Fight for Federal Right to Education Takes a New Turn

Advocates have spent four decades searching for a theory that forces the Court to sidestep or rethink its holding in San Antonio v. Rodriguez that education is not a fundamental right.  A new lawsuit in Rhode Island does just that.  Whether it is the right time to try is now the more difficult question.  Today’s cultural zeitgeist says yes, but the Court’s composition suggests no.

A new fight to secure a federal constitutional right to education is spreading across the country. This fight has been a long time coming and is now suddenly at full steam.

In 1973, plaintiffs in San Antonio Independent School District v. Rodriguez argued that school funding inequities violated the right to education. The Supreme Court rejected education as a fundamental right under the federal Constitution, leaving funding inequalities in Texas and elsewhere completely untouched. For more than 40 years, no one even dared to directly challenge Rodriguez’s conclusion in court. Now, in just two years, four different legal teams and plaintiff groups have done just that. But this time, they are shifting their arguments away from just claims about money. They are focusing on educational quality, literacy and learning outcomes.

The boldest claim was filed on Nov. 29 in Rhode Island, arguing for an education that prepares students for citizenship – an argument that draws directly on my own legal research and expertise as a scholar of education law.

When plaintiffs filed the first two cases in Detroit and Connecticut in 2016, the Supreme Court was set to shift significantly to the left. Hillary Clinton was a strong favorite to win the presidency and fill the vacancy created by the death of Justice Antonin Scalia. What looked like perfect timing for plaintiffs in mid-2016 turned awful a few months later when Clinton lost. The questions now are why plaintiffs, including new ones, continue to press forward and whether they have any chance of winning. The answers lie in a strange and tangled confluence of events that include school funding shifts, new legal theories and evolving cultural challenges.

Steep declines in school funding

Schools’ real-world problems are first and foremost driving the litigation. Detroit’s schools, for instance, are among the most segregated, lowest performing and most financially strapped in the country. The net result, plaintiffs allege, are schools where “illiteracy is the norm.” Detroit’s problems, while severe, are not entirely unique. Public schools nationwide are suffering from increasing segregation and a decade of steep funding cuts.

State tax revenues have been up since 2012, but most states continue to fund education at a lower level than they did before the 2008 recession.

While many state supreme courts allow students to challenge educational inequality and inadequacy, about 20 do not. The courts that bar such challenges say that educational opportunity involves issues beyond their authority to tackle. So children’s right to challenge educational deprivations sadly depends on where they live. Michigan, Mississippi and Rhode Island are three of the states where kids have no recourse in state court. This explains why three of the four new lawsuits are in these states.

A novel approach

Whether these cases succeed, however, depends far more on the legal theories behind them than egregious facts. The Rodriguez ruling rejected the fundamental right to “equal” education. Plaintiffs in Michigan and Connecticut assert a fundamental right to “adequate” education, not equal education. More specifically, the plaintiffs call it minimally adequate education in Connecticut and literacy in Michigan. Earlier this year, the lower courts in those cases rejected the notion that this nuance was significant and held that kids do not have a federal right to those things either.

The case just filed in Rhode Island seeks to avoid that trap by doing something completely new. It focuses on the civics knowledge and skills that our democratic form of government demands of citizens – a topic with deep historical roots. My recent research demonstrated that our founders intended public education to be a core aspect of the “republican form of government” that our federal Constitution demands.

The nation’s founders encouraged public education. 

Our republican form of government began as an experiment in the idea that everyday citizens could govern themselves. But our founders – people like George Washington, John Adams and Thomas Jefferson – emphasized that public education was necessary for those governments to work. In legislation that would dictate how the western territory would be divided up and later become states, Congress in the Northwest Ordinances of 1785 and 1787 mandated that each township reserve a central lot for public schools and that the states use their public resources to “forever encourage” those schools.

The most explicit evidence of education’s necessity comes from Southern states’ readmission to the Union following the Civil War. Congress forced all the Southern states to provide for education in their state constitutions and explicitly conditioned the readmission of the last three states’ on those states never depriving students of the education rights they had just extended to citizens.

Congress was not acting arbitrarily. The Constitution requires Congress to “guarantee” a republican form of government in the states. The South’s criminalization of literacy among blacks, refusal to create school systems for middle-class whites, and general failure to operate a government that looked anything like democracy only reinforced the wisdom of the nation’s founding ideas. Following the war, Congress took decisive steps to correct the South’s failures in education and give full meaning to the constitutional idea of a republican form of government.

Prospects for federal right to education

Whether this history will serve as the key to unlock the right to education for today’s generation is uncertain. Regardless of the merits of these cases, Donald Trump’s nominations have made the Supreme Court more conservative. Yet, recent political cycles have also exposed weaknesses in America’s democracy and the need for a better-informed electorate, as everyday citizens struggle to make sense of highly polarized political debates, fake news and conflicting media accounts.

Public education cannot solve democracy’s challenges by itself, much less do so in a short period of time. The challenges are far too large. But if the nation is to secure a meaningful long-term solution, it will be through the same strategy as the founders.

They long ago warned in letters, presidential addresses to Congress and other official acts that the strength of our democracy would depend on public education cultivating the skills of citizenship. Public education was to be the fuel that makes democracy work and the only sure guarantee that those controlling government will preserve rights and liberties, rather than trample on them. Put that way, the federal right to education may be a moonshot, but it is one the plaintiffs in these cases cannot afford to miss.

Pro-Obamacare Litigators Will Crush Texas’ Bogus Lawsuit

Late Sunday afternoon, December 30, U.S. District Judge Reed O’Connor from the Northern District of Texas issued an arcane, though consequential, order following up on his blockbuster December 14 decision invalidating the entire Affordable Care Act (ACA). Evidently ingesting the widespread condemnation of that decision, O’Connor granted the request of pro-ACA state attorneys general led by California’s Xavier Becerra, that he stay his ruling until the appellate process finishes. Hence, the law will remain in effect for a good while – quite likely, permanently, as far as this lawsuit is concerned.

In response, progressives need to leave the battle to nullify O’Connor’s potentially catastrophic December 14 decision in the hands of Becerra’s litigators, and the bipartisan array of friend-of-the-court brief-writers supporting them. Some prominent ACA-friendly academics, and even some congressional Republicans, are proposing legislative “fixes” to moot the case. But ACA advocates and, especially, congressional Democrats should avoid touting such ideas – for three reasons.

First, O’Connor’s edict so egregiously flouts applicable law and societal exigencies, that, as the Wall Street Journal acknowledged, while “No one opposes Obamacare more than we do,” the decision “is likely to be overturned on appeal and may boomerang politically on Republicans.”  Indeed, Chief Justice John Roberts’ pertinent opinions nearly ensure, with his four progressive colleagues, a 5-4 Supreme Court majority to reverse O’Connor. Moreover, prior writings by Justice Brett Kavanaugh augur, albeit less certainly, for a larger majority.

Second, even if fix legislation that does not weaken the ACA could pass the Democrat-controlled House of Representatives, any acceptable bill would fail in the Senate, let alone the White House, and would risk enactment of provisions detrimental to the law.

Third, any ripples of interest in legislation would be spotlighted by the Republican attorneys general who filed the suit, led by Texas’ aggressive Kenneth Paxton, as evidence legitimating their claim that only legislation can “cure” the ACA of its allegedly fatal constitutional defect.

What Judge O’Connor’s Opinion in Texas v. Azar Means

The Paxton-O’Connor claim, and its jaw-dropping infirmities have been widely detailed, so only a brief summary is needed here.

In 2012, per the controlling opinion of Chief Justice Roberts, the Supreme Court held that the ACA individual mandate exceeded Congress’ authority to regulate interstate commerce, but nevertheless upheld the provision as an exercise of Congress’ power to tax. In December 2017, after multiple failures to repeal Obamacare, Republican congressional majorities settled for a provision in the Tax Cut and Jobs Act that set at zero the tax penalty for failing to buy ACA-compliant insurance, while leaving other provisions of the mandate and the law intact. Paxton then came up with a theory that zeroing out the penalty rendered the mandate provisions no longer an exercise of the tax power, hence, unconstitutional. Further, he made the quantum leap of asserting that, if the mandate provision is unconstitutional, the entire statute must be invalidated – 2300 pages of provisions integral to every sector of the nation’s health system and vital to protections relied upon by literally all of its more than 300 million patients. In February 2018, Paxton’s coalition of Republican states filed a complaint embodying these claims with District Judge O’Connor, a "favorite of Republican leaders in Texas, [for] reliably tossing out Democratic policies they have challenged.”

On December 14, O’Connor embraced Paxton’s theory. While highly debatable, this portion of his ruling was, in and of itself, of no practical consequence. With the penalty now zero, declaring the mandate itself void should not meaningfully shrink ACA-insured ranks. What made the decision a potential real-world catastrophe – for the ACA and the countless health providers and patients that – as even the Wall Street Journal acknowledged – now rely on it, is that O’Connor also bought the Republican states’ claim that striking the mandate meant that the entire ACA had to be tossed along with it.

Even ACA opponents have decried O’Connor’s ruling

Experts, including prominent anti-ACA conservatives, have blistered this result, as, among other things: "an assault on the rule of law;"  "legally indefensible from start to finish;'" and "an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity buried within."

Given such show-stopping legal inadequacies, Judge O’Connor’s decision seems unlikely to survive review even in the right-leaning Fifth Circuit. Certainly, even a hostile reviewing panel will not lift his stay pending Supreme Court review. And, as noted above, Supreme Court reversal is an odds-on bet.

Reasons to believe the Supreme Court would reverse O’Connor

To begin with, the Court is likely to dismiss the suit on standing grounds. The state plaintiffs, lacking any legally cognizable injury, recruited two individual plaintiffs, who complain that, even with no enforcement sanction, the mandate imposes a legal obligation to buy insurance that they would feel uncomfortable to ignore. But Chief Justice Roberts, in his 2012 NFIB v. Sebelius decision, expressly ruled that, if a person did not buy insurance, but did pay the penalty, he or she would not be in violation of the law. It makes no sense to cast such a non-purchaser as suddenly in violation of the law, simply because Congress reduced (to zero) the financial incentive to buy insurance.

In a similar vein, were the Court to reach the merits of the case, a majority, especially including the Chief, plausibly, could conclude that, with a zero penalty, the still-intact mandate provision remains a valid exercise of the tax power.

On the issue that counts – whether the mandate, if unconstitutional, is “inseverable” from the rest of the statute – Supreme Court reversal of O’Connor’s decision looks close to a sure thing. Repeatedly, Chief Justice Roberts has vigorously applied the established rule that “[W]hen confronting a constitutional flaw in a statute, we . . . limit the solution, . . . severing any problematic portions while leaving the remainder intact.”  Specifically, In NFIB v. Sebelius, Roberts rejected the very approach to severability on which Texas and O’Connor expressly rely. “The question here,” he wrote, “is whether Congress would have wanted the rest of the Act to stand [without the Medicaid expansion fund cut-off mechanism the Court found unconstitutionally coercive] . . . . We are confident that Congress would have wanted to preserve the rest of the Act.”

Further, there is a substantial basis for expecting Justice Brett Kavanaugh to join the Chief Justice and the four progressive justices to sever the rest of the ACA from the mandate if the latter is held unconstitutional. While on the D.C. Circuit, Justice Kavanaugh applied reasoning that closely parallels– indeed, foreshadows – Roberts’ decisions in both the above cases. In another (important)  case he similarly stressed that “Supreme Court precedent requires us to impose the narrower remedy of simply severing the [defective] provision.”

Pelosi showed that letting the appeals process play out is the smart move.

In sum, by far the surest path to defeating Texas’ bogus suit is right where it now stands – in the courts. Nancy Pelosi showed that she gets that, as one of her first acts as Speaker of the House of Representatives. On January 3, she authorized former Solicitor General Don Verrilli and Brianne Gorod of the Constitutional Accountability Center to intervene in the litigation on behalf of the House of Representatives, urging reversal of O’Connor’s decision. Thereby, Pelosi showed her caucus the smart way to demonstrate their zeal to save the ACA – by directly making their collective voice heard before the judges and justices who will decide the case, not by backing purported legislative “fix” bills that in practice amount to mere gestures, cannot succeed, and could cause damaging mischief.

Simon Lazarus, a former member of President Jimmy Carter’s White House Domestic Policy Staff, is a lawyer and writer who contributes to this blog and other media on legal and constitutional issues affecting health care and other fields.

Zinke’s Legacy of Legal Risk and Litigation for the Department of the Interior

In the days surrounding former Interior Secretary Ryan Zinke’s departure from the Trump Administration, the media has documented his extensive ethical lapses. He leaves the U.S. Department of the Interior scarred by his pursuit of private interest rather than the public good and diminished by his disregard for the Department’s talented and dedicated career civil servants—recall that he once accused 30 percent of his staff as being “not loyal to the flag.”

An equally important and long-lasting aspect of his legacy has received less attention: his legally risky and ill-advised policies, which will likely lead to years of litigation to come.

For years, both Democratic and Republican administrations have relied on compensatory mitigation to require those who profit from public lands to offset the environmental harms they cause.  Under Secretary Zinke, the Department reinterpreted the Federal Land Policy and Management Act--the law that undergirds federal public lands management—to find this important conservation tool outside the Department’s authority.

Zinke’s solicitor’s office issued a legal opinion that concluded that the Bureau of Land Management (BLM) must reissue a lease in the Boundary Waters area of Minnesota—paving the way for a copper-nickel mine. This opinion reverses an earlier one that had found that BLM had discretion not to renew the lease when the company had not extracted any metals for decades.

Another legal opinion reinterpreted the Migratory Bird Treaty Act to allow the “incidental take” of birds like indigo buntings and snowy egrets. Under that opinion, oil and gas developers and other industrial actors no longer need to take steps to avoid killing migratory birds.

While federal law requires the BLM to balance the competing uses of public lands, Zinke has pursued “energy dominance.” In its haste to remove purported “burdens” to energy development, such as a rule designed to prevent waste of natural gas, the Department has ignored notice and comment requirements.

Internal Memoranda have instructed Agency staff to cut every available corner, shorten public comment periods, limit analysis under the National Environmental Policy Act, and conduct lease sales more quickly. This rushed process has caused the BLM to overlook obligations to consult with Tribes under the National Historic Preservation Act.

The Department has also opened up more than 10 million acres of vital habitat for the greater sage grouse to mining and oil and gas development and intends to ease the way for oil and gas development on more than 60 million acres, eviscerating carefully crafted conservation plans—which resulted from an extensive process of collaboration with states, the private sector, and the public. The now-junked plans were designed to avoid the need to list the bird under the Endangered Species Act, and through this action, the Department has created substantial uncertainty for the greater sage grouse and for economic interests relying on public lands, which will face much more significant constraints should the bird need to be listed in the future.

Many legally “high risk” moves are already in litigation. States challenged the Department’s repeal of a rule designed to improve valuation of federal mineral resources; they won the first challenge and the second is fully briefed and awaiting a ruling from the Northern District of California. Plaintiffs’ motions for Summary Judgment in the Boundary Waters consolidated cases are due next month.

In leasing cases in Montana, New Mexico, and Colorado, courts have instructed BLM to consider uses of public lands other than energy development, and to analyze downstream greenhouse gas emissions; similar challenges to oil and gas lease sales in Nevada are awaiting a summary judgment ruling. Yet the Department continues the leasing process without building in these steps that are increasingly recognized by Courts as a necessary part of compliance with the law.

So, while it may be more fun to focus on six-figure office doors, let us not lose sight of the fact that Zinke has left the Department mired in litigation—much of it losing litigation—all in the name of benefiting private companies at the expense of future generations.

Justin Pidot is a Professor of Law at the University of Denver Sturm College of Law. He previously served as the Deputy Solicitor for Land Resources at the U.S. Department of the Interior during the Obama Administration and as an appellate lawyer in the Environmental and Natural Resources Division of the U.S. Department of Justice

Kavanaugh’s Confirmation and the Legal Underpinnings of Rape Culture

The recent confirmation of Brett Kavanaugh to the U.S. Supreme Court was a quick and deeply embattled process. Although Republican senators moved to confirm Kavanaugh in a few short months, several accusers would come forward to proclaim that Kavanaugh had engaged in sexual misconduct with them. The testimony of Dr. Christine Blasey Ford was perhaps the most serious, namely, that he attempted to rape her. Despite these serious allegations, a limited investigation was conducted by the FBI, which did not interview her and was kept hidden from the public. The following day he was confirmed by the Senate. This confirmation, however, confirmed something else as well. For those familiar with the origins of modern rape culture, there is nothing shocking about the short shrift that was made of these claims.

Broadly speaking, the origins of rape culture in America have their roots in the law. One major aspect was the British common law’s definition of the crime of rape. For centuries, rape had always required that the forcible act be committed by a man against a woman, not his wife. This common law framing of rape came to American shores in the cultural baggage of British colonists. Hence, in American law, as Pierre Bourdieu’s Logic of Practice might put it, this construct of rape went without saying because it came without saying. In this scheme, rape was possible against a woman only, and anyone but a female spouse. This was the dominant view until the last quarter of the country’s existence.

Another major historical marker was slave law in the new colonies. In some jurisdictions, laws operated in tandem to make the rape of female slaves financially lucrative. This was so because in slave states, the birth status of an individual took the mother’s legal status. So, any child born from a slave mother was automatically a slave. Hence, compared to paying premium prices for imported slaves, slave owners had a vested interest in keeping females reproducing, similar to cattle. Hence, the term chattel slavery underscores slaves as inviolable property.

It is against this historical backdrop of American rape culture that the modern forms exist. Perhaps most prominently is the raw number of rape and sexual assaults across the country. On college campuses, the problem is endemic. In fact, the #MeToo movement arises from the sheer number of women and girls who have experienced sexual assault.

Another area where rape is normalized is American prisons. Although behind bars, the question of gender violence is complicated, in some prison systems sexual violence is systemic. The exact degree is uncertain largely because of underreporting among victims. However, some estimates suggest that tens of thousands of individuals are forced to engage in unwanted sex behind bars each year. More importantly, these numbers speak little as to how many times in a year that a person is forced to have sex. In addition to forcible sexual assault, behind bars individuals can be made prostitutes, sex-slaves, or other types of sexual subservient. Because a slave may be forced to perform several times in a day, there is no real sense of what this means in a year, or more importantly, how it impacts culture on the outside.

To be sure, on the outside, there is widespread sex trafficking, including the trafficking of sex-slaves. In states like California, New York, and Texas, there is concentrated trafficking of both foreign born and domestic sex slaves. In addition to providing real-time sexual acts against women and children, they regularly engage in prostituting children. As these three states operate some of the largest prison systems in the world, there is some degree to which sex traffic rings feed off returning prisoners, who are often penniless and with few housing options.

As current history attests, American culture is still steeped in ways that treat rape as something of a normative concept. This fact works to the benefit of Kavanaugh because it makes even less of his mere attempted rape. Perhaps more than anything, the trivial FBI investigation into the matter suggests the ongoing vitality of rape culture in America.

As the law has held, the privilege to rape has been the monopoly of white males in America. This was shared only when male slaves were allowed to rape female slaves. Otherwise, white men were the only ones free to rape. In Kavanaugh’s nomination process, there has been comparison to Justice Clarence Thomas’ confirmation, which was momentarily derailed by accusations of sexual harassment. However, these comparisons are inaccurate to the extent that Thomas was accused of making explicit sexual comments, while Kavanaugh was accused of full blown attempted rape. It is hard to imagine the same outcome if Clarence Thomas would have faced the same accusation—what to speak if the accusation were by a white woman?

Rape culture in America is the ultimate expression of gender oppression. The sexual economy in this country has been controlled by those who control the law, and Kavanaugh’s confirmation is confirmation of the very rape culture that helped mitigate his actions.

What’s a Posse Comitatus, Anyway? The Military Role at the Southern Border

For several weeks President Donald Trump has railed against the threat posed by an “invasion” of migrants making their way toward the southern U.S. border. In October, the President responded to the supposed threat and deployed more than 5,000 regular Army troops to the southern border, supplementing state-deployed National Guard soldiers already there. Any hope that the soldiers would be recalled to their bases after the midterm elections was fleeting. Meanwhile, in an extraordinary “Cabinet order” signed on November 20 by White House chief of staff John Kelly, President Trump authorized active duty soldiers to perform functions in defense of border agents – including use of lethal force – that challenge the longstanding statutory presumptions against military involvement in domestic law enforcement enshrined in the Posse Comitatus Act (PCA).

Kelly’s November 20 memorandum authorizes troops to “perform those military protective activities that the Secretary of Defense determines are reasonably necessary” to protect border agents, including “a show or use of force (including lethal force, where necessary), crowd control, temporary detention, and cursory search.” It asserts that “credible evidence and intelligence” asserts migrant caravans moving toward the southern border “may prompt incidents of violence and disorder that could threaten” Customs and Border Protection and other government personnel and “prevent them from performing the Federal functions necessary to secure and protect the integrity of the southern border.”

The memorandum authorizes the Secretary of Defense to order deployed regular military to perform the activities quoted above, while in the next sentence it forbids soldiers from conducting “traditional civilian law enforcement activities, such as arrest, search, and seizure in connection with the enforcement of the laws.” Secretary Mattis defended the order on November 21, stating that “we don’t have guns in their hands right now. . . . I will determine it based upon what DHS asks for and a mission analysis.” In response to a follow up question about the use of force, Mattis said “they’re not even carrying guns, so just relax. . . . Don’t worry about it, OK?”

What about the “crowd control, temporary detention” and “cursory search” permitted by the order? Secretary Mattis responded to a question about involvement in law enforcement this way: “We do not have arrest authority. Detention, I would put it in terms of minutes. . . . [We would stop an assault on a CBP agent] and deliver them to a Border Patrol man, who would then arrest them.”

The Latin term posse comitatus translates literally as “power or authority of the county,” but it connotes a body of persons summoned by the sheriff to assist in keeping the peace or enforcing the law. Historically, those summoned might be either civilian or military. The PCA was enacted in 1878 as part of a political deal to resolve the disputed presidential election that year and resulted in removing federal troops from polling places in the south, where they had protected the voting rights of new black citizens. Over time, the PCA has come to symbolize our national disinclination to involve the military in domestic affairs, except in extraordinary circumstances.

The PCA and its contemporary service branch regulations prohibit the military (except the Coast Guard) from enforcing domestic laws unless authorized by Congress or the Constitution. The default prohibition does not apply to National Guard troops acting under a governor’s authority. Because immigration and border enforcement is a federal law enforcement mission, state-deployed National Guard troops likewise cannot participate in direct law enforcement activities at the border. Earlier this year National Guard troops were deployed to the southern border under the command of border state governors. Those forces were specifically prohibited from conducting arrests and could not use surveillance equipment pointed toward Mexico. Presidents Barack Obama and George W. Bush similarly deployed National Guard troops to the border to combat drug smuggling and related violence. The drug operations are specifically authorized by federal statute.

According to the Constitution, the federal government has the authority to deploy federal military forces to an incident in a state only if the crisis is especially grave. The best legal argument for the Cabinet order is to accept its claim that there is “credible evidence and intelligence” that migrants moving toward the southern border “may prompt incidents of violence and disorder.” If CBP personnel are in danger and cannot reasonably perform their border control and federal law enforcement tasks, then the President as Commander in Chief may act with a species of his defensive war powers – repelling an attack on the United States or its personnel. The scope and limits of this power are uncharted in circumstances like these.

Absent some version of this constitutional authority, the Cabinet order authorizes active duty military to act in violation of the PCA. The limited judicial record interpreting the PCA suggests that the legal line has been crossed if the military engages in activities that are “regulatory, proscriptive, or compulsory” or “direct.” Temporary detention and cursory search certainly meet the test. Of course, the PCA is a criminal law and requires federal prosecution to enforce its terms. There have been no reported prosecutions of the PCA.

More important is what the Constitution, Posse Comitatus Act, and other federal laws represent – a longstanding legal norm disfavoring military involvement in domestic affairs except in dire circumstances. It is no exaggeration to say that avoidance of military involvement in civil society is part of our cultural heritage.

Robert Mueller Calls Manafort A Liar - Now What?

This article originally appeared on Crooks and Liars.

Another day, another whiplash-inducing turn of events in the Mueller probe. On Monday, lawyers for Special Counsel Mueller and Paul Manafort filed a Joint Status Report with Judge Amy Berman Jackson in Washington D.C. Judge Jackson is overseeing Manafort’s pre-sentencing cooperation after his plea in her court to two criminal-conspiracy counts this past September: Manafort pled guilty in Washington in lieu of going to trial again, after being convicted on eight counts in the Eastern District of Virginia in August.

Instead of telling the court that a further delay in sentencing is warranted because Manafort continues to cooperate (as has been happening in the cases of Rick Gates and Michael Flynn), the parties’ Report includes these dumbfounding paragraphs:

...The government reports that:
...3. After signing the plea agreement, Manafort committed federal crimes by lying to the Federal Bureau of Investigation and the Special Counsel’s Office on a variety of subject matters, which constitute breaches of the agreement. The government will file a detailed sentencing submission to the Probation Department and the Court in advance of sentencing that sets forth the nature of the defendant’s crimes and lies, including those after signing the plea agreement herein.
4. As the defendant has breached the plea agreement, there is no reason to delay his sentencing herein
The defendant reports that:
5. After signing the plea agreement, Manafort met with the government on numerous occasions and answered the government’s questions. Manafort has provided information to the government in an effort to live up to his cooperation obligations. He believes he has provided truthful information and does not agree with the government’s characterization or that he has breached the agreement. Given the conflict in the parties’ positions, there is no reason to delay the sentencing herein, and he asks the Court to set a sentencing date in this matter.

In short, it appears the Special Counsel has decided that Manafort is too dishonest to warrant further engagement and that the judge and the public should know this now - as should other persons of interest to the Trump-Russia investigation. The communication here seems plainly multidirectional: the Special Counsel is essentially asserting he knows enough about the facts at issue to determine when persons are continuing to lie to investigators; and he will report, and end negotiations with, untrustworthy persons of interest in the investigation.

Mueller’s decision to push Manafort out of the cooperators’ cohort notably contrasts with the Special Counsel’s use of Rick Gates as a witness in the first Manafort trial, despite Gates’s numerous admissions of crimes during his testimony, including embezzling from Manafort. By publicly accusing Manafort of continuing to lie, Mueller in effect weakens - perhaps even destroys - Manafort as a credible witness in other cases where his evidence might be valuable. Mueller could still use Manafort in any subsequent trial, but Mueller’s characterization of Manafort in the Joint Status Report creates a line of impeachment of Manafort for any defendant in a trial where Manafort is produced as a witness.

Mueller's current position with respect to Manafort is likely a very carefully calculated decision. In light of the potential costs of discarding a witness of Manafort’s potential value - including his role in the 2016 Trump campaign and the evidence submitted at his first trial and in his plea agreement about his crimes - experienced litigators like Mueller and his staff would inventory and evaluate the other witnesses and evidence they have as part of deciding whether using Manafort in other cases would more likely advance or impede the goals of Trump-Russia investigation.

The Rashomonic dialogue quoted above from the Joint Status Report consequently raises many related questions, including these:

  • Does Mueller still plan to use any of Manafort’s testimony or other evidence to advance the investigation? If so, how will Mueller use it and in which cases?
  • Assuming Manafort lied, about what did he lie, and why did he lie?
  • What evidence available to Mueller supports his assertion that Manafort has been lying?
  • Assuming Manafort told the truth - an assumption required by fairness here - what did he say to the FBI and investigators and why did he say it?
  • What evidence available to Manafort supports his assertion that he told the truth to the FBI and prosecutors?
  • What will be in Mueller’s and Manafort’s sentencing submissions, including their respective recommendations for term of sentence for Manafort?
  • How will Judge Berman evaluate the sentencing submissions, and how will she sentence Manafort?
  • Does this turn of events advance or impede Mueller’s investigation and, if so, how?

The last question is especially intriguing in light of two other eye-catching developments this week: (1) the Guardian reported on Tuesday that “Donald Trump’s former campaign manager Paul Manafort held secret talks with Julian Assange inside the Ecuadorian embassy in London, and visited around the time he joined Trump’s campaign…” and (2) Jerome Corsi’s decision - reported here - to publicly release draft plea documents he received from Mueller’s office that purport to show that Mueller “...was preparing to tell a federal court that Stone pushed an associate to get documents from WikiLeaks -- information that is now known to be stolen from the Democrats by Russian hackers -- that could help the Trump campaign.”

We don’t know whether or to what extent the Special Counsel still needs Manafort’s testimony and evidence to advance the investigation of the Trump campaign’s connections to, or involvement in, Russian interference in the 2016 election. We probably won’t learn that from Mueller before the Special Counsel files a sentencing submission with Judge Berman because the Special Counsel’s office doesn’t leak.

Spoiler alert: we might not learn anything even when Mueller files his sentencing submission. Many or all of these questions might remain publicly unanswered for the foreseeable future.

Mueller’s mandate is to conduct an investigation with significant counter-intelligence dimensions, as discussed here. The national-security aspects of this investigation might cause Mueller to redact, or ask Judge Jackson to seal, all or part of any sentencing submission about Manafort.

And, if Mueller is considering a partially or entirely public filing with national-security implications, he might feel obliged to go through channels, up to Acting AG Whitaker, for instructions/directions on what he may or may not make public. This has further ramifications, in light of Whitaker’s public criticism of the investigation.

Meanwhile, there are House Committees with jurisdiction relating to Mueller’s investigation (e.g., Intelligence, Judiciary, and Oversight and Government Reform). The committees have incoming Democratic chairs, such as Representative Adam Schiff, who will probably chair the House’s Intelligence Committee and who appears inclined to demand and develop information about the collusion, if any, of Trump with Russia before, during, or after the 2016 campaign.

To protect the confidentiality and progress of his investigation, Mueller might, therefore, refuse to produce to House committees any information about the ongoing investigation. The administration also might invoke executive privilege to forestall disclosure.

Resolution of any dispute between the executive and legislative branches over disclosure by Mueller might wind up in the judicial branch and, ultimately, in the Supreme Court. And, even if the timeline for orderly resolution of these issues in the courts is accelerated because of their national importance, some of them might not be settled at the Supreme Court until - or even after - the 2020 presidential campaign.

The plot-arcs in this sprawling and complex legal-political epic thus continue to multiply and branch in unforeseen directions. They might be entertaining on a day-to-day basis - hilarious or terrifying or both - but they also remind us that elections matter and civil society is at risk.

A diligent Special Counsel and a record-setting Blue Wave are only part of the process of building a resilient democracy rooted in equal justice and equal opportunity for all.