Trump's Lame-Duck Pardons Put Reform on Agenda

             President Trump’s lame-duck spree of presidential pardons has been so blatantly abusive as to breathe real life into long overdue efforts to enact some legal safeguards around the up-till-now unchecked power. Trump’s Christmas-week flurry of forty-six pardons granted undeserved clemency to three corrupt Republican members of Congress, two former advisers who had maintained loyal silence about Trump’s failings in office, and four private security contractors responsible for the September 16, 2007, machine-gun massacre of fourteen Iraqi civilians in a crowded Baghdad square.

             Trump follows but far outstrips the examples of other presidents who used their final days in office to grant pardons to donors and political bedfellows, as the Washington Post columnist Ruth Marcus noted in a column last week [Dec. 23]. President Clinton granted 140 pardons in all on his last day in office [Jan. 20, 2001], including clemency for his half-brother Roger Clinton for a 16-year-old drug conviction and for the fugitive financier Marc Rich.

The Rich pardon smelled of rank corruption, coming shortly after Rich’s ex-wife had “lavished donations” on the Democratic Party and Clinton’s presidential library, in Marcus’s phrasing. Rich had fled the United States after he and his partner were indicted in 1983 for 65 criminal counts in all, including tax evasion, wire fraud, racketeering, and trading with Iran during the U.S.-imposed oil embargo.

Eight years earlier, President George H.W. Bush had pardoned six people connected to the Reagan-era Iran-contra scandal on his final Christmas Eve in office in 1992. Bush preemptively pardoned two Reagan administration officials who had not yet stood trial: former Defense secretary Caspar Weinberger and former CIA official Duane Clarridge. The other four had all been convicted variously for perjury or withholding evidence, including former national security adviser Robert McFarlane, former assistant secretary of state Elliott Abrams, and two former CIA officials: Clair George and Alan Fiers.

Comparing Trump’s lame-duck spree to those examples, Marcus aptly concluded that Trump outranks them by far. “No president has ever misused the pardon power as thoroughly as Trump has,” Marcus wrote, “not to rectify wrongs and dispense mercy but to reward political allies, excuse corruption, and erase, as much as possible, the work of the special counsel who plagued his years in office.”

In the same vein, The New York Times declared in an editorial that Trump “corrupted the presidential pardon” and that Biden “must now repair it” after Biden takes office in January. Biden should make “this deeply important but long-abused power . . . work more as the founders intended: as a counterweight to unjust prosecutions and excessive punishments.” Indeed, the Framers saw the pardon power as an important safeguard against judicial abuse and, for that reason, included no guidelines or procedural rules for its use by the president.

The Times editorial notes that Trump has largely neutered the Justice Department’s pardons office while wielding the power on his own without waiting for Justice to weigh in. To counter DOJ’s prosecutorial bias, the Times backs a proposal by law professor Mark Osler for a free-standing pardon commission staffed by, among others, criminal justice experts, to report directly to the president.

Two of those Trump pardoned included two close advisers who had been convicted of trying to impede the special counsel’s Russia investigation: former 2016 campaign chairman Paul Manafort and Trump’s longtime political adviser Roger Stone. The White House’s statement on the 26 pardons granted on Wednesday, specifically blamed Manafort’s and Stone’s convictions on “prosecutorial overreach” and “prosecutorial misconduct” by the Mueller investigation.

Other lesser figures in the Mueller probe also gained pardons: George Papadopoulos, a former foreign policy adviser who pleaded guilty to lying to the FBI in a plea bargain after agreeing to cooperate with the Mueller probe. He completed a 14-day prison sentence after Thanksgiving 2018.

            The three former Republican congressmen pardoned included New York’s Chris Collins, the first member of Congress to endorse Trump during the 2016 primaries, who had been sentenced to 26 months in prison on an insider trading charge. The others were California’s Duncan Hunter, who was sentenced to 11 months in prison after pleading guilty to misusing campaign funds for personal expenses, and Texas’s Steve Stockman, who was sentenced to 10 years in prison after being convicted of diverting charitable donations to his campaign fund.

            One reform well worth considering would be to eliminate lame-duck pardons altogether, just as Kenya’s constitution does. The Kenyan constitution limits the president’s use of various powers, including “the power of mercy,”  from the time that voting begins in the presidential election until a successor assumes office.

            Trump’s pardons prompted one Republican senator at least to speak out: “rotten to the core,” according to Nebraska’s Ben Sasse. In like vein, the Naderite watchdog group Public Citizen denounced the pardons of the three former congressmen as a “stunning rebuke of ethics in government.”

            The pardons for the four Blackwater contractors, convicted and sentenced to long prison terms for the indiscriminate machine-gunning of Iraqi civilians in 2007, are reminiscent of Trump’s very first presidential pardon. Eight months into office, Trump pardoned Arizona’s tough-talking sheriff Joe Arpaio, a Trump supporter who had been sentenced for criminal contempt of court because of his hard-line tactics in cracking down on illegal immigrants. Like Arpaio, Blackwater’s founder, Erik Prince, has been an influential Trump supporter.

Court Gives Trump a Pass in Census Lawsuit

             The Constitution seems clear enough on how to use the population figures from the once-every-decade Census to apportion seats in the House of Representatives among what are now 50 states. The Constitution requires “an actual enumeration” (Amendment XIV, sec. 2), not an “incomplete” or “partial” enumeration.

            Congress made the constitutional implication explicit in 1929 by specifying in the Census Act that in reporting Census figures to the president, the secretary of Commerce is required to include “the tabulation of total population by States.” Through two centuries of historical practice, the Census has included all persons residing in the United States, without regard to their immigration status.

            President Trump defied these provisions and this practice by issuing a directive to Commerce Secretary Wilbur Ross on July 21 under the title “excluding illegal aliens from the apportionment base after the 2020 Census.” Trump claimed executive authority to adopt this policy and directed Ross to comply “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

            A three-judge federal district court ruled in September, however, that Trump’s directive violated applicable statutory provisions. The court’s ruling, in a lawsuit led by the state of New York on behalf of 22 states and the District of Columbia, found that the presidential memorandum “violates the statutes governing the census and apportionment in two clear respects.”

            Federal district courts had reached the same conclusion in two separate lawsuits, but the Supreme Court concluded last week [Dec. 18] that New York lacked legal standing to bring the lawsuit and that the suit was “premature” because the eventual injury to the Empire State – reduced representation in Congress and reduced federal funding -- from excluding illegal aliens from the state’s population count was “speculative.”

            The Court’s unsigned opinion in Trump v. New York, issued apparently on behalf of the six Republican-appointed justices, leaves Trump free in his final month in office to submit an apportionment formula to Congress likely to disadvantage among others two states, California and New York, that voted against Trump in 2016 and against him again in 2020.

            The Court’s seven-page opinion described the case, contrary to the district court’s 85-page opinion, as “riddled with contingencies and speculation that impede judicial review.” The Court noted the administrative difficulties in determining the number of illegal aliens among the immigrant population in respective states. “We simply do not know,” the Court wrote, “whether and to what extent the President might direct the Secretary to ‘reform the census’ to implement his general policy with respect to apportionment.”

            Three liberal justices dissented from the decision in a forceful, 21-page dissenting opinion written by Breyer and joined by Sotomayor and Kagan. Breyer mocked the majority’s seeming insouciance toward what he called the administration’s  “illegal” policy. “Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal,” Breyer wrote, “this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed.”

            Breyer acknowledged that the few cases challenging congressional apportionment in the past came after presidents had presented their tabulations to the House of Representatives for approval. But he argued that leaving the present case unresolved and waiting to adjudicate claims later “risks needless and costly delays in apportionment.”

            The Court’s unsigned opinion expressly left the constitutional and statutory issues unresolved, but Breyer declared unambiguously that on the merits he agreed with the three district courts that had ruled the president’s memorandum unlawful. “Our tools of statutory construction all point to ‘usual residence’ as the primary touchstone for enumeration in the decennial census,” Breyer wrote. “The concept of residency does not turn, and has never turned, solely on a person’s immigration status. The memorandum therefore violates Congress’ clear command to count every person residing in the country, and should be set aside.”

            In contrast to the Court’s silence in regard to the congressional action in 1929, Breyer noted that some members of Congress considered offering proposals to exclude aliens from the population count but none was ever adopted. “Time and again throughout the debate over what became the 1929 Act,” Breyer recounted, “members considered (and rejected) proposals that would have excluded aliens from the apportionment base.”

            Breyer acknowledged that the government had cited some historical evidence to suggest “some ambiguity” about the Framers’ intentions in regard to counting aliens as part of the census required under the Constitution. “[T]he Framers’ intent is not our focus,” he responded. “Instead, the question is the meaning of the statute enacted in 1929.” Apart from that evidence, Breyer contended, “the Government offers little more than its assertion that excluding aliens without lawful status makes good policy sense. . . . Whatever the merits of that policy, it is not the approach to representative democracy that is set forth in the statute.”

            Congress passed the 1929 law, Breyer recalled, in part to reduce political gamesmanship in regard to the population count used in apportioning seats in the House of Representatives. The conservative justices’ decision to let Trump’s policy stand based on manufactured doubts about deciding the case serves Trump’s goal, knowingly even if not intentionally, of disadvantaging Democratic-majority states. The Court ought not to have been so blind the political purpose behind Trump’s policy, given the obvious conflict with the Census Act’s specification on the issue.

For Trump, a Final Loss at Supreme Court

          The Supreme Court cut to the chase on Friday [Dec. 11] by rejecting the week-old legal effort by Texas and 17 other red states to reverse Joe Biden’s victory over President Trump by judicial fiat after his decisive popular vote loss at the polls. With two justices dissenting, the Court threw out Texas’s unprecedented legal maneuver with a two-sentence order that, predictably, prompted a snivelingly defiant tweet from the about-to-be former president.

            With three Trump appointees on the Court, the justices deserve a measure of credit perhaps for spurning Texas’s anti-democratic legal maneuver. But the Court could have done more by warning, just as Pennsylvania’s attorney general did in his legal filing in the case, that Texas’s lawsuit amounted to “seditious abuse of the judicial process.”

            The Court’s order set the stage for Joe Biden, twice elected as vice president on the Obama-Biden ticket with a majority of the popular vote, to be designated as president-elect when presidential electors cast their electoral votes in state capitals on Monday [Dec. 14]. Barring any “faithless” electors, Biden will gain 306 electoral votes from 24 states, including four that he flipped from Trump’s column in 2016: Georgia, Michigan, Pennsylvania, and Wisconsin.

            Texas sued those four states on Dec. 4 for supposedly changing election procedures in violation of the U.S. Constitution by invoking the Supreme Court’s “original” jurisdiction over suits between states. Suits between states typically involve boundary disputes, water rights, or cross-border pollution but never before in a dispute over election procedures.

            The Court denied Texas’s “motion for leave to file a bill of complaint” for “lack of standing” by concluding, in legalistic phrasing, that the Lone Star State “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” In lay terms, the justices said that Texas has no business whatsoever in how other states conduct federal elections.

            In advance of the Court’s action, announced in mid-afternoon on Friday, one high-profile Court watcher called for the Court to issue something more than a brief, unelaborated order. Most notably, Tom Goldstein, Supreme Court advocate par excellence and founder of the invaluable SCOTUSblog, urged the justices in the blog's first-ever editorial to “decimate” Texas’s legal filing. The justices’ action, Goldstein argued, “needs to account for this extraordinary, dangerous moment for our democracy.”

            Texas’s 92-page filing, signed by the ultrapartisan Republican attorney general Ken Paxton, was widely mocked by nonpartisan legal experts but gained support from 17 red-state attorneys general, who sought to intervene in the case, and 126 Republican members of Congress who joined an amicus brief supporting Texas’s plea. For the historical record, the Washington Post’s editorial page columnist Ruth Marcus listed all those names in a column so that they can live forever in infamous memory. “These Republicans may not be capable of shame,” Marcus wrote at the end, “but you should know who they are.”

This proud Tennessean noted sadly that the list include my home state’s attorney general and six members of the state’s congressional delegation. Among House members, the list included three members of the House Republican leadership: minority leader Kevin McCarthy, whip Steve Scalise, and Republican policy committee chair Gary Palmer. Others on the list included the ranking members of two of the chamber’s most powerful committees: Jim Jordan from Judiciary and Kevin Brady from Ways and Means.

Trump himself filed a motion to intervene as plaintiff in the case on the ground that he “clearly has a stake in the outcome of this litigation.” The five-page motion was signed by John Eastman, the archconservative law professor at Chapman University in California who most recently made news with a new “birtherism” issue challenging Kamala Harris’s qualifications for the vice presidency on the false ground that she is not a “natural born citizen.”

In advance of the Court’s order dismissing Texas’s case, some legal ethics watchers argued that Paxton himself might warrant professional discipline for bringing a case that, if not frivolous, was at the least dangerous. Garrett Epps, a longtime friend and colleague as former columnist for The Atlantic, aptly called Paxton “a legal menace” in an article published in Washington Monthly. “Let’s not futz around here,” Epps wrote, with the case not yet dismissed. “Texas has no legal interest in which presidential candidate the people of other states select.”

For their parts, Goldstein and Marcus both speculated that a strong statement from the Court might counteract the widely shared myth among Trump’s political base that Biden’s victory was tainted by widespread fraud – fraud that Trump’s slapstick legal team has yet to prove in 50 post-election court cases. In the event, however, Trump’s supporters took to the streets in Washington on Saturday [Dec. 12] by massing at the Supreme Court, perhaps one thousand strong, with placards pleading “Stop the Steal.”

The cry-baby Trump responded to the Court’s action with a whining tweet that with 74 million votes he was entitled to intervene in the case even if it was dismissed. Earlier in the week, the Court had dealt Trump’s team a decisive defeat by refusing to grant an effort by Pennsylvania Republicans to prevent certification of the Biden electors in the Keystone state.

None of the justices voted to proceed with the Pennsylvania, but in the Texas case Thomas and Alito argued, as they have argued in the past, that the Court has no discretion to refuse to hear a lawsuit brought by one state against another. Even so, Thomas and Alito stated that they would not have granted Texas the relief that the state was asking for. With yet another setback in the courts, the question for Trump must be this: “Are you tired of losing yet?”

 

Religious Liberty Ruling Risks Public Health

             Supreme Court justices have taken appropriate steps to safeguard their health and the health of the Court’s employees during the coronavirus pandemic by suspending in-person oral arguments and conferences and conducting business instead remotely, by telephone, at a safe distance from the risk of COVID-19 spread.

            The Court cast caution aside last month, however, when a 5-4 majority overturned orders issued by New York’s governor Andrew Cuomo aimed at stemming the spread of the deadly coronavirus that, to date, has claimed the lives of more than 34,000 of Cuomo’s New York constituents, including more than 24,000 in New York City alone.

            The Court’s unsigned, seven-page opinion in Roman Catholic Archdiocese of Brooklyn v. Cuomo found that Cuomo had violated free exercise rights of the archdiocese and the Orthodox Jewish organization Agudath Israel by limiting in-person attendance at worship services to as few as 10 persons in some Brooklyn neighborhoods or up to 25 persons in other neighborhoods with fewer numbers of COVID-19 cases.

            The archdiocese and Agudath Israel rushed to federal courts with separate lawsuits challenging Cuomo’s orders within a week after the Democratic governor signed the first of the orders on October 6. Two federal district court judges declined to block the orders. On appeal, a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit similarly declined to enjoin enforcement of Cuomo’s order; a Trump-appointed judge, Michael Park, dissented.

            Cuomo has distinguished himself in news conferences broadcast live on cable news channels as an official, nonpartisan voice of reason in dealing with the coronavirus pandemic in contrast to the rambling, science-free presentations by President Trump and the nonscientist he selected the administration’s coronavirus task force, Vice President Mike Pence. Even so, Cuomo’s orders invited legal challenges by capping attendance at worship services while imposing no crowd limits at all on some commercial facilities deemed under the orders to be “essential businesses.”

            The limits on worship services reflected the accepted view among medical and scientific experts that the risk of spreading the virus is especially high when significant numbers of people gather together in close proximity to each other for an extended period of time – spewing virus-carrying droplets by singing, for example, and talking. The Court’s five-justice majority took no note of this underlying science, but the three liberal dissenters emphasized the point in separate opinions written by Breyer and Sotomayor.

            In her opinion, Sotomayor stressed New York’s conclusion that worship services pose a greater risk of spreading the virus than the typical coming and going of customers in big-box stores, for example. She noted that Gorsuch, who explained his views of the issue in a lengthy and sometimes rhetorical concurring opinion, “does not even try to square his examples with the conditions that medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.”

            At the Supreme Court, Cuomo faced a likely setback from the get-go given the Roberts Court’s extraordinary solicitude for religious liberty claims in a series of decisions in the 2019 term even before the appointment of the charismatic Catholic justice, Amy Coney Barrett. Cuomo had also created a legal pitfall in advance of issuing the orders by criticizing New York’s orthodox Jewish communities for openly defying public health guidance to avoid crowded gatherings.

            The unsigned opinion joined by the conservative-justice majority held Cuomo’s orders subject to strict scrutiny because they singled out religious services for unfavorable treatment. The orders, the Court found, were not “narrowly tailored” as required under strict scrutiny because Cuomo could have tied the attendance limits to some percentage of the sanctuaries’ capacity.

            One Jewish commentator correctly faulted the ultra Orthodox for continuing to engage in “large-scale gatherings for study, prayer, weddings, and funerals that can and apparently did serve as super-spreader events.” J. J. Goldberg, editor emeritus of the Jewish Daily Forward, noted in a blog post that the neighborhoods designated under Cuomo’s orders as “red zones” subject to the most stringent limits on worship services included neighborhoods with above-normal rates of positive tests for the virus.

            It is a universally accepted principle that the First Amendment’s protection for freedom of speech does not permit someone to shout fire in a crowded theater because of the inevitable risk of death and injury. This corollary ought to be universally accepted as well: “Religious Freedom Is Not a Right to Risk People’s Lives,” as Americans United for Separation of Church and State has posted on its home page. In an accompanying blog post, senior adviser Rob Boston warned that the Court’s decision in the New York case “will likely cause people to get sick and die.”

            The Court decided the New York case summarily, without oral argument or full briefing, but has now designated the decision as precedent for lower courts to follow in dealing with the flurry of similar cases around the country. In two previous cases, the Court had declined to override similar statewide orders with limits on attendance at worship services. In a new California case, however, the Court set aside a lower court decision upholding Gov. Gavin Newsom’s executive order and directed the lower court to reconsider the case in the light of the ruling in the New York case.

        Clearly, the justices were signaling that Chief Justice Roberts’ concurring opinion in an earlier decision that counseled deference to states’ efforts to limit the spread of the virus is now inoperative. The political branches have made a mess of dealing with the pandemic ever since Trump’s deliberate downplaying of the virus in the early months, and now the Supreme Court appears intent on making things even worse. Hippocrates comes to mind: “First, do no harm.”