TRUST and Retaliation: The First Amendment and Trump’s Taxes

In the latest salvo in his longstanding bid to avoid disclosing his tax returns, President Trump has sued the House Ways and Means Committee, the New York Attorney General, and the New York tax commissioner. The federal suit, filed in Trump’s capacity as an individual citizen, argues that a recently enacted New York law, the TRUST Act, which authorizes the disclosure of state returns filed by certain federal officials to the House Ways and Means Committee, violates the First Amendment because it punishes Trump for his party affiliation and policies. It also claims that the Ways and Means Committee has no lawful purpose for receiving individual state tax returns and has relied instead on pretextual rationales. The suit relies heavily on allegations of pretextual purpose or motive. It alleges state legislators and the Ways and Means chair have conspired to retaliate against and punish Trump because he is a Republican and supports policies they dislike.  However, in pursuing that claim, the president has a motive problem.

Trump and Unlawful Purpose

During his first two years, the president has had a virtual crash course on litigation focused on actual purpose and unlawful motives. His Muslim ban survived a legal challenge based in part on Trump’s expressions of bigotry against Muslims. However, Wilbur Ross, his Commerce Secretary, got crossways with the Supreme Court when the justices concluded Ross’s reasons for asking about citizenship in connection with the census were pretextual.

Trump is asking a federal court to invalidate the TRUST Act primarily on the ground that officials enacted the law for illicit retaliatory reasons. The complaint cites statements by legislators (and some anonymous sources cited by mainstream media) to support the claim that the law was passed as payback or punishment for Trump’s political affiliation and policy positions. In brief, he is invoking a motive or purpose argument similar to the one plaintiffs relied on in litigation against the administration.

The Law of Purpose

Questions of governmental motive have dominated some recent high-profile Supreme Court cases. In addition to the Muslim ban case, the Supreme Court has considered purpose or motive questions in cases involving alleged anti-religious animus in connection with refusals to make wedding cakes for same-sex couples and the display of a large Latin cross in Bladensburg, Maryland. Determining actual governmental purpose or motive is generally a difficult task. In most cases that is because, unlike President Trump, lawmakers and executive officials do not typically display their biases in tweets and other public statements. In many cases, courts have the difficult task of determining what actually produced the legislation or executive action under challenge.

The Supreme Court has not charted a clear path with regard to issues or pretext and motive. Indeed, its recent forays in this area are uneven. The Muslim ban survived despite very clear evidence of presidential bigotry. That likely had a lot to do with the deference courts show to executives in the realm of immigration rather than any real assessment of presidential purpose or motive. The Supreme Court actually admonished the president for his statements, effectively telling him that presidents can and have done better, but went on to credit his national security explanation all the same. In the wedding cake case, by contrast, the Court scoured the record for evidence of anti-religious bigotry. It found a couple of statements by officials that, when arguably taken out of context, could be characterized as evidence of bias. Concluding that the statements demonstrated animus against the baker owing to his religion, the Court invalidated a state agency order that the baker provide a wedding cake to the same-sex couple.

Proving Retaliation

What, then, should we make of the president’s claims of retaliatory motive or purpose? In his lawsuit, the president relies on what he claims is the TRUST Act’s “unlawful purpose” to punish him for his political affiliation and policies. As evidence of retaliatory purpose, the president points primarily to public statements by the Act’s sponsors and supporters. However, many of those statements expressed the idea that “no one is above the law.” Sponsors of the TRUST Act and other officials also referred to the president’s refusal to provide any information about his taxes as an occasion to insist on some official transparency in this area. In other words, the statements invoked Trump, but only as an example or impetus for tax return transparency.

As Trump’s lawyers are likely aware, courts do not generally look beyond the face of a law to determine whether it has a retaliatory or discriminatory purpose. That does not mean they will – or should – ignore the sort of explicit animus or bigotry Trump expressed in defending his Muslim ban. Moreover, where evidence of pretext is apparent in the record, courts are not shy about calling it out – as, again, Secretary Ross recently discovered. Trump’s complaint urges the court to adopt a broad motive inquiry when it comes to legislative purpose. That approach does not have a lot of support on the Court. In fact, in a case cited in the complaint, which focused on free exercise of religion, only two justices agreed that legislative statements were relevant.

As the Supreme Court said in United States v. O’Brien, which rejected a First Amendment challenge to a federal law banning destruction of draft cards during the Vietnam War, “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Like Trump, O’Brien relied on statements by various legislators who were opposed to the viewpoints of draft opponents and the optics of draft card burning during the war. The Supreme Court concluded that the law, which on its face regulated the act of destroying government records and not speech, did not violate the First Amendment. Other decisions have also expressed heavy skepticism that courts can derive a single purpose or motive from the statements of members in large and diverse legislative bodies.

The TRUST Act itself does not single out the president or his state returns. It applies to the vice president and other federal officials as well. The Act does not explicitly regulate political affiliation of political speech. Since the Act has not yet been invoked or enforced Trump cannot claim officials have used it to target either Republicans or Democrats. None of the statements cited in the complaint target Trump’s party affiliation or specific policies. Indeed, it is the complaint that points to political affiliation. It suggests that since the defendants are all Democrats, he had established discriminatory purpose. That argument would lead to the absurd conclusion that any law enacted by members of a body dominated by one political party violates the First Amendment if enforced against a speaker belonging to a different party. Evidence of retaliatory purpose in First Amendment cases requires a much more specific showing – for example, that the government has fired someone, or taken some other action against them, because of their political associations or speech.

It is true, as alleged in the complaint, that New York’s legislature passed the TRUST Act in the wake of the administration’s refusal to comply with the House committee’s subpoena for Trump’s tax returns. It is also true that some, perhaps even more than a few, federal and state legislators dislike Donald Trump and may wish to embarrass him through release of his tax returns. However, as noted, the timing of the law and its political climate are not likely enough to establish that the actual purpose of the state law was and is to retaliate against Trump for his speech and associational activities. To give an example, very few jurisdictions had laws on the books regulating or banning protests near the funerals of U.S. veterans killed in action prior to the time members of the Westboro Baptist Church started organizing such protests. Yet the fact that today nearly all jurisdictions have some type of law or regulation concerning this practice does not mean they all violate the First Amendment. So long as the laws are neutral on their face, courts will not generally delve into the legislative motive for enacting them.

In the case of Trump’s tax returns, speculation has been rampant about what the documents might reveal. There are valid transparency, emoluments, and other law and order concerns at stake, particularly as they relate to a president with questionable business dealings – including some reportedly involving Russian officials. Even if the purpose of the TRUST Act is to aid the House Ways and Means Committee in obtaining Trump’s returns, that alone does not establish the state law was a form of payback for Trump’s party affiliation or political expression.

As indicated, the Supreme Court has not always been consistent with regard to motive or purpose inquiries. Despite its strong statements in cases like O’Brien, in another line of cases it has held that if a challenger can muster some evidence of discriminatory enforcement or enactment, then courts may inquire whether the legislature would have enacted or enforced the law anyway, for legitimate reasons. Even under that approach, assuming there is evidence of retaliatory purpose, New York’s legislature could readily point to the above concerns as grounds for answering that question in the affirmative.

If the point of the lawsuit is to show that New York legislators and executive officials do not like the president, the complaint seems hardly necessary. If that were sufficient to prove illicit purpose and invalidate any state or federal law, the president’s lawyers and the courts might quickly be overwhelmed. The president’s attempt to turn the tables by accusing the defendants of unlawful animus is likely to fail.

Men Are From Mars, Prosecutors Are From Venus

During Wednesday’s hearing before the House Judiciary and Intelligence Committees, the contrast between Robert Mueller and members of Congress could not have been more stark. Mueller, the special counsel and reluctant witness, showed great restraint in his brief answers about his investigation into Russian interference in the 2016 election and links to the campaign of Donald Trump. Members of Congress read with gusto details from Mueller’s report about the investigation or hurled conspiracy theories at him, only to have him bat them away as outside his “purview.” Their differences likely come from the very different jobs they perform.

As a prosecutor, Mueller’s job is to investigate the facts and then analyze the law to determine whether any crimes have been committed. Only then does he decide whether those crimes should be charged. He must act with independence and outside of partisan influences.

Members of Congress, on the other hand, have various agendas – some want to fulfill their oversight and legislating responsibilities, others want to defend the President and their party, and still others want to impeach the President. Everything they see is through the lens of politics.

And with their different jobs come different legal standards. For Mueller, whose job was to consider criminal charges, he is limited to using federal criminal statutes. He can charge crimes only if the facts establish each and every element of an offense that is already on the books. The remedy for a criminal prosecution is a sentence to prison or a fine. He was unable to find a violation of campaign finance laws in this investigation, for example, because he did not establish that the law was violated “willfully” or that information amounted to a “thing of value.” He cannot write his own law to address even profoundly wrongful conduct after it occurs. He is constrained by the rule of law.

Members of the House of Representatives, on the other hand, have a different job in holding a president accountable. They are to decide not whether a federal statute, such as the obstruction of justice law, has been violated. Instead, they must determine whether the president committed what the Constitution refers to as a high crime or misdemeanor for which he is unfit to serve in office. If they impeach the president, it is then up to the Senate to convict him. The remedy is not a prison term or fine, but removal from office. Members of the House may consider the types of conduct that Mueller considered in his investigation, but they are not restricted by statutes. They may consider broader conduct such as abuse of power, lies to the public or other conduct that is lawful, but awful.

Up to this point, this duty of impeachment has been discussed through the lens of politics. House Speaker Nancy Pelosi has urged caution, seeming to wait to see which way the political winds blow before deciding whether to impeach. She likely considers winning the 2020 election as the more important goal than impeachment.

After Wednesday’s hearing, however, one wonders whether the House doesn’t have a duty to consider impeachment, regardless of the political cost it might impose. In the short term, impeachment could harm the Democratic party, to be sure, especially if the Republican-controlled Senate acquits the president. But in the long run, if impeachment is not seriously considered, will we regret not standing up to a president who accepted help from Russia to influence the election and then covered it up?  Will we have eroded democratic norms forever? We have faulted Republicans for putting party before country, but are the Democrats now doing the same?

Maybe it is time for members of Congress to act more like prosecutors, to think less about politics and more about the rule of law.  

The President’s Utterly Un-American Response to Dissent

President Trump has vowed that four congresswomen who he has chosen as his latest foils “can’t get away with” criticizing the United States. He told reporters “I can tell you this, you can’t talk that way about the country, not while I’m president.” The House of Representatives recently  took the extraordinary step of passing a resolution condemning as racist President Trump’s Twitter attacks on the “the squad,” as the group of minority female congresswomen is known. The resolution and nearly all of the commentary concerning the president’s attacks have focused on their overt racism. As pressing as this concern is, however, it has obscured another critical reason to condemn the president’s statements. This conflict, like so many others during the Trump presidency, shows that the leader of the free world does not respect the most basic free speech principle – that the people are free to disagree with their political leaders and to criticize the condition and state of the nation. The president’s claim that political dissent is “un-American” and that those who criticize public officials and policies should leave the country merits close public attention and rebuke.

The evidence that the president disrespects dissent and dissenters is overwhelming. At this point, Americans may actually have become numb to it, which may partly explain why so few are discussing this aspect of the present conflict. Among other things, President Trump has

  • proposed that those who burn the flag in protest be de-naturalized and jailed;
  • called political protests “embarrassing;”
  • referred to the press as “the enemy of the American people;”
  • blocked critics from his Twitter page (an action a federal appeals court recently concluded violated the First Amendment);
  • attacked NFL players who have kneeled during the playing of the National Anthem;
  • stripped security clearances from former government officials who openly criticized him;
  • advocated “opening up” the libel laws so he and others can sue the media for substantial damages for “unfair” coverage;
  • proposed investigating Google (for allegedly rigging its search algorithms in ways that cause the return of negative stories about him) and Saturday Night Live (for its disrespectful parodies); and
  • threatened to use the antitrust and tax laws against media critics.

To be sure, the president’s objection to critical commentary is partly personal and the result of an excessively thin skin. However, there is a deeper and more serious problem. Trump appears to believe that public protest and dissent are “un-American” activities. This is why he insists on the observance of cultural, political and religious orthodoxies. He has stated that every American should “respect” the flag, participate in the National Anthem, and even greet one another during the holidays in prescribed “American” ways. To do anything else, the president has asserted, is un-American or unpatriotic. In the president’s eyes, dissenters “hate America.” And as long as he is president, no one can “get away with” political dissent.

The president’s recent outbursts fit this pattern to a tee. Members of “the squad” do not like what they have seen at the border, in the provision of health care services, with respect to our climate, and in the administration’s conduct of foreign affairs. They have used their public offices and platforms to communicate criticism and engage in robust dissent. The president has treated their dissent as grounds for expulsion from the conversation and, indeed, from the country. True, he has not taken action to remove them from the country for expressing dissent. However, his instinct to expel and exclude rather than engage his critics is profoundly at odds with venerated principles of free speech and self-government. So too is the president’s penchant for insisting on particular orthodoxies, which the First Amendment clearly bars governments – including presidents – from imposing.

In fact, it is the president’s “if you don’t like it, you can leave” response to public dissent that is deeply anti-American. Our democracy owes its very existence to dissent. Our colonial forebears protested frequently, boisterously, and publicly. The founders debated the Constitution, and criticism of their plan was widespread. None suggested that the Anti-federalists, as the most vocal opponents of the constitutional plan were known, leave the country or “go back to where they came from.” Instead, they sought to persuade the Ant-federalists and other critics of the Constitution’s merits.

The First Amendment protects public dissent precisely so that we can hold governments and officials to account. Over time, we have come to understand freedom of speech as embodying the core principle that a free people must govern itself, and that it can only do so when people criticize the status quo and engage in acts of dissent. Indeed, our founders believed it was a civic duty to raise one’s voice, confront officials on matters of public concern, and speak truth to power. We honor that legacy by barring government from making adherence to orthodoxy a condition of citizenship, the receipt of benefits, or presence in the country. We abhor censorship based on political and other viewpoints. We believe in a free speech right that includes, as the Supreme Court observed, “robust, uninhibited, and wide-open” debate on public policies.

When the president characterizes dissent as un-American, he turns his back on American history, the patriots who fought a revolution, and core free speech principles. We should condemn the president’s racist message. We should just as passionately condemn his “love it or leave it” attitude as contrary to a cherished First Amendment tradition of political dissent.

Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School, is the author of The First Amendment in the Trump Era (Oxford University Press, 2019).

The Democracy Fix: Q&A with Caroline Fredrickson

The following is an edited transcript of a conversation between Caroline Fredrickson, President of the American Constitution Society and Frank Housh, Esq., ACS Chairman of the WNY Lawyers Group and a member of National Book Critics Circle, about Ms. Fredrickson’s new book, The Democracy Fix. Ms. Fredrickson will be speaking about her book at upcoming ACS chapter events in Northeast Ohio, Chicago, and Minneapolis.

HOUSH: Your book is extraordinarily ambitious in that it enumerates the history of what is effectively the right-wing compromise, or takeover, of key democratic institutions -- and then offers a fix. You describe a decades-long somnambulance by the left while the right co-opted institutions to roll back the New Deal and Civil Rights. I think that's a fair summary of what you've described in your book. You also talked about how you had a role with the Clinton Administration and had a long history on Capitol Hill from that perspective. How was the left lulled to sleep? How did this happen?

FREDRICKSON: Well, I mean, Frank, it's a great question and there's a couple of reasons for that. So, you know, I look at a number of areas in the book from long-standing voter suppression and gerrymandering on the right to the court system, the takeover of the courts, in terms of who the judges are. What is also important is the sort of legal methodology the courts apply, perhaps something people don't think about, but is extremely important. These are the rules in the court systems themselves and they determine who can actually get into the courtroom and enforce their rights in all of these areas. The right recognized that these are crucial battlefields for winning power and keeping power.

On the left, I think there are a couple reasons why we haven't focused on the court system. There is -- I think you used the word “somnambulance” -- it's a great word. I think there's this holdover from the Warren Court where progressives thought that there were some very key decisions that have become very well known to us from Roe v. Wade to Miranda, some key areas where there were some advances.

Without paying enough attention, people are realizing number one that Roe has been so whittled away by the Casey decision (editor’s note, Planned Parenthood v. Casey, 505 US 833 (1992)), and then others to follow, but also criminal procedure rights, obvious ones like the campaign finance area where you have Buckley and then you had Citizens United and whole bunch of other cases in between and subsequent where the courts have been moving very, very steadily to the right because of this conservative takeover of the courts and the left has just been not been focused.

There was a sort of hangover like, “oh the Warren Court that's still having an impact.” Well, it's not. It's been all but erased, and the fact is that because it's not a direct threat, usually what they've done is circumscribed it, or significantly cut way back, or made the court rules so difficult to navigate the people cannot actually enforce their rights under these laws, so it's much less prominent.

I lay this out in the book that you know, they [the right] were very conscious of the fact that if you did it through the court rules and through the court system generally, it was like doing it in the dark of night. Whereas if you decide, you know, if the right had said, “we really hate Title VII” say, “we really disagree with this whole set of New Deal and civil rights laws” and if they had tried to directly repeal, people would have been up in arms.  Instead they just basically dismantle them by making them impossible to enforce.

Look at Shelby County, this infamous decision where Chief justice Roberts basically destroyed the Voting Rights Act. But he didn't say “the Voting Rights Act as a whole is unconstitutional.” It's just the heart of it got ripped out. So, the Voting Rights Act is still there but it’s harder to organize around [the decision] than it would be to say the Voting Rights Act has been repealed. Right? So that's a court decision. It made it much harder to enforce voting rights, but it's still on the books. So, you know, a lot of things happened.

I think the other thing is that people have to recognize, you know, mostly for good but to some extent for ill, the left and right are very differently situated in terms of the movements. I say for mostly for good, you know, the right is very hierarchical, top-down and driven by their plutocrats, the Koch Brothers, the Mercer Family, the Bradleys, the Coors Family, etc., you know, they really dictated what would happen on the right.

They have very unified funding structures and they said “we're going to fund the Federalist Society.” “We're going to fund the Heritage Foundation,” and you know associated legal groups, Pacific Legal Foundation, you know, Thomas More, you know, etc. [These groups are going to] tear down the foundations of what we see as the kind of liberal enterprise, the kind of progressive policy-making successes. We're going to tear that down for these pieces that we build up. We're going to fund ALEC which is the American Legislative Exchange Council which develops model legislation, including “Stand Your Ground,” and fracking, and vote suppression, and advancing gun laws, you know in a very aggressive position on access to guns so they come together and they agree on those, you know, institutionally and we're going to take over the court system.

The Federalist Society and the Heritage Foundation are going to direct what the judges do and say through the kinds of judicial junkets that they provide for judges to “teach them” about why class actions are bad or why different areas of the law should be limited.  And on the legislative front what are the [preferred] bills and then they also support candidates on the side not in their philanthropic but in their personal capacity. So, it's very unified.

On the left, I think it's mostly for good. We're much more diverse.  People come to progressive politics with a passion, sometimes against their interests, right? Sometimes it's just something for a moral good and for the good of the country -- you want to protect the environment and these public goods. We want to make sure as many people as possible who are eligible to vote get to vote. We want to make sure that women have access to reproductive health care. We want to make sure all Americans have access to healthcare. We wanted an immigration system that's fair and just. We want an education system where all people can come up with great opportunities and you know, so that's a very different kind of environment and so I'd say part of it is that we come to politics and policymaking with a passion for issues, and that's great except that issues aren't systems. Issues don’t get you power and hold power.

HOUSH: You talk about “the left,” and maybe don't intend to because it's just an issue that you couldn't discuss in the book because of limited time and space, but “the left” as if we all know what that means and it’s a monolithic thing. I'm a Bernie guy, supported Bernie Sanders in the last election over Hillary. When Hillary got the nomination, I publicly said to all of my friends, “Well, you know, we fought, and we lost. Let's all get behind Hillary.” And that was regarded to be, [by] a lot of my close friends whose opinions I respected, as a betrayal. “How can you support her? How can you do this?” My response to them was, I regard Hillary's views pretty much as the 1956 Republican platform; that said, she's smart, she's experienced, and she would be a better steward of our country than Donald Trump. I used to say, “I'd vote for 1983 Buick Regal on blocks before I would vote for Donald Trump because I believe that that rusted, crappy car that was bad when it was built would do a better job representing our nation than Donald Trump.”

FREDRICKSON: As opposed to Donald Trump, “unsafe at any speed.”

[laughter]

HOUSH: I'm going to I'm going to suggest a slightly alternative reason as to why the left was asleep at the switch. Chris Hedges discussed it in a book of his (Death of the Liberal Class, Hachette, 2009). Let’s call it “the corporate left,” “the incumbent left,” “the establishment left.” To me that certainly means Clinton and Obama. The left, by taking the same public money that the Republicans take, were very complicit in the corporatism of today.

FREDRICKSON: I totally agree with that. Although I think it's more of a symptom than a cause, and I'll tell you why. [I agree] one hundred percent because I worked on Capitol Hill for a long time and I saw all of the special interests that came in to wine and dine. They came in to wine and dine the Republicans and they came in to wine and dine the Democrats. Absolutely.

The airline industry, Boeing, all of the big oil companies, on and on, they're there and they're there to make sure that both sides like them. They like the Republicans more, and give them more money, but because of our campaign finance system, this is something that Democrats absolutely plan to do.  I'm glad that they now seem to be resisting somewhat, but it's a hard thing to resist.

I had to raise money for candidates as a chief of staff and it's easy to fall into the trap. It's very difficult to resist because you're at a disadvantage. But I would say one of the things they did -- and I trace this in my book -- right from the advent of the campaign finance laws post-Watergate . . .

HOUSH:  . . . when you say the thing “they” did, you mean the Republicans?

FREDRICKSON: The right. Conservative interests. They wanted to go right after the post-Watergate reforms on campaign finance. [That] was absolutely one of the number-one areas that they wanted to tear down. With a very conscious and outcome-oriented jurisprudence -- and let's call it what it is. It is outcome-oriented. The idea that the First Amendment somehow equates speech and money [and] that that was anywhere in the heads of the founding fathers, you know, the so-called “originalist approach” is just a bunch of baloney.

What they did was they formulated a new theory of the First Amendment so that when the Watergate reforms came through, [the right] immediately thought about how to tear them down and that's what the right-wing legal movement was very clever at doing was putting a label on something that was going to give them the outcome that they wanted. They happen to call it “originalism” in that case, you know, and sort of concocted this theory.

So, we got Buckley v. Valeo and then you get all those cases afterwards culminating in Citizens United. As a result, they corrupt the Democrats along the way, because it's a Supreme Court decision. It's constitutional. Congress can’t overturn it. They can [only] try and work around it. So, it's not to say I don't blame Democrats for falling into the trap and being venal and, you know, being corporate Democrats. However, I really do think it's a symptom and not a cause because it was all part of the plan. It all makes sense to create an environment in politics where money is the dominant factor.

HOUSH: In your book one of the questions that the kept coming up for me, and maybe other people who read it had the same question: do we picture “the plan” as sort of a nefarious conspiracy where people in a secret room had a secret playbook that everybody's playing by, or did a whole group of powerful people have a common set of goals and principles without an express “conspiracy?“

As a criminal defense attorney, I have spent a lot of time thinking about conspiracy, and I’ve defended a lot of RICO cases in federal court. One of the things I would say is if you're making the allegation that my client was a co-conspirator, you have to prove that he was conspiring with everybody else in the same conspiracy.

FREDRICKSON: I know you're not a fan of Hillary Clinton, but she was right to say there is a vast right-wing conspiracy. Although it's not so vast. It’s vast in terms of resources, but it really was this group. So as I trace in the book, it’s history that's familiar to some people but I think it deserves to be retold. The future Justice Lewis Powell before he was appointed to the Supreme Court was a lawyer for big tobacco. He was based in Richmond, and he was very active with the [United States] Chamber of Commerce.  He served on one of their major committees and he was observing what was happening on the legal landscape. This was 1971.

[Powell] saw some real successes coming from firebrand lawyers like Ralph Nader who would were attacking dangerous products, including cars. Since we talked about “unsafe at any speed,” they really had an incredible impact on addressing some of the major corporate malfeasance that had been allowed to go unchecked, and it was products, it was also the environment, you know, pollution.

This was a time when there was this real upsurge of activism where Congress adopted strong environmental protections, the Environmental Protection Administration was set up by President Nixon. Ralph Nader had won cases against the car industry. You know that they used to say, “what's good for GM is good for America,” and all of a sudden people started thinking, you know what is good for GM isn't so good for America. They're making cars that are killing people and making a profit off of these deaths.

Lewis Powell, Mr. Tobacco, foreseeing what was going to happen with tobacco litigation, he proposed to the Chamber of Commerce that they needed to have this real collectivist approach to policymaking and he wrote this memo that laid out these spheres -- the legal sphere, the legislative sphere, the media, and education.

HOUSH: In your in your book you talk about the Powell memo was the beginning of it. So, the Powell memo was the playbook and do you see that even from the creation of the of the Powell memo to today that all those same right-wing parties are still adhering to that there have been no amendments to the playbook?

FREDRICKSON: There's always going to be some flexibility, but there has been some really interesting research done around conservative philanthropy . . .  “Philanthropy” seems like too nice a way to describe it . . .  how they give money and get tax benefits and how they keep it secret.

The conservative money has been very organized. There has been research done on their donor side, you know in terms of the building institutions and they're very coherent and over a long period of time they have invested in the same organizations -- and it is those big players. It's like the G7 or something like that they get together, and they decide “here's where we go.” They actually do get together, and they put their money in these institutions, and they stay there. Now, of course, there's lots of individualized giving. The Kochs are maybe more libertarian and the Mercers are more religious... The major investments have remained very constant over time; they stay in for the long term.

We opened with you asking me about the difference between the right and the left and that's another very big distinction. It may be because [the right] come so out of the corporate and the corporate sector or that they have their business plans and they stick with them. Whereas on the left, you know, everybody's got to be more creative than the other person, and so every year there's a new idea, a new organization, a new strategy, and we have to meet metrics, and donors only give for a year, and then you have to you know issue a report. On the right it's like “OK, come back fifteen years from now and show me what you've done” because they recognize that building institutions takes a long time.

HOUSH: It might be easy to lose hope, especially this morning when we heard  powerful testimony about the abject corruption of the Trump Administration by a former ethical officer who was talking about unprecedented, open contempt for the for the rule of law and democratic norms, so much so that Trump officials mock them in public (editor’s note: This refers to ACS Convention 2019’s Plenary Panel discussion, “After Trump: Reforming Government and Repairing Democracy”).

Let me just make an observation where there is room for hope. You mentioned the Alliance Defending Freedom, the people who are attacking LGBTQ rights. I feel very much that that is a key example of how there's so much dissonance between the right-wing social program and the way that most people actually feel.

The notion of rolling back LGBTQ rights is frankly patently absurd to the people in my community, comparatively conservative upstate New York. I think that if the right has legislative success wins in the courts many, especially younger, people cannot and will not abide by their radical social agenda. Maybe this cognitive dissonance will be their undoing.

FREDRICKSON: I share your view that there is a real disconnect, or dissonance, between where the right-wing wants to take us, which is backwards, and where the rest of the country is, but we just have to look at the Trump Administration and recognize that is a fact that everything that they are doing is in service of this minority of the population that really thinks the civil rights movement, the New Deal, the Women's Rights movement, and the progress of the LBGTQ movement should be undone.  So, they are fighting the forces of progress. Absolutely.

But it's the short-term and medium-term that really worries me. You know the federal court system has lifetime appointments. We've seen President Trump to appoint two [Supreme Court] justices who are relatively young. They’re going to stay on the court for the rest of my life, assuming they stay as long as Justice Stevens or some of the others. I think it's a profoundly dangerous moment for democracy. And Donald Trump is moving not just Supreme Court Justices, but judges at the appellate court level and the trial court level in the federal system to the extent where he's becoming a record-breaking president. And these are judges who are radical; they are completely out of step on these issues. We're going to see some setbacks not just for where we expect, reproductive rights and the regulatory state -- that is clean water that we drink and clean air we hope to breathe, which will be severely affected by rulings of these judges as they dismantle very important regulations. LGBTQ rights are very much on the line.

[Trump judges] are destroying regulations for access to health care with the so-called “conscience clauses” that allow doctors and other health care professionals to opt out of treating people who basically they don't like, and they can claim some religious reason not to actually perform their duty as a medical professional. So, it's healthcare, but it's access to jobs. This is a Supreme Court that has shown itself very predisposed to overturn very recent precedent. So, Obergefell (editor’s note: Obergefell v. Hodges, a 2015 Supreme Court case guaranteeing same-sex couples the right to marry), maybe they won't go quite that far. But how will they chip away at rights?

I actually think it's a real danger for a democracy when you have this type of a lifetime appointment of people who are completely representing a minority viewpoint. And the rest of the population can't really do anything about it through the democratic process.

HOUSH: We’re seeing almost two nations. I live in New York, a blue state. The state senate was briefly controlled by a coalition of Republicans and turncoat Democrats but that’s over. It’s completely blue. We're passing a lot of progressive legislation, some of it not quickly enough or progressive enough for my taste, but that's my problem.

Compare that to the south from Texas to Florida where you’re seeing these radical abortion bans simultaneously with legislative statements of protection of women's right to choose in other [blue] states. So maybe what we're seeing are Trump values coalescing in in these southern states and wealthier, more progressive states like California and New York which are better able to protect themselves.

FREDRICKSON: To some extent. That sounds a little hopeless though for people who might live in Mississippi or Louisiana. It's not simply a red state/blue state phenomenon. There are a lot of localities around the country in variety of different states that have actually made democratic changes.

My book The Democracy Fix is not about fixing the Democrats, although they need to be fixed. This is non-partisan. This is about the important reforms that need to take place for those of us who believe in the future of this country who believe that the Constitution is the one of “We the people in order to create a more perfect union” and not the Constitution of “We the plutocrats.”

There were states that raised the minimum wage throughout initiatives in the last several election cycles that are as red as can be. There are states that have worked on other kind of progressive policies through mechanisms where maybe the state legislature is totally captured and gerrymandered to, you know, to a point where there's nothing that can happen, where the citizens have been rising up. [In my book I talk about] fair elections and ensuring that the voters are actually getting to pick their politicians rather than politicians picking their voters, which is a way to talk about gerrymandering.  When politicians carve up districts so that the party in power can ensure that it always stays in power for a fairly long period of time even if the majority of voters in that state wants other people, you know, that's something that is a nonpartisan issue.

And so there have been conservative states that have thought “wait, we don't want a corrupt system.” I mean that is like the essence of corruption, right? I'm going to draw my district so that I keep all the areas where I'm definitely going to get the highest support and we're going to draw away support from other people who might, you know, be elected in a different district. So, you know, it's not as though Democrats haven't done some of this. Maryland is a case in point. However, Republicans have just done a whole lot more of it.

But the reaction has been nonpartisan. In Michigan, they've passed redistricting about initiative as well as Arizona, a bunch of other states, which has set in motion a process to take this out of the hands of the state legislatures.

HOUSH: Let me just make a comment on that. I'm going to be teaching a class on legislative redistricting of the State University of New York at Buffalo School of Law. What you said of course is completely true. But what I will try to teach my students is take that to the next level, what are the effects of that?

Here is a simple example. You have 200,000 people equally split between Democrats and Republicans. You need to create two legislative districts. If you ask the average person, they'd say well each one has 1000,000 people, 50,000 Republicans and 50,000 Democrats. That makes sense. That would be fair, and they would likely elect a moderate. What you and I know would happen is one district would have 67,000 Republicans 33,000 Democrats; the other would have 67,000 Democrats and 33,000 Republicans. They would be safe seats. So, when the 33% of each party thinks that they their vote doesn't count they’re right. That's exactly what the districts were calculated to do.

What that means is when these [legislators] go to the statehouse they will get all of their political funding from the right or from the left. They will have no reason to pay any attention to the 33% percent of the people in their district, those people who were disenfranchised. They will caucus with like-minded legislators, creating polarization, and instead of talking to each other we talk past each other in media echo chambers to people with whom we agree, reinforcing our own viewpoint.

FREDRICKSON: The two-district example is easy to do mathematically, but what often happens, and I know you'll talk about this in your class, is cracking and packing. That's where you take part of a district that might be your 66%. You make it 80%. You take the Democrats out of one district, as it’s already such a safe seat. You construct your Republican districts so that you move all the Democrats into that district and so you create, in essence, a “super-safe Democrat” seat, excessively Democratic. That really neuters the ability of Democrats to have an impact because where they could have had two representatives with two districts that had maybe 52%, now they have one district that instead gets 80% and then the Republican districts are much safer seats.

Now there are all sorts of algorithms of technology, these map-making tools that, in a very fine, detailed way, allow maps to create districts that are absolutely going to favor the Republican party. Again, it's a nonpartisan issue, but the Republicans are much better at it, but much more aggressive at it.

HOUSH: A final question. What would you say is the most sort of hopeful thing that you can tell a reader who agrees with your assessment? How should they proceed?

FREDRICKSON: Obviously, we have to have hope and I do lay out a plan. Frank, you said earlier that a lot of what the right is pushing is sort of cognitive dissonance compared to where America is. These types of reforms that I'm talking about are hugely popular. Americans believe deeply that we should have -- apart from this minority doesn't care about democracy -- for Americans who believe in democracy, and that's the majority of us -- believe that we should have a system where you have fair elections, where you have fair courts, and people get a fair shake.

So, the kinds of policies that put that in place are the ones that citizens can move. They can be involved in making those changes. As I said, there are ballot initiative possibilities, there's local government. But when there's an opportunity, hopefully through the next election, for progressive change that’s the time when people should not be passive, cannot be complacent.

Look, I don't trust “capital D” Democrats to do the right thing -- to establish fair districts, establish fair elections, that is, make sure that people can vote who are eligible to vote. We need to make sure that former felons have their rights restored. We need to make sure that we have voting at home as much as possible. We need automatic voter registration. We need to care deeply about the court system and make sure that we don't forget that that's a branch of government that we need to invest in. Judges really matter. For my organization, the American Constitution Society, this is one of the major areas of our work.

We cannot forget that issues are not going to keep us in power, and keep moving us towards a progressive future. Issues come after we win power first. We need to set up the systems that are going to ensure that we have a fair and just democracy.

HOUSH: We'll leave it at that. Thank you, Caroline. Your wonderful book is The Democracy Fix. Thanks so much for coming in to talk.

The conversation took place during the 2019 ACS National Convention in Washington, D.C., June 6, 2019- June 8, 2019.

 

Overturning Roe Could Threaten Privacy Rights in Unpredictable Ways

This column originally appeared in USA Today. 

Some experts believe that the Supreme Court will review a challenge to and overturn Roe v. Wade, eliminated a woman’s federally protected right to an abortion. Almost 50 years ago, the court rested abortion on an implied constitutional right to privacy. Moreover, the 9th Amendment in the Bill of Rights opens the door to the court finding an implied privacy right. That amendment says: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”

Now, perhaps the court will not reverse Roe. But President Trump’s two conservative appointments to the court cannot be ignored. There has, however, only been limited examination of what would happen to some other rights if the court reversed Roe. Such a decision could dramatically endanger the right to privacy in surprising areas.

Privacy rights extend far and wide

The Supreme Court’s decision finding a right to privacy arose in a 1965 case involving the right of a married couple to use contraception called Griswold v. Connecticut.  But the right to privacy has become responsible for court decisions supporting adult rights to sexual intimacy, to gay marriage, and to the rights of parents to make family decisions, such as whether their children are home-schooled or go to religious schools. The right to privacy also supports an adult’s right to decide their medical care, and an adult’s right to die, by rejecting medical care in certain circumstances. Further, the right to privacy can support artificial insemination. And transgender individuals have used privacy to argue that schools cannot ban them from certain bathrooms.

The concept of a right to privacy goes back to a Harvard Law Review article in 1890 when newspapers and photographers were becoming especially troublesome intruders. The article was authored by subsequent Supreme Court Justice Louis Brandeis and professor Samuel Warren. They were admittedly supporting a right to informational privacy, and protection from intrusion, but those ideas remain relevant in our age of surveillance and data acquisition. Privacy has a strong historical pedigree.

Now there are two main perspectives on how the court might overturn Roe. Some argue that the court could eventually negate the abortion right alone, but keep privacy alive in other areas. They argue that abortion is unique because the state has a special interest in protecting the fetus. This seems like a narrow ruling. Yet this is not so simple, as the court would inevitably have to undermine its prior decisions extending the privacy right beyond Griswold and Roe. Thus, one cannot presume that even this “narrow” reversal of Roe would guarantee the privacy right’s application to the areas mentioned earlier.

What if a right to privacy doesn't exist?

Then there are several justices who seem to believe that no privacy right can be implied in the Constitution. They are correct that privacy is not explicitly mentioned in the document, and that it is unlikely the framers of the Constitution’s 14th Amendment sought to protect abortion rights. This latter point is called an “originalist” argument, since it examines what the writers of that amendment were contemplating.

For example, Justice Clarence Thomas is an originalist who does not defer to prior case precedents such as Roe in his reasoning. These justices might therefore have the votes to overturn Roe by reasoning broadly that there is no privacy right at all. That would endanger each of the areas above where privacy plays a role. It might even allow legislatures to prohibit women who have been raped or subject to incest from obtaining an abortion.

Thus, those seeking to overturn abortion rights should be aware of the ramifications. Conservative pro-life advocates and originalists could lose other rights they may value in the process (such as family decision-making, home-schooling, and certain protections of the disabled). Moreover, experts generally agree that any decision reversing Roe will politically energize both the Democratic Party and many women to show up at the 2020 polls and vote for liberal pro-choice candidates.

Mark S. Kende is the James Madison Chair in Constitutional Law and director of the Drake Constitutional Law Center. He is also an ACS co-faculty advisor at Drake Law School. 

Five Things to Watch for When Mueller Testifies

Will Robert Mueller’s testimony before Congress be a public spectacle or a dry reading?

Attorney General William Barr has predicted the former. The former Special Counsel, on the other hand, has indicated that his testimony on July 24 will not exceed the scope of his written report regarding his investigation into links between Russian interference in the 2016 presidential election and the campaign of Donald Trump. As Mueller stated in his only public remarks on the matter, “The report is my testimony.”

Mueller may want to avoid the spotlight, but here are five things to watch for when he testifies:

1. The Russian attack on our country is a serious national security threat

Even if Mueller does not speak beyond what is contained in his report, parts of the document itself are explosive. For the many people who have not read the report, some of the details will elicit audible gasps.

As Mueller wrote, Russia interfered in our election in “sweeping and systematic fashion.” Russia conducted information warfare in the form of a social media campaign “that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton.”

According to the indictment against the Internet Research Agency, the Russian efforts included organizing pro-Trump rallies and hiring “a real U.S. person to wear a costume portraying Clinton in a prison uniform at a rally in West Palm Beach.” A second Russian intelligence operation hacked into computer servers and worked with Wikileaks to disseminate email messages to harm the Clinton campaign.

In another aspect of the Russian operation that has received less attention, the report found that military intelligence attacked state election boards, secretaries of states, county governments and their employees, as well as private technology firms that manufacture and administer voter registration software and electronic polling stations. This aspect of the attack raises questions about the extent to which these efforts might have affected the outcome of the election. And what do we need to do to prevent it in the future?

As Mueller said during his May 31 public remarks, “There were multiple, systematic efforts to interfere in our election. And that allegation deserves the attention of every American.” The public can expect to hear more about these attacks in vivid detail. The more sensitive information about the attacks can be discussed with the House Intelligence Committee in its closed session.

2. Links between the Russian government and the Trump campaign

Far from the cry of “no collusion,” Mueller’s report states that the “investigation identified numerous links between Russia and the Trump Campaign.”  Among these links were the sharing of polling data by Trump campaign chair Paul Manafort with Konstantin Kilimnik, whom the FBI assessed was connected to Russia intelligence. The polling data was shared on August 2016, and related to Wisconsin, Michigan, and Pennsylvania, all states in which Trump won upset victories. Mueller was unable to fully understand why this data was shared. If this data was used to help identify targets for the social media propaganda campaign, to what extent was it successful?

The links also included the June 2016 meeting at Trump Tower between Russians and Manafort, Donald Trump Jr., and Jared Kushner on behalf of the Trump campaign to obtain damaging information about Clinton as “part of Russia and its government’s support for Mr. Trump.” In addition, the report details efforts by Trump Jr. and Trump adviser Roger Stone to communicate with Wikileaks about the release of stolen email messages. The Stone indictment suggests that the campaign attempted to coordinate its own messaging about Clinton’s health with the release of the stolen emails.

While Mueller was unable to establish that these acts amounted to the crime of conspiracy, they can be viewed as disloyal for someone seeking the presidency.

3. President Trump, his associates, and obstruction of justice

Despite Barr’s conclusion that the evidence did not amount to obstruction of justice, Mueller reached a different result. He wrote that while his report did “not conclude that the President committed a crime, it also does not exonerate him.” Members of Congress will no doubt request an explanation for why Mueller did not reach a binary decision regarding whether to charge or not charge, instead declining to reach a traditional prosecutorial decision.

Is it a fair inference that Mueller was deferring to Congress, and its impeachment power, when he wrote that he did not want to “potentially preempt constitutional processes for addressing presidential misconduct”? Mueller is unlikely to offer more of an explanation than the words in his report, which he has said were chosen carefully.

Mueller may not explain his reasoning, but he will no doubt be asked to detail some of the obstructive acts undertaken by Trump and his associates. Even describing out loud the conduct of Trump and other members of his campaign will surprise some Americans who have accepted Barr’s characterization without reading the report. Mueller sets forth 10 separate acts by Trump himself, including asking White House Counsel Don McGahn to fire Mueller, and then directing him to lie about it and create a memo to document that lie. That act would amount to criminal conduct even under Barr’s theory that a president can never obstruct justice as a matter of law when he exercises executive power.

Trump also asked his former campaign chairman Cory Lewandowski, a private citizen, to tell then-Attorney General Jeff Sessions to reverse his decision to recuse himself from the investigation and announce that Mueller would investigate interference only in future elections. If successful, Trump would have shielded himself from investigation and prevented us from learning about how Russia attacked the 2016 election. Look for some member of Congress to point out that this behavior breaches a president’s duty to protect our national security as commander in chief.

The report further details obstructive conduct by others, stating that “several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.” Congress should demand that Mueller name names of individuals who lied to Congress so that members may pursue contempt.

4. Mueller's interaction with Attorney General William Barr

To what extent will Mueller answer questions about his interactions with Barr?  Will the administration assert executive privilege regarding communications that were part of agency deliberations? Or will Mueller be permitted to answer questions about Barr’s role?

Members of Congress should at least try to understand the areas of disagreement between Barr and Mueller and force Mueller to assert the privilege. Members could ask a number of pertinent questions. For example, when Barr sent out his initial letter about the report on March 24, Mueller complained that it “did not fully capture the context, nature and substance of his of his work and conclusions.” What was Mueller concerned about?

With regard to obstruction of justice, Barr’s letter stated that Mueller “leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime,” and then concluded that it did not.

Did Mueller intend to leave it to the attorney general to decide or did he have something else in mind? One plausible theory is that Mueller thought that it was inappropriate for anyone outside of Congress to decide whether the president had committed a crime so as not to taint public opinion on the impeachment question.

Barr has also expressed the view that a sitting president can never obstruct justice as a matter of law, a theory that Mueller rejected in his report. Did Barr’s unique legal theory cause him to reach the conclusion that the evidence did not amount to obstruction of justice?

Members of Congress should also ask whether Barr forced Mueller to end his investigation. Mueller worked on the investigation for 21 months before Barr took over as attorney general. A little more than three weeks later, Mueller was done, even though 14 investigations remained ongoing, the trial of Roger Stone was pending and grand jury matters involving Stone associate Andrew Miller and an undisclosed foreign entity remained unresolved. Why did Mueller end his investigation without completing those tasks? Was there other work he would have liked to have completed? Did Barr ask him to stop?

Another important question is whether Barr discouraged Mueller from seeking an in-person interview with Trump. Mueller attempted unsuccessfully to arrange for an interview with Trump for more than a year. He wrote that an interview of Trump was “vital” to his investigation, but Trump refused and instead agreed only to submit responses to written questions. Even then, he refused to answer any questions about obstruction of justice. Mueller’s report describes Trump’s responses as “inadequate,” “incomplete” and “imprecise.” Why, then, did he let Trump off the hook?

5. Will members of Congress attempt to discredit Mueller and the FBI?

Trump has at various times indicated that Mueller is a conflicted partisan out to ensnare him in a “witch hunt.” At other times, Trump has said that Mueller’s report offers a “complete exoneration.” Which version will Congress pursue?

Attempting to paint Mueller as a politically motivated hatchet man is unlikely to succeed.  Mueller is a decorated veteran and career public servant, appointed by Republican and Democratic presidents to serve in various high-level positions. He conducted his investigation by the book, and his conclusions showed great restraint, perhaps to a fault.  He has testified before Congress more than 50 times, mostly in his role as FBI Director, and he has always been unflappable. Efforts to attack him are likely to fall flat.

But an area where Mueller’s integrity could shed light is whether he observed anything that caused him to question the validity of the predication for starting the investigation. Barr has stated that he believes “spying” on the Trump campaign occurred. Others have suggested that the FBI abused the process for obtaining authorization to use surveillance under the Foreign Intelligence Surveillance Act. Mueller may be able to explain whether he saw anything to suggest that these allegations have any merit or, instead, whether they are complete nonsense.