Base Instincts: Trump's Lawyers Play to the Crowd, Not the Court

Donald Trump appeals to the base even when arguing before a court.  Filed in federal court on April 22, the president’s complaint attempting to prevent the House from subpoenaing his tax and business records reads more like a “Best Tweets of 2019” than a legal document one would hope a second year law student could produce.

Detailing the basic problems with Trump’s cause of action seems as beside the point as pointing out each of Trump’s daily fabrications. No one, not even the base, expects Trump to speak the truth or, in this case, make a conventional legal argument. The greater concern is how this complaint is inconsistent with Trump administration arguments in both the travel ban and census cases, and why Trump openly lies or, in this case, appeals to the base even when ostensibly producing a legal document.

The legal/constitutional problem with Trump’s effort to prevent Congress from obtaining his tax returns and business records is simple. Congress is constitutionally empowered under Article I of the U.S. Constitution to subpoena any document that, as the complaint acknowledges, “serves a legitimate legislative purpose.” Chairman Elijah Cummings of the House Committee on Oversight and Reform plainly met this standard when, in his “Notice of Intent to Issue Subpoena,” he pointed out that his committee has “full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.”

The Mueller report settled any doubts about congressional capacity to subpoena Trump’s taxes and business records. Mueller pointed out that Congress under Article I has the “power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions.” An investigation into Trump’s finances would clearly be germane to determine whether present obstruction of justice and corrupt practices laws are adequate and what reforms might be necessary to ensure an honest legal enforcement in the future.

The Trump complaint neither mentions the Cummings “Notice of Intent” nor the Mueller Report when trying to explain why the subpoena is an unconstitutional fishing expedition that “serves no legitimate legislative purpose.” Instead, the complaint begins with such excerpts from Trump’s Twitter account as “The Democratic Party . . . has declared all-out political war against President Donald J. Trump” and “Instead of working with the President to pass bipartisan legislation that would actually benefit Americans, House Democrats are singularly obsessed with finding something they can use to damage the President politically.”

The complaint then relies almost exclusively on broad statements Democrats made when celebrating their victory in the 2018 election to demonstrate Congress has no legitimate reason to gain access to Trump’s tax and business records. Trump’s lawyers quote Nancy Pelosi, who on election night 2018 declared, the “subpoena power” is “a great arrow to have in your quiver” and a Democratic congressional aide who stated, “Congress is going to force transparency on this president.” Horrors! This is the equivalent of a defense lawyer quoting a prosecutorial comment at a press conference that “we are going to convict Smith” as proof that the prosecution has no evidence, rather than discussing the evidence the prosecutor laid out in the opening argument.

Trump’s claim that courts should rely on Democratic campaign statements rather than official documents is particularly ironic given the administration’s demand that courts not take campaign statements into account when determining the legality of Trump administration measures.  Trump’s lawyers insisted and Chief Justice John Roberts in Trump v. Hawaii (2018) agreed that “the courts will not look behind the exercise of [presidential] discretion or test it by balancing its justification” when the president gives “a facially legitimate” reason for an immigration policy the president when campaigning for office and in office repeatedly described as a “Muslim ban.”

Whether the Supreme Court allows the Trump administration to include a citizenship question on the census will likely depend on whether the justices accept the “facially legitimate” justification the Trump administration offers in court or the illegal reasons Trump administration officials give to their political base. Democrats at press conferences merely declare they plan to subpoena the president without explaining the reasons. When they give reasons, those reasons focus on impeachment and conflict of interest, matters approximate for legislative investigation. Trump when campaigning consistently gives unconstitutional justifications that require his lawyers to put lipstick on his pigs when arguing in court.

The other sections of the complaint focus on what Republicans have said about the subpoena. The complaint does not discuss the justification Cummings gave in the “Notice of Intent.” Rather, Trump’s lawyers quote Republican members of the House Oversight Committee at great length for the motives of the subpoena. On this logic, the main purpose of the post-Civil War Amendments was to mongrelize the United States because that is how Democrats described the constitutional ban on equal protection and laws denying equal protection.

Trump’s personal lawyers engage in typical Trumpian political projection when in a campaign brief masquerading as a legal document they repeatedly accuse Democrats of attempting “to score political points . . . leading up to the 2020 election.” Investigating whether a president is handicapped by numerous conflicts of interest and his motives to obstruct justice is a core function of a legislative oversight committee. President’s Trump complaint, which ignores the actual justification for the subpoena, is better designed for Fox News than the courtroom or, worse, for Trump judicial appointees who may be more concerned with Fox News reports than the texts of official documents.

The President Weaponizes the Census

Voter ID, list purges, poll closings, gerrymandering—all well-known favorites from the conservative playbook on rigging elections. But why stop there? Why not just avoid counting minorities in the first place?

That’s what the Trump administration is trying to do by seeking to add a “citizenship question” to the 2020 U.S. Census. And it’s the subject of a highly important, but little-known case making its way to the U.S. Supreme Court right now.  Oral arguments are scheduled for April 23.

In the apportionment clause of Article I of the Constitution, the framers detailed how seats in the House of Representatives would be allocated as the nation grew. Election districts for congressional, state, and local offices must be drawn to include an equal number of people, or as near as “practicable” (for congressional districts), or “substantially” equal (for state and local districts). This means that districts must be close in population size to other district in each state. The Constitution also sets a time frame for this process by requiring a count of the population every ten years—the census—which then provides the numbers for the apportionment of congressional districts among the states.

For them, patience is a virtue that pays off generously in lasting legislative and policy victories. Jeff Timmer, a Michigan Republican who has worked to craft district lines in that state, likens redistricting to Halley’s comet. “It comes around on a recurring, predicable basis. It’s great to be a Halley’s comet expert when it comes around. But in between times, no one really has any use for it. You know, one of the inside secrets of politics is how critical redistricting is.”

Last year, President Trump’s Commerce Secretary, Wilbur Ross, announced that the upcoming 2020 census would include a “citizenship question.” Opponents of this move quickly pointed out that doing so would deter immigrant households from responding and that this would result in a severe undercount. The result? Significant funding and representation disparities disproportionately affecting communities of color. The Trump administration moved ahead nonetheless.

In United States Department of Commerce v. State of New York, U.S. District Judge Jesse Furman barred the government from including the question, taking the administration to task for “’a veritable smorgasbord of classic, clear-cut’ violations of the Administrative Procedure Act, including cherry-picking evidence to support [their] choice.”

The abhorrent racism of the Trump administration has been on full display since he took the oath of office that dark January day in 2017. And other than his immigration policies, perhaps no other issue demonstrates his contempt for communities of color more than his effort to skew the U.S. Census with the addition of a “citizenship question.” It is a strike at the very heart of our democracy and an affront to the U.S. Constitution conservatives claim to hold so dear.

In addition to the new question, the Trump administration has severely underfunded and understaffed the Census Bureau. Unlike in 2010, however, there is already a group of advocates and funders focused on both political and legal responses to the Right’s shenanigans, including lawsuits to expose government wrongdoing (or maybe more accurately “non-doing”). Nonetheless, the challenge is daunting.

In 2010, Republicans dumped $30 million into state races—triple the amount of Democrats—to wrest control of the once-in-a-decade process of congressional redistricting and then, with their new statehouse majorities, draw maps that favored Republicans and pass laws that disenfranchised Democrats and people of color.  Between a newly configured census featuring a “citizenship question” designed to exclude large numbers of minorities and disfavor urban areas and its aggressive voter suppression efforts across the country, the Republican Party could rig our system so completely that the promise of “We the People” will be permanently broken.  Will the Supreme Court allow that to happen?

The Real Threat of Trump and Barr

The Mueller Report is a cornucopia of stunning revelations of corruption and abuse of power by Donald Trump, his Administration, and his campaign.  I write to discuss one important revelation that has been highlighted, but widely misunderstood:  President Trump repeatedly attempted to obstruct justice – indeed, ordered the obstruction of justice – and failed only because his staff refused to carry out his commands.  Jeff Sessions refused to “unrecuse” from the Russia investigation; Reince Priebus retrieved Sessions’ proffered resignation letter so that Trump could not use it as a “shock collar” to tame the Justice Department; Don McGahn refused to carry out Trump’s order to fire Special Counsel Mueller; Rick Dearborn refused to communicate Trump’s order that Sessions limit the Special Counsel’s jurisdiction to future elections; KT McFarland did not follow Trump’s order to draft an internal cover-up memo; and on and on.  One moral that might be drawn from this story is its happy ending:  the President’s attempts to obstruct justice were thwarted at every turn by conscientious public servants.  One commentator on NPR even went so far as to declare triumphantly that these episodes show that the system works.  This is wrong.  The system did not stop the President from obstructing justice; specific individuals did.

As many have remarked, it is chilling to know that it is a pattern and practice of this President to obstruct justice.  But what makes the realization downright frightening is the fact that not one of those conscientious public servants still serves in the Trump Administration.  Indeed, each and every one of them fell out of favor with the President precisely because they would not work his nefarious will.   Can we rely on the public servants currently serving in the Trump Administration to stand up to and check the President?

Enter William Barr.

The new Attorney General has been widely, and rightly, criticized for press conference in advance of releasing the Mueller Report.  Even on Fox News, Sheppard Smith and Chris Wallace characterized the Attorney General’s performance as indefensible and an exercise in deception.  It was all of that and worse.  It is now clear that we cannot rely on the Attorney General to restrain the President.  Rather, Attorney General Barr views it as his job to actively facilitate the President’s schemes.

In fact, this has been clear all along.  Barr is a longstanding proponent of the unitary executive theory of presidential power.  He advanced that theory as the head of the Office of Legal Counsel in the late 1980s and in his first stint as Attorney General in the 1990s.  He specifically applied that theory to the Mueller investigation in a now infamous memo he wrote last June as a private citizen (a memo that is widely regarded as the very reason President Trump selected him to replace Jeff Sessions as Attorney General).  According to Barr, “[w]hile the President has subordinates – the Attorney General and DOJ lawyers – who exercise p[ower] on his behalf, they are merely his hand – the discretion they exercise is the President’s discretion ….”  On Barr’s view, those public servants I have described as conscientious are more accurately regarded as insubordinate.  To extend Barr’s corporeal metaphor, they are the body in revolt against itself, a kind of “cancer on the presidency.”

I testified at Attorney General Barr’s confirmation hearing.  I opposed his nomination because I was familiar with his views on presidential power and, so, could see the dangers they posed for the Mueller investigation and, more broadly, for the rule of law.  Still, I am shocked at how brazenly William Barr is willing to ignore facts and law in order to promote Donald Trump.  Joseph McCarthy had Roy Cohn, Richard Nixon had John Mitchell, now Donald Trump has his man.

*Institutional affiliation is listed for identification purposes only.

Is William Barr Serving the Public Interest or the President’s?

During Attorney General William Barr’s confirmation process, ACS President Caroline Fredrickson published an op-ed in The New York Times posing the question: Will William Barr Be Trump’s Roy Cohn?

Unfortunately, the attorney general’s recent actions and yesterday’s statements underscore the very concerns Fredrickson flagged back in December. In an appearance on Capitol Hill yesterday, Barr said that he believed the FBI “spied” on the Trump presidential campaign and that he was launching an investigation into the matter.

In an interview with Politico, House Intelligence Committee Chairman Adam Schiff, D-Calif., shared his concern that Barr is doing Trump’s bidding:

“It’s very concerning when the top law enforcement officer in the country uses incendiary language like that. That’s the kind of thing you hear the president say at his rallies, when he’s advocating a deep-state coup attempt. It ought to concern all of us.”

Roy Cohn was President Trump’s personal lawyer and fixer throughout the 1970s, having previously served as a top aide to Sen. Joseph McCarthy. He had a reputation for pushing legal limits to protect his clients.

For his part, Barr has a reputation for holding an expansive view of presidential power, especially regarding legal investigations involving the president.

As Fredrickson wrote: “These are perilous times. Not since Watergate have we seen a presidency so mired in accusations of unethical and illegal behavior. And not since Watergate have we seen a president so contemptuous of the rule of law.”

If there was one thing the president needed to enable him to navigate the choppy legal waters in which he currently flounders, it was an attorney general willing to take steps to protect him. Sadly, it appears he may have found his man in William Barr.

In Defense of Court Expansion

Aaron Belkin spoke on a plenary panel at the 2019 ACS National Convention in June. You can see the panel here.

After presidential candidate Pete Buttigieg signaled an openness to court expansion in February, a handful of critics in the progressive community urged him and other 2020 contenders to denounce the strategy, and to embrace other judicial reform options. The growing awareness that the Supreme Court must be reformed is an important first step, but critics of court expansion are succeeding, at least for now, in convincing 2020 candidates to disavow the strategy in favor of alternatives that are unlikely to work.

The project that I founded, Take Back the Court, is busy producing research reports that will explain why court expansion is the best judicial reform option and why alternatives cannot be effectively implemented. While awaiting that research, however, I thought it might be helpful to comment on a handful of beliefs that appear to sustain most of the skepticism about court expansion.

(1) Critics fear that court expansion will provoke Republicans to retaliate in kind. Buttigieg says that provoking the GOP is the “last thing that we’d want to do” and Neil Siegel argues that “proportionality is important to prevent conflict escalation and to avoid fueling a race to the bottom.” These concerns strike me as off-point, because Republicans will not hesitate to expand the Court if they need to do so in order to control it, regardless of what Democrats do. If Democrats reform the Court with a facially neutral option such as term limits, the conservative media will howl for years about a stolen Court, and then Republicans will expand the Court at their first opportunity. Even if a liberal majority is obtained through normal rotation, a nearly impossible scenario for the indefinite future, Republicans will expand the Court as soon as they can.

(2) Court-expansion critics tend to misdiagnose our current predicament in terms of polarization rather than asymmetric polarization, and fail to appreciate the extent to which the GOP has become radicalized. GOP radicalization is perhaps the greatest threat to American democracy, and should be understood in terms of four dimensions: (1) a systematic commitment to distortion and fabrication; (2) prioritizing narrow partisan concerns over national interests and even national security to an extreme degree; (3) underhanded tactics such as voter suppression, judicial theft, and maximal obstruction; and (4) a deep commitment to scapegoating. My interpretation of the evidence is that the GOP is no longer committed to democratic governance.

(3) Because they seem to underestimate GOP radicalism, court-expansion critics spend considerable time and effort crafting neutral reform options that, they hope, could withstand Republican sabotage. The neutrality of reform options is, of course, optically critical and consistent with the principles of good governance. There is no such thing, however, as a system that cannot be gamed, and GOP radicalism is so extreme that the party will try, and probably will succeed, at gaming, circumventing, and subverting even the most benign reform options. (One of our forthcoming research reports will address how the “5-5-5” option can be gamed). Critics want to save the Court and to “preserve its legitimacy as an institution above politics.” But the Court cannot be saved unless both parties are committed to democracy.

(4) Reform options—aside from court expansion—that scholars have proposed have almost no chance of working. Consider term limits, an option that looks good on paper, but that probably cannot be implemented in practice. Between the passage of a law requiring term limits and the point at which they would start to have a moderating impact on the Court, there would be ample opportunity for the five conservative justices to enjoin and then strike down the statute. Conservatives spent more than a generation carefully plotting the capture of the judiciary, and there is almost no chance that they would relinquish power by upholding a term limit bill. Similar problems plague other reform alternatives.

(5) In light of the previous four points, court expansion may be the least risky judicial reform option, because, perhaps more than any other strategy, it could prevent Republicans from dominating elections for awhile, possibly quite awhile, which could de-radicalize the party somewhat. If Democrats return to power in 2020, eliminate the filibuster, provide statehood to Washington, DC and Puerto Rico, and pass legislation to restore democracy (for example by guaranteeing an automatic right to vote), the Brennan Center estimates that 50 million voters could be added to the rolls. Under such circumstances, it could be difficult for Republicans to expand the courts in retaliation for awhile, as they would need to regain control of the White House as well as both chambers of Congress. Even Epps and Sitaraman, both of whom are skeptical of court expansion, acknowledge that “we can imagine conditions under which court-packing could lead to a stable equilibrium that does not invite an ever escalating cycle of political retaliation.”

(6) Unless Democrats sweep back into power, eliminate the filibuster, expand the Court, and enact the democracy agenda that Brennan estimates could add 50 million voters to the rolls, electoral politics probably cannot save democracy. Absent that narrow path, Democrats can still win elections from time to time, but Republicans will leverage Senate obstructionism and radical jurisprudence to prevent them from governing for the foreseeable future. When only one party gets to govern, when Black and Brown people cannot vote, when corporations and wealthy donors are able to purchase policy, and when gerrymandering allows minority parties to control the levers of power, that’s not democracy.

(7) The skeptics are correct in positing that a conversation about court expansion could energize the conservative base and scare away moderates. Several qualifications, however, deserve consideration: (1) Experts have not yet made the case to the public that court expansion is necessary to save democracy; (2) Experts could do more to educate the public about how the Court has compromised democracy, for example by gutting the Voting Rights Act; (3) As the Court continues its long-term effort to undermine democracy, public opinion may shift, especially given concerns about Justice Kavanaugh; (4) The notion that progressives cheat has already been baked into conservative turnout numbers thanks to a generation of rhetoric about voter fraud; (5) If the public comes to understand that Congress would eliminate the filibuster, expand the Court, and enact the democracy agenda, this could motivate non-voters who have become cynical about politics to turn out, because they will see that bold change is possible; (6) Concerns about energizing conservative voters and scaring away moderates can always be invoked to stifle progressive discourse,  but that’s not a reason to be quiet, especially during national emergencies.

 

Aaron Belkin is director of Take Back the Court, which was previously named Pack the Courts, and he can be reached at belkin@takebackthecourt.today. This post was revised on June 12 to reflect the change in the organization’s name and other minor updates.

 

Women Need Earning Equality Now: A Progressive Judiciary is One Key to Pay Parity

2019 is the year of the woman: Americans are now at least starting to listen to women when we say we have been harassed or assaulted; more women than ever are running for the highest office in the land, and there are more women in Congress than there have ever been. While we’ve come a long way, baby: We have a way to go. One fundamental truth that hits us in the pocketbook every day is that women still do not make what men make at work, even when we have equal education and experience.

Women today still earn on average roughly 80 cents for every dollar paid to men. American women must work an added four months on average to earn their male counterparts’ salary, a pay gap we recognize annually on Women’s Equal Pay Day, this year on April 2, 2019. The pay gap is worse for African-American and Latina women, with African-American women making roughly only 61 cents for every dollar made on average by white men and Latinas on average earning about 53 cents for every dollar made by white men.

Women in the legal profession are making some progress. Women outnumber men in law school. The wage gap persists for women lawyers in part because the super-high earners are mostly men – those at the very top of the pay scale (think partners in big law firms). And generally, women are not paid as much as men even when women get the same education and work the same hours as men. Requiring pay transparency is a good first step for equality. Efforts to diversify clerkships, which Justice Sonia Sotomayor endorsed at last year’s ACS convention, will also help propel women and people of color to the top of the legal profession.

The good news is that the gap between what women and men earn is shrinking. But here’s the bad news: It’s shrinking because most men’s wages have been flat. Not all men, of course. The richest 1 percent of Americans’ wages are skyrocketing. So, we should focus not only on the closing the pay gap but also on stemming rising inequality. Women should be paid what men are paid for doing the same work, and wages should rise for both men and women.

As I write about in my upcoming book “The Democracy Fix,” conservatives have been ruthless in gaining power on a local, state, and national level in elected government and in the judiciary. And they have used that power at the behest of business interests to make it harder for working women to get paid the wages they deserve. The long-term solution to earning pay parity, as for so many other issues, is for progressives to be as successful as the Right has been by winning elections and selecting judges who hold a progressive vision of the Constitution, which will uplift all workers.

Progressive elected officials can enact popular legislation like a higher minimum wage, paid sick days, and family leave, which have a disproportionate impact on women and will lead to fair wages for all. But it all begins with working to make sure we control the levers of power in statehouses, in Congress, and in the White House – and especially in the judiciary.

Women have come a long way since my grandmother came to this country as an immigrant scullery maid, but as I wrote in “Under the Bus,” women in the lowest-earning jobs in this country have been left out of much of that progress. The women who take care of our children and our elders, the maids, and the waitresses are not paid what they deserve.

On this Equal Pay Day, we need to work to change policies to reflect our values. People who work hard all day should be able to live on their earnings in a country with our resources. And women’s work should be valued, whether or not it is work that men do.