A Perfect Storm Threatens the Rule of Law

by Reuben Guttman, Founding member, Guttman, Buschner & Brooks PLLC

*This piece was originally posted on Huffington Post.

Our nation has survived a sordid past from slavery to the internment of Japanese citizens. It even survived a duel between a sitting Vice President, Aaron Burr, and the former Secretary of the Treasury Alexander Hamilton that resulted in the Secretary’s untimely death. President Franklin Roosevelt tried to “pack the Court” as a counter measure to the “nine old men” who threatened his New Deal legislation. The republic even lived past Watergate and a President who used the power of the office to suppress dissent.

Through the lens of history – and despite the sometimes unseemly cast of characters who have made it – we have witnessed the evolution of a rule of law created incrementally through the recognition of new rights and the balancing of old ones, and with due consideration to revolutions in communication, transportation, and science. From the tired and poor and huddled masses, or immigrants, as envisioned by poet Emma Lazarus, to those with established economic stability, our rule of law, though resilient, is a constant balancing act. And, often, with changing circumstances, it is in need of a rebalance. It is, as Judge Richard Posner might opine, a change in the context that makes us see the text in a different light.

Against this setting, the protocol of the presidency is to tread lightly with due consideration for every step and its consequences for the near and long term. Our rule of law resides not in isolation but as part of a world order. Some common global rules bridge the laws of different nations. But each nation’s laws are established and must be interpreted within the context of culture and history.

Our rule of law permits some play where politics can adjust the balance of power in favor of the well-heeled or the downtrodden. Politics can result in the adjustment or passage of laws that protect immigrants and minorities and it can impact the regulation of business, science, and healthcare delivery.

As much as politics spawns passion and disagreement, it has presumptively existed within the rule of law.

That brings us to Donald Trump. There are bits and pieces of him in our history books, but there has been nothing exactly like him. He has attacked the judiciary, personalizing his attacks on judges and even threatening to split the Ninth Circuit, which is too liberal for his taste. He has invaded the province of the jury by openly criticizing verdicts, and he has even called for an accused to be executed; a request made before the sun even set on the day of the arrest. He used his pardon power to effectively reward a Sheriff who was held in criminal contempt for defying the order of a Republican Judge who sought to restrain discriminatory enforcement of the law. He has intruded into private sector workplaces and business relationships calling for employees – mostly members of the media and even some professional athletes – to be terminated or disciplined. He has attempted to taint the reputations of individuals or businesses who question his rule. He has charged that the New York Times is a “failing” newspaper and that CNN and its correspondent Jim Acosta publish “fake” news when they criticize him. When General Flynn took a guilty plea, he questioned why the Justice Department does not pursue “crooked Hillary” and he referred to the justice system as “cooked.” Unable to contain his ire, he proclaimed that the FBI’s reputation is in “tatters.” After claiming credit for securing the release of a UCLA Basketball player from prison, he launched a verbal assault on the player’s father who did not accord the President enough credit. The President tweeted: “….IT WAS ME. Too bad! LaVar is just a poor man’s version of Don King, but without hair.”

Of course, one must not forget that shortly after taking the oath of office, the President fired the Acting Attorney General who refused to enforce his travel ban. He later terminated the FBI Director for reasons that now merit the investigation of an independent counsel.

The issues here are not about politics. Politics gives the President the leeway to endorse a candidate for Senate even though he is an accused pedophile, is antagonistic to the rights of gays and lesbians and was twice removed from his judicial position for derelictions of his judicial duties. Politics even gives the President the right to appoint judges who are deemed unqualified by the American Bar Association, which the President has done. Politics gives the President the right to appoint a Secretary of Education who disdains public education and to appoint a protector of polluters to run the Environmental Protection Agency. He can even – as he has done – appoint an interim Director of the Consumer Financial Protection Bureau who has stated a desire to dismantle the agency. All of this we may not like, but he can do it.

And so, some may say, “so what, we have seen it before and we have survived.” Yet, imagine if all of this were occurring amidst the Cuban missile crisis? Actually, there is no need to imagine. North Korea has threatened our destruction with missiles that can now reach our nation’s capital.

And, just as the President has picked fights with newscasters, athletes, leaders of his own party, and vanquished politicians, he has done the same with North Korean Leader Kim Jung Un, the Australian Prime Minister, and even the Mayor of London. His taunting of the North Korean leader leaves little room for negotiation and invites war.

We teeter on the brink of extinction much as we did in October 1963. Yet, 64 years ago the leader of the free world, though inexperienced, appreciated the norms of diplomacy, the perils of his own fallibility, and the horrors of war.

It appears we are amidst a perfect storm: a President whose challenges to the rule of law sow domestic discord; and a President who – unlike his predecessors – disdains seasoned diplomats and advisors. If there was a check on Richard Nixon, it was a Democratic Congress – indeed a bi-partisan Congress – willing to ask hard questions. With few exceptions, this Republican majority in Congress is unwilling to challenge this President no matter what he does.

How will this end? How will it all play out? If Trump is threatened directly with impeachment, how will he lash out and will it have consequences beyond our borders?

Anyone who has a vision for the future – which is the stuff Presidents are made of – has to be concerned. But Trump is a different animal; for a man who lives on Big Mac’s, Filet-O-Fishand chocolate shakes, he seems to lack concern about his own future or ours. His trail of lies and half-truths speak to a man who wants to get past the moment leaving the consequences for tomorrow and another lie.

We are at a place in history without precise precedent. It is indeed a perfect storm; hopefully one which we will live to write about.

Donald Trump: The Great Distractor

by Reuben Guttman, Founding member, Guttman,Buschner & Brooks PLLC

*This piece was originally posted on Huffington Post.

There is a scene in the movie Private Parts – the life and career of Howard Stern – where NBC officials, committed to dumping the shock jock, check out the latest ratings and learn, to their dismay, that the DJ’s popularity has rocketed. Pouring through the data, they find that the “number one reason” people tune into Stern is because they are waiting to hear what he will say next.

For all the time that Donald Trump spent on the Stern show, this may be the one lesson he learned. From North Korea’s “rocket man” to “crooked Hillary,” and a dash of Ryan and McConnell bashing, people tune in to this President to hear what he will say or tweet next. For their part, the members of the news media seem to fixate on Trumpian commotion.

Call him the great distractor. While the world focuses on Trump and wonders what he will do or say next, his minions are busy dismantling government. It is as if the Trumpeteers are robbing the rule of law while Trump is distracting the security guards.

Consider Department of Education Secretary Betsy DeVos. Last month – before the Harvey Weinstein sexual harassment scandal broke – the Secretary appeared before an audience at George Mason University and spoke about Title IX enforcement.

Promulgated by Congress 45 years ago, Title IX ensures that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving federal financial assistance.” Title IX is part of a myriad of civil rights laws enforced by the Department of Education’s Office for Civil Rights. These laws also proscribe discrimination based on race, color, national origin, disability, and age.

For her part, DeVos spoke out against campus sexual misconduct, noting that she is “grateful to those who endeavored to end sexual misconduct on campuses.” It was – at one level – a seemingly uneventful speech. Yet, on another level, it was a speech replete with dog-whistle-like messaging communicating an intent to dismantle regulation proscribing sexual harassment and discrimination at our nation’s colleges.

Referring to an unidentified school official, DeVos said she was told that the Department’s “Office for Civil Rights has ‘terrified’ schools.” Citing another unnamed school official, DeVos noted that “[o]ne university leader was rightly appalled when he was asked by an Office for Civil Rights official: ‘Why do you care about the rights of the accused?’” Referring to required processes to investigate and address sexual harassment, DeVos said, “It’s no wonder so many call these proceedings ‘kangaroo courts.’” She complained that “[t]his failed system has generated ‘hundreds upon hundreds of cases’ at the Office for Civil Rights while generating “dozens upon dozens of lawsuits” filed “by students punished for sexual misconduct.” And – like her boss who freely opines on matters squarely within the orbit of an independent judicial process – she spoke of a football player who had been dismissed from school – in her mind wrongfully – because he had been determined to have engaged in sexual harassment. “There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused,” said DeVos.

And DeVos said this: “Punishing speech protected by the First Amendment trivializes actual harassment. It teaches students the wrong lesson about the importance of free speech in our democracy.”

No Madam Secretary; you are wrong! Our nation has long regulated speech when it hinders equal opportunity in employment, housing, public accommodation, and, yes, education. And at least in the employment context, our half-century-old civil rights laws view the legality of the speech from the vantage point of the listener and not the speaker. And no Madam Secretary, it is not for you to determine how much a woman will take before it is called harassment.

The Secretary of Education has now telegraphed her intention to dismantle Title IX compliance enforcement. If this were the only regulatory scheme that Trump’s minions were trashing, it would be tragic but perhaps manageable. Unfortunately, there are regulatory wrecking balls at all government agencies. And, of course, trade agreements and nuclear non-proliferation agreements are not safe from demise.

At some point the Trump presidency will end. We will than begin the process of picking through the rubble of a dismantled regulatory system that once fostered equal opportunity from education to the workplace and housing, protected workers on the job from hazard, and safeguarded our natural resources from contaminants. The measure of our task will of course depend on how much damage we can prevent, and prevention means not being distracted by the side show of the great distractor Donald Trump.