Time for Ethics Reform at Supreme Court

 The disclosures of Ginni Thomas’s active participation in and support for the attempted coup to overturn the results of the 2020 presidential election have created an ethics issue for the Supreme Court unique in the Court’s 225-year history. Ginni Thomas has been a prominent conservative activist for years even while her husband has hewed to conservative positions as a justice on the Supreme Court without ever having recused himself from politically charged cases brought by Republican and conservative groups.

Ginni Thomas’s post-election text messages were turned over to the House committee investigating the Jan. 6 assault by Trump’s former chief of staff, Mark Meadows. The New York Times' report on the messages, published on March 24 after earlier disclosures by the Washington Post and CBS News, described Ginni Thomas as having sent Meadows “a barrage of texts imploring him to take steps to overturn the vote.”

In one telling instance, Justice Thomas was the lone dissenter when the Court on Jan. 19 rejected President Trump’s plea to withhold White House records from the House committee. Even though out of office, Trump claimed executive privilege in seeking to withhold the records from the committee.

The Court rejected Trump’s application in Trump v. Thompson to stay the lower court decisions ordering Trump to turn over the records. The unsigned opinion accompanying the order did not elaborate on the reasons for rejecting Trump’s plea. Without writing an opinion, Thomas noted that he would have granted the application.

Two months earlier, Ginni Thomas had signed a letter along with fifty other conservative activists signaling her strong opposition to the work of the Jan. 6 committee. Ginni Thomas has repeatedly insisted that she does not inform her husband of her own political activities. It is not known whether Justice Thomas knew of Ginni’s opposition to the Jan. 6 committee when he considered Trump’s plea to defy the committee’s subpoena for his records pertaining to the Jan. 6 rally and subsequent assault on the Capitol.

Justice Thomas’s failure to recuse himself in the Trump case despite his wife’s publicly reported position has renewed attention to the justices’ exemption from the judicial code of ethics applicable to other federal judges. The code includes a provision requiring recusal under various circumstances, including any interest that the judge’s spouse might have in the proceeding. “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”

Within the recent past, two Supreme Court spouses in fact changed their professional careers to reduce potential conflicts with their spouses. Martin Ginsburg, a prominent tax lawyer, gave up private practice for a full-time faculty position at Georgetown Law School in 1980 after his wife’s appointment to the D.C. Circuit. Chief Justice Roberts’ wife, Jane Sullivan Roberts, had been a partner at a prominent Washington law firm in the 1990s but moved to a legal recruiting firm after her husband was appointed to the Supreme Court in 2005.

The reform group Fix the Court (FTC) responded to the news of Ginni Thomas’s post-election pleas to the Trump White House with a ten-point agenda to increase the Court’s transparency and accountability. The group’s wish list includes a binding ethics code, formal procedures for requesting recusal, and requirements for justices to disclose their reasons for recusal or for refusing recusal when their impartiality is questioned. The current practice is for justices to provide no explanation for recusal or for declining to recuse.

Fix the Court highlights its central position on its home page: “Supreme Court justices should be bound by the same code of ethics that all other federal judges are required to follow.” The group cites its own research showing that justices over time have been guilty of such ethical lapses as “leaving assets off their annual financial disclosure reports, speaking at partisan fundraisers, and ruling on cases despite credible conflicts of interest.”

The group notes that the justices could “easily and formally adopt the code” on their own “if they so choose.” The group also quotes legal scholars as believing that Congress could “use its statutory authority to compel acceptance of the code.” FTC endorses such an effort.

Fix the Court also urges the Court to ban individual stock ownership by justices and other judges. Roberts and Alito have both recused themselves occasionally from cases involving companies or industries in which they hold investments. The group notes that three justices – Roberts, Breyer, and Alito – own individual shares, according to their financial disclosures, but all three have significantly reduced their holdings since FTC’s founding.

FTC also favors requiring the Judicial Conference to publicly post judges’ speeches and annual financial disclosure reports. The group notes that speeches are posted to some extent but the record is far from complete. The group also credits its own lobbying and pressure from media groups to the new practice since 2017 of digitizing financial disclosure reports to provide easier access to the reports.

The group also urges the Court to continue the current practice of livestreaming oral arguments, a practice the justices adopted after closing the courtroom to the general public in response to the covid19 pandemic. Relatedly, the group also urges that federal courts of appeals be required to livestream audio of their proceedings. Two federal courts of appeals, the D.C. Circuit and the Ninth Circuit in the West, already follow the practice. Based on the importance of the circuit courts’ work and the relative ease of livestreaming, the group contends that immediate audio access should be automatic.

FTC’s agenda is ambitious, but relatively non-controversial and relatively easy to put into effect. With public approval of the Supreme Court falling somewhat according to recent public opinion polls, now would be a very good time to institute some or all of these changes without further delay.

GOP's "Demagoguery" on Jackson's Record

            When the Senate Judiciary Committee opened the historic hearing on the first-ever black woman nominated for the U.S. Supreme Court [March 21], Republican senators, one after another, all promised respectful consideration of her qualifications. In turn, they appeared to promise to avoid any underhanded partisan attacks of the sort that they attributed to Democrats in blocking Robert Bork’s confirmation to the Supreme Court in 1987 and in trying to derail Justice Brett Kavanaugh’s nomination in 2018.

            Despite relentless criticism from two of the committee’s most partisan Republican members, Missouri’s Josh Hawley and Texas’s Ted Cruz, Judge Ketanji Brown Jackson never flinched and showed “enormous patience” during three days at the witness table, as the National Law Journal’s Marcia Coyle remarked on the PBS NewsHour [March 23].

The committee’s chairman, Illinois’s Dick Durbin, similarly praised Jackson’s temperament as he prepared to wrap up the hearing on Thursday (March 24). “I believe she carried herself with grace and humility,” Durbin remarked.

The centerpiece of the Republicans’ line of attack, indeed virtually the only substantive criticism they could find, was Hawley’s compilation of Jackson’s below-guidelines sentences imposed on defendants in ten child pornography possession cases. The nation’s leading expert on federal sentencing policy, Ohio State University law professor Doug Berman, convincingly refuted the insinuation in a lengthy post on his “Sentencing Law and Policy” blog.

“To be truly fair and sound,” Berman wrote, “any review of Judge Jackson's CP sentencings must include proper context regarding the federal sentencing guidelines for CP which are widely recognized as dysfunctional and unduly severe.”

In fact, according to Berman’s study of the data, Jackson’s sentences were well within “the mainstream” of other federal judges in similar cases. The data from reports by the U.S. Sentencing Commission “document that Judge Jackson's record of imposing below-guideline CP sentences is quite mainstream because: (1) federal judges nationwide typically sentence below the CP guideline in roughly 2 out of 3 cases, and (2) federal judges nationwide, when deciding to go below the CP guideline, typically impose sentences around 54 months below the calculated guideline minimum.”

The Republican line of attack also fell flat with the veteran federal prosecutor, Andrew McCarthy, in an article he wrote for the conservative website National Review online. McCarthy began by stating his opposition to Jackson’s nomination, but went on to describe Hawley’s criticism as “disingenuous.” Hawley’s attack, McCarthy added, “is meritless to the point of demagoguery.”

Republican senators went beyond the cherry-picked compilation of cases to suggest that Jackson was generally “soft on crime” in her sentencing decisions in eight years as a federal district court judge in the District of Columbia (March 2013 – June 2021).

Members of the American Bar Association’s standing committee on the judiciary, appearing before the committee [March 24], testified that they heard no criticism of Jackson’s supposed bias toward defendants in their exhaustive investigation of her record in anonymous interviews with hundreds of lawyers familiar with her work.

“Notably, no judge, defense counsel, or prosecutor expressed any concern in this regard, and they uniformly rejected any accusations of bias,” D. Jean Veta, a senior counsel with the Washington-based law firm Covington & Burling and one of the ABA committee’s lead evaluators, told the senators.

Another of the ABA committee members, Joseph Drayton, a vice president of the National Bar Association, went further by explaining that the committee undertook its own review of Jackson’s sentencing decisions and found no evidence of bias. “We looked the record and how she came out and it didn’t appear as though she favored the prosecutor nor the defense in such cases,” Drayton said.

Despite the convincing refutations, Republicans kept up the line of attack over the weekend [March 26] by recirculating a tweet from no less a legal expert than Donald Trump Jr. “Democrats really doing their best to secure the paedophile [sic] vote for future elections this week,” junior tweeted.

The child pornography line of attack was one of several cynical tactics that Republicans used to score points with their political base rather than to examine Jackson’s qualifications fairly and thoughtfully. Tennessee’s Marsha Blackburn seized on Jackson’s work as federal public defender in representing Guantanamo detainees to suggest that Jackson worked to release “terrorists” from the U.S. prison camp.

Jackson explained, patiently, that she was assigned as federal public defender to represent one of the Guantanamo detainees and continued her representation after his case moved to a private law firm. Blackburn and other Republicans studiously ignored the legal profession’s ethical obligation to provide representation in the U.S. judicial system for anyone accused of criminal conduct. That tradition extends as far back as John Adams’ representation of the British soldiers accused in the so-called Boston massacre.

Cruz also seized on another of the GOP’s favorite issues: critical race theory, by trying to link Jackson, who sits on the board of the private Georgetown Day School, to one of the antiracist titles found in the school’s library. When eventually pressed for a direct answer about her view of CRT, Jackson had a complete answer. “It wouldn't be something that I would rely on if on the Supreme Court,” she stated.

Through three long days at the witness table, Jackson insisted time and time again that she had no ideological agenda and approached cases with detachment and neutrality. Her assurances failed, however, to satisfy the Senate’s Republican leader, Kentucky’s Mitch McConnell, who went to the Senate floor on Friday (March 25) to declare, “I cannot and will not support Judge Jackson for a lifetime appointment to our highest Court.” McConnell’s chief complaint appeared to be Jackson’s refusal to oppose increasing the number of justices on the Court, an issue for Congress to decide, not the Court.

The Times' Clumsy Blow for Free Speech

         The New York Times struck a clumsy blow for freedom of speech last week [March 18] in an unsigned editorial under the headline, “America Has a Free Speech Problem.” The Times’s editorialists diagnosed the problem as stemming from what they called “a destructive loop of condemnation and recrimination around cancel culture.”
            In a misguided attempt at bothsidesism, the Times faulted “many on the left” for refusing to acknowledge the existence of cancel culture. More substantively, the Times rightly pointed out the hypocrisy of “many on the right” who “for all their braying about cancel culture, have embraced an even more extreme version of censoriousness as a bulwark against a rapidly changing society, with laws that would ban books, stifle teachers, and discourage open discussion in classrooms.”

This recent example illustrates the conservatives’ hypocrisy. The Supreme Court justice Clarence Thomas criticized “cancel culture” in a speech to a Republican audience in Utah on March 12, barely three months after his political activist wife Ginni Thomas joined fifty conservatives in urging the House GOP leader Kevin McCarthy to expel Reps. Liz Cheney and Adam Kinzinger from the House Republican conference because of their participation in the committee investigating the Jan. 6 insurrection. If McCarthy obliges, that would be cancel culture to the max.

            The Times editorial cited no instance in which a free-speech speaker has been “canceled” by individuals or groups seeking to shun or silence the speaker. The proof of the diagnosis consists, according to the editorial, of the results of a recent poll commissioned by the Times that showed only 34 percent of those surveyed believe that all Americans enjoy freedom of speech completely. Indeed, 84 percent of adult respondents called it a “very serious” or “somewhat serious” problem that some Americans do not speak freely in everyday situations because of fear of retaliation or harsh criticism.

            From this observer’s recollection, the only free-speech speaker to have been effectively canceled during the past few years is Colin Kaepernick, who was blackballed out of his career in professional football based on a backlash by political conservatives. Football fans nationwide, encouraged by Republican politicians and conservatives, objected to Kaepernick’s taking a knee during the playing of the national anthem before an exhibition game in San Diego on Sept. 1, 2016, as a symbolic protest against police brutality against black Americans..

            A Wikipedia entry on “cancel culture” notes that “some public figures claim to have been ‘cancelled’ while continuing their careers as before.” The heavily annotated entry also cites several public opinion polls that record public concern about the issue, including one conducted by the Pew Research Center in 2020.

            The polls simply record the conservatives’ success in coining a weaponized term that necessarily stings and sticks in the public consciousness. A neutral term for the practice could be, for example, “consequence culture” or “call-out culture.” Either of those terms would show the practice to be fully consistent with freedom of speech: the freedom, that is to say, to disagree with what some free-speech speaker says.

            In that regard, it is worth recalling George Orwell’s prescient essay, “Politics and the English Language” (1946), in which he warned that thought corrupts language and language corrupts thought.

            The Times premised its critique on a free speech principle unfound in law books or First Amendment treatises. “Americans are losing hold of a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned,” the newspaper lamented.

“This social silencing, this depluralizing of America, has been evident for years, but dealing with it stirs yet more fear,” the newspaper added. “It feels like a third rail, dangerous. For a strong nation and open society, that is dangerous.”

Calling out offensive or hateful speech is an important First Amendment exercise that empowers the marginalized victims of prejudice or discrimination vis-à-vis established opinion leaders with regular platforms like the Times or respected professionals regularly invited to speak at prominent public fora, such as colleges and universities.

To be clear, the powers that be “canceled” black Americans in much of the country for a full century after the end of the Civil War. And LGBT individuals were similarly canceled out of public consciousness through most of U.S. history until the Stonewall protest in New York City in 1969. Only now have black Americans and LGBT Americans summoned the resolve to speak out against those who have silenced them and erased them from the United States’ melting pot.

            The “braying” from conservatives about cancel culture betrays their true purpose: to silence or disarm their opponents, not to establish some principled ground rules for public discourse and debate. The Times deserves a big raspberry for giving aid and comfort to the partisans who claim allegiance to free speech even while enlisting friendly politicians such as Florida’s governor, Ron DeSantis, to suppress free speech in schools and in the public square. [825]

Thomas's 'Unseemly' Behavior as High Court Justice

                 Clarence Thomas, Supreme Court justice, and his full-time political activist wife Virginia Thomas are Washington’s power couple du jour.  The New York Times lifted them to full-fledged celebrity status by using a flattering photograph of the couple as the cover of the Sunday magazine last month [Feb. 22] under the headline, “The Long Crusade of Clarence and Ginni Thomas.”

The cover photo illustrates the wisdom of Ronald Reagan’s communications team that a journalist’s hard-hitting report matters not a bit if the accompanying visuals are favorable. The Sunday magazine cover with the accompanying headline depicts the long-married couple as dedicated crusaders for political and legal justice.

            Moving away from the photograph, however, readers found a thoroughly documented article by investigative reporters Danny Hakim and Jo Becker that raised several ethical issues about the justice’s participation in political events and about the effect of Ginni’s political work on Thomas’s votes in Supreme Court cases.

            As the most concrete example, Hakim and Becker uncovered Ginni Thomas’s role as a leader of the conservative National Policy Council in encouraging members after the November election to contact legislators in three Biden-carried states to nullify Biden’s popular vote victories in those states. “The aim,” as Hakim and Becker wrote, “was audacious: Keep President Donald J. Trump in power.”
            It needs to be recalled that Trump, throughout this period, was challenging the Supreme Court to show resolve by validating his unsubstantiated claims of voting fraud in the election and by supporting his efforts to overturn the results of the election. In effect, Trump was counting on Justice Thomas and the other Republican-appointed justices as his hole card to support the first ever coup in U.S. history even as Thomas’s wife was encouraging her right-wing allies to do the same.

            Later, Ginni Thomas signed, along with 40 other self-identified conservatives, a Dec. 15 letter calling for the House Republican caucus to expel the two GOP members serving on the select committee investigating the Jan. 6 insurrection at the Capitol. On the very day of the Jan. 6 insurrection, Ginni Thomas in fact urged her Facebook followers to watch how the day unfolded, according to Hakim’s and Becker’s reporting. “LOVE MAGA people!!!!” she posted before the march turned violent. “GOD BLESS EACH OF YOU STANDING UP or PRAYING!”

            As one suggestion of Ginni’s influence on her husband, the reporters noted that Justice Thomas was the lone dissenter from the Court’s 8-1 decision to order the Trump White House to turn over records and correspondence that the House committee was seeking to investigate Trump’s role in the insurrection. Significantly, Thomas participated in the case without recusal, as might have been expected given his wife’s public criticism of the committee’s work.

            Supreme Court experts can recall no Supreme Court spouse in history to have engaged so actively in partisan politics while her husband served on the Court. “I’m sure there are justices’ spouses who have had strong opinions about politics,” Orin Kerr, a law professor at the University of California-Berkeley, told the Times reporters. “What’s unusual here is that Justice Thomas’s wife is an activist in politics. Historically, this is the first example of something like this that I can think of at the Supreme Court.”

            Two weeks after the Times magazine piece, another reporter raised a separate ethical issue about Thomas, this one focused solely on the justice himself and his decision in December to hire the prominent right-wing judicial lobbyist Leonard Leo to promote a new ebook edition of Thomas’s memoir. The article by reporter Roger Sollenberger appeared in the online publication The Daily Beast on March 8 under this headline: “Clarence Thomas’s Strange Pick to Promote His Book Says It All.”

            Sollenberger noted Leo’s history as the former head of the Federalist Society and a “top fundraiser for right-wing judiciary activist groups” and depicted the role of Leo’s public relations firm CRC Advisors as going beyond promoting Thomas’s book and also to promoting a Thomas documentary and serving as registered agent for four Thomas-centric web domains.

            “What makes Thomas’ decision notable is that Leo happens to have a vested interest in the Supreme Court, and his dark money network actively tries to influence rulings,” Sollenberger wrote. Sollenberger quoted several experts as suggesting that Thomas’s connection with Leo “raises further questions about the arch-conservative justice’s deep and shady ties to a sprawling network of dark money organizations and right-wing activist groups, many of which have business before him.”

            Paul Collins, professor of political science at the University of Massachusetts at Amherst and author of several books about the high court told Sollenberger that Thomas’ specific choice of Leo’s firm was “strange” and “unnecessary.” Somewhat less critically, Stephen Gillers, a legal ethics expert at New York University Law School, told Sollenberger that Thomas’s ongoing connection with Leo was newsworthy but not of itself unethical. “It may appear to many people as unseemly,” Gillers said, “but that’s not a legal question.”

Senator Sheldon Whitehouse, a Rhode Island Democrat and longtime Senate critic of the right-wing campaign to control the Supreme Court and the federal judiciary, sharply criticized Thomas’s connection with Leo. “Leo and his CRC Advisors form the head of a many-legged dark-money operation designed to deliver on the priorities of right-wing donor interests,” Whitehouse told Sollenberger.

It is worth recalling here that Republicans hounded Justice Abe Fortas off the Supreme Court in 1969 based on an ethical issue far narrower than those being raised about Thomas’s political involvement today. Fortas was paid $15,000 for teaching a course at American University Law School that was funded by former clients from his law practice. He also accepted a $20,000 speaking fee from a family foundation of the financier Louis Wolfson, then under investigation for securities fraud. Fortas eventually returned the money but his reputation was ruined, leading to the first ever ethics-inspired resignation from the Court.

The Constitution specifies that Supreme Court justices and federal judges serve not for fixed terms but “during good behavior.” A question today for Justice Thomas is how much “unseemly” behavior is needed to disqualify him from continuing to serve on the Court.

Republicans Want Courts Out of Election Cases

             When the Supreme Court closed federal courthouse doors to partisan gerrymandering cases three years ago, Chief Justice Roberts stressed in Rucho v. Common Cause (2019) that states still had the authority to devise remedies for politically motivated districting plans. Now, however, Republicans in two states, North Carolina and Pennsylvania, are asking the Court to go back on its word by vesting state legislatures with unreviewable authority to enact election laws and procedures immune from judicial review based on a preposterous interpretation of the Constitution’s Elections Clause.

            Republicans in those two states filed emergency applications before the Supreme Court in late February asking the justices to block redistricting plans ordered by state courts that are somewhat more favorable to Democrats than the gerrymandered plans enacted by GOP-controlled legislatures. The emergency applications – Toth v. Campbell, 21A457, in the Pennsylvania case, and Moore v. Harper, 21A455, in the North Carolina case – do not focus on the specifics of the court-ordered redistricting plans, but instead contend that courts have no authority whatsoever to override legislative enactments regarding voting and election procedures.

            The Republicans have fashioned an argument all but unprecedented in two centuries of election-related litigation in the United States. They cite the Constitution’s Elections Clause [Art. I, sec. 1, cl. 4] as giving state legislatures all but exclusive authority over congressional elections. The clause reserves for Congress the right to alter state election laws, but as written in 1789 makes no mention of judicial review.

            “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”

            Arizona’s state legislature unsuccessfully argued this interpretation of the clause seven years ago in a legal challenge to a voter-approved initiative creating an independent commission to draw congressional and legislative districts. The Court’s 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) emphatically rejected the Arizona lawmakers’ argument.

            “The Elections Clause permits the people of Arizona to provide for redistricting by independent commission,” Justice Ruth Bader Ginsburg wrote for the majority. In creating the initiative process, Ginsburg emphasized, the state had determined that legislative authority could be shared with the people. “There is no suggestion,” Ginsburg wrote, “that the Elections Clause, by specifying ‘the Legislature thereof,’ required assignment of congressional redistricting authority to the State’s representative body.”

            In complete disregard of this holding, conservative legal advocates and Republican politicians have fashioned what is now being called the “independent state legislature doctrine,” based on a “deceptively simple” reading of the clause. The argument contradicts not only this Supreme Court precedent, but it also would reduce three constitutional amendments to nullities: the Fifteenth Amendment, the Nineteenth Amendment, and the Twenty-Sixth Amendment, which respectively prohibit states from abridging the right to vote on the basis of race, on the basis of sex, or on the basis of young age.

            Several election law experts have similarly pointed to the astounding implications of the Republicans’ arguments in these two cases. Rick Hasen, the nationally recognized election law expert at the University of California-Irvine School of Law, correctly noted to CNN’s Ariane de Vogue that the argument “could upend any rules that state courts … put in place that affect federal elections, such as striking down voter ID laws under state constitutions.”

            Writing about the Pennsylvania case on Twitter, Steven Vladeck, a professor at the University of Texas School of Law, also underscored the unsettling implications of what he called the “deeply problematic” argument. “It’s hard to underscore,” Vladeck wrote, “just how big a deal it would be if #SCOTUS granted this application (or the similar one from North Carolina), and used a summary shadow docket ruling to enshrine, formally or practically, the deeply problematic ‘independent state legislature’ doctrine.”

            Scott Lemieux, a political scientist at the University of Washington, also used a tweet to underscore the implication that this newly fashioned doctrine would leave no remedy whatsoever against partisan gerrymandering. “A ruling that state courts (and, hence, state constitutions) cannot interfere with parties gerrymandering themselves into permanent unaccountable power would be an extraordinary 1-2 punch to American democracy,” Lemieux wrote.

            The North Carolina and Pennsylvania applications have been pending on the Court’s shadow docket now for more than a week. The state officials named as respondents have filed comprehensive responses emphatically rejecting the argument for precluding state courts from overriding state legislatures in redistricting or other election-related cases.

            In the response in the Pennsylvania case, attorney Joshua Matz aptly called the Republicans’ argument “completely meritless.” Matz reminded the justices of the sixty-year history of state courts’ involvement in redistricting cases. “To start,” Matz wrote, “this Court has repeatedly and explicitly upheld the propriety of state courts drawing congressional districts when the legislative process fails to produce one. This theme emerged in many decisions issued during the 1960s, as legislatures and courts aimed to implement new constitutional requirements.”

            Lawyers representing the Tarheel state similarly rejected the Republicans’ argument as unsupported. “The Elections Clause does not negate state court judicial review of congressional districting plans under state constitutions,” they wrote. The lawyers noted further that the Republicans’ argument contradicted what they called “a half century of precedents.”

            Indeed, the Supreme Court was emphatic nearly a century ago in rejecting Texas laws limiting participation in Democratic party primaries to white voters. The unanimous ruling in Nixon v. Herndon (1927) struck down a Texas law enacted four years earlier that prohibited Negroes from voting in Democratic party primaries. The Court reinforced that decision two decades later after the state’s Democratic Party adopted a similar “white primary” rule. The 8-1 decision in Smith v. Allwright (1944) struck down a state law authorizing political parties to set their own rules, including white primaries. Neither of those decisions suggested that the Texas legislature’s enactments were immune from judicial review.

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.”