Under Trump, Lawlessness and Disorder

      Fifty years ago, Richard Nixon campaigned for the presidency in 1968 with a "law and order" platform that blamed the nationwide crime rates on liberal Supreme Court decisions on criminal law and procedure. The theme may have played a critical role in Nixon's narrow victory and continued to serve Republican candidates well in subsequent campaigns.
      Today, however, Trump has transformed the Grand Old Party into a party of lawlessness and disorder. Trump's lawyers were in a federal courtroom last week [Oct. 23], along with Justice Department lawyers, arguing that Trump is so far above the law that he cannot even be investigated much less prosecuted for run-of-the-mill criminal offenses.
      One day earlier, Trump had met at the White House with some of his Republican supporters in the House of Representatives to bless a plan to disrupt the ongoing impeachment inquiry being conducted by three Democratic-led House committees. Rep. Matt Gaetz, the Florida Republican and leader of the group, effectively delayed the inquiry for five hours by leading two dozen or so rule-breaking members into the secure, underground facility where the committees, with members from both parties, were to hear testimony from the next administration official called as a witness in the proceeding.
      Trump's lawyers were arguing before the federal appeals court in New York City to quash a subpoena issued by the Manhattan district attorney, Cyrus Vance Jr., for Trump's personal and corporate tax returns as part of a tax-related investigation by the state prosecutor's office. The three-judge panel in the case, Trump v. Vance, appeared to be taken aback by the extraconstitutional audacity of the argument.
      Inevitably, the arguments recalled Trump's campaign-time boast that he could shoot someone on New York's Fifth Avenue without losing a single vote from his supporters. Judge Denny Chin posed the hypothetical to Trump's lawyer, William Consovoy, to ask whether local authorities would be helpless to investigate. "Nothing could be done?" Chin asked, incredulously. "That's your position."
      Consovoy, a go-to Washington lawyer for conservative and Republican causes, stuck to the position, according to the New York Times' account. "That is correct," he said, repeating himself for emphasis. "That is correct."
      Trump's position contradicts the Supreme Court's 1974 unanimous decision in United States v. Nixon that ordered Nixon to turn over the White House tapes in a criminal proceeding in the face of a more carefully framed assertion of presidential privilege. It also contradicts the Court's decision in Clinton v. Jones (1997) that Clinton was subject to subpoena in a private civil lawsuit, a proceeding with much less public import than a criminal investigation.
      Trump's position also goes beyond the protections afforded to heads of government in other Western-style democracies. As one example, the Israeli prime minister Benjamin Netanyahu is currently facing possible indictment in a two-year long investigation for possible fraud, bribery, and breach of trust. The Israeli attorney general announced plans in February to bring indictments, but Netanyahu tried to derail the charges in a pretrial hearing earlier this month [Oct.2].
      Meanwhile, the House Republicans led by the Fox News regular Gaetz were making another argument unsupported by anything in the text or spirit of the Constitution. Gaetz, who represents part of Florida's Alabama-like western panhandle, has been one of the leading critics of the preliminary depositions that the three House committees are taking in closed-door meetings to prepare for public hearings on Trump's now all but certain impeachment.
      The closed-door evidence gathering follows the pattern that the House's Republican leadership used in the Clinton impeachment. Some of the cable news channels dramatized the Republicans' hypocrisy by digging up footage from then-Rep. Lindsey Graham, one of the House's impeachment managers, and contrasting it with Graham's denunciation of the same procedure now as a Trump-supporting Republican senator from South Carolina.
      Gaetz led some 40 House Republicans into the subterranean House room officially designated as "Sensitive Compartmented Information Facility" or SCIF that the Intelligence Committee uses to safeguard classified materials. The committee rules prohibit cell phones in the facility, but Gaetz carried his with him and sent boastful tweets from inside.
      Some of those who massed with Gaetz outside the closed doors were in fact members of one or the other of the committees in the inquiry and thus had no need to barge in. Given the blatant hypocrisy, it was easy for some Congress watchers to sneer at a political stunt stage managed for maximum effect on TV newscasts.
      However farcical, the episode was worse than a stunt, as Richard Primus, a law professor at the University of Michigan, noted in a long thread on Twitter. Primus described the demonstration as "an attempt by members of Congress to use physical disorder to block the work of Congress. That's terrifying. And completely inappropriate. Constitutional government can't function that way."
      Trump and his supporters, however, have little regard for constitutional niceties. Thus, Trump scoffed last week at what he called the "phony" Emoluments Clause, the constitutional provision that he has openly violated since his first day in office. And Trump, let it be remembered, once proclaimed that the Constitution's Article II gives him the power to do whatever he wants — separation of powers notwithstanding.
      Law and order are no help, but hindrance, as Trump's political and legal situation worsens, according to Primus. "As things come to look worse for Trump, he and his supporters will resort to increasingly desperate/destructive tactics," he tweeted. "That’s how institutions collapse."

Needed in Senate: GOP Profiles in Courage

      Barry Goldwater earned his place in U.S. political history by launching the conservative movement that remade the Republican Party and paved the way for Ronald Reagan's two-term presidency. Before Reagan, however, Goldwater had a more immediate impact on political history by persuading Richard Nixon at the height of the Watergate scandal to resign in order to spare the nation the agony of an impeachment trial in the U.S. Senate.
      Goldwater, who titled his 1960 political manifesto The Conscience of a Conservative, displayed his conscience later by confronting Nixon in the White House with the reality that the president faced a certain conviction in the Senate unless he resigned. Goldwater acted, mostly on his own, after the release of the Watergate tapes proved beyond doubt Nixon's involvement in the hush-money payments to the Watergate burglars.
      Among present-day Republicans, Goldwater-like political courage has been conspicuous by its absence even as the evidence of President Trump's impeachable offenses has emerged in plain sight and beyond dispute. House and Senate Republicans mysteriously lose their voices when questioned by reporters or Democratic colleagues about President Trump's now proven effort to trade U.S. military aid to Ukraine for investigations into his political opponents.
      John Kasich, the former Republican congressman from Ohio, crossed the Rubicon last week [Oct. 18] by saying, with acknowledged sadness, that he would vote to impeach Trump if he were back in the U.S. House of Representatives. Kasich, promoting his new book on CNN and the PBS NewsHour, told interviewers that the acting White House chief of staff Mick Mulvaney had pushed him over the edge on the issue.
      Mulvaney, in his first ever turn at the pressroom lectern, tried to prove Trump's innocence the day before [Oct. 17] by denying that Trump had pressured the Ukrainian president Volodymyr Zelensky in the infamous July 25 telephone call to gather possible dirt on Trump's possible opponent Joe Biden. Instead, Mulvaney explained, Trump wanted Zelensky's help in investigating the debunked theory that Ukraine, not Russia, had interfered in the 2016 election, supposedly by hacking into a secret Democratic National Committee server.
      Mulvaney acknowledged various conversations with Trump that led up to the withholding of the military aid. “Did he [Trump] also mention to me in passing the corruption related to the DNC server? Absolutely,” said Mulvaney. “But that’s it. And that’s why we held up the money.”
      ABC's Jonathan Karl alertly underlined the significance of Mulvaney's statement. "What you just described,” said Karl, “is a quid pro quo. It is: Funding will not flow unless the investigation into the Democratic server happens as well.” Later, Mulvaney tried to take back the admission, but there it was, on tape,  replayed time and time again on news programs for the rest of the week.
      Kasich, in the CNN interview, called Mulvaney's supposedly innocent explanation of the events "totally inappropriate. It's an abuse of power." He went on: "Does this rise to the level of impeachment? I now believe it does." But, he added, "I say it with great sadness."
      Kasich may be ahead of the curve among Republicans — no GOP senator has openly supported impeachment to date —  but he is behind the curve among the American public according to the most recent polls. A majority of Americans support the Democratic-led impeachment inquiry in the House of Representatives, according to polls by Quinnipac University, Marist University, and CBS News.
      With support for impeachment and even conviction increasing, Trump's White House counsel and one out-of-office executive branch partisan John Yoo were grasping at straws last week in efforts to delegitimize the impeachment inquiry. Yoo, best known for writing the later-repudiated "torture memo" while at the Bush Justice Department, opined last week, with no evident basis, that the Framers would never have approved of an impeachment within a year of a presidential election.
      Clark Cunningham, a law professor at Georgia State University, refuted Yoo by citing an eerily prescient warning from William Davie, the North Carolina delegate to the Constitutional Convention who helped write the Impeachment Clause. "If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected," Davie explained. "I consider this as an essential security for the good behavior of the Executive.”
      Trump''s in-house counsel Pat Cipollone went further in a much-maligned, eight-page letter to House leaders dated Oct. 8 calling the entire impeachment inquiry illegitimate and vowing not to cooperate. Ten days later, 300 law professors had been found to sign a response saying that they disagreed with Cipollone's claim that the inquiry was unconstitutional because the House had not formally approved the inquiry and because Republicans were not being allowed to call witnesses.
      Seemingly oblivious to his worsening political status, Trump doubled down on abuse of office at week's end by authorizing an in-plain-view violation of the Emoluments Clause: specifically, designating his financially troubled Miami-area Doral resort as the U.S. site for the G-7 summit in 2020. With criticism from all quarters, Trump rescinded the decision late Saturday [Oct. 19], blaming Democrats and "the hostile media."
      By week's end, some political observers were counting potential GOP defectors in the Senate, but none of the counts came near to the number needed, 20, to produce a two-thirds majority along with 47 Democrats. In the Senate itself, Majority Leader Mitch McConnell was telling colleagues to be ready for an around-the-clock week-long trial, probably sometime around Thanksgiving.

Title VII Applies to Sexual Orientation "Because of Sex"

      Five years before Stonewall, Congress passed a law prohibiting discrimination in the workplace "because of sex," with no thought about barriers facing gay men and lesbians in getting and holding jobs. Thus, the law, Title VII of the Civil Rights Act of 1964, did not explicitly cover discrimination based on sexual orientation or gender identity, phrases not even coined at the time much less in common use.
      As early as the 1970s, however, gay rights advocates began arguing in court that a law prohibiting discrimination because of sex necessarily applies, as a simple matter of statutory construction, to discrimination because of sexual orientation as well. At the Supreme Court last week [Oct. 8], the veteran LGBT rights advocate Pamela Karlan opened with a simple and irrefutable example to prove that point, but conservative justices resisted the necessary implication of their strict textualist approach to statutory construction.
      "When an employer fires a male employee for dating men but does not fire a female employee for dating men, he violates Title VII," Karlan explained. That discrimination is "because of sex," Karlan continued, because the employer's action "is based on the male employee's failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men."
      For most of the past 50 years, courts and the Equal Employment Opportunity Commission (EEOC) have found Title VII inapplicable to anti-gay discrimination on the ground that Congress in 1964 intended nothing beyond "traditional" notions of sex. Over the past 30 years, however, textualists led by the late Justice Antonin Scalia have insisted that words matter, not intentions, in the delicate judicial art of statutory construction.
      Courts stuck with this narrow approach even as the Supreme Court ventured beyond Congress's intent in decisions extending Title VII to issues unthought-of in the 1960s. The 9-0 decision in Meritor Savings Bank v. Vinson (1986) applied Title VII to a male supervisor's sexual harassment of one of the bank's female employees on the ground that the law was intended "to strike at the entire spectrum of disparate treatment of men and women' in employment."
      Three years later, the Court held in a 6-3 decision, Price Waterhouse v. Hopkins (1989), that Title VII also applies to adverse employment decisions based on an employee's failure to conform to gender stereotypes. The ruling allowed Ann Hopkins to sue after the accounting firm's male partners denied her a promotion because she was "too macho."
      A decade later, Scalia himself led a unanimous Court in extending Title VII even further. The ruling in Oncale v. Sundowner Offshore Services, Inc. (1998) applied Title VII to same-sex harassment suffered by the straight male plaintiff from his coworkers on an offshore oil rig. "[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils," Scalia explained in his opinion for the Court.
      The EEOC extended Title VII to anti-gay discrimination in a ruling in 2015 that favored a Federal Aviation Administration air traffic controller who was passed over for a promotion after mentioning to his supervisor that he and his partner had recently attended Mardi Gras celebrations in New Orleans. "We don't need to hear about that gay stuff," the supervisor reportedly told him.
      "Sexual orientation is inherently a sex-based consideration," the EEOC stated in its 17-page opinion in Baldwin v. Fox. "An allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII."
      The gay plaintiffs in the two cases argued before the Court, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda, were both fired after they were outed, inadvertently, by circumstances. Gerald Bostock was fired from his job as a child welfare specialist in Clayton County, Georgia, after the local gay paper showed him playing in the gay softball league. Donald Zarda was fired from a New York skydiving company after he tried to reassure a female student by telling her that he was 100 percent gay.
      The federal appeals court in New York ruled in Zarda's favor, but the federal appeals court in Georgia in Bostock's case stuck with the majority view that Title VII permits anti-gay discrimination. The EEOC gave both of the plaintiffs right-to-sue letters, but the agency was unheard from in either of the cases or a third case, Harris Funeral Homes v. EEOC, seeking to apply Title VII to protect transgender employees.
      With no independent litigating authority, the EEOC was sidelined by the Trump administration's decision to support the discriminating employers in the three cases. Representing the administration, Solicitor General Noel Francisco began simply but misleadingly, "Sex means whether you're male or female, not whether you're gay or straight."
      Two of the liberal justices, Sonia Sotomayor and Elena Kagan, hoisted Francisco on his textualist petard. "The text of the statute appears to be pretty firmly in Ms. Karlan's corner," Kagan told him. But Francisco gained ground with two of the conservatives, Samuel A. Alito Jr. and Neil Gorsuch, by warning that it would be "pernicious" for the Court to extend Title VII beyond what Congress intended.
      Alito and Gorsuch worried about "massive social upheaval" from a judicial ruling to extend Title VII to anti-LGBT discrimination. Oddsmakers were hedging their bets after last week's arguments, but take pity on the law clerks in the conservative justices' chambers assigned to show that sexual orientation has nothing to do with sex.

Trump Off the Rails on Impeachment

      President Trump is now conceding that the House of Representatives is all but certain to impeach him by Thanksgiving for the high crime of soliciting foreign assistance to benefit him in his bid for reelection next year. His inability to control or manipulate events has driven the distractible Trump to new heights of distraction, even to the point of adding to the articles of impeachment by publicly soliciting China's help on Thursday [Oct. 3] in digging up dirt on his political rival, former vice president Joe Biden, and Biden's global business-dealing son Hunter.
      The president's defense strategy appears to turn on how he feels any given day and, recently, he has not been feeling well at all. Trump was "as riled up as any time in his presidency," according to the New York Times's senior White House correspondent Peter Baker, when he called on China as the second foreign country that should investigate Hunter Biden's business dealings for unspecified wrongdoing.
      On Capitol Hill, Florida's Republican senator Marco Rubio, the former Trump rival turned Trump lapdog, had no better answer to Trump's latest high crime than to insist that he was not serious. China, apparently, agreed; Beijing responded to Trump's veiled threat to step up the trade war unless it bowed to his demand by saying that it would not interfere in the U.S. election.
      Meanwhile, the email traffic between administration officials in Washington and embassy personnel in Kyev confirmed what Trump had initially denied until eventually defending as completely proper. The text exchanges, as shown on cable news programs and in the pages of the New York Times and other newspapers, show that the White House was slow-walking President Volodymyr Zelensky's hoped-for White House meeting until he delivered on the asked-for investigation of Hunter Biden's role in the Ukrainian natural gas company Burisma.
      With the former ambassador, Marie Yovonovitch, removed because she would not cooperate, it was left to the embassy's chief of mission, Bill Taylor, to try to make sense of the demands from Washington. "Are we now saying that security assistance and WH meeting are conditioned on investigations?" Taylor asked in a Sept. 1 text message. Eight days later, he put his objections into writing. "As I said on the phone," Taylor wrote in a Sept. 9 text, "I think it's crazy to withhold security assistance for help with a political campaign."
      It bears repeating that the risk of foreign influence on the new government was the very danger that led the Framers in 1789 to give Congress a method for removing the president. Only now, 230 years later, has the fear materialized. "We have never seen the president of the United States using his foreign policy power for his own political advantage," Mieke Eoyang, a former staff director for the House Intelligence Committee, remarked in a briefing sponsored by the progressive American Constitution Society (ACS).
      Trump continues to deny and to dismiss as unimportant Russia's documented interference in the 2016 election benefiting him by publicizing Hillary Clinton's emails and spreading cybersmears about her among targeted population groups and in targeted battleground states. In Moscow, the Russian president Vladimir Putin was pursuing this strategy eagerly, as one of several initiatives aimed at destabilizing Western democracies that he views as obstacles to Russia's rightful place in the world.
      Ukraine, on the other hand, had no interest in U.S. politics except its own sovereignty and transparency, but the emails before Trump's infamous July 25 telephone call with Zelensky make clear the pressure on him to bow to Trump. "I spike [sic] directly to Zelensky and gave him a full briefing," Gordon Sondland, U.S. ambassador to the European Union, wrote six days before the phone call. "He's got it."
      With the phone call concluded, the U.S. diplomats set about drafting the actual statement that Zelensky was to use in announcing the requested investigation. For Trump's lackeys, it was not enough that Ukraine had lost part of its territory to Russia; it also had to be turned into an actual client state for Trump to control.
      Trump's substantive defense to the looming charges against him consists mostly of confusion and deflection, according to Michael Gerhardt, the University of North Carolina law professor and author of Impeachment: What Everyone Needs to Know. Trump and House Republicans are insisting that House committees cannot conduct an impeachment inquiry without a formal House vote first. Not so, Gerhardt remarked in the ACS briefing. "The fact is that all the procedures are being properly followed," he said.
      In the meantime, Trump has hurled denunciations right and left. The still unidentified whistleblower is a spy in Trump's telling and perhaps deserves the punishment once reserved for spies, an apparent reference to execution. Trump is demanding the whistleblower's identity, in contravention of the law guaranteeing whistleblower confidentiality. As the law's main author, Iowa's senior Republican senator Charles Grassley broke GOP ranks over the issue. "We should always protect whistleblowers," Grassley said in a statement on Tuesday [Oct. 1].
      Judging from his conduct so far, Trump is all but certain to go even further off the rails as the House moves toward impeachment and the articles, however many there be, move toward trial in a Senate controlled by Trump-fearful Republicans. Trump is counting on division, just as he did in his campaign. "He's making it clear," MSNBC's Chris Matthews remarked on Hardball last week. "If he's going down, he's taking the country with him."