s religion clauses were designed to prevent.

            In the abortion case, Breyer’s used his final colloquy to emphasize that the Court had seriously considered overruling Roe v. Wade back in the 1990s and in that case had reaffirmed Roe’s essential holding. Overruling Roe, Breyer warned, “would come at tremendous cost to the reliance that women have placed on this right and on societal reliance and what this right has meant for further ensuring equality.”

.           Even as he prepared to retire, Breyer reaffirmed his belief that his colleagues decide cases not on the basis of politics but solely on the law. In that regard, Breyer has been guilty of what the historian Jeff Sheshol called “willful naivete” in a guest essay published in The New York Times [Jan. 27]. Breyer is likely to be disabused of his rose-colored naivete as the conservatives run the table in June. .

Justices' Two-Faced Standard on Workplace Safety

            The Supreme Court has instituted an escalating series of restrictions and changes in operations since the start of the COVID-19 pandemic in the United States early in 2020 in order to protect the justices’ workplace from the pandemic Those changes, all but unprecedented, include barring the general public from courtroom sessions and conducting oral arguments remotely by telephone instead of in person in the courtroom.

            In fact, the Supreme Court building has been closed to the general public for two full terms and still today (January 2022) “out of concern for the health and safety of the public and Supreme Court employees,” according to the posted announcement on the Court’s web site. In a divided decisiond ast week, however, the Court on Jan. 13 held that the federal Occupational Safety and Health Administration (OSHA) does not enjoy the same discretion to promulgate an unprecedented regulation to protect workplaces in the face of the deadly pandemic that has claimed 800,000 lives and resulted in millions of hospitalizations that have strained health systems all across the country.

            The federal workplace safety agency adopted the regulation – a so-called “emergency temporary standard” or ETS – on November 5, 2021, late in the second year of the pandemic, in response to a directive two months earlier from President Joe Biden aimed at increasing vaccinations against the coronavirus. The agency acted on the authority of a statutory provision that requires it to act if it finds “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger [emphasis added].”

            In staying enforcement of the rule, the Supreme Court emphasized that OSHA, established in the1970s, had never issued a comparable rule to deal with a widespread public health issue. The lack of any precedent for such a rule is hardly surprising: the federal government had no workplace safety role during the previous 20^th century epidemics: the yellow fever and Spanish flu epidemics early in the 20^th century and the polio epidemic in the 1950s. The country has experienced no similar epidemic in OSHA’s history. In fact, the COVID-19 pandemic is uniquely pervasive and uniquely dangerous in comparison to the previous outbreaks.

In issuing the rule, OSHA elaborated point by point in a 79-page preamble published in the Federal Register (86 Fed. Reg. 61402-61480). Given the grim statistics, OSHA readily concluded that occupational exposure to the covid-19 virus was a “new hazard” that presented “a grave danger” to workers. “OSHA has determined that occupational exposure to SARS–CoV–2, including the Delta variant (B.1.617.2 and AY lineages), presents a grave danger to unvaccinated workers in the U.S. . . . ,” the agency wrote. “This finding of grave danger is based on the science of how the virus spreads, the transmissibility of the disease in workplaces, and the serious adverse health effects, including death, that can be suffered by the unvaccinated.”

The Supreme Court acknowledged that OSHA “is tasked with ensuring occupational safety— that is, ‘safe and healthful working conditions.’” But the six conservative justices in the majority concluded that the act “empowers the Secretary to set workplace safety standards, not broad public health measures.”

OSHA answered that point in its published rationale for the rule: “The fact that COVID–19 is not a uniquely work-related hazard does not change the determination that it is a grave danger to which employees are exposed, nor does it excuse employers from their duty to protect employees from the occupational transmission of SARS–CoV–2.”

            The agency elaborated on the particular risks posed in workplaces: “SARS–CoV–2 is readily transmissible in workplaces because they are areas where multiple people come into contact with one another, often for extended periods of time. When employees report to their workplace, they may regularly come into contact with co-workers, the public, delivery people, patients, and any other people who enter the workplace. Workplace factors that exacerbate the risk of transmission of SARS–CoV–2 include working in indoor settings, working in poorly-ventilated areas, and spending hours in close proximity with others.”

            Once the Court resumed oral arguments in the courtroom midway through OT2021, the justices imposed a series of restrictions on, among others, the Supreme Court press corps. Reporters seeking to attend oral arguments in person were required to submit a negative covid test,  administered within a few days of the court sessions, and had to be masked upon entering the building and masked in the courtroom. Reporters also had to be seated in the courtroom socially distanced from each other, instead of elbow-to-elbow in the press gallery.

            The justices themselves were masked on the bench, but with one exception: the ultra-libertarian justice, Neil Gorsuch, who conspicuously refused to wear a mask without providing any explanation for declining to adopt the sensible precaution for his colleagues’ well-being. Apart from Gorsuch’s refusal on the mask issue, none of the justices has publicly questioned any of the restrictions that the Court has instituted for their safety and the Court employees. Why then, one might ask, should the rest of the nation’s workplaces be similarly protected?

            Writing for the three liberal justices in dissent, Breyer tore the majority’s rationales to shreds by emphasizing the particularized risk in workplaces. The disease, Breyer explained, “spreads by person-to-person contact in confined indoor spaces, so causes harm in nearly all workplace environments. And in those environments, more than any others, individuals have little control, and therefore little capacity to mitigate risk. COVID–19, in short, is a menace in work settings. The proof is all around us: Since the disease’s onset, most Americans have seen their workplaces transformed.” He might have mentioned the changes at the Court itself as well.

 

For 2022, Resolving to Hold Trump to Account

         With the new year now well underway, it is time or past time for the Supreme Court, the Justice Department, and prosecutors in Georgia to resolve that the former president, Donald J. Trump, will be held to account for the crimes that he appears to have committed in his unsuccessful effort to overturn the results of the 2020 presidential election.

The Supreme Court has the simplest role to play in vindicating the rule of law in investigating Trump’s role in the violent attack on the U.S. Capitol by a mob of Trump supporters one year ago, on January 6, 2021. The justices can and should dispose of Trump’s baseless plea to prevent the special House committee investigating the attack from gaining access to White House records regarding Trump’s role in summoning protesters to Washington, in urging them to march to the Capitol, and in sitting by while the destructive violence unfolded before his eyes on television coverage of the events.

Trump’s emergency application to stay the federal court rulings upholding the House committee’s subpoena has been pending with the Court since December 23. Trump, a defeated former president, is claiming executive privilege in his effort to block the release of the documents. Two lower federal courts, including the D.C. Circuit, rejected the argument. And the current president, Joe Biden, the only person entitled to invoke executive privilege today, is not claiming executive privilege in the case.

Trump’s possible criminal liability for the Jan. 6 insurrection was laid out in a pre-Christmas op-ed essay in the New York Times coauthored by the Harvard Law School professor Laurence Tribe with two former federal prosecutors, Donald Ayer and Dennis Aftergut, who served under Republican presidents. Tribe and his coauthors voiced concern that at that point there were “no signs” that the Justice Department was building a case against the administration officials responsible for encouraging the foot soldiers in the attack  

“The legal path to investigate the leaders of the coup attempt is clear,” Tribe and his co-authors wrote. “The criminal code prohibits inciting an insurrection or “giving aid or comfort” to those who do, as well as conspiracy to forcibly ‘prevent, hinder or delay the execution of any law of the United States.’ The code also makes it a crime to corruptly impede any official proceeding or deprive citizens of their constitutional right to vote.”

In a forceful message to Attorney General Merrick Garland, Tribe and his co-authors warned that Garland must “hold[ ] the leaders of the insurrection fully accountable for their attempt to overthrow the government.” In their words, that goal requires “a robust criminal investigation of those at the top, from the people who planned, assisted or funded the attempt to overturn the Electoral College vote to those who organized or encouraged the mob attack on the Capitol.” They listed as possible persons of interest in such an investigation, Trump himself, Trump’s chief of staff Mark Meadows, Trump’s lawyer Rudy Giuliani, White House adviser Steve Bannon, and law professor John Eastman, who laid out a detailed plan for derailing Biden’s Electoral College victory.

In their essay, Tribe and his co-authors acknowledged that the Justice Department “has filed charges against more than 700 people who participated in the violence” but warned that “limiting the investigation to these foot soldiers would be a grave mistake.” Other commentators in the legal blogosphere were also warning that Garland was not pursuing the investigation up to the top.

Garland responded to the criticism last week on the anniversary of the Jan. 6 attack with an hour-long address detailing the status of the investigation, which he called “the largest and most complex, most resource-intensive investigation” in the department’s history. He explained that the initial focus on low-level offenders was in line with “well-established prosecutorial practices.” complete with

            Garland vowed to get to the top, not just to the bottom. “The Justice Department remains committed to holding all Jan 6 perpetrators, at any level, accountable under law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy,” he said. “We will follow the facts wherever they lead.”

Words, words, words—nothing but words, as the liberal political activist Don Winslow noted in a critical tweet that day: “[T]he truth is that 1 year has passed and not one single Trump official, Trump family member, Republican member of Congress or key high-level Jan. 6 plotter has been charged or arrested.”

            The trial of a former president, of course, would raise a host of legal and practical issues and would be a precedent-setting departure from the American political tradition, more akin to the kind of political retaliation seen in banana republics with unsettled democratic practices.

Whatever the status of the Justice Department investigation may be, Trump has been identified as the target of an investigation by the Fulton County district attorney’s office for attempting to interfere in the vote counting in the presidential election in Georgia. The evidence consists of Trump’s phone call to the state’s highest election official, secretary of state Brad Raffensperger, urging him to find the 11,000-plus votes needed for Trump to overcome Biden’s victory in a state that he had expected to carry.

            Convicting Trump in either of the cases would be a formidable challenge for prosecutors and for the judicial system, whether in federal court or in a Georgia state court. Any conviction would be certain to be appealed to the Supreme Court, a court packed with Republican-appointed justices and three appointed by Trump himself. But the rule of law demands that Trump be held to account for his role in what amounted to an unprecedented attack on our very democracy.

 

Justices Unswayed by My Body, My Choice

         Thousands of soldiers, sailors, marines, and airmen are defying orders from their commander in chief to get vaccinated against the Covid-19 virus, evidence that the anti-vaxxers’ slogan of “my body, my choice” has insinuated itself into the ranks of the U.S. military. The resistance to vaccination threatens two qualities essential in the military: discipline and unit cohesion.

My body, my choice appeared to have only weak support, however, at the Supreme Court last week [Dec. 1] in the showdown arguments on abortion rights for America’s women. Conservative justices appeared to be open to overturning one important element of the 48-year-old landmark abortion rights decision in Roe v. Wade (1973), provisions protecting a woman’s right to terminate an unwanted pregnancy until late in her pregnancy.

The state of Mississippi posed the issue for the justices in 2018 by enacting a law that prohibits abortions after the fifteenth week of pregnancy in direct contradiction of the rule in the post-Roe decision, Planned Parenthood v. Casey (1992), that a state cannot ban abortions before the fetus can survive outside the womb, roughly after twenty-two or twenty-four weeks.

The law, struck down by two lower federal courts, amounted to a direct attack on the Supreme Court’s legal authority. Once the justices agreed to hear the state’s effort to reinstate the law, the state directly asked the Court to overrule Roe v. Wade, not merely to revise it. With Justice Ruth Bader Ginsburg’s death and the appointment of an anti-abortion judge in her place, anti-abortion forces sensed victory within their grasp.

Justice Amy Coney Barrett’s confirmation completed a trifecta for President Donald J. Trump’s promise to appoint justices who would vote to overturn Roe. All three of Trump’s justices – Neil Gorsuch, Brett Kavanaugh, and Barrett – won confirmation in a Republican-controlled Senate by historically narrow margins only after the Republican leader, Kentucky’s Mitch McConnell, engineered a rules change to allow Supreme Court nominations to be brought to the floor with fewer than sixty votes.

The oral arguments in Dobbs v. Jackson Woimen’s Health Organization left little doubt that the fortified conservative majority would uphold Mississippi’s law even at the cost of damaging a well-established precedent that two generations of women have relied on in planning their personal and professional lives. The outnumbered liberal justices – Breyer, Sotomayor, and Kagan – appealed in vain to the time-honored legal doctrine of respecting precedent, known in Latin as stare decisis (“let the decision stand”).

Kavanaugh answered by listing some of the Court’s now-honored decisions that overturned prior discredited decisions: Brown v. Board of Education, for example, with its overruling of Plessy’s blessing for racial segregation. Like Brown, all of the other overrulings that Kavanaugh listed enhanced liberty and equality under the law: one person, one vote; Gideon’s right to counsel for indigent defendants; marriage equality for same-sex couples; and others.

By contrast, overruling Roe v. Wade will amount to a major setback for women’s liberty and equality under the law. As one commenter put it on Twitter, Roe is Brown, not Plessy. And it is worth noting here that Roe was a 7-2 decision, joined by five Republican-appointed justices: three of Nixon’s justices, Burger, Blackmun, and Powell; and two of Eisenhower’s, Stewart and Brennan, the Court’s only Catholic justice at the time. The others in the majority included Douglas and Thurgood Marshall.

In his telling, Kavanaugh suggested that our liberty-loving Constitution is “neutral” on abortion: neither pro-life nor pro-choice. Instead, it allows the government to force a woman to carry an unwanted pregnancy to term despite the medical issues that any pregnancy entails and the risk of serious complications and even death in childbirth.

From the other end of the bench, Barrett was similarly cavalier about forcing a woman to carry a pregnancy to term. In her telling, the woman forced to give birth to an unwanted child can simply give it up for adoption, as easily as returning unwanted merchandise to a department store.

In the center seat, Chief Justice John G. Roberts Jr. was also somewhat cavalier in suggesting that fifteen weeks is ample time for a woman to come to a decision and arrange, schedule, and pay for the procedure. In fact, most of the abortions in Mississippi are performed by the fifteenth week of pregnancy. Roberts appeared to be looking for a compromise that would hold Mississippi’s law to survive a benefit-burden balancing test without flatly overruling Roe.

For now, Roe v. Wade survives only on borrowed time, the time it takes for the justices to draft, circulate, and sign off on opinions between now and the end of June. In the meantime, state legislatures have a green light to pass new abortion restrictions without worrying about Roe.

Still pending at the Court is the review of Texas’s more stringent law, known as S.B. 8, that prohibits abortions after a heartbeat is detected, roughly the sixth week of pregnancy. Texas designed the law to allow enforcement by private citizens rather than by state officials so as to avoid judicial review. The Court heard arguments in two parallel cases on Nov. 1 and has left the Texas law in place while drafting opinions to deal with the complex procedural issue presented.

             As they deliberate, the justices ought to seriously consider Sotomayor’s plaintive warning during oral arguments that the Court might not survive “the stench created by the public perception that reading the Constitution is just a political act.”