ACS on Dark Money: Who Is Capturing Our Courts (Wisconsin Edition)?

Original research conducted for the American Constitution Society by Lisa Graves and Evan Vorpahl of Illumination Investigations. This blog is part of ACS’s ongoing project to document and explain the impact of dark money on the judiciary. 

A secretive, last-minute influx of campaign cash in the spring 2019 Wisconsin Supreme Court election by right-wing dark money groups could serve as a game plan for these groups and their allies to try to sway outcomes in future contests. Although the sources of these dark money funds are hidden from the public, they are a powerful tool for billionaires to carry out a reactionary agenda. State courts and state legislatures are key targets of such efforts. Defenders of democracy must be vigilant to expose these dark money assaults and demand action to restore transparency and accountability in our campaign finance system to secure fair elections and fair courts.

The 2019 Wisconsin Supreme Court Election

The state of Wisconsin continues to be a battleground with very close elections, including for the Wisconsin Supreme Court. Perhaps because the stakes in Wisconsin’s elections are so high, dark money spending has come to outpace spending by individual candidates themselves. In the best and most recent example of this trend, in 2019 the Republican State Leadership Committee (RSLC) spent more than $1.2 million in last-minute ads in the Wisconsin Supreme Court election to help the controversial Brian Hagedorn beat Lisa Neubauer by less than one percent of the vote, a margin similar to Donald Trump’s win in the state in 2016.

The support from these dark money groups was especially important for Hagedorn (who served as Republican Governor Scott Walker’s chief counsel before Walker appointed him to an intermediate appellate court) after he had apparently lost the support of traditionally conservative groups such as the Wisconsin Realtors Association because of his record of statements many observers considered to be homophobic. According to RSLC, Hagedorn was polling 8 points behind Neubauer, the Chief Judge of the Wisconsin Court of Appeals, who had been appointed in 2007 by Walker’s Democratic predecessor.

Both of these judicial candidates were spending similar amounts in the months leading up to the election, totaling less than $1 million each, with Neubauer spending slightly more to try to win the seat vacated by former Wisconsin Supreme Court Chief Justice Shirley Abrahamson.

Hagedorn and his allies sought to make hay over the fact that former U.S. Attorney General Eric Holder’s National Redistricting Action Fund, a group organized under Section 501(c)(4) of the tax code, had committed $350,000 in outside spending in the race, with its focus on fair maps for legislative districts given Wisconsin’s extreme partisan gerrymandering under Walker. Meanwhile, the Wisconsin-based 501(c)(4) arm of billionaire Charles Koch’s Americans for Prosperity was spending a similar amount on mailers, door knocking, and more. However, Neubauer remained solidly in the lead.

As the Capital Times reported, Neubauer ran a traditional non-partisan style judicial campaign in which “[s]he strove to run on her qualifications, highlighting her support from nearly every judge in the state, her 12 years of experience as an appellate judge and her embrace of a ‘fair, impartial and independent court.’”

But RSLC’s last-minute surge of spending--entirely in the last week before the April 2 election--upended the race, which Hagedorn ended up winning by 5,981 votes. The victory gave the Right a 5-2 margin on the state’s highest court.

The Shape of Things to Come?

The stunning victory made possible by RSLC is even more significant because it is likely to foreshadow the tactics America could see in the 2020 elections: a massive surge in dark money spending at the last minute with hyper-partisan targeting, most of it spent below the radar of the media, in targeted online ads, mailings, and texts, rather than in trackable TV ads.

Hagedorn’s victory is an example of the trend in judicial elections away from the more transparent world of mass marketing and toward the stealthier and almost entirely unregulated universe of micro-targeting. That powerful trend is made even more potent by the capacity of some to spend enormous amounts at the last minute, with little time to detect and respond to the kind of “full-scale, micro-targeted voter education project” that RSLC deployed to secure Hagedorn’s election and the capture of the Wisconsin Supreme Court.

RSLC also represents an emerging hybrid in the dark money arena, because as a“527” political operation under IRS rules, it is required to disclose its donors--but many of its significant donors are dark money groups that do not disclose their donors.

One of the most significant of these dark money groups is the Judicial Crisis Network (JCN). Earlier this year, a Washington Post investigation uncovered how a very small group of super-elite and super-wealthy people are exerting secret influence to capture federal and state courts and advance a far-right agenda to reverse modern legal precedents. As the Post documented, the Federalist Society’s Leonard Leo is closely tied to nearly a dozen small groups—some of them mere shell groups—getting huge sums from secret sources to do PR to aid judicial candidates. JCN is one of those core Leo dark money groups.

JCN has given RSLC at least $5.24 million since 2014, when RSLC launched what it calls the “Judicial Fairness Initiative” (JFI) to spend money in state judicial elections. According to its own site, by launching JFI, “RSLC became the only national political organization focused exclusively on the electoral process of judicial branches at the state level.”

RSLC is required to report to the IRS on how much it gives to its affiliates, like JFI, and RSLC is JFI’s only listed donor. That is, money comes into RSLC from corporations and shadowy non-profits, but the reporting process does not specify all the donors whose funds are transferred to JFI. According to RSLC’s IRS filings, JCN was the largest donor to RSLC in 2018 and is the largest reported donor to RSLC so far in 2019. JCN’s donors are secret except for donations from other Leo-groups or non-profits that have to be disclosed--but those groups’ donors are secret. These transfers amount to a dark money shell game, meant to keep voters in the dark about who is financing the capture of our federal and state courts.

JCN is very focused on Wisconsin. For example, in 2014 JCN gave $1.4 million to a newly created group calling itself the “Wisconsin Alliance for Reform,” or WAR, which went on to spend $2.6 million to support another controversial right-wing candidate for the state Supreme Court, Rebecca Bradley. She’s another controversial Walker-appointee and she won her retention election against Judge JoAnne Kloppenburg. There is no disclosure to the public of where that $1.4 million from JCN came from, but we do know that the vast majority of JCN’s revenue that year came from a single anonymous $21.5 million donation. RSLC also buttressed Bradley’s election with a six-figure ad campaign that year.

Although in 2019 Judge Neubauer’s campaign turned out more voters than Bradley’s opponent in the last Wisconsin Supreme Court race, with the massive last-minute spending by RSLC/JCN in Wisconsin, Judge Hagedorn’s turnout increased over Bradley’s and led to his razor-thin 5000-vote margin.

How the Right Plays the Dark Money Shell Game

What happened in Wisconsin this spring is especially troubling from the standpoint of transparency and accountability. Right-wing operatives and the web of organizations they have created moved large sums of money in a coordinated effort to stage a last-minute advertising blitz and do so in a way that would keep the media and public from discovering who was responsible for the effort.

According to IRS filings, JCN gave RSLC $3.01 million in 2018 and JCN (which also goes by the name the Judicial Confirmation Network in filings) also gave $1 million to RSLC on March 19, 2019, just two weeks before the Wisconsin Supreme Court election. There were no other contested state Supreme Court elections in the country that spring.

After receiving those funds, RSLC then made cash transfers totaling more than $1.2 million to its affiliate focused on judicial elections, JFI.

A week after JCN’s donation, on March 25, RSLC made a required filing with the state of Wisconsin that it had raised zero funds for the Wisconsin Supreme Court race, but that filing only required funding and spending through March 18 for Wisconsin’s spring judicial election. The day of that filing, RSLC purchased a URL for a website called RadicalJudge.org, which was the base of its attack ads to come against the candidate they labeled “liberal Lisa Neubauer.”

In fact, on March 21st, four days before that filing, RSLC had also purchased a website called RuleofLawJudge.com, which it deployed to aid Brian Hagedorn in the week before the election.

But RSLC had actually raised one million dollars from JCN that escaped disclosure requirements. Just a few days before the election, RSLC filed a required 72-hour report stating that it had spent more than $200K, but the form also did not require any disclosure than that it was about to spend a million more.  On April 2--the day of the election--RSLC made the final of its amendments to that report to reveal that it had raised and spent more than $1.2 million in the last two weeks of that election, as voters went to the polls to vote.

There has been no consequence--besides winning the election--to RSLC for how it maneuvered through the timing requirement for its filings with the state of Wisconsin. This illustrates another reason for the need for substantial reforms to the laws governing our elections.

A million dollars is a huge amount for a candidate to raise and spend in the course of a state judicial election. But a million dollars in attack and support ads that all ran in week in a state with cheaper media markets like Wisconsin is like a nuclear bomb of campaign cash. And, of course, as a result of the shell game played by JCN, RSLC, and their shadowy, undisclosed donors, the state’s voters had no way to know who was piloting the stealth bomber that delivered this massive ordinance to influence the election.

JCN was not, however, the only donor to RSLC in the months before the Wisconsin election, although it is known that very few of RSLC’s donors were from Wisconsin. (The Milwaukee Chamber of Commerce gave RSLC $100,000 and the American Transmission Company, which is trying to build huge electrical towers across the state to Illinois, gave RSLC $25,000 this year, for example.)  Because RSLC combines its donations, it is not publicly known which other donors besides JCN, with its focus on capturing the courts, directed funding toward RSLC’s judicial election project in Wisconsin. But RSLC’s known donors are noteworthy, and they have included Koch Industries, The R.J. Reynolds Tobacco Company, casino magnate Sheldon Adelson, the U.S. Chamber of Commerce, and big pharmaceutical companies.

Other RSLC donors are less well known and deliberately so. Take for example this cipher of an organization. In October 2018 RSLC received $350,000 from a newly created Wyoming LLC called “Contract Drafting LLC.” Its address is that of a law firm. There is no indication at all what Contract Drafting LLC is or was. In fact, it appears to be defunct. Did some of that money from some unknown person or corporation in Wyoming get steered toward smearing Judge Neubauer to help capture the Wisconsin Supreme Court? The public will probably never know unless a state or federal regulatory agency either examines RSLC’s activities or the law is reformed to require greater transparency.

Other States and What Is to Come

Wisconsin is not the only state where RSLC is flexing its multi-million-dollar muscle to place corporate-friendly or right-wing judges on state courts in order to advance its funders’ interests. For example, in 2018 RSLC spent $2.6 million in Arkansas, $1.7 million in West Virginia, and over $600,000 in Ohio. And in years prior, JCN and RSLC have exerted their funded influence in judicial elections to numerous states, including Illinois, Michigan, Missouri, Montana, North Carolina, Ohio, Pennsylvania, and Tennessee.

RSLC was created in 2002 but became better known after Ed Gillespie deployed it in 2010 for his “REDMAP” project to help GOP politicians take over state legislatures in order to gerrymander state and federal legislative districts following the 2010 census. That mid-term election was the first election cycle after the U.S. Supreme Court’s controversial and now discredited decision in Citizens United, which unchained non-profit groups from fair election rules adopted by Congress under the Bipartisan Campaign Reform Act, known as McCain-Feingold, and other laws.

RSLC’s REDMAP election activities that year operated alongside a surge of activity by the Kochs’ Americans for Prosperity propping up the Tea Party, which was launched shortly after Barack Obama was inaugurated, as documented by Jane Mayer in her book “Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right.” She described RSLC as "catchall bank account for corporations interested in influencing state laws."

What’s next for RSLC with respect to state court and other elections in 2020? According to IRS filings, JCN continues to be RSLC’s top donor since the beginning of 2018.

Thus, all signs point to more last-minute, hyper-partisan huge cash being spent to capture our courts in 2020 and change the interpretation of laws that determine all of our rights. The thicket of election laws and court decisions in which these secretive megadonors hide while launching their stealth assaults must be eradicated and replaced with a fair system that protects fair courts and requires election activities that are far more transparent and accountable to We, the People.

Trump’s Immunity Claim Isn’t Immune to Legal and Historical Logic

This blog was originally published in the New York Daily News.

Yesterday, in a New York City federal appeals court, lawyers for Donald Trump argued that a U.S. president is absolutely immune from criminal investigation while he or she holds office. Although that principle is nowhere stated in the Constitution, President Trump’s legal team argued that it necessarily must be inferred as a matter of constitutional law to protect the function of the nation’s chief executive. According to the president’s lawyer, the New York County District Attorney’s subpoena to Trump’s accountants for Trump’s tax returns violates that immunity and the court should therefore declare it void.

There is a fancy Latin phrase for what happened next in that courtroom: reductio ad absurdum. Translated, it means “reduction to absurdity.” It refers to a logical argument that disproves an assertion by showing that it ultimately leads to a ridiculous or absurd outcome.

Referring to then-candidate Trump’s infamous boast that he could shoot a person in the middle of Fifth Ave. and not lose any political supporters, one of the judges asked whether local authorities could do anything if, in fact, the president killed someone in the street. Dutifully (though remarkably) taking the president’s legal argument to its inevitable conclusion, Trump’s lawyer answered that law enforcement officials could take no steps against the president while he remained in office — not even if he murdered someone in public view.

Confirming that he actually heard that answer correctly, the judge repeated: “Nothing could be done. That’s your position?” Trump’s lawyer responded: “That is correct.”

That is absurd. It’s absurd even if we suspend simple common sense for a moment and instead examine our precise historical origins. The president’s legal theory breaks with the fundamental obligations of government embraced by our founders. It hacks at the roots of our freedom.

The signers of the Declaration of Independence explained in painstaking detail why we ejected the English King. They wrote that “a long train of abuses and usurpations...evince[d] a design to reduce them under absolute Despotism,” and it was therefore “their right...to throw off such Government, and to provide new Guards for their future security.”

Among the numerous grievances they catalogued, the founders condemned the British throne for having “plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.” They also decried the King’s use of mercenary armies “to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages.” Any “Prince whose character is thus marked by every act which may define a Tyrant, they concluded defiantly, “is unfit to be the ruler of a free people.”

This was our beginning. President Abraham Lincoln famously described us as having been “Conceived in liberty.” It is thus inconceivable that our founders — victims of such despotic power — would go on to design a government in which the chief executive could kill a person in the street, and nothing could be done.

All schools of constitutional interpretation, whether conservative or liberal, should agree on that point.

Fortunately, the courts are not yet faced with prosecuting a murderous president. They are not even faced with an indicted president. For now, the courts need only decide whether the district attorney can subpoena the president’s accounting firm for its client’s tax returns, which are relevant to a grand jury investigation. That’s a long way from Fifth Avenue.

The Supreme Court and the Future of Affirmative Action

On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard. Almost one year after the trial first began, Judge Allison D. Burroughs ruled that Harvard’s race-conscious admissions policy did not violate Title VI of the Civil Rights Act of 1964. In a 110 page opinion, Judge Burroughs delved thoughtfully into the details of Harvard’s admissions process: the university’s self-studies of this process; its compelling interest in diversity; statistical models put forth by both SFFA and Harvard; and the prospect of using race-neutral alternatives to attain a diverse student body.  She found that Harvard’s policy did not intentionally discriminate against Asian American applicants, and that it was consistent with equal protection guidelines laid out in Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin II (2016)—guidelines that also apply to Title VI race discrimination. Judge Burroughs’ opinion provides a meticulous exemplar for future courts that evaluate race-conscious admissions policies.

SFFA is sure to appeal the ruling to the U.S. Court of Appeals for the First Circuit. Here, the district court’s ruling will likely be affirmed. It is improbable that the First Circuit will want to reconsider the statistical models presented by SFFA and Harvard and the legal conclusions that Judge Burroughs drew from them. One question that the First Circuit could revisit is whether Harvard fully considered race-neutral alternatives to attain a diverse student body. This issue may also well be the focus of future lawsuits intended to eliminate race-conscious admissions policies. Nevertheless, since Fisher dealt with the issue and Judge Burroughs addressed it thoroughly, a reversal on these grounds is also unlikely. The precedent here is pretty clear: the “Harvard plan”, with its emphasis on educational benefits of diversity and on holistic admissions, was the basic model upheld in Regents of the University of California v. Bakke (1978) and later affirmed in Grutter and Fisher.

The big question now is whether the U.S. Supreme Court will grant certiorari, since SFFA is also sure to appeal subsequently to the High Court. The Court now has a solid conservative majority, with three of the Justices having previously voted to strike down race-conscious admissions policies: Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas. Justices Neil Gorsuch and Brett Kavanaugh are also widely thought to oppose such policies. Barring an unexpected vote from one of these Justices, a cert grant will likely mean the end of affirmative action in university admissions. Even if the Court does not abrogate the compelling interest in diversity altogether, it could still require universities to fully exhaust race-neutral alternatives to attain this diversity. This would make Grutter’s narrow tailoring standard virtually impossible to meet and effectively accomplish the same end.

However, there are a few reasons why the Justices might deny cert. First, only three years have passed since the Court decided Fisher v. University of Texas II. Even if the Supreme Court did not hear SFFA v. Harvard until 2023, that would still only be seven years after Fisher II. In contrast, 25 years passed between the Court’s rulings in Bakke and Grutter, and another decade passed before the Fisher rulings. Chief Justice Roberts cares about the legitimacy of the Court in the public’s eyes, and revisiting the contentious issue of race-conscious admissions now would likely fuel public perceptions that the Court is not impartial, but merely another political body. Roberts may prefer that the Court wait a few years to take another case. If he can convince at least one other conservative Justice that this is the best course, cert would be denied.

Additionally, if they are willing to wait, the conservative wing of the Court can eliminate race-conscious policies in a manner that is arguably consistent with Grutter. In 2003, Justice Sandra Day O’Connor’s Grutter majority opinion posited that race-conscious admissions policies would no longer be necessary in 25 years—in 2028, which is only nine years away now. After she retired, Justice O’Connor stated that the 25 year timeframe was merely an aspiration. However, others, including the late Justice Antonin Scalia and Justice Stephen Breyer, have suggested that this timeframe may be part of Grutter’s holding. Consequently, the conservative wing of the Court, led by Roberts, could choose to wait until 2028. They could then vote to end race-conscious admissions and contend that they are not eschewing precedent, but actually following Grutter’s time limit.

By 2028, the political implications of an anti-affirmative action ruling may also be different. States have been taking various measures, from popular referenda to legislative and executive action, to eliminate race-conscious policies. Trump’s Department of Justice has initiated investigations of race-conscious admissions policies, putting pressure on universities to curb back these policies. SFFA has again sued the University of Texas, this time in state court, and it has also has a federal lawsuit pending against the University of North Carolina. In another decade, there may be a Circuit split on affirmative action, as there was when the Court granted cert in Grutter. A decade from now, all of these factors would make a ruling against affirmative action appear less politically-motivated and more consistent with precedent and popular will than a cert grant in SFFA v. Harvard.

Whether it happens sooner or later, most experts think that the Supreme Court will strike down affirmative action in university admissions. Nevertheless, we should remember that the “Harvard plan” has been a resilient doctrine. Four decades ago in Bakke, it saved affirmative action. Twenty years ago, many observers predicted that Grutter, along with its companion case Gratz v. Bollinger (2003), would end race-conscious admissions policies. But Justice O’Connor, who had previously been hostile to such policies, surprised them by embracing the Harvard plan in her Grutter opinion. Justice John Paul Stevens also gradually changed his views on affirmative action, voting against race-conscious admissions policies in Bakke and then voting in favor of them in Grutter. And even though Justice Anthony Kennedy dissented in Grutter, he then voted to uphold the Harvard plan in Fisher.

Expert predictions have often been wrong about Supreme Court jurisprudence regarding affirmative action. Perhaps no major issue before the Court has so repeatedly bucked expectations. At a time when the Supreme Court has become more conservative than ever, the best hope for proponents of affirmative action is that history keeps repeating itself.

Burying the Dead Hand: Taking the Original out of Originalism

I was honored to be asked to give a talk about Originalism at the American Constitution Society's National Lawyers Convening. My talk began with the well-known history of what I call the Original Originalism of Judge Robert Bork, Attorney General Ed Meese, and Professor Raoul Berger, among others. I then transitioned to the New Originalism and ended up with a lengthy list of cases where Justices Scalia and Thomas (and now Gorsuch) voted for non-originalist results. But by far and away what caused the most commotion in the room was my descriptive summary of the so-called "New Originalism."

These New Originalists have found an interesting way to address the persuasive "dead hand" critique of the Original Originalists. In the 1980s, many liberal law professors made the argument that judges today should not defer to the values and views of slave holders, segregationists, and sexists, and people who lived in a completely different country technologically. One example that clearly demonstrated this problem was the Court's decision in 1872 upholding Illinois' ban on women being attorneys which accurately reflected the prevailing public meaning of the Fourteenth Amendment which very few people thought prohibited official state discrimination based on gender.

Professor Lawrence Solum of Georgetown Law School, a renowned New Originalist, recently addressed this issue by saying the following (which drew an audible gasp from the lawyers at the convention):

“In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender…Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. [Originalism] does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.”

The attorneys in the room quickly surmised that this form of constitutional interpretation is, of course, not originalist at all but sounds a lot like something Justice Brennan would have written, or Professor Michael Dorf or Dean Erwin Chemerinsky would advocate. Surely, they thought, this type of "originalism" must be an aberration, meant to address the unique problem of gender discrimination. But then I showed them what I think is the most important sentence in Ilan Wurman's book, An Introduction to Originalism: "Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.”

Related: Watch ACS Board Chair Pam Karlan talk about constitutional interpretation

Again, I don't know any so-called Living Constitutionalist who would disagree with this sentence. I suggested to those assembled that the usual response to these quotes by originalists is that, well yes, we believe that the application of vague principles has to evolve when facts and circumstances change, but the meaning of the text is fixed and stays the same. To prove my point, I showed them these quotes from Justice Gorsuch's new book A Republic if You Can Keep It:

“Living constitutionalism comes in more varieties than ice cream flavors at Baskin-Robins. [These judge] share the conviction that the Constitution's meaning changes over time and that judges should determine what changes should be made based on external policy considerations…."

“Originalists believe that the Constitution should be read in our time the same way it was read when adopted but also teaches only that the Constitution's original meaning is fixed; meanwhile of course new applications of that meaning will arise with new developments and new technologies."

Of course, the folks in the room understood two important points. Living Constitutionalists do not think judges should just make up new principles out of thin air. After all, even Justice Douglas in Griswold v. Connecticut, which invalidated a state ban on contraceptives, relied on the "penumbras and emanations" of numerous constitutional provisions to justify the right to privacy which is no different in form from the Rehnquist Court's "reliance on the statement that "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms," to justify a non-textual principle of state sovereign immunity (agreed to by both Scalia and Thomas and most originalist scholars).

The second point is that in real life, in actual litigation, there is no difference between someone saying that the text of the Constitution needs to be updated to address changed facts and modern circumstances and saying that the principles in the text need to be updated. The result is exactly the same. And then I showed them what my friend, and self-identified Originalist scholar, Ilya Somin of the Antonin Scalia Law School has said:

“Nearly all originalists recognize, that [Originalism requires] updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.”

This is exactly the method so-called New Originalists use to avoid the dead hand problem. They know that our country has changed dramatically since 1787 and 1868 and that the Constitution's imprecise provisions that often get litigated cannot be viewed through the lens of people who lived so long ago in a world far, far away from our own.

The mystifying question is why these judges and scholars pretend otherwise by donning the label "originalist" and saying that they are bound by what Solum calls the Fixation and Constraint theses. These theses are that the meaning of the text is fixed at ratification and is binding on today's decision-makers. But it makes no difference if the text is fixed if its principles are not, and if today's decision-makers are allowed to "update" those principles because, in Solum's own words, "fixed original public meaning can give rise to different outcomes given changing beliefs about facts." Changing "beliefs" about facts.... welcome to the world of Living Constitutionalism, and the only way to avoid the ultimately persuasive "dead hand" critique of the Original Originalists.

In other words, what we have today among all judges and most originalist scholars (though there are certainly exceptions), is Original Public Meaning without the original, the public, or the meaning. What we don't have, is rule by the dead hand of the past, and thank goodness for that, but originalists should be more transparent about what guides how they conduct constitutional interpretation.

Whistleblowers and the Rule of Law

In the United States, law students learn that law is both substance and process. Substance is the proscription or obligation and process is the mechanism for enforcing compliance. Absent a compliance enforcement mechanism, the substance is of no consequence. An unenforced law is tantamount to no law at all.

Americans obsess about the process mechanism’s fairness and enforcement logistics.  Consistent with our entrenched mistrust for government, evidenced by the checks and balances of our three-branch government, we do not leave matters solely in the hands of politicians. Our laws also allow for citizen participation in enforcement. Major pieces of legislation including our civil rights, environmental, antitrust, and housing laws allow individuals to bring suits to enforce law. Not only do citizen suits leverage compliance enforcement, they also ensure compliance when government prosecutors lack the resources or the political motivation to enforce the law.

Our legal history is replete with examples of sweeping reform generated, not only by legislative bodies, but also by individuals and their lawyers making themselves heard through the legal system. Landmark cases including Brown v. Board of Education of Topeka[1], Loving v. Virginia[2], and Cleveland Board of Education v. LaFleur[3] were initiated by individuals and led to the eradication of discriminatory practices. These cases are testaments to the power of one person represented by (at times) overworked and inexperienced lawyers motivated by the fear of failure and the passion to do good.

Our rule of law is special because it provides mechanisms for individuals to effectuate change. Such mechanisms are essential when elected officials fail to act or when the accepted practices of reputable institutions – including large corporations – harm the voiceless. The people who ask hard questions and shed light on impropriety are called “whistleblowers.” A myriad of laws protect whistleblowers from retaliation and some laws – including the qui tam provisions of the federal False Claims Act – reward considerable risk-taking. We owe a debt of gratitude to those who stuck their neck out and blew the whistle; they are responsible for safer products, a healthier environment, and a more trustworthy government.

Now Congress – relying on a confidential report made by a whistleblower to the Office of the Inspector General of the Intelligence Community– is investigating whether the President sought the help of the Ukrainian government to investigate his political opponent, Joe Biden. The process established by the rule of law is now in motion. The inspector general investigated the whistleblower’s concerns and the matter has moved forward to another branch of government for oversight and possible corrective action. This is fully consistent federal law.[4]

For the important role they play, whistleblowers should be considered more American than apple pie. But that is not how they are always treated. Consider President Trump’s tweet from October 9, 2019: “[t]he Whistleblower’s facts have been so incorrect about my no pressure conversation with the Ukrainian President, and now the conflict of interest and involvement with a Democrat Candidate, that he or she should be exposed and questioned properly. This is no Whistleblower...”

President Trump fails to appreciate the process governing whistleblowing, let alone intelligence community whistleblowing. If he wanted to educate himself, he need look no farther than his own appointee’s website. The Office of the Director of National Intelligence website contains this message from Inspector General Michael Atkinson:

“Whistleblowing has a long history in this country. Over 240 years ago, on July 30, 1778, the Continental Congress unanimously enacted the first whistleblower legislation in the United States, proclaiming that "it is the duty of all persons in service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which comes to their knowledge." To this day, Federal law (including the Constitution, rules, and regulations) encourages, consistent with the protection of classified information (including sources and methods of detection of classified information), the honest and good faith reporting of misconduct, fraud, misdemeanors, and other crimes to the appropriate authority at the earliest time possible.”

Consistent with efforts to chill the whistleblowing tradition, the President of United States now demands disclosure of the whistleblower’s identity, an examination under oath, and exposure of biases. Here again, the President fails to appreciate the role of whistleblowers. Sometimes – as is the case here – whistleblowers are merely a catalyst causing regulators or legislators to scrutinize a situation, gather evidence, and judge the facts against the law. The whistleblower may raise an issue based on information that would be inadmissible under the Federal Rules of Evidence. It is the ensuing investigation, document collection, and witness interviews that matter. Afterwards, whistleblower testimony or bias is irrelevant.

By analogy, the whistleblower is no more than a booster rocket propelling the space shuttle into orbit, or in the legal world, a trial. A whistleblower may very well be motivated by bias; perhaps they did not get all the facts right. Yet, what is put before the trier of fact is not necessarily whistleblower testimony, but evidence gathered because a whistleblower caused an investigation.

In the current situation, the whistleblower’s allegations generated enough concern to motivate an investigation of what may be unimpeachable admissible evidence. Whatever the outcome of the Congressional investigation, we will have seen the rule of law at work, with its role for individuals and countervailing branches of government. It is a system where -- on any given day – the nation’s most powerful person can be called to account by an individual who thoughtfully raised questions. For those studying these current events, this is once again a lesson in how individual whistleblowers are essential to our legal tradition.

[1] Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955).

[2] Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967).

[3] Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974).

[4] 50 U.S.C. § 3033.

Ukrainegate Is Impeachable. But So Is Putting Kids in Cages

This blog was originally published on Common Dreams. 

ACS is publishing a series of blogs in a symposium that examines different legal aspects of the impeachment inquiry of President Trump. See also:

President Trump’s Ukraine scandal has resulted in growing support for impeachment—as it should. But as Congress begins to get serious about holding Trump accountable, it must not lose sight of the kids in cages. That’s because, contrary to some naysayers, racist abuse of office—just like corruptly pressuring a foreign power for the president’s own benefit—is also grounds for impeachment. As our recent report When is Racist Abuse of Office an Impeachable Offense? shows, the text, history, and theory of impeachment all point to this conclusion.

Separating the merely deplorable from the positively impeachable

There’s a common misconception that impeachable offenses need to be prosecutable crimes. But the constitutional phrase “high Crimes and Misdemeanors” has long included abuses of office that don’t necessarily violate a criminal statute. In fact, Congress’s very first case of impeachment and removal (in 1804) didn’t involve a criminal statute.

Rather, as Alexander Hamilton wrote in the Federalist Papers, impeachable offenses “relate chiefly to injuries done immediately to the society itself.” For Trump’s racist rhetoric and action, the injuries to society are clear enough. Besides the suffering of the victims of his bigoted policies, experts have quantified the “Trump Effect”—measurable increases in racial violence and hostility associated with Trump rhetoric. But an issue, until now, has been the lack of a principled constitutional framework for determining when these injuries to society cross the line into impeachable territory.

The best place to start is the Constitution’s requirement that the president “take Care that the Laws be faithfully executed.” Those laws include the Constitution’s Equal Protection Clause, which provides that the government cannot—and therefore the president must take care that it not—“deny to any person within its jurisdiction the equal protection of the laws.” Obviously, the president isn’t responsible for every single equal protection violation. But he must at least try to ensure that the Equal Protection Clause is followed. And if he actively undermines the Equal Protection Clause, whether by deed or word, that violates the Take Care Clause.

Three categories of impeachable racist abuse of office

At minimum, counselling members of the armed forces or federal or state law enforcement officers to commit illegal violence—such as by suggesting that soldiers execute prisoners of war, or that police officers hurt people taken into custody—crosses the line into high crimes and misdemeanors. (The late Charles Black Jr. gave a variation of this as a hypothetical in his classic text on impeachment, probably not imagining that President Trump would test the principle.) There is no sense in which advocating illegal government violence can be said to “take care” that the laws be faithfully executed.

More subtly, the Take Care Clause also prohibits the president from using his bully pulpit to encourage private citizens to discriminate or commit violence against disfavored groups. This isn’t about criminally prosecuting the president; the First Amendment imposes a stringent standard on “incitement” prosecutions, and most Trump speeches don’t quite cross that line. But that’s not the question. The issue is when Congress should hold him accountable for violating his duty to take care that the Equal Protection Clause be faithfully executed.

Constitutional law provides two useful principles to answer that question. First, the Supreme Court has long held that government action based on a desire to harm a “politically unpopular group,” such as undocumented immigrants, violates the Equal Protection Clause. Second, the government is responsible for harm caused by third parties when government misconduct “places a person in peril in deliberate indifference to their safety.” Presidential action or speech that undermines or violates these principles, such as by repeatedly trumpeting the language of violent white supremacists, doesn’t “take care” that these protections be faithfully executed. (There’s precedent in Congress’s tenth article of impeachment against President Andrew Johnson, which cited Johnson’s feverish, violence-inspiring rant blaming a white-led massacre on congressional efforts to extend the vote to black people.)

Finally, while as a general matter policy differences don’t give rise to impeachable offenses, the Constitution itself isn’t a policy preference. When a president implements a pattern of government actions that are motivated entirely by bigotry—such as putting kids in cages, and other immigration policies based on his insistence that Latino immigrants are “rapists” while Haiti and African countries are “s—hole countries”—this intentional discrimination so undermines the Equal Protection Clause that it becomes an impeachable Take Care Clause violation as well. (Secret tapes aren’t necessary: as the Supreme Court has emphasized, “discriminatory purpose may often be inferred from the totality of the relevant facts.”)

Why does this matter?

These racist abuses of office aren’t the only ground for impeaching President Trump. But as scholar Keith Whittington has explained, a key purpose of impeachment is “to articulate, establish, preserve and protect constitutional norms.” In 1790, George Washington reassured the worried Hebrew Congregation of Newport, Rhode Island that the United States government “gives to bigotry no sanction, to persecution no assistance.” No modern president has done so much to undermine that norm as Donald Trump. And if we don’t draw the line here, we miss the opportunity to reestablish that norm. Do we really want to send future presidents the message that, so long as they don’t pressure foreign governments to punish their political opponents, they can put children in internment camps?

An article of impeachment for racist abuse of office (alongside other well-established grounds) won’t completely repair the injuries that Trump has already caused to our society. But it would delegitimize his stream of abuse as the official voice of the United States—and perhaps reduce the flames before there’s a conflagration.