A Courageous Response to the Voice of Hate

*This piece was originally posted on StateAG.org

A bi-partisan group of 67 former Attorneys General of the states and jurisdictions today pointed to the example of one of their colleagues to remind us all of the moral imperative to respond directly to those who amplify the voices of hate. See the statement below issued by the former Attorneys General, and here is the link to former Alabama Attorney General Bill Baxley‘s response to the KKK: Did the Attorney General of Alabama Once Tell the Ku Klux Klan to 'Kiss My Ass'?

Statement by Former State Attorneys General

There are times in the life of a nation, or a president, or a state attorney general when one is called upon to respond directly to the voice of hate.

As former state attorneys general - we take the liberty of reminding Americans - as we remind ourselves - that events can call out the worst in us -- and the best.

In 1971 the twenty-nine year old attorney general of Alabama began his quest to bring to justice the perpetrators of the Birmingham church bombing which killed four little girls. It was a crime rooted in hate and his determination to prosecute the case gave rise to voices of leaders of hate. He faced political furor, lack of cooperation from federal and state government agencies and constant threats of physical violence and death. But he persisted. It took years but he obtained a conviction.

In 1976 when the grand dragon of the Ku Klux Klan wrote a threatening letter and demanded that Alabama Attorney General Bill Baxley respond directly to his letter, he did.

We commend his response (see link above) to the attention of all who seek to equivocate in times of moral crisis.

Former Attorneys General,

Robert Abrams, New York
Ronald Amemiya, Hawaii
Jeff Amestoy, Vermont
Bruce Babbitt, Arizona
Thurbert Baker, Georgia
Paul Bardacke, New Mexico
Steve Beshear,  Kentucky
Bruce Botelho, Alaska
Margery Bronster, Hawaii
Charlie Brown, West Virginia
Richard Bryan, Nevada
Charles Burson, Tennessee
Bonnie Campbell, Iowa
Steve Clark, Arkansas
Walter Cohen, Pennsylvania
Robert Cooper, Tennessee
J. Joseph Curran, Jr., Maryland
Fred Cowan, Kentucky
Frankie Sue Del Papa, Nevada
Jerry Diamond, Vermont
Richard Doran, Florida
John Easton, Vermont
Rufus Edmisten, North Carolina
Drew Edmondson, Oklahoma
Tyrone Fahner, Illinois
Lee Fisher, Ohio
Karen Freeman – Wilson, Indiana
Terry Goddard, Arizona
Chris Gorman, Kentucky
Slade Gorton, Washington
Jennifer Granholm, Michigan
Scott Harshbarger, Massachusetts
Peter Harvey, New Jersey
Hubert H . Humphrey III, Minnesota
Drew Ketterer, Maine
Oliver Koppell, New York
Peg Lautenschlager, Wisconsin
Joseph Lieberman, Connecticut
Michael Lilly, Hawaii
Alicia Limtiaco, Guam
Bill Lockyer, California
David Louie, Hawaii
Robert Marks, Hawaii
Brian McKay, Nevada
Jeff Modisett, Indiana
Betty Montgomery, Ohio
Mike Moore. Mississippi
Jim Petro, Ohio
Jeffrey Pine, Rhode Island
Warren Price III, Hawaii
Hector Richard, Puerto Rico
Clarine Nardi Riddle, Connecticut
Dennis Roberts, Rhode Island
Stephen Rosenthal, Virginia
Stephen Sachs, Maryland
James Shannon, Massachusetts
Mark Shurtleff, Utah
William Sorrell, Vermont
Robert Spagnoletti, District of Columbia
Robert Stephan, Kansas
Mary Sue Terry, Virginia
James Tierney, Maine
Anthony F. Troy, Virginia
Jim Guy Tucker, Arkansas
Paul Van Dam, Utah
Bob Wefald, North Dakota
Grant Woods, Arizona

*Bill Baxley practices law in Birmingham, Alabama

Trump’s Travel Ban and Our Careless Court

by Dr. Caroline Poplin, Counsel & Medical Director, Guttman Buschner & Brooks PLLC

This Supreme Court apparently believes it should never question a presidential claim of national security, no matter how weak, no matter how broad, even if it involves refugees fleeing war and persecution.

Lest we forget, the United States was founded by the Pilgrims, a heretical Protestant group fleeing threats of imprisonment and execution in Jacobean England.

In Trump’s first executive order, popularly called the Muslim travel ban, the president suspended the United States Refugee Admissions Program (USRAP) for 120 days, halted admission of Syrian refugees indefinitely and reduced the total number of refugees to be admitted for 2017 to 50,000 from the 110,000 authorized by President Obama.

After confusion at airports and hostile receptions by federal courts, President Trump substituted a second executive order. His new order eliminated the clause specific to Syrians and the exception for religious minorities. In all other respects, it was unchanged.

Two months later, the Fourth Circuit upheld, 10-3, a Maryland District Court decision enjoining the travel ban on immigrants (the refugee ban had not been challenged) as a violation of the Establishment Clause. On June 12, a Ninth Circuit panel per curiam upheld the Hawaii District Court decision enjoining the entire travel ban, including the refugee section, as a violation of the Immigration and Nationality Act, without reaching the constitutional issue. Of note, both appeals courts mentioned Korematsu.

The United States applied to the Supreme Court post haste for relief. Now with its full complement of justices, on June 26, the Court, in a per curiam decision, casually reversed the decisions of both circuit courts along with underlying district court decisions with exceptions for immigrants or refugees who have a “bona fide relationship” with a U.S. person or entity. An entity apparently means a school or business. The fearful Court explicitly excludes U.S. resettlement agencies who contact foreigners seeking entry “to help them avoid the ban.” The Court allowed limited exceptions as a matter of “equity.” As most readers know, Justices Thomas, Alito and Gorsuch would have upheld the ban in its entirety.

Immigrants come for a better life, education or a job, or to rejoin their families. Delay may be inconvenient, even costly, but it is generally not life-threatening. This is not so for refugees. By definition, they are fleeing “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular group social group, or political opinion,” according to the Immigration and Nationality Act (INA) Section 101(a)(42), tracking the  United Nations Convention Relating to the Status of Refugees (1951) to which the U.S. acceded.

Anyone who has seen recent film clips of Aleppo in Syria, Mosul or Baghdad in Iraq, Yemeni cities devastated by air attacks (perhaps by Saudis flying U.S. bombers) or executions of dissidents in Iran can understand the urgency of the refugees’ plight. You would think the Supreme Court might take judicial notice of such indisputable facts when balancing “equities,” but apparently not.

The Supreme Court was unmoved – in fact, oblivious.

Indeed, in response to a second opinion from the Hawaii District Court, the Court, in one paragraph, accepted the District Court’s expansion of the definition of close relatives, but doubled down on the refugee ban. Despite Judge Watson’s description of the current elaborate vetting procedure – which can take up to two years and involve formal contracts the State Department signs with U.S. resettlement agencies – only refugees with family connections already in the United States can enter. The Court felt no need to explain its action.

That reminds me and no doubt many others of the St. Louis.

In 1939, the St. Louis, an ocean liner with more than 700 frantic German and Austrian Jews aboard fleeing the Nazis, was turned away from the U.S. because the quota for German-Austrian “immigrants” for 1939 was filled. There was a waiting list of years. The U.S. State Department directed the “immigrants” to return to Europe and take their places on the list. Desperate cables to President Roosevelt were unavailing. – The ship returned to Europe (although not to Germany) and many of the refugees eventually perished in Hitler’s highly efficient death machine. Reportedly, Roosevelt declined because of the possibility of German spies among the passengers (i.e. “national security”) and a coming election during a time of anti-immigration sentiment.

The St. Louis incident and the State Department’s policy of turning away thousands more wartime refugees (including Anne Frank’s family) on spurious grounds remain a dark stain on America’s history.

The Circuit Courts carefully reviewed the government’s arguments: The Fourth Circuit opinion (excluding the dissents) was 79 pages; the Ninth Circuit’s was 81. The Ninth Circuit in particular analyzed the background of Section 1182(f) of the INA, which the president invoked, along with other provisions of the statute and the text of the president’s order. It also cited a number of cases – including United States v. Robel 389 U.S.258, 263-64 for the proposition that “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under Section 1182(f).”

Nevertheless, that is precisely what the Supreme Court does. It makes its decision in one sentence, citing one case (barring one man, a Marxist professor, under different provisions of the INA, who had been invited to speak): “The [lower] court instead should have upheld EO-2 because it rests on the “facially neutral and bona fide” justification of protecting national security Kleindienst v. Mandel 408 U.S. 753, 770 (1972).” The quoted phrase itself is strange: usually “facially neutral” is the beginning of the analysis and not the end; it refers to justifications that may be fair on the surface but create disparities in the real world, which could raise constitutional concerns. "

Then the Supreme Court “balances the equities” for American residents and institutions (except American resettlement agencies) only. Apparently, for this Court, including the so-called moderates, some of whom are only two generations removed from refugee status, the rest of the world’s population does not exist. The Court lives in a vacuum, where justice is determined by the narrow, dictionary meaning of words on a page.

This Court would have upheld Dred Scott.

The Court has gone off for a three-month vacation. The justices will refresh and relax while refugees struggle and die. What’s the rush?

This Court could not care less.

 

Plan A and Plan B If Donald Trump Fires Special Counsel Bob Mueller

Congress needs to be prepared to take immediate action if President Trump fires special counsel Robert Mueller, former White House ethics chief Norm Eisen said Monday.

Citing Capitol Hill response to Richard Nixon's 1973 "Saturday Night Massacre" firing of the Watergate special counsel as a model, Eisen said members of the House and Senate would need to quickly launch hearings into potential obstruction of justice, take steps to assure that Mueller's records and staff are preserved --  and demand that Trump appoint a new special counsel right away to continue his work.

"We're talking about a whole other level of firestorm here," Eisen said, "and I do believe the president's hand would be forced by the abandonment of support from his own Congress and the risk of a full-blown investigation being powered forward in Congress."

Call that Plan A.

But if Republican leaders even under those circumstances refuse to act against their own president – or if Trump refuses to appoint someone new -- Plan B is for the American public to make itself heard.

"We need to be ready for that," Eisen said. "I anticipate that we'll see, as we did at the very beginning of the administration, huge public outcry."

Eisen's comments came during an American Constitution Society webinar in which he and Ohio State University law professor Peter Shane explored the various ways Trump might take Mueller off the playing field, and the possible legal and political ramifications.

Neither predicted Trump would force Mueller out – "I don't think Trump himself knows yet," Eisen said – but considering his record of violating presidential norms, they both said it was a distinct possibility.

"Trying to keep track of all the rule-of-law concerns raised by this administration is like a game of Constitutional whack-a-mole," Shane said.

The rule of law is not just about following bright-line rules and heeding explicit court orders, Shane said. It is more about a culture of deference to the integrity of the legal order.

President Trump's hostility toward Mueller's investigation into Russian interference in the election and possible collusion with the Trump campaign "has to be seen as a relentless attack on those sorts of practices," Shane said.

Firing Mueller is made more complicated for Trump by the special counsel rules set forth in 28 C.F.R. § 600.7, a federal regulation that says that "The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General."

And according to that regulation, even the attorney general needs to have a legitimate reason. "The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."

Attorney General Jeff Sessions, of course, has famously recused himself from all special counsel-related matters, leaving Deputy Attorney General Rod Rosenstein as acting attorney general for that matter.

So Trump would technically have to order Rosenstein to fire Mueller. If Rosenstein refused and resigned, then the duty would pass to Associate Attorney General Rachel Brand. And if she resigned, the duty would traditionally continue to pass down through the top ranks of the Justice Department – except none of those positions has yet been filled with a Senate-confirmed nominee.

According to an Executive Order Trump signed in February (then oddly revoked and reissued in March), the line of succession would then jump to Dana Boente. In addition to being the unconfirmed, acting chief of the department's national security section, Boente remains the U.S. Attorney for the Eastern District of Virginia, a job for which he won Senate confirmation in 2015. (That is also how Boente ended up briefly serving as acting attorney general in February, after Trump fired Sally Yates, the Obama appointee who was acting attorney general at the time.)

But all that is assuming that Trump chooses to heed that rule – which is notably part of the Code of Federal Regulations, not a legislative mandate in the U.S. Code  -- in the first place.

Eisen and Shane noted that Trump could potentially decide to fire Mueller directly – all by himself – asserting a particularly extreme view of what some hawkish constitutional lawyers call the "Unitary Executive Theory," and refusing to allow his executive power to be bound by, in this case, a mere executive-branch regulation.

("I can't emphasize strongly enough that I think this theory is wrong," Shane said.)

But that could easily lead to a messy federal court battle, making the more likely scenario a reprise of the "Saturday Night Massacre," where the top two officials in Nixon's Justice Department resigned rather than fire Watergate special prosecutor Archibald Cox. The solicitor general at the time – Robert Bork – became acting attorney general, and followed Nixon's orders.

Neither Rosenstein nor Brand is seen as likely to be willing to go along with Mueller's discharge, Shane said.

But how much will today's Congress follow the Watergate script at that point?

As Eisen noted, Cox's firing led to Nixon coming under such immediate and enormous congressional and public pressure that a mere 11 days later Nixon himself named a new Watergate special prosecutor: Leon Jaworski. And Jaworski took up where Cox had left off.

Eisen said that if Trump ousts Mueller, "I think you'll see bipartisan outcry for appointment of a new special counsel."

But that is Plan A.

And if you think the Republican Congress still won't act against Trump, or you can't imagine that Trump – after calling Mueller's investigation a "witch hunt" – would turn around and appoint someone new to lead it under any circumstances whatsoever – then the situation will call for Plan B.

Trump's Transgender Ban Ignores Common Decency, Public Opinion

First came schools, next came the military.  Four months after the U.S. Department of Education withdrew guidance aimed at protecting transgender students’ rights to use the bathrooms of their choice, President Trump this week tweeted a surprise announcement that banned transgender people from serving in the military.

The president’s latest attack on the LGBTQ community flies in the face of common decency toward the estimated 16,000 transgender troops currently serving our country. Research also tells us that the majority of Americans have supported equal job opportunities for gays and lesbians for at least 40 years. ACS has advocated for Trans rights and in March, convened thought leaders around the country to discuss the challenges LGBTQ people continue to face.

Without further details from the White House, it's hard to predict the political and policy implications of the ban. In fact, the Joint Chiefs of Staff told the press that there will be no change in policy for now. It’s no wonder since Trump didn’t bother to inform the Joint Chiefs of Staff that the transgender ban was coming. On Capitol Hill, some of the president’s GOP allies are questioning his move. Meanwhile, his action has left transgender troops in limbo.

The President’s Pardons Paradox: Granting Them Could Aid the Prosecution

*This article was first published on Just Security

It emerged late last week that President Trump has reportedly queried his lawyers regarding the nature and scope of his authority to pardon individuals including himself.  Over the weekend, Trump tweeted a “nothing to see here” message while asserting his pardon power was “complete,” presumably meaning absolute.

While not limitless, the authority of the President to pardon is undeniably substantial. The President cannot pardon for prospective crimes or violations of state criminal law. There is a strong argument that he cannot pardon himself and certainly cannot insulate himself or others from the conviction of impeachment, as expressly stated in the Constitution.  But other than these and perhaps other narrow limitations, a President’s pardon powers is vast.  Indeed, the President’s power to pardon others including his family members for past federal crimes, even without evidence of specific criminal investigation or prosecution, is arguably plenary in nature.

Not surprisingly in the context of the investigation into Russian interference in our election, Trump’s reported interest in pardons has generated an avalanche of commentaryexploring the legal limits of presidential pardon authority. Less attention, however, has been paid to why President Trump has not exercised his pardon authority yetespecially with so many of his confidants caught in a web of a criminal inquiry. This is the issue I focus on here.

Some may argue that if Trump were to pardon close confidants – say his campaign manager Paul Manafort, the Trump-identified foreign policy advisor Carter Page, Senior Advisor and son-in-law Jared Kushner or his National Security Advisor Michael Flynn – the optics would be undesirable and the political fallout substantial.  This is undoubtedly true, President Gerald Ford arguably never recovered politically from the pardoning of President Richard Nixon. But given Trump’s record, I am highly skeptical that these political concerns are a sufficient deterrent to exercise his authority.

Unpleasant optics because of his flagrant norm violations thus far have hardly served as significant inhibitions for this President.  He did not release his tax returns as every president has for half a century.  He ignored anti-nepotism laws. He discussed on the campaign trail imprisoning his political opponent. He ignores the Emoluments Clause of the Constitution.  The norm transgressions are so substantial that this site has a section dedicated to it.  There is an outcry.  But that outcry and the optics simply do not seem to bother this President or his most ardent supporters.  Nor do they seem sufficient to alienate him from almost all of the elected Republicans in Congress, at least so far.

It must be something else. Most likely the President has been informed of one important fact about his pardon power, anyone he pardons is no longer under criminal jeopardy for federal crimes and, accordingly, Fifth Amendment protection for self-incrimination evaporates. Manafort, Page, Kushner, and Flynn at this point – pre-pardon – need not answer any questions from Robert Mueller, Congress or anybody.  The Fifth Amendment of the United States Constitution provides no person “shall be compelled in any criminal case to be a witness against himself.”

Once pardoned, however, there is no legal jeopardy for past federal crimes. Therefore, the Fifth Amendment can no longer be a shield and permit Trump’s pardoned associates from refusing to answer questions under penalty of perjury. This creates a paradox for President Trump.  When he pardons an individual, they are free from possible prosecution but they are also uncloaked of their most robust constitutional protection.

This may well be why President Trump has not pardoned Flynn, for example. Given the reported substantial contacts between Flynn and Russian government emissaries, given Flynn’s patent falsities including on federal forms completed under penalty of perjury, Flynn’s only protection presently from being compelled to testify – including possibly against the President and others – is the Fifth Amendment self-incrimination clause. Imagine if that was no longer a shield.  Grand Jury, FBI Agents, Congress all could drill Flynn under oath.  Any material prevarication would be punishable as perjury.  At that point Flynn’s personal interest will be to tell the truth, even if that truth incriminates the President who fired him.

So the pardon of presidential associates is a double-edged sword.  On the one hand, he will ensure they are not prosecuted if they committed crimes in furtherance of the President’s interest.  On the other, once pardoned, the interest of the pardoned associates likely diverges from the President.  If crimes were committed that implicate the President and his family – and I do not believe we have sufficient evidence to answer that conclusively at this time – prior to being pardoned, a Trump associate is 100% within their rights to simply say nothing.  But not afterwards.

One caveat worth noting is that because the President’s pardon power is limited to federal crimes, the Fifth Amendment may offer protection if the pardoned individual is still under jeopardy for state crimes. However, I do not see this as a substantial issue at this point because in the main, the possible criminal liability of which we are presently aware in the Russia probe seem distinctly federal in nature, e.g., the Computer Fraud and Abuse Act, failure to complete federal disclosure forms truthfully, false statements to the FBI, or obstruction of justice in a federal case, for example.

It is true that we cannot be certain where the investigation will go and it could probe violations of state law.  This seems most likely with financial crimes. Money laundering, for example, is illegal both under federal law and New York state law (the most likely state jurisdiction relevant here). And in such fairly circumscribed cases, the pardoned individual would still enjoy Fifth Amendment protection in discussing facts of relevance to those cases.

But I don’t think this wrinkle should distract from the main point:  The President’s exercise of his pardon power is not a panacea.  There are political costs to be sure. Many will ask, why do you need a pardon if no crime was committed similar to how President Trump discussed a grant of immunity:  “If you’re not guilty of a crime, what do you need immunity for?”  It will thereafter be a political cudgel and add to the narrative of a President hell-bent on covering up crimes he committed or that others committed on his behalf.  He fires Comey because of the Russia probe as President Trump himself made clear in the Lester Holt interview.  He has confirmed his upset with Sessions because his recusal self-neutered the Attorney General’s ability to defend the President.  He attacks Mueller in an attempt to discredit any future findings of wrongdoing. And if he pardons, the story will surely and understandably be that it is another attempt to evade accountability.

These political restraints, as in so many other areas, will not be sufficient to deter this President. However, the realization that anyone he pardons, unless also under jeopardy of state law prosecution, has lost the right against self-incrimination and can be compelled to testify truthfully under pain of contempt and perjury, may well explain this President’s failure to pardon anyone thus far and may prove a continuing reason not to pardon associates in the future.

In this way, if the President exercises his pardon power down the road, it may signal a certain desperation. It may mean that the investigation is getting close.  It will mean he has calculated that whatever the pardoned individual is compelled to testify under oath is less damaging to him and his interests than if the individual was not pardoned but squeezed by prosecutors.  It will mean that the political weight of “nothing to see here” has been overcome by the legal weight of personal and family legal jeopardy.

No Red Line: Mueller Will Follow the Money

President Trump recently said that Special Counsel Robert S. Mueller, III, would be crossing a “red line” if he were to investigate Trump’s finances. Does Mueller have legal authority to probe Trump’s finances? Absolutely. In fact, Mueller would be failing his assignment if he did not.

In May, Deputy Attorney General Rod. J. Rosenstein appointed Mueller as Special Counsel. Rosenstein did so as the Acting Attorney General, following the recusal of Jeff Sessions in any matters relating to the 2016 presidential campaign.  President Trump has expressed his anger with Sessions for his recusal decision.

As outlined in the appointment order, Mueller’s mission is to probe three things: (1) “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” (2) “any matters that arose or may arise directly from the investigation,” and (3) “any other matters within the scope of 28 CFR 600.4(a).”

Under this broad language, Mueller and his team may absolutely investigate Trump’s finances without crossing any “red line.” Since the days of Watergate, every prosecutor in a public corruption case has repeated the mantra to “follow the money.” This case should be no exception. Following the money helps investigators discern connections between people and organizations, identify witnesses and subjects, determine motives for conduct, understand the timing of events, and learn many other facts about a case.

It is standard practice in white collar cases to use grand jury subpoenas to obtain bank records, credit card records and corporate documents that are held by third parties, such as banks, financial services companies, corporations and government offices. In an investigation of coordination between the Russian government and the Trump campaign, obtaining these kinds of financial transactions would be essential to understanding any connections.

And this investigation will likely also permit Mueller and his team to see at long last what has been concealed from the American public – Trump’s tax returns. Tax records are routinely obtained in white collar investigations. Tax returns can show sources and amounts of income. Inconsistencies between tax returns and other financial records can also be a basis for a separate criminal charge of tax evasion.  Because of the sensitive nature of tax records, however, they cannot be obtained with a simple grand jury subpoena. Instead, a court order is needed to obtain tax records. This order, known as an “i” order because of the subsection of the tax code that authorizes it, requires a showing of reasonable cause to believe that a crime has been committed, that the return may relate to the commission of the crime, that the return information is for use in a federal criminal investigation, and that the information cannot be reasonably obtained from another source.

While not every financial transaction Trump has ever engaged in is fair game, Mueller and his team may seek any documents or question any witnesses about anything that is reasonably designed to lead to the discovery of admissible evidence showing links between the Russian government and Trump’s campaign.  And as the investigation progresses, and Mueller learns more about the facts, he may also seek evidence relating to any matter that arose “or may arise directly” from the investigation. That means that if in the course of investigating connections to Russia, Mueller discovers another crime, he may pursue that as well.

And then there is that third category in Mueller’s mandate. The regulation cited there provides that he may investigate and prosecute federal crimes committed to interfere with the investigation, such as perjury or obstruction of justice.  This section could certainly be used to investigate Trump and members of his family, such as Donald Trump, Jr., and Jared Kushner, who are likely already subjects of the investigation based on their meeting with Russians to obtain derogatory information on Hillary Clinton during the campaign. Even if their attendance at the meeting alone does not constitute an offense, any false statements written in security clearance forms or made to federal agents or Congress regarding this meeting could amount to a crime of false statements or obstruction of justice.

And the really interesting part of the regulation is that it further provides for “additional jurisdiction” if the special counsel concludes that a broader scope is necessary “to fully investigate and resolve the matters assigned, or to investigate new matters that come to light” in the course of his investigation. This “additional jurisdiction” may only be granted by the Attorney General after consultation.  Or, in this case, Rosenstein, because of the recusal of Sessions. The broad language of the order would permit Mueller to keep going after any crime he discovers and anyone who committed it.

Maybe this broad mandate is why Trump is so concerned that he lacks a loyal leader at the Department of Justice.