In Worst of Times, Rule of Law Survives

      Two years into Donald Trump's possibly short-lived presidency, the rule of law survives in the United States, bruised and battered but still a strong bulwark for liberty and justice for all. As president, Trump has shown the same contempt for the legal and judicial systems that he displayed in the campaign that ended with his winning 46 percent of the popular vote, nearly 3 million votes behind his front-running rival, Hillary Rodham Clinton.
      Trump's tweet storms have failed so far to dislodge or deflect special counsel Robert Mueller in his continuing investigation of the Trump campaign's contacts with Russian agents in advance of the November 2016 election. And the federal judiciary has proved to be independent enough to reject many of the Trump administration's legally suspect initiatives, including most recently separate moves to make it harder for would-be refugees to apply for or to win approval for asylum in the United States.
      With Trump in the White House, the American people continue to vote against him in public opinion polls by an unprecedentedly wide margin for a new president. His approval rating has never passed 45 percent, according to the Gallup organization, and stood at 39 percent in late December, lower than any of the previous nine presidents at the end of their second years after election.
      As candidate, Trump famously boasted that he could shoot someone on New York City's Fifth Avenue without losing any of his supporters. Now, as president, his minority-strength political base appears to be sticking with him even after a federal court indictment identified him as "Individual 1" in the criminal case against his former lawyer, Michael Cohen, for lying to Congress about his campaign-time contacts with Russian agents.
      Trump has tweet-stormed non-stop about the Mueller investigation, calling it a "witch-hunt" and repeatedly denying any collusion with the Trump-loving Russian government. Despite the incessant sniping from the White House and Capitol Hill Republicans, however, Mueller's investigation has won an impressive number of convictions through guilty pleas or jury verdicts against figures from the Trump campaign, including his former campaign chair Paul Manafort and his former national security adviser Michael Flynn.
      Plotting against Mueller, Trump fired his attorney general, Jeff Sessions, after complaining about Sessions's ethics-bound decision to recuse himself from overseeing Mueller's investigation. In Sessions place, Trump installed Matthew Whitaker, a Trump surrogate on CNN, who rejected an ethics office recommendation that he follow Sessions' example in recusing himself from any role in overseeing Mueller's work.
      Mueller's final report remains a work in progress, but his conclusions about Trump's possible collusion and obstruction of justice will be received and read on Capitol Hill in political circumstances significantly changed from the first two years of Trump's presidency. Americans went to the polls in November in record numbers for a mid-term election to give Democrats a record success in gaining 40 seats in the House of Representatives. With a Democratic-controlled House, Trump now faces the threat of serious congressional oversight for the first time in his presidency.
      Americans also favored Democrats over Republicans in Senate races around the country by a wide margin, with 59 percent of the votes cast in 33 races for Democrats compared to 39 percent for Republicans. But with Democrats and Democratic-caucusing independents defending 25 seats, Republicans managed to increase their 51-49 majority by winning 10 seats and ousting four Democratic incumbents in states that Trump had carried in 2016.
      With a fortified 53-47 majority, the Senate is poised to be even friendlier territory for Trump in filling federal court vacancies. The 116th Congress ended after confirming a record number of Trump appointees to federal courts of appeals, 30 in all, as well as Trump's two Supreme Court appointees: Neil M. Gorsuch and Brett Kavanaugh. Trump relied heavily on the avowedly conservative-libertarian Federalist Society in recruiting and vetting would-be federal judges.
      Many of the new judges are distinctively young, in their 30s or 40s. And they come predominantly from establishment-oriented careers such as corporate law, private practice, or prosecutors' offices; hardly any have experience in civil rights groups, legal aid, or public defender offices. Some are already making their presence felt, according to a story by Buzzfeed News reporter Zoe Tillman, by staking out conservative positions on such issues as abortion rights, campaign finance, and gun control.
      Trump's impact on the Supreme Court, after the narrow Senate confirmations of Gorsuch and Kavanaugh, remains to be seen. With Kavanaugh's nomination still pending, Trump won his most important Supreme Court showdown in June as Chief Justice John G. Roberts Jr. led a 5-4 majority in upholding the president's Muslim travel ban. Roberts held back from questioning Trump's motives in issuing the executive order, but Trump stirred Roberts to a mild rebuke five months later by denouncing "an Obama judge" for a decision to block the administration's new restriction on asylum applicants.
      Trump had raised hackles during his campaign by attributing political bias to the the Mexican-American judge presiding over the civil lawsuit against Trump university. Trump's criticism of the Obama-appointed federal judge Jon Tigar on Nov. 21 prompted Roberts the next day to speak up for the federal judiciary. "We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts told the Associated Press when asked for reaction. "The independent judiciary is something we all should be thankful for," he added.

Trump's Message to Refugees: Bah, Humbug!

      More than a few American churches are marking the Christmas season with a topical reminder that the child whose birth is being celebrated was himself a refugee, born two millennia ago to parents fleeing persecution by Judea's Roman client King Herod. The reminder comes against the backdrop of President Trump's determined efforts to pull the welcome mat that the United States has by law and custom offered to those seeking refuge in this land of the free and home of the brave.
      Trump's anti-refugee policies are doubly illogical, patently un-Christian, and flatly illegal according to rulings by two federal judges in separate cases in the past week. With refugee levels surging worldwide, the administration has already reduced the number of refugee admissions to fewer than half the number allowed in President Obama's final year in office and plans to reduce it further next year.
      Obama capped refugee admissions at 110,000 for fiscal 2017; the Trump administration lowered the number to 45,000 for fiscal 2018 and has announced a cap of 30,000 for the coming fiscal year. Whatever justifications Trump may have for trying to reduce migration into the United States, those caps show that refugees are a minuscule fraction of the overall number.
      Moreover, despite the political appeal of anti-immigration policies, the latest Census Bureau projections show that immigration is central to the population growth needed to keep the U.S. economy vibrant. With fewer births and more deaths, the Census Bureau reported last week [Dec. 19] that the U.S. population grew from 2017 to 2018 by less than 1 percent, the slowest year-to-year growth since 1937 as the country was still pulling out of the Great Depression.
      The Trump administration faced pushback on its refugee policies not only in the courts last week, but also on Capitol Hill. With Homeland Security Secretary Kirstjen Nielsen at the witness table [Dec. 20] before the House Judiciary Committee, Rep. Luis Gutiérrez, an Illinois Democrat, stoked up the heat by suggesting that Joseph and Mary "would have perished" under Trump administration's policies. Nielsen said she took "personal offense" from the question, but a friendly Republican congressman gave her the chance to insist that Mary and Joseph would be eligible for asylum under Trump's policies.
      Apart from the hypothetical question, the Trump administration is trying to rewrite policies to make it harder for would-be refugees to apply for asylum or to qualify for asylum. Before leaving office, Attorney General Jeff Sessions issued a policy memorandum in June seeking to exclude domestic abuse or gang violence as bases for granting asylum. Sessions contended those grounds go beyond the five that Congress set out by statute: fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. But they are grounds cited by many, perhaps most, of the Central American refugees who trek northward to the U.S.-Mexico border. Domestic abuse, in particular, had been recognized as grounds for asylum as far back as the 1980s.
      Twelve would-be refugees filed a suit challenging the policy in federal district court in the District of Columbia and won a ruling last week [Dec. 19] countermanding what Judge Emmet Sullivan called an "unexplained change" contrary to law and unsupported by agency precedent. Sullivan's 107-page ruling in a case now styled as Grace v. Whitaker included among others the desperate story of the lead plaintiff, who fled an abusive husband after he threatened her and their children because of her indigenous heritage and evicted her from their home with assistance of local authorities.
      In a separate case, a federal judge in San Francisco has also blocked the administration's later move to deny asylum to any would-be refugees who enter the country illegally, other than at the overcrowded designated ports of entry. Judge Jon Tigar's 30-page ruling in East Bay Sanctuary Covenant v. Trump last week [Dec. 20] converted what had been a temporary restraining order against the Nov. 9 policy change into a permanent injunction based on a ruling by the Ninth Circuit Court of Appeals upholding the original order.
      Tigar noted that the administration's regulation contradicted a Refugee Act provision that a would-be refugee may apply for asylum upon arrival in the United States "whether or not at a designated port of arrival.” In its decision upholding Tigar's ruling, the Ninth Circuit noted in addition that a refugee treaty signed by the United States in 1951 prohibits imposing any penalty on a would-be refugee "on account of their illegal entry or presence."
      The Trump administration took its fight against Tigar's order to the Supreme Court, but the justices refused last week [Dec. 20] to step in. The administration asked the Court for permission to institute the policy pending a full trial and appeal. Four conservatives &#151 Thomas and Alito along with the two Trump-appointed justices, Gorsuch and Kavanaugh &#151 said they would have lifted Tigar's order, but Chief Justice John G. Roberts Jr. joined with the four liberal justices in denying the administration's plea.
      For Christians, the Bible teaches what Jesus would do, as He explained in the parable of the sheep and the goats in Matthew 25. "I was a stranger, and ye took me not in," Jesus says critically, in the King James Version. Trump's policies place him and his supporters with the goats, not the sheep: policies all the less fitting at this season of peace on earth and good will to all.

No Immunity for Trump's Crimes

      Federal judges, members of Congress, and executive branch officials up to and including the vice president are all subject to criminal prosecution while in office even though they can also be removed from office through impeachment and conviction for "high crimes and misdemeanors." Nothing in the text of the Constitution or in historical practice suggests that any of these important federal officials can use their offices to claim special protection from being held accountable for violating criminal laws.
      Even so, the U.S. Justice Department has an official policy, dating from the Watergate scandal, that the president of the United States, is "uniquely immune" among federal officials to indictment or prosecution. That policy, elaborated in Office of Legal Counsel (OLC) memoranda that have never been tested in court, is now under fire in legal and academic circles as the evidence mounts that Donald J. Trump violated criminal laws as presidential candidate in 2016.
      The Justice Department first articulated this policy as it was also forcefully rejecting a plea for immunity by Vice President Spiro Agnew in fall 1973. The government filed a brief in federal court in the District of Columbia, signed by the then solicitor general Robert Bork, rebutting Agnew's claim that he could not be prosecuted while in office for taking bribes while governor of Maryland.
      Agnew bargained his way out of a full-blown criminal trial and likely prison time by agreeing to resign as vice president. A year later, President Gerald Ford cut justice even shorter by issuing a "full and complete" pardon to the disgraced former president Richard Nixon for all crimes he may have committed, including those proven beyond reasonable doubt in the impeachment inquiry that led to Nixon's resignation.
      The question now before a politically divided country is whether Donald Trump will evade justice for crimes he committed in his pursuit of the presidency. Trump's longtime attorney fixer, Michael Cohen, was given a three-year prison sentence last week [Dec. 12] after pleading guilty to among other offenses concealing his campaign-motivated hush-money payoffs to Trump's mistresses.
      Cohen told U.S. District Court Judge William Pauley II that he committed that crime "in coordination with and at the direction of" his presidential candidate client, Trump. Any candidate in the same situation other than the president likely would be headed to prison today just like Cohen.
      The most complete exposition of presidential immunity can be found in a 39-page OLC opinion published in October 2000 and signed by Randolph Moss as assistant attorney general and OLC director. Moss, appointed to the federal bench in the District of Columbia by President Obama in 2014, began his 2000 memorandum by citing and reconfirming OLC's positions on presidential immunity in 1973. Those positions "remain sound," he wrote. A criminal prosecution of the president, Moss wrote, "would impermissibly interfere with the President’s ability to carry out his constitutionally assigned functions and thus would be inconsistent with the constitutional structure."
      Despite the Justice Department's position, specially appointed prosecutors twice have stepped right up the line of bringing criminal charges against a sitting president. The Watergate grand jury named Nixon as an unindicted coconspirator in the Watergate cover-up at the behest of the special prosecutor Leon Jaworski. Nearly a quarter-century later, independent counsel Kenneth Starr asked for and received a report by a leading constitutional law scholar, Ronald Rotunda, contending that President Clinton could be indicted for lying to a grand jury about his relationship with the White House intern Monica Lewinsky.
      Starr instead routed his findings on Clinton to the Republican-controlled House Judiciary Committee. That decision resulted in the House's fiercely partisan decision to impeach Clinton on three counts. Nixon was forced to resign after senior Republican senators told him that he faced certain conviction. The Senate refused, voting along partisan lines, to convict Clinton. In hindsight, a wide range of legal experts and historians view the Clinton impeachment as partisan excess.
      Today, Trump views the entire investigation of his campaign as a partisan "witch hunt," but the crime laid out in federal court in Manhattan last week is both real and substantial: a deliberate circumvention of campaign disclosure laws to conceal important facts about Trump's conduct from voters in the crucial weeks before Election Day. In sentencing Cohen on Wednesday [Dec. 12], Pauley described his crimes as worthy of "substantial punishment."
      In comments afterward, the former U.S. solicitor general Neal Katyal argued that the Justice Department's long-held presidential immunity position cannot be extended to  Trump's campaign-time crimes: crimes committed for the very purpose of gaining the presidency. As Katyal noted, the Framers included the Impeachment Clause in part to guard against the risk that a would-be president would use corrupt means to secure the office itself. Immunity is Trump's "only card," Katyal said. And without indictment, an impeachment inquiry is inevitable.
      The Justice Department has rationalized presidential immunity on, among other grounds, the inevitable result that the president would be stigmatized, hamstrung, and distracted by a criminal prosecution. Surely, Trump today suffers from all those conditions with unadjudicated criminal charges hanging over him and tainting his presidency. As candidate, Trump boasted that he was above the law, that he could shoot someone on Fifth Avenue and never be held to account. As president, that boast must be rebutted — the inevitable difficulties notwithstanding — through indictment or impeachment.

Trump Worse Than Nixon on White House Offenses

      The American people need to have, and deserve to have, confidence in the president. Richard Nixon famously said as much as the enormity of the Watergate scandal began to be disclosed. "People have got to know whether or not their President is a crook," Nixon declared at a meeting of the nation's newspaper editors on November 17, 1973. "Well, I'm not a crook."
      Nixon in fact was not a crook, as commonly understood, but worse that he had corrupted the office of the presidency by multiple criminal and political violations. He had used the power of his office to spy on political opponents and had impeded through various means lawful investigations into his illegal actions.
      Now, another embattled president, Donald Trump, is proclaiming his innocence and integrity as the evidence mounts that he was corrupting the political process as a presidential candidate and has used the power of his office to impede investigations into his actions, some of them patently illegal and others arguably contrary to law.
      The latest evidence is the filing by the government, specifically the U.S. attorney's office for the southern district of New York, that Trump — so-called Individual 1 — organized and directed the scheme to conceal hush-money payoffs to his former sexual partners. Those payoffs, in the form of buying the rights to the women's stories to suppress them, were made in the final month of the 2016 campaign for the specific purpose of benefiting Trump's candidacy.
      Federal campaign finance law requires candidates for federal office to disclose campaign expenditures. Trump's former fixer, Michael Cohen, is now headed toward four or more years in prison for multiple crimes, including the campaign finance violations that he said were "in coordination with and the direction of Individual 1." Trump is shielded from indictment for the offense, however, under the never-adjudicated Justice Department policy that precludes prosecuting the president while in office.
      Trump, who is counted by fact-checkers as having lied more than 6,000 times in less than two years in office, responded to the sentencing memorandum in Cohen's case with the demonstrably false tweet that he had been "totally cleared." Two presidents in recent memory, Nixon and Bill Clinton, have faced impeachment for lying, but the contemporary Liar in Chief shows both of them to have been inept pikers at deception.
      "Trump’s most important lies are not spin, or misleading statements," according to the Trump-critic political scientist Brian Klaas, author of The Despot's Apprentice. "They are the complete inversion of truth, an Orwellian assertion that the truth is what he says. The documents directly implicate Trump in directing multiple criminal conspiracies. A tweet doesn’t change that."
      Trump's most effective denial has been in the form of a repeated incomplete sentence, often rendered in all-caps "No collusion," aimed at discounting the legal significance of the proven and acknowledged contacts between officials in Trump's campaign and representatives or agents of the Russian government. The filing in Cohen's case adds new evidence that the contacts began earlier than previously known and that Trump had a personal stake in currying favor with the Russian government even as he repeatedly and insistently denied any business interests in the United States' most important adversary nation.
      In an acknowledged effort to avoid prison time, Cohen has cooperated, however incompletely, with the office of special counsel Robert Mueller by spilling some of the previously unspilled beans about Trump's campaign. Cohen, while still in Trump's good graces, acted as intermediary for an offer he received in November 2015 from an unnamed Russian with ties to the Kremlin for "government-level" synergy between Russia and the Trump campaign.
      At the time, Trump was scouting the possibility of opening a Trump Tower in Moscow, a project that would depend on favorable treatment from the Russian president, Vladimir Putin. The discussions about the project included the thought of offering Putin a $5 million penthouse in the planned edifice. News of the never-offered bribe sparked discussion among legal experts about invoking the anti-bribery provisions of the Foreign Corrupt Practices Act, but any speculation on that issue runs afoul of the president's practical immunity from criminal prosecution and his effective immunity from removal through impeachment as long as Senate Republicans turn a blind eye to what would be impeachable offenses for any other president.
      Nixon was forced to resign only after the White House tapes confirmed his personal role in the hush-money payments to the Watergate burglars to keep silent.. Trump is trying another tactic to buy silence from those who can implicate him: publicly demeaning any who cooperate with the special counsel's investigators and publicly raising the possibility of presidential pardons for any who need executive clemency. Nixon, it will be remembered, was counseled against any hint of pardons for the Watergate burglars or the architects of the later cover-up.
      Thus, it is imminently fair to make the comparison: Trump is worse than Nixon ever was, even with Mueller's investigation not yet complete. Unlike Nixon, Trump is a kind of crook: he is personally enriching himself in open and notorious violation of the Constitution's foreign and domestic emoluments clauses as his hotels rake in money from domestic and foreign lobbyists seeking his favors. And, unlike Nixon, he openly sought and accepted assistance from a foreign enemy in his campaign and since then as president. But Trump has so shattered political norms that none in his party will call for the only remedy: impeachment.

An Unoriginalist Plea to Limit Civil Forfeiture

      The conservatives and libertarians who have long complained about governmental abuse of civil asset forfeiture in criminal cases are on the verge of a legal victory at the U.S. Supreme Court. The victory will be owed, however, not to the doctrine of constitutional originalism that so many conservatives view as sacrosanct, but to the theory of living constitutionalism that they view as legal and judicial heresy.
      The resourceful litigators at the libertarian Institute for Justice (IJ) found an appealing case to use to ask the justices to rein in the widespread practice that state and local law enforcement agencies employ to seize valuable property from accused offenders. The hour-long arguments in Timbs v. Indiana last week [Nov. 28] made clear that justices across the ideological spectrum are set to rule, for the first time, that the Eighth Amendment's Excessive Fines Clause applies to the states just as it limits the federal government.
      As the unfortunate victim of forfeiture abuse, the IJ lawyers found Tyson Timbs, a recovering opioid addict who fell into selling heroin and thus into the clutches of undercover police officers in Marion, Indiana. When arrested in 2013, Timbs was driving the $42,000 Land Rover SUV that he bought a few months earlier with the proceeds from his father's life insurance policy. Timbs was given probation after pleading guilty in 2015 to selling four grams of heroin for $385 in two separate sales, but the car was seized and three years later sits idle in a police parking lot.
      Like other states, Indiana authorizes the forfeiture of property representing the fruits or instrumentality of a crime. Civil asset forfeiture has been part of American law for 300 years, ever since the colonies seized ships from seafaring pirates. Under an especially abusive policy, the authorities in Marion outsourced the seizure of Timbs's vehicle to a private lawyer, who stood to reap a contingency fee for the service: "institutionalized bounty-hunting," as the IJ lawyer Wesley Hottot called it in his Supreme Court brief for Times
      After taking Timbs's guilty plea, Judge Jeffrey Todd found the seizure of the Land Rover "grossly disproportionate" to Timbs's offense: the car cost four times as much as the maximum $10,000 fine allowed under Indiana law. Indiana's intermediate-level Court of Appeals agreed, but on review the Indiana Supreme Court held that the Eighth Amendment's Excessive Fines Clause does not apply to states because the U.S. Supreme Court has never said so, in so many words.
      The Eighth Amendment's stipulation that "excessive fines" not be "imposed" comes straight from the English Bill of Rights, adopted in 1689 as part of England's Glorious Revolution. State constitutions have included similar language ever since the Founding Era. The amendment's other prohibitions — against "excessive bail" and "cruel and unusual punishments" — have been held to be incorporated against states, respectively in 1971 and 1947.
      Virtually all the other provisions of the Bill of Rights have also been applied to the states under the so-called incorporation doctrine, beginning in earnest with the First Amendment in the 1920s and 1930s and most recently the Second Amendment's right to keep and bear arms in 2010. For no particular reason, however, the Supreme Court has never explicitly incorporated the Excessive Fines Clause.
      The Court's newest justices, Neil Gorsuch and Brett Kavanaugh, were visibly impatient with any suggestion from Indiana's solicitor general, Thomas Fisher, that the clause does not apply to the states. "Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?" Kavanaugh asked, skipping over the unincorporated grand jury and civil jury rights in the Fifth and Seventh Amendments.
      Fisher seemed to make some headway, however, with his more nuanced argument that forfeitures are not fines at all. "Your argument is that it isn't a fine at all," Roberts said, summing up without rejecting the position. "History is four-square against [Timbs's] claim," Fisher answered.
      A quarter-century ago, the Supreme Court did invoke the Excessive Fines Clause in a forfeiture case brought by the federal government. The unanimous decision in Austin v. United States (1993) ordered a lower federal court to reconsider the government's seizure of a South Dakota man's mobile home and business in a relatively minor drug case. In a partial concurrence, however, Justice Antonin Scalia, the godfather of constitutional originalism, described it as a "closer question" whether the clause applies to "confiscations of property rights based on improper use of the property."
      In his argument, Hottot contended that modern-day forfeiture differs from the forfeitures of the Founding Era after having turned into a revenue source for financially strapped police departments. Indeed, an IJ report cited in his brief counted $254 million worth of civil asset forfeitures by law enforcement agencies in 26 states and the District of Columbia in a single year: 2012.
      Justice Sonia Sotomayor appeared sympathetic, based on examples cited in briefs filed in the case. "Many of them seem grossly disproportionate," she said. Fisher countered, however, that forfeitures have often been "draconian" from historical times to the present.
      The wide array of groups supporting Timbs in the case — from the American Civil Liberties Union to the U.S. Chamber of Commerce and many others — suggests the time has come to set constitutional limits on forfeiture abuse. But make no mistake: Timbs will owe any victory not to the dead Constitution that Scalia revered, but to the living Constitution that adapts as time and circumstances change.