Kavanaugh Drives Court's Turn to the Right

      For the first three months of the Supreme Court's new term, the narrowly confirmed rookie justice Brett Kavanaugh appeared to be playing the role of Sherlock Holmes' proverbial non-barking dog. The anti-abortion groups that had so heavily invested in Kavanaugh's hard-fought confirmation voiced disappointment in December, for example, after Kavanaugh failed to give three conservatives the needed fourth vote to hear appeals from two states seeking to reinstate bans on funding for Planned Parenthood clinics.
      That was then, but this is now. Kavanaugh apparently helped provide the critical votes needed for a pair of decisions announced in orders this week [Jan. 22] that signal a possible hard turn to the right in coming months and future terms. He was part of a 5-4 majority that reinstated the Trump administration's restrictive policy on transgender military service members and likely one of the four votes needed to hear a new case on Second Amendment gun rights.
      The interim action in the transgender military cases, Trump v. Zaronski and Trump v. Stockman, came with no written opinion on a 5-4 vote with the four liberal justices in dissent. Two federal courts had issued injunctions to block the policy. The conservative justices voted to grant the administration's request for a stay, an extraordinary remedy, usually disfavored in Supreme Court practice, while the liberals would have left the injunctions in place pending full appeals.
      Kavanaugh's presumed stance is also the likely explanation for the Court's decision to take on a gun rights case for the first time since its pair of decisions in 2008 and 2010 striking down laws banning possession of handguns in the name of a Second Amendment right for self-defense in the home. In the new case, New York State Rifle and Pistol Association v. City of New York, the justices are being asked to extend that carefully limited right outside the home. That step could set the stage for a broad constitutional right to go armed in public that could supersede gun licensing requirements enacted in a host of states and cities.
      The case tests an unusual local ordinance that prohibits transportation of firearms even if licensed, unloaded, and locked to shooting ranges outside New York's city limits. Still, Adam Winkler, a pro-gun control law professor at UCLA, told The New York Times's Supreme Court correspondent Adam Liptak that he viewed the case as a likely "landmark . . . with major implications for gun policy."
      The Court's actions in the transgender service members cases have a more immediate impact than the foreboding certiorari grant in the gun rights case. The policy may be less than a ban, as the Pentagon stressed, but it casts doubts over the thousands of transgender service members who have been serving openly according to their gender identity under an Obama administration policy.
      Trump initiated the takedown of the Obama policy with a tweet on July 26, 2017, stating that the government "will not accept or allow . . . transgender individuals to serve in any capacity in the U.S. military." Instead of a complete ban, the then-Defense Secretary James Mattis responded to Trump's directive by fashioning a policy that included a "categorical reliance exemption" for transgender service members who entered or remained in service after the announcement of the Obama policy.
      Federal district court judges in Seattle and Los Angeles, ruling in cases brought by transgender service members, issued injunctions blocking the policy. In the first of the injunctions — issued on Dec. 22, 2017 — U.S. District Court Judge Marsha Pechman in Seattle rejected the administration's arguments for "military deference" to the policy. She went on to find the justifications for the policy change to be "not merely unsupported but actually contradicted" by the Obama administration's study of the issues.
      Facing other cases in California, Maryland, and the District of Columbia, the administration adopted a less-than-urgent appellate strategy. The government applied for limited stays only to allow the military to reject new transgender recruits and then dropped the appeals altogether. Pechman made her preliminary injunction permanent after a contentious hearing on March 27, 2018. She rejected the administration's defense of what government lawyers described as an "exception" to allow transgender service members to serve according to their biological sex.
      After batting 0-for-4 in district courts, the government stepped up its game with extraordinary petitions asking the Supreme Court to grant "certiorari before judgment" in the Washington and California cases without waiting for the Ninth Circuit appeals court to rule. As an alternative, the solicitor general's office filed parallel applications in those two cases to stay the district court injunctions. A stay is a form of extraordinary relief that, under Supreme Court Rule 20, is justified only in "exceptional circumstances."
      Supreme Court justices take pride in the role that written opinions play in explaining and justifying their decisions. In this instance, however, none of the justices wrote or uttered a single word to explain the deference to a policy, on the basis of an incomplete record, that federal judges in four different cases had rejected.
      The inference is clear: five Republican-appointed justices, including the Trump appointees Kavanaugh and Neil Gorsuch, decided simply to back the Tweeter in Chief in an animus-driven decision to consign brave and honorable transgender service members to the limbo of separate and unequal status. They deserved better: thanks for your service, indeed.

Barr Falls Short in Promises on Mueller Probe

      As President Trump's nominee to be attorney general, William Barr proved himself in his Senate confirmation hearing testimony last week [Jan. 15] to be a smart guy and a good lawyer. But Barr came across as too lawyer-like to dispel the legitimate doubts about his leading the Justice Department at a critical time in the special counsel's investigation of his White House sponsor.
      Barr distanced himself from Trump at the start of his Senate Judiciary Committee appearance by regretting the government shutdown then in its record-breaking twenty-fifth day and voicing sympathy, un-Trumplike, for furloughed government employees. Later, however, he quibbled over a Democratic senator's reference to the "Trump shutdown" with a bit of false equivalence aimed at Democrats. "It takes two to tango," Barr retorted.
      More substantively, Barr supported his longtime friend and former Justice Department colleague Robert Mueller by emphatically rejecting Trump's familiar characterization of the special counsel's investigation. "I don't believe Mr. Mueller would be involved in a witch hunt," Barr said even while acknowledging Trump's criticisms as "understandable."
      Disagreeing with Trump, however, Barr said that it was "vitally important" that Mueller be allowed to complete the investigation without interference. "If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interference with or any other investigation," he said. "I will follow the Special Counsel regulations scrupulously and in good faith and, on my watch, Bob will be allowed to complete his work."
      Barr's qualifications for the Justice Department post were praised by Republican senators and acknowledged by Democrats. He rose in the Justice Department under President George H.W. Bush from the Office of Legal Counsel in 1989 to deputy attorney general and attorney general in Bush's last two years in office, 1991 to 1993. Critics, however, underscored that nothing in Barr's previous tenure at Justice demonstrated a willingness to assert independence from the White House.
      In any event, Barr's credentials went unremarked on when Trump interviewed him for attorney general. Trump's only question, according to Barr, was how well he knew Mueller. The president's single-focus curiosity added to the impression that Barr's principal qualification for the post in Trump's mind was the unsolicited 19-page memo that he wrote and then distributed to Justice Department officials questioning Mueller's apparent interest in a possible obstruction of justice charge against the president.
      The memo eventually found its way to Trump, but Barr batted away any insinuation that he wrote the memo to curry Trump's favor in hopes of landing the Justice Department job. At age 68, he told the senators, he had no need to pad his resume and no desire to disrupt a comfortable life with political grief. Barr unsettled those reassurances, however, by fudging on two critical issues: whether he would recuse himself from overseeing Mueller's investigation, given his prior views, and whether he would promise to release the eventual report.
      In a different context, Barr's lawyer-like reluctance to address both questions in advance might have seemed reasonable. The job came open, however, only after Trump berated and then fired Attorney General Jeff Sessions for Sessions' ethics-bound decision to recuse himself from the Russia investigation. Pressed by Democrats, Barr refused to promise to recuse himself even if the Justice Department's ethics office recommended.
      Barr retreated to the Special Counsel regulations to avoid a firm promise to release Mueller's eventual report. He did promise he would not allow the White House to edit the report, but as to releasing the report he went no further than to state that his goal would be to "provide as much transparency as I can consistent with the law." With Barr's testimony finished, the committee's ranking Democrat, California's Dianne Feinstein, opined the next day [Jan. 16] that she found Barr's description of his intentions to be "confusing."
      Feinstein said that her eventual vote would depend on the public release issue. She had already conceded to reporters, however, that Barr seemed on the path to "easy confirmation." With Republicans holding a fortified 53-47 majority in the new Senate, Barr's confirmation had been treated as a certainty from the outset. Thus, Democrats used the hearing as best they could to secure commitments. The Democrats' leader, New York's Chuck Schumer, echoed Feinstein in describing Barr's stated goal of transparency as "not good enough."
      As often happens, Barr had moments of confirmation conversion when questioned critically about some of his prior views. He assured the Iowa Republican Chuck Grassley, for example, that he would heed Grassley's advice to support enforcement of the False Claims Act despite previous doubts about the law, which incentivizes whistleblowers to sue fraudulent government contractors in the government's name. Barr also promised to implement the sentence-reducing provisions of the newly enacted bipartisan criminal justice reform despite his previous support for policies that fueled late 20th century mass incarceration.
      Barr stuck to his previous view, however, and the official Justice Department position that the president is not subject to criminal indictment while in office. Hypothetically, however, Barr said that witness tampering by a president could constitute obstruction of justice.
      That colloquy gained special attention at week's end after BuzzFeed News reported [Jan. 17] that Trump's former attorney Michael Cohen had told Mueller's office that Trump directed him to lie to Congress about the status of Trump's hoped for Trump Tower in Moscow. "If true," House Democrat Joaquin Castro of Texas remarked on MSNBC, "Trump should either resign or be impeached." From Capitol Hill Republicans, however, only crickets.

Manafort's 'Smoking Gun' on Collusion With Russia

      Paul Manafort, while serving as chairman of Donald Trump's presidential campaign, met with a Russian spy and gave him confidential polling data from the campaign even as reports were already swirling of Russian interference in the U.S. presidential election. The stunning, unintentional disclosure in a court filing by Manafort's own lawyers struck some legal experts and Democratic politicians alike as the long-sought proof of the Trump campaign's collusion with Russian agents that Trump has repeatedly and insistently denied.
      A "smoking gun," the prominent Harvard law professor Laurence Tribe tweeted after the Washington Post story went online on Tuesday [Jan. 8]. Sen. Mark Warner, the Virginia Democrat and the party's ranking member on the Senate Intelligence Committee, had a similar reaction the next day. "This appears as the closest we've seen yet to real, live, actual collusion," Warner told CNN's Manu Raju in a corridor interview.
      The White House, consumed with the impasse over Trump's border wall and partial government shutdown, had little reaction beyond Trump's perfunctory denial two days later. "I didn't know anything about it," he told reporters when questioned on the White House lawn. Trump apologists began intimating, however, that Manafort was freelancing in his own interest when he passed on valuable political data to a Russian he knew from representing the pro-Russian elements in neighboring Ukraine.
      The disclosure of Manafort's campaign-time gift to his Russian associate, Konstantin V. Kilimnik, came from a filing by Manafort's lawyers aimed at limiting the eventual prison sentence for their convicted felon client. Manafort is due to be sentenced in March, but special counsel Robert Mueller's office has charged him with lying as part of a plea deal and warned on that basis of asking for more prison time.
      Manafort's lawyers deny that their client has been lying to Mueller's office and apparently included the information about the meeting with Kilmnik to prove their client's bona fides. They intended to redact that sentence from the court filing, but it emerged unredcated apparently because of a formatting error on their part.
      The disclosure of Manafort's meeting with a Russian well known to have ties to the Kremlin's intelligence services makes unavoidable the inference that Russia used the information better to target its interference in the 2016 presidential campaign for the benefit of Vladimir Putin's preferred candidate, Trump. The many questions unaddressed so far include, for example, whether Manafort told Trump in advance, after the fact, or never at all.
      With those questions pending, however, a leading election law expert surmises that the disclosure shows an apparent violation of federal campaign finance law. Paul Ryan, vice president for policy and litigation at the venerable campaign finance watchdog group Common Cause, notes that federal law flatly prohibits foreign nationals from directly or indirectly making contributions to U.S. campaigns and likewise prohibits U.S. campaigns from soliciting or receiving contributions from foreign nationals.
      Campaign experts interviewed by various news organizations over the next few days emphasized that the information Manafort acknowledges turning over apparently went beyond publicly available polling data and instead included the kind of "analytics" useful in precision targeting of political messages. Manafort's anonymous apologists suggested that he was providing the information to his Ukrainian clients by way of buttressing their backing of a pro-Russian "peace plan" for the region.
      Other experts emphasized that the Ukrainians had no real use for the data, but the Russians — based on their now confirmed interference in the 2016 campaign — clearly did know how it could be used and presumably used it for Trump's benefit. On that basis, Ryan posits that the Trump campaign violated federal law by receiving an "in-kind contribution" from foreign nationals in the form of "coordinated expenditures' and by failing to report those contributions and expenditures.
      As with the Trump campaign's failure to report the hush-money payment to Trump's porn-star accuser Stormy Daniels, this apparent campaign finance violation is no inadvertent bookkeeping oversight, but deliberate concealment of information that voters had a right to know before casting their ballots. President Obama, it will be recalled, backed away at the time from disclosing the intelligence community's assessment of Russian interference in the 2016 election. A Trump campaign filing with the Federal Election Commission would have been proof positive of the campaign's dalliance with the United States' most significant geopolitical adversary.
      Now, more than two years after the fact, the evidence shows that Trump campaign operatives had more than 100 contacts with Russian agents during the course of the 2016 campaign despite warnings from the FBI of the Russians' attempts at insinuation. Trump's response as candidate and later as president was so inexplicable, the New York Times has now disclosed in a stunning report, that the FBI opened a counterintelligence investigation after the firing of FBI director James Comey to determine whether Trump was consciously or unwittingly doing Russia's bidding as president.
      In a parliamentary system, the time would be ripe for a vote of no-confidence from the people's elected representatives in what is now a Democratic-majority House of Representatives. In the United States' presidential system, the constitutional remedy is impeachment, a procedure the Framers devised in part to guard against improper foreign influence on the chief executive. That remedy awaits the final report from Mueller's office but faces a seemingly insuperable obstacle in the Senate unless Republicans realize that Trump's presidency threatens not just the country but perhaps their own political fortunes as well.

For New Congress: Impeachment, Voting Rights, Ethics

      To impeach or not to impeach: that is the question now that the House of Representatives' Democratic majority and any conscientious Republicans are in a position to exercise that constitutional remedy for an abusive president. Impeachment hearings would suck a lot of political air out of Capitol Hill cloakrooms, but Democrats can and should pursue a progressive and reform-minded policy agenda at the same time.
      The House Judiciary Committee, under the chairmanship of Rep. Jerrold Nadler, D-N.Y., may be best advised to await the final report from special counsel Robert Mueller before broaching the issue. In the meantime, however, the committee could open hearings on the omnibus voting rights and ethics bill, introduced symbolically as H.R. 1 by Rep. John Lewis, the Georgia Democrat and hero of the great voting rights movement of the 1960s.
      The committee could also join with other House panels by looking into the ambitious agenda for rule of law and ethics reform that the Brennan Center for Justice unveiled in October under the auspices of a bipartisan task force. The 60-page report, replete with 30 pages of footnotes, includes more than two dozen proposals to prevent White House interference with Justice Department investigations and strengthen ethics requirements and official accountability.
      In an alternate political universe, the voting rights and ethics reform proposals would gain bipartisan support from Democrats and Republicans alike. In present-day Washington, however, any of these democracy-enhancing proposals would face a steep uphill fight in the Republican-controlled Senate after hypothetical approval by the Democratic-controlled House.
      Lewis, arrested and beaten as he participated in the voting rights march at Selma, Alabama, in 1965, was joined by House Speaker Nancy Pelosi and a dozen other Democrats in unveiling the voting rights bill from the House floor on Friday [Jan. 4]. The 571-page bill includes provisions, among others, to require automatic voter registration for federal elections, expand early voting, and limit the kind of aggressive cancellation of registered voters seen in Lewis's home state in the run-up to the hotly contested gubernatorial race in November.
      Republican Brian Kemp, running for governor while serving conflicted as the state elections chief, won that election by besting Democrat Stacey Abrams with a margin of 55,000 votes out of 3.9 million cast. Lewis said he is convinced that the results in Georgia and its neighbor state Florida were changed by "the way votes were not counted and purged" in both states. "That must never happen again in our country," he said.
      Voting rights need not be a partisan issue, but Republicans have turned it into a political background over the past two decades after concluding that steps to increase voter registration and participation help Democrats and hurt Republicans. They masquerade this partisan imperative with utterly bogus claims of rampant voter fraud that independent election law experts uniformly reject.
      The ethics reforms proposed by the Brennan Center, the New York University Law School think tank established as a living memorial to the late Supreme Court justice, are likewise not inherently partisan. Indeed, several fit well within the "drain the swamp" mantra mouthed by Donald Trump while a candidate and then forgotten in the White House, such as tightening financial disclosure requirements and strengthening the enforcement powers of the Office of Government Ethics.
      Other proposals, however, are aimed directly at positions that Trump took as candidate and continues to defend as president. The eight-member task force, co-chaired by former U.S. attorney Preet Bharara and the former Republican governor and Cabinet member Christine Whitman, proposed, for example, that Congress pass a law requiring all candidates for president and vice president to disclose their personal and business income tax returns.
      Trump broke with a 40-year-old precedent in refusing to disclose his income tax returns and, despite vague assurances of eventual disclosure, has continued to shield those returns as president. Transparency advocates in Congress, however, are being urged to invoke congressional oversight powers to demand the returns from the Internal Revenue Service (IRS).
      The task force also recommended that Congress pass legislation to enforce the Constitution's Foreign and Domestic Emoluments Clauses, the provisions that prohibit the president or other federal officials from profiting in their positions through payments from foreign or state governments. Trump currently faces three lawsuits for his notorious violations of these two clauses, but the strongest of three — brought by the District of Columbia and the state of Maryland — was put on hold after the judge approved subpoenas for Trump Organization business records.
      In addition, the task force called for Congress to eliminate the ethics exemption for presidents and vice presidents and require divestment of any personal holdings unless placed in a blind trust. As candidate, Trump made a big show of turning his businesses over to his sons, but he continues to have an interest in the businesses while refusing to disclose the details.
      These issues are more than enough for Congress to work on without taking on impeachment however urgent that issue. Despite her locker-room language, Rep. Rashida Tlaib, the newly elected Democrat from Michigan, was right to point in an op-ed in USA Today to the "overwhelming evidence" that Trump has committed such impeachable offenses as obstructing justice, violating the Emoluments Clause, and conspiring to illegally influence the 2016 election. Mueller's final report on those questions may be too much even for the craven Republicans on Capitol Hill to ignore.