Paul Manafort's Many-Flawed Challenge to Prosecutorial Authority

*This piece was originally posted on Take Care.

Yesterday, lawyers for Paul Manafort, President Trump’s former campaign manager, filed a civil suit in the U.S. District Court for the District of Columbia, seeking to void the appointment of Robert S. Mueller III as special counsel, set aside Mr. Manafort’s indictment, or, at the very least, curtail Mr. Mueller’s authority to investigate whatever business dealings of Mr. Manafort were unrelated to the 2016 presidential campaign.

Among other charges, Mr. Manafort was indicted on October 27, 2017 on allegations of conspiracy to launder money, conspiracy against the United States, being an unregistered agent of a foreign principal, and making false and misleading statements under the Foreign Agents Registration Act.

Yesterday’s filing marks a lawsuit destined to go nowhere.  A New York Times story characterizes the suit as “a clever legal maneuver” either to force Mr. Mueller to reveal new details about the investigation (which would not appear so clever if the details are damning) or to help undermine Mr. Mueller’s credibility through a “protracted” challenge to the legitimacy of his authority.

Mr. Manafort’s complaint contains two counts. The first alleges that Rod Rosenstein, as acting attorney general, ignored the Justice Department’s regulations on the appointment of special counsel by giving Mueller blanket authority to prosecute federal crimes coming to his attention in the course of investigating Russian efforts to interfere in the 2016 election, even if those crimes were wholly unrelated to the campaign. Conferring such authority supposedly violated a Justice Department regulation that would require special counsel to “consult with the Attorney General, who will determine whether to include . . . additional matters within the Special Counsel's jurisdiction or assign them elsewhere.”

The second count alleges that, even if the order appointing Mr. Mueller was proper, it covered only crimes that would come to special counsel’s attention because of his own investigation. According to the complaint, the October 27, 2017 indictment of Mr. Manafort raised only “stale allegations DOJ must have been aware of for nearly a decade.” Mr. Manafort asserts he himself had voluntarily made the Justice Department aware of many of the relevant facts in 2014.

The latter count, as Marty Lederman has written, seems to be predicated on a non sequitur. Even if Justice Department attorneys were aware years ago of many of the facts ultimately relevant to the Manafort indictment, this would not “demonstrate that evidence about Manafort’s dealings with Ukraine did not ‘arise . . . directly’ from the Special Counsel’s probe into ties between Russia and the Trump campaign.”

Moreover, whether or not Mr. Manafort’s alleged crimes were sufficiently related to the Russia investigation to fall within Mr. Mueller’s jurisdiction would seem to be entirely a matter within the discretionary determination of Acting Attorney General Rosenstein. In other words, if the Acting Attorney General is satisfied with Mr. Mueller’s conduct, that would be enough as a matter of law to legitimate the Manafort prosecution. Indeed, Mr. Rosenstein’s judgment on the matter would seem to be a paradigmatic example of what the federal Administrative Procedure Act calls “agency action committed to agency discretion by law,” and therefore, not reviewable in a civil lawsuit at all.

The first count would seem a more fundamental challenge to Mr. Mueller’s authority insofar as it alleges that the May, 2017 order granting him jurisdiction exceeded authority the Justice Department had granted the Attorney General through its special counsel regulations. The problem with this theory, however, is that the measure of Mr. Rosenstein’s authority to empower Mr. Mueller is not the Department’s regulations, but the Department’s statutory authority to appoint special counsel.

28 U.S.C. § 515 provides that “any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct.” This statute explicitly allows Mr. Mueller, as an “attorney specially appointed,” to conduct any criminal proceeding that the Acting Attorney General approves.

There is simply no indication that Mr. Mueller proceeded against Mr. Manafort without consulting the Acting Attorney General and getting his imprimatur. Indeed, Mr. Rosenstein’s testimony before Congress on December 13, during which he stated he had seen no good cause to dismiss Mr. Mueller, strongly implies the contrary.

The Manafort suit faces at least two additional problems. First, as both Josh Blackman and Steve Vladeck have argued, a complaint about the lawfulness of a federal prosecution needs to be addressed through a defense motion in the criminal case, not in an ancillary civil action.

Second, to the extent Mr. Manafort relies on Justice Department regulations as limiting the authority of Mr. Rosenstein or Mr. Mueller, he runs into the embarrassment that the Special Counsel regulations conclude with this sentence: “The regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.”  In other words, the Department could be sued on the basis of the Special Counsel regulations only if departing from their terms violated the Constitution or a relevant statute. No such violation is apparent.

Perhaps the oddest thing about Mr. Manafort’s complaint, however—also noted by Professor Blackman—is that, even if his theories had merit, the legal violations he asserts could be easily cured by appointing another special counsel under a different order, who could then proceed with the exact same prosecution based on the exact same facts. A court might think such fastidiousness appropriate if the complaint rested on concerns of constitutional dimension. Manafort’s does not. The court is not likely to take long in so deciding.

Photo credit: CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=157176

Is the Foreign Emoluments Clause only a “Political Question” for Congress?

*This piece was originally posted on October 20, 2017 on Shugerblog.

On Wednesday, Judge Daniels of the Southern District of New York heard arguments in CREW v. Trump, the first Emoluments case, on the Department of Justice’s motion to dismiss. The case is its own self-contained course in constitutional law and civil procedure, covering a dizzyingly broad range of subjects and methods of interpretation. The primary debates so far have been on whether the plaintiffs have standing and on the meaning of the word “emolument.”

Meanwhile, a secondary question has been in the background: Is the Foreign Emoluments Clause solely a question for Congress, not the courts? If so, it would be a “non-justiciable” political question. This clause has never been addressed in the courts, so it is a new question. I think most observers were surprised that Judge Daniels spent so much time on this possibility and seemed so sympathetic to the argument that his court could dismiss the case by punting it to Congress.

This argument starts with the clause’s text: “No person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

(Let me note here that there is a second emoluments clause, prohibiting the federal government or the states from giving the President emoluments, with no exception granted to Congress to consent, so Judge Daniels can’t punt this entire case on the basis of possible congressional consent).

Judge Daniels asked, and I’m paraphrasing here, “Why doesn’t the political question doctrine apply? The clause assigns the power to Congress to consent or not. If the President is taking emoluments from foreign governments, let Congress weigh in.”

CREW’s Deepak Gupta gave a clear answer: “Because that approach would flip the clause on its head. The structure is a clear rule, with exceptions given to Congress. It’s a ban, but Congress can create exceptions to the ban. If you say it is non-justiciable, then you flip the script: you turn it into a broad permission to accept emoluments, unless Congress says no. That’s the opposite of the text and the Framers’ purpose.”

Judge Daniels replied: “Congress has the power to prevent emoluments if it wants to.”

Gupta replied that the default rule is that clauses are justiciable unless they are clearly and fully assigned to another branch, and if there are no manageable rules. He emphasized that the DOJ (through the Office of Legal Counsel) has crafted manageable rules over decades of cases and OLC opinions.

I was struck by Judge Daniels’s resistance to CREW’s arguments. The problem is that this is the first time courts have addressed this clause, so there is no direct precedent to answer this specific question.

However, this Emoluments clause is certainly not the only place in the Constitution that uses a similar structure: a prohibition against some act, but a grant of a power to Congress to make exceptions. In fact there are two other examples in the Article I, Section 10, immediately after the Foreign Emoluments Clause (Art. I, Sec. 9). They are prohibitions on state power with the same language, “without the Consent of Congress.”

Art I, Sec. 10, Clause 2: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”

The argument here would be the same: Because Congress can always declare or legislate its non-consent, this clause is a political question for Congress, not a justiciable question for the courts.  In fact, this clause has a double measure for congressional authority, adding that these state laws are “subject to Revision and Controul of the Congress,” so the possibility that this clause is only a “political question” is even stronger than the Foreign Emoluments Clause.  However, I can find about two dozen Supreme Court cases ruling on this clause, treating it as clearly justiciable. See, e.g., Chief Justice John Marshall’s decision in Brown v. Maryland, 25. U.S. 419 (1827).

The next clause is similar. Clause 3: “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

It has the same structure: a general prohibition plus an exception for congressional consent. Is this clause nonjusticiable because it is a political question for Congress? The Supreme Court has ruled on tonnage duties under this clause at least a dozen times. It has ruled on the troops provision, and there are countless cases on interstate compacts.

Moreover, the same section that includes the Foreign Emoluments Clause also offers a prohibition on the executive branch, with grant of power to Congress:

Art I, Sec. 9, cl. 7: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

Is this clause a political question? Its structure is similar to the Foreign Emoluments Clause: it is a prohibition, unless Congress consents (by passing an appropriations measure). But I have found half a dozen Supreme Court cases that treated the clause as justiciable.

What about Congress’s role in accepting new states?  Art. IV, Sec. 3:

[N]o new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Presumably if California tried to split into two states, perhaps a Democratic Senate decided to seat an extra two Democratic Senators, though a Republican President and a Republican House rejected the creation of a North California and a South California. What if they sent an extra pair of electors to the Electoral College, too?  Surely the courts would have something to say about such shenanigans. This question would be justiciable (though the question of standing would be separate).

For another example, turn to the appointment power in Art II, Sec. 2:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

Let’s say President Obama decided that Congress’s silence on his nomination of Judge Garland to the Supreme Court or his nomination of Elizabeth Warren to head an agency was tantamount to implicit consent. Could these appointments be challenged in court? Surely if Justice Garland tried to rule on a case or if agency head Warren tried to regulate a bank, a plaintiff would have a day in court to challenge the legitimacy of those appointments. The fact that Congress has a role in permitting a president to act does not make its silence establish consent, nor does its potential role make the question non-justiciable.

I should add that this interpretation that silence equals consent would be particularly problematic in our current debates about individuals and their consent, from the domains of contract law and sexual contact.

The bottom line is that the framers drafted several provisions in the Constitution that the structure of a broad prohibition, but also carved out a power for Congress to make exceptions, twice with the exact same language of “without the consent of Congress.” The courts have treated those clauses as justiciable from Chief Justice Marshall through contemporary cases. Thus, the Foreign Emoluments Clause is justiciable, an appropriate and manageable question for the federal courts.

On The Ripeness of Potted Plants and Other Non Sequiturs

by Leah Litman, Assistant Professor of Law, University of California, Irvine School of Law and Daniel Hemel, Assistant Professor of Law, University of Chicago Law School. 

*This piece was originally posted on Take Care. 

“Congress is not a potted plant.” So says Judge George Daniels of the federal district court for the Southern District of New York in a decision dismissing a lawsuit against Donald Trump for violating the Foreign and Domestic Emoluments Clauses. We agree with that—for one thing, potted plants are much easier to move. But Congress’s status as something other than a potted plant provides little support for the district court’s conclusion that the plaintiffs in CREW v. Trump lack standing to sue the President.

For the time being, the district court’s decision is a holiday gift to President Trump, who avoids (or, at least, delays) discovery and further litigation regarding his business dealings with foreign and state governments. But this partridge might not stay in the pear tree for long. President Trump still faces emoluments lawsuits in the federal district courts in the District of Columbia and Maryland that rely on different standing theories. And even in this case, Judge Daniels’s reasoning is vulnerable to reversal on an appeal to the Second Circuit.

We’re obviously a bit biased—we joined an amicus brief arguing that the plaintiffs had standing. We (still) think that’s the right conclusion, though we recognize that reasonable minds disagree on the matter. We do not, however, think that the reasons the district court gave for reaching the contrary conclusion ultimately hold up to scrutiny.

The Competitor Standing Argument

For those who haven’t spent the past two months waiting at the edge of their seat for a decision from the district court in the CREW case, a refresher on the plaintiffs’ competitor standing argument might be useful. The plaintiffs’ argument relied on a long line of Supreme Court and Second Circuit cases recognizing that market participants have standing to challenge actions by government officials that confer an illegal advantage on competing businesses. The Second Circuit and other federal courts have held that a plaintiff can invoke this competitor standing doctrine if she “personally competes in the same arena” as the businesses that have received the unlawful benefit. See, e.g., In re U.S. Catholic Conference, 885 F.2d 1020, 1029 (2d Cir. 1989). Several plaintiffs in the CREW case claimed that they satisfied the “same arena” standard. For example:

—Jill Phaneuf, who books embassy events and other functions for foreign governments on a commission basis at two D.C. hotels that compete with the new Trump International Hotel in the nation’s capital; and

—Eric Goode, who owns a luxury hotel on the Lower East Side and several other lower Manhattan properties; and

—ROC United, an organization of restaurant owners and employees whose members include several Michelin-star restaurants in Manhattan that vie for customers with restaurants at the Trump Tower nearby.

If the court concluded that any one of these plaintiffs had competitor standing, then the case could proceed to the merits.

The President’s lawyers vigorously contested the plaintiffs’ claims that they actually competed with Trump properties. Some of these arguments bordered on the ridiculous: Trump’s hotels, his lawyers noted, have five-diamond ratings from AAA (Goode only has four), and the Jean-Georges restaurant at Trump Tower has three Michelin stars (ROC United member The Modern has only two). But to their credit, Trump’s lawyers responded to the plaintiffs’ claims directly (if not always persuasively).

 

The District Court’s Decision

The district court’s opinion devotes two pages of analysis to the plaintiffs’ competitor standing (what comes before that is a summary of the facts and a relatively uncontroversial overview of Supreme Court doctrine). The court makes three points. First, the court says it is “wholly speculative” whether the plaintiffs have lost business to Trump because foreign and state government clients want to curry favor from the President or because government officials have an “independent desire to patronize [Trump]’s businesses” (p. 13). Second, the court says that it lacks the power to remedy the injuries suffered by the plaintiffs with respect to competition for non-government customers. Third, the court notes that regardless of what it does, “Congress could still consent and allow [Trump] to continue to accept payments from foreign governments” (p. 14).

The district court goes on to issue two alternative holdings that address claims by Phaneuf, Goode, and ROC United. First, the court says that the plaintiffs’ claims do not fall within the “zone of interests” protected by the Emoluments Clauses because “[n]othing in the text or history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition” (p. 15). Second, and surprisingly, the court holds that the plaintiffs’ claims are “not ripe for judicial review” (p. 27). This is especially surprising because even Trump’s lawyers—who have taken an everything-but-the-kitchen-sink approach in this litigation—did not think to throw in a ripeness argument at the motion-to-dismiss stage.

(The district court also held that Citizens for Responsibility and Ethics in Washington (CREW), the named plaintiff in the case, lacks “organizational standing” to sue the President. We think that’s wrong, but we acknowledge that the organizational standing question is a closer one than the competitor standing issue.)

Six Impossible Things Before Breakfast

In our view, there are (at least) six errors in the district court’s analysis of the plaintiffs’ competitor standing claims. (We should add that the virtual ink is not yet dry on the PDF version of the district court’s opinion—which is to say, we’ve had only a few hours to think about it. So please take these for what they are—preliminary impressions rather than long-considered conclusions.)

(1) The Mysterious Disappearance of Competitor Standing Precedents

In dismissing the plaintiffs’ competitor standing claims, Judge Daniels relies primarily on two Supreme Court decisions: Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), and Bennett v. Spear, 520 U.S. 154 (1997). What’s odd about that choice is that Eastern Kentucky Welfare Rights Organization and Spear aren’t competitor standing cases at all. The issue in Eastern Kentucky Welfare Rights Organization was whether low-income individuals and organizations representing them had standing to challenge the tax-exempt status of hospitals that denied nonemergency services to patients who couldn’t pay. (The court said no.) The issue in Spear was whether ranchers had standing to challenge a Fish and Wildlife Service decision that would reduce their access to irrigation water. (The court said yes.) Neither of these cases has anything to do with the competitor standing doctrine on which the plaintiffs rely.

One might expect the court to analyze the plaintiffs’ competitor standing claims by analogizing the facts here to those in other competitor standing cases. See, e.g., Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) (business competitor has standing to sue for harms caused by false advertising); Nat’l Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479 (1998) (plaintiff banks have standing to challenge a regulator’s ruling that allowed AT&T Family Federal Credit Union to enroll members who were employees of companies other than AT&T); Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987) (trade association of securities brokers, underwriters, and investment bankers has standing to challenge a regulatory decision allowing Security Pacific National Bank of Los Angeles to offer discount brokerage services to the public at nonbranch offices). That is, one might expect the court to explain why the competitor standing claims in this case are weaker than—or otherwise distinguishable from—the claims recognized in cases like Lexmark, First National Bank & Trust, and Securities Industry Association. Instead, we’re left to guess why the court thought this case was more similar to the no-standing precedents than to the cases finding standing.

(2) The Mysterious Relevance of Non-Government Customers

A second perplexing move in the district court’s decision is its emphasis on competition for non-government customers. According to the court (p. 14):

Plaintiffs are likely facing an increase in competition in their respective markets for business from all types of customers—government and non-government customers alike—and there is no remedy this Court can fashion to level the playing field for Plaintiffs as it relates to overall competition.

We’ve read this sentence a dozen times and still don’t understand it. First, the court does have the power to address the increased competition for government customers—by prohibiting the President from owning hotels and other properties that accept business from government clients. And any increased competition for non-government customers does not speak to whether plaintiffs are injured because of increased competition for government customers. Second, the court’s statement that “[p]laintiffs are likely facing an increase in competition . . . for . . . non-government customers” appears to come from . . . where? That wasn’t in the plaintiffs’ complaint, which is the only relevant source for a decision on a Rule 12(b) motion to dismiss. Third, as the competitor standing cases make clear, the “injury” in competitor standing is whatever increased competition plaintiffs face because of purportedly unlawful conduct. A court doesn’t have to eliminate all competition; it just has to remove the increased competition that results from unlawful government action—here the competitive boost the defendant’s businesses receive because of his violations of the Foreign and Domestic Emoluments Clauses.

(3) Injury-in-Fact and Injury-in-Fiction

A third and related flaw in the district court’s opinion is its confusion between illegal competition and loss of customers. The court says (n.3) that “even if [Trump] honored his pledge to establish and donate all profits from foreign governments’ business to the U.S. Treasury, foreign government officials may still patronize [Trump]’s restaurants and hotels.” But so what? Even assuming that a Foreign Emoluments Clause violation could be cured by a pledge to donate profits to the Treasury, the fact that some foreign government officials might patronize Trump properties anyway doesn’t address the fact that other foreign government officials quite likely would not. And more importantly, the injury in competitor standing cases is not the loss of sales but the intensified competition, which compels plaintiffs to expend more time and resources attracting customers. See Sherley v. Sebelius, 610 F.3d 69, 74 (D.C. Cir. 2010); Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493, 1499 (D.C. Cir. 1996).

This much is clear from the Supreme Court’s competitor standing precedents. Most recently, the Court in Lexmark recognized that Static Control Components had standing to sue Lexmark for false advertising even though—of course—some customers still would have purchased Lexmark cartridges without the allegedly false ads. With respect to foreign and domestic emoluments as with false advertising, a plaintiff need not prove that the other party’s business depends entirely on an illegal advantage.

(4) Congress Is Not a Potted Plant—Even When It Acts Like One

A further puzzle in the district court’s opinion is its repeated reliance on the fact that Congress can consent to the President’s acceptance of emoluments form foreign governments. The district court is correct as a matter of constitutional text: the Foreign Emoluments Clause says that “no person holding any office of profit or trust under [the United States] shall, without the consent of the Congress, accept of any . . . emolument . . . from any king, prince, or foreign state.” But we’re baffled as to why the remote possibility of congressional consent has any bearing on the plaintiffs’ standing arguments.

First of all, the plaintiffs are suing for violations of the Foreign and Domestic Emoluments Clauses, and while the Constitution allows Congress to cure a Foreign Emoluments Clause violation, the prohibition on domestic emoluments is absolute. Second, the fact that Congress could—hypothetically—consent to an action can’t be enough (or even be a reason) to conclude that a plaintiff lacks standing to challenge that action on the grounds that Congress hasn’t authorized it. Otherwise, there would never be standing when a plaintiff challenges ultra vires executive action—executive action that exceeds the scope of congressionally delegated authority, or executive action that violates a statutory prohibition. In all of those cases, Congress could have authorized the action, but didn’t. The same would be true in dormant commerce clause cases—no plaintiff would have standing to challenge a dormant commerce clause violation because Congress could always consent to and thus cure the violation.

That’s also why Congress’s status as a non-potted plant has little to do with the resolution of the case. And while we love the “potted plant” line, we should give credit where credit is due: several lawmakers have said the same thing themselves, including then-Senator Jeff Sessions during a 2015 debate about Department of Homeland Security funding. (At the very least, if Congress is a potted plant, it’s one of the rare potted plants that talks.)

(5) The Mysterious Disappearance of Constitutional Structure

The court also concludes that the plaintiffs’ injuries do not fall within the zone of interests protected by the Emoluments Clauses because the clauses were not “intended . . . to protect anyone from competition.” But that reasoning overlooks the structural function of the Emoluments Clauses. As we explained in our brief:

The Emoluments Clauses . . . serve structural purposes. The Foreign Emoluments Clause is a separation-of-powers provision in addition to an anti-corruption one. It allocates to Congress the power to decide whether and when federal officeholders can receive emoluments from foreign governments. . . . The Domestic Emoluments Clause also protects the separation of powers: it ensures that Congress, through its control over the President’s statutory compensation, is “the sole master” whom the President will serve. The prohibition on state-granted emoluments likewise preserves our system of federalism, as it “helps to ensure presidential impartiality among particular members or regions of the Union.”

The Supreme Court has said that the zone of interests test does not prevent individuals from suing to enforce structural provisions of the Constitution. After all, the whole point of the structural provisions of the Constitution is—ultimately—to protect individuals. The district court overlooks this argument entirely in its opinion.

(6) Ripeness

Finally, and most surprisingly, the district court concludes that the plaintiffs’ foreign emoluments claims “are not ripe for adjudication” because Congress has not chosen “to confront the defendant over a perceived violation of the Foreign Emoluments Clause.”

This is stunning. The Foreign Emoluments Clause says that the President cannot accept emoluments from foreign governments without Congress’s consent. The district court’s opinion implies that the judiciary can’t do anything about the President’s violations of the Foreign Emoluments Clause until Congress explicitly expresses its nonconsent. This is an inversion of constitutional text that would make Lewis Carroll proud. Plus, when does the court think that the case would be ripe for adjudication? When Congress says what the Constitution already does: that the President is prohibited from accepting foreign emoluments without prior congressional authorization and cannot receive domestic emoluments under any circumstances? Or would it remain unripe because Congress still could change its mind?

* * *

None of this is to suggest that CREW v. Trump should have been an easy case. We recognize that the arguments around organizational standing put the court in a difficult bind between Second Circuit doctrine and (arguably inconsistent) Supreme Court cases. And on the merits, the plaintiffs’ emoluments claims presented issues of first impression. But the competitor standing claims in the case are—we continue to believe—quite powerful. Fortunately, the district court’s conclusion may not be the last word on the matter.

 

Microsoft Endorses Senate Bill to Address Sexual Harassment

*This piece was originally posted on Microsoft On The Issues

Across the country, recurring news stories about sexual harassment have opened our collective eyes to a critical problem right under our nose: sexual harassment. As many rightly have said, the #MeToo movement has created a national reckoning. As we’ve talked with and listened to our own employees at Microsoft, we’ve realized that it also needs to be more than this. It needs national reflection.

The easiest mistake any employer can make is to assume that “this could never happen here.” While it’s natural to hope and believe that’s the case, one of the fundamental lessons of recent months is that people’s voices need to be heard if their problems are to be addressed.

That’s why today Microsoft becomes the first Fortune 100 company to endorse bipartisan legislation that will ensure that people’s concerns about sexual harassment can always be heard. We’re also taking a new step within Microsoft to ensure this will be the case, even while that legislation is pending.

Senators Kirsten Gillibrand and Lindsey Graham recently introduced new legislation – S. 2203, the Ending Forced Arbitration of Sexual Harassment Act of 2017 – which Microsoft supports. This bill would ensure that every person facing sexual harassment in the workplace can make their case in a public court, rather than solely behind closed doors in private arbitration.

Over the past couple of weeks, we’ve learned more about the provisions of this bill and the issues it will address. When I recently met with Senator Graham on Capitol Hill to discuss cybersecurity and immigration issues, he followed those topics with a compelling appeal that we consider this new legislation. As he pointed out, as many as 60 million Americans today have no legal ability to bring a sexual harassment claim in court because they work under an employment contract that requires that all such claims be subject exclusively to private arbitration.

We appreciate that many companies and business associations believe that the opportunity for private arbitration is sufficient. A great many responsible companies – Microsoft among them – have put in place a variety of internal processes so employees can escalate concerns. Arbitration alone has seemed reasonable to supplement these processes, and for most issues that seems appropriate.

But as each new story about sexual harassment demonstrates, current approaches in this area have proven insufficient. Even as we look squarely at the sins of the past, we must take stronger steps to prevent these problems in the future. Because the silencing of voices has helped perpetuate sexual harassment, the country should guarantee that people can go to court to ensure these concerns can always be heard.

After returning from Washington to Seattle, we also reflected on a second aspect of the issue. We asked ourselves about our own practices and whether we should change any of them. At Microsoft we’ve never enforced an arbitration provision relating to sexual harassment, and we pride ourselves on having an open-door policy that encourages employees to raise any such concerns internally so they can be investigated thoroughly and addressed appropriately. But we also reviewed and found that we have contractual clauses requiring pre-dispute arbitration for harassment claims in employment agreements for a small segment of our employee population.

We concluded that if we were to advocate for legislation ending arbitration requirements for sexual harassment, we should not have a contractual requirement for our own employees that would obligate them to arbitrate sexual harassment claims. And we should act immediately and not wait for a new law to be passed. For this reason, effective immediately, we are waiving the contractual requirement for arbitration of sexual harassment claims in our own arbitration agreements for the limited number of employees who have this requirement.

As we look ahead to 2018, it’s important that we all take new steps to address this problem. Every person deserves a workplace where he or she is treated with respect. We’ll continue to identify new opportunities within our own company to support the respectful culture we’re working to advance, and many other companies no doubt will do so as well. But we should also identify steps we can take together as a country. This important and bipartisan piece of legislation is one such step.

Photo by Stephen Brashear/Getty Images

Modern-Day Arrests For Abortion Force Us to Look Forward and Complete Roe’s Unfinished Promise

The close of 2017 brings with it the opportunity to reflect on this first year of the Trump Administration—the attacks on the rule of law, the unprecedented resistance, and the hope for a way forward. One campaign promise President Trump has managed to keep is the appointment of a Supreme Court Justice. While Justice Neil Gorsuch testified that he made no indications as to how he would rule in any case, Trump’s campaign promises included Supreme Court appointees who would overturn Roe v. Wade, undermining the Constitutional protection for the right to decide whether to continue a pregnancy, and—he apparently believed—paving the way for states to enact “some form of punishment” for people who have abortions.

Although Trump later claimed that he meant abortion providers should be punished, a claim echoed by staunch conservative lawmakers such as Ted Cruz and Mike Pence, the truth is that criminalization of people for having abortions is already happening. A patchwork of laws and policies leave people vulnerable to arrest under antiquated laws from the 1800s punishing “self-abortion” or “submitting to a criminal abortion;” feticide laws intended to protect pregnant people from violence; and a variety of other laws repurposed by prosecutors determined to punish a person for ending a pregnancy. Even now, a woman in Virginia is fighting for her future, charged with felony abortion, a law which was intended to punish only those who provide abortions. Another woman in Tennessee is under investigation after allegedly inducing a miscarriage. All of this is taking place with Roe largely intact and Planned Parenthood v. Casey recently reaffirmed in Whole Women’s Health v. Hellerstedt.

The current abortion jurisprudence provides a strong starting point for challenging prosecutions for self-induced abortion: the statute at issue in Roe was a criminal abortion statute. However, because the criminalization of people who have abortions was exceptionally rare at the time of Roe, and was impermissible under the common law in most states, the decision focuses on the unconstitutionality of criminalizing abortion provision, speaking less clearly to the unconstitutionality of criminalizing people who have abortions. Nevertheless, no appellate court that has reviewed a prosecution for self-induced abortion has upheld the prosecution, and the one federal circuit court to address the issue squarely in McCormack v. Heideman invalidated Idaho’s statute criminalizing self-induced abortion as an undue burden on the abortion right.

Even so, the task for attorneys seeking to advance reproductive rights and justice is to find arguments that will protect people who self-induce abortions—even if the Administration somehow makes good on Mike Pence’s promise to “see Roe v. Wade consigned to the ash heap of history.” Fortunately, Roe is a floor, and not a ceiling, for any constitutional analysis. There is robust jurisprudence protecting people from unwarranted governmental intrusions into their homes and medical decisions, safeguarding private information, and placing substantive and procedural limits on criminalization. These constitutional protections apply with equal force to people making decisions about abortion.

For instance, while Griswold’s location of the right to reproductive privacy within the “penumbras” and “emanations” of the Bill of Rights has been criticized as vague or perhaps overreaching, the Court was very concrete as to its concerns about policing reproductive decisions. The idea of allowing “police to search the sacred precincts of marital bedrooms” was “repulsive” to the Court, suggesting that the Fourth Amendment would provide grounds to challenge criminal proceedings that require delving into and divulging such personal matters. Criminalization of a health matter also requires intrusion into sensitive medical information to prove the crime and turns health care providers into informants against their patients, raising Fourth Amendment concerns.

The potential for self-incrimination arising from coercive hospital bedside interrogations that are the hallmark of criminalization of self-induced abortion also raise Fifth Amendment concerns. The Fifth Amendment jurisprudence explicitly recognizes the coercive nature of custodial interrogations, which is likely to be exacerbated when people are subjected to humiliating questioning in a healthcare setting, potentially in critical condition, without the aid of an attorney. Short of mirandizing people seeking health care for complications of abortion or miscarriage, which would defeat the purpose of the confidential provider-patient relationship, the only way to avoid the constitutional problems is not to criminalize a health condition.

Criminalization of self-induced abortion also raises questions as to the appropriateness of prosecution as a response to health care matters in the first place. States generally have broad discretion in defining the boundaries of acceptable behavior through criminal laws, but the Eighth Amendment provides protection from state overreach in which acts may be criminalized. For instance, the Eighth Amendment prohibits states from using criminalization to punish people based on a particular status (e.g. substance use disorders, HIV status, or other health issues). Laws that fail to make a measurable contribution to the acceptable goals of punishment (specifically, retribution for wrongdoing and prevention of harm) violate the Eighth Amendment. This is especially so where criminalization is being used for an impermissible purpose like coercing a person’s abortion decision and punishing them for the exercise of a constitutionally-protected right. Justice Brennan’s dissent in Harris v. McRae reminds us that government must “refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman’s freedom to choose whether to have an abortion.” Certainly there is no greater exercise of state power or coercion than the threat of incarceration.

Although people who end their own pregnancies are acting outside of the purview of the formal medical system, the Fourteenth Amendment protects their medical decisions the same as anyone else’s. Everyone has a fundamental right to “possession and control of [their] own person, free from all restraint or interference of others” which encompasses refusal of unwanted medical care, even if that decision threatens an individual’s health. The state can force care only under extremely rare circumstances, and cannot punish people for not accepting care. Appellate case law from several jurisdictions extends this right to decisions people make about pregnancy, even at full-term or in labor. These rights logically extend to a right not to be punished for self-care in the context of abortion.

As the right-wing criticism of Trump’s statement in support of criminalization reveals, actually jailing people for ending their pregnancies is fundamentally different from making abortion inaccessible. While both threaten rights that are critical to self-determination, criminalization marks people with stigma that is permanent, significant, and demeaning. We must liberate people who have abortions from criminalization by repealing, reforming, and challenging the laws and practices that lead to unjust and unconstitutional arrests. It remains to be seen whether Roe remains intact in the future, or whether politicians’ promise of its demise are fulfilled. Either way,a host of rights beyond those explored in traditional abortion jurisprudence can be brought to bear to fulfill Roe’s own promise: abortion without coercion, stigma, or punishment.

Partisan Justice in Alabama Court's Senate Election Decision?

As the eyes of the nation were on Alabama for the high profile special Senate election between Roy Moore and Doug Jones, the Alabama Supreme Court issued a decision that raises troubling questions of partisan decision-making by state court judges. This corrosive effect that campaign money and politics have had on impartial justice was highlighted by Partisan Justice, a recent ACS report.
At issue in Alabama was a Montgomery County Circuit Court ruling which ordered the state not to destroy digital scans of paper ballots made by voting machines. Although paper ballots are retained, plaintiffs argued that public records laws mandate that the digital scans also be kept. The scans are important, they further argued, because only digital records are tabulated in the absence of a hand-recount, and machines can be tampered with. The state argued that the requested relief would require many machines to be reset with little time before the election. Siding with plaintiffs, the lower court wrote that, “the only action being asked of [the Secretary of State] at this point is to send a communication through a system that already exists and is routinely used,” to instruct local officials. Nonetheless, the Alabama Supreme Court reversed the injunction, allowing the records to be destroyed. Ultimately, the election was decided by 1.5 percentage points, avoiding an automatic hand-recount.
Partisan Justice was particularly interested in this sort issue before courts; cases in which judges rule on narrow, often technical and rarely litigated issues that can decide the outcome of elections. The study's authors, Joanna Shepherd and Michael Kang of Emory University School of Law, found that as campaign contributions increase, the likelihood of partisan decision-making does as well. For the average judge, an increase of $10,000 was associated with a 3 percent increase in the likelihood of partisan decisions.. The study also found that Republican judges are significantly more likely to cast partisan-aligned votes than are Democrats The authors posit that, "[t]he nature of the Republican Party’s system of campaign finance and donor networks may explain why judges affiliated with the party are more responsive to partisan incentives and thus more likely to favor the party in their decisions."
It is hardly surprising that the sort of partisan decision-making described by Partisan Justice might be found in Alabama. Currently, all nine members of the Alabama Supreme Court are Republicans (eight of whom ran and won in partisan elections, one of whom was appointed by a Republican governor to fill an unexpired term). Furthermore, more than half of the court was elected in races where the justices raised over one million dollars, according to the Brennan Center’s Politics of Judicial Elections 2015-16 report. Thus, Alabama's political environment places extreme pressure on judges to remain members in good standing of Republican political coalitions and conservative fundraising networks.
All Americans have a stake in fair courts, particularly state courts, which handle the vast majority of cases filed in the US. To have confidence in the impartiality of state judiciaries, especially when elections themselves are at issue, we need strong recusal rules, public financing, and ultimately, a move away from elections and towards merit selection.