Lady Justice Back in Charge at Main Justice?

             President Biden signaled the end of Trumpism in U.S. foreign policy by assuring our European allies this month [Feb. 4]   that “America is back” and diplomacy “is back at the center of our foreign policy.” Biden’s nominee as attorney general similarly served notice last week [Feb. 22-23] that the Trump era of a politicized Department of Justice is also over by promising, in effect, that the blindfolded Lady Justice will be back in charge at Tenth and Pennsylvania if he is confirmed as attorney general.

            Merrick Garland, who earned his spurs as a federal prosecutor a quarter-century ago by superintending the death-penalty prosecution of the Oklahoma City terrorist bomber Timothy McVeigh, performed flawlessly in his confirmation hearing as he maneuvered around probing questions from the Senate Judiciary Committee’s now-out-of-power Republicans.

            Fresh from his trip to Mexico, Texas’s insurrection-leading senator Ted Cruz asked Garland whether he would be President Biden’s “wingman” at the Justice Department. Garland hit the question out of the park with his answer. “I do not regard myself as anything other than the lawyer for the people of the United States,” Garland said. “I am not the president’s lawyer. I am the United States’ lawyer.”

            “I do not plan to be interfered with by anyone,” Garland added later, without citing any of the several cases in which Trump, as president, signaled instructions to the Justice Department in politically sensitive prosecutions against the president’s allies. Trump, it must be recalled, publicly criticized the long prison sentence that career prosecutors recommended for Trump’s longtime political adviser, Roger Stone, for obstructing the Mueller probe into Trump’s 2016 campaign. Trump also criticized the prosecution of his former national security adviser, Lt. Gen. Michael Flynn, for lying to the FBI during the Mueller probe. The Justice Department, under Trump’s attorney general William Barr, dismissed the case.

Garland, with lifetime tenure as a federal judge, has no need for work nor any need at age 68 for another line on his  resume. Why then, senators asked, did he agree to be nominated as attorney general? Garland answered, overcome with emotion, by recalling that his parents immigrated to the United States to escape anti-Semitic persecution in Eastern Europe. “I feel an obligation to the country to pay back,” Garland said. “This is the highest, best use of my own set of skills to pay back.”

Garland’s skill set apparently includes a measure of political tact in dealing with sensitive cases. He signaled a hands-off policy toward the investigation headed by special counsel John Dunham into whether Obama administration officials erred in 2016 by opening an investigation into cooperation between Trump’s campaign and its ties to Russia. Garland said he would consult with Dunham, a former U.S. attorney tasked with the investigation by Barr, before making any determination how to proceed.

 In answer to Republican senators’ questions, Garland said he has not discussed the investigation of  Hunter Biden with the president. He noted that the Trump-appointed U.S. attorney in Delaware has been asked to stay on and continue overseeing the investigation. “I have absolutely no reason to doubt that was the correct decision,” Garland said.

            On broader policy issues, Garland promised in his opening statement to put civil rights and racial justice issued at the top of his agenda. “Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system,” Garland stated. The committee’s only African American senator, the New Jersey Democrat Cory Booker, followed up with an appreciative line of questions. In reply to the Missouri Republican Josh Hawley, however, Garland specified that he does not support the “defund the police” slogan adopted by the Black Lives Matter movement and some others on the political and legal left.

            Garland also  put domestic terrorism, including investigations into the Jan. 6 riot at the U.S. Capitol,  at the top of his prosecutorial priorities. In answer to Rhode Island’s Democratic senator Sheldon Whitehouse, Garland said the investigation should encompass any “upstream” funders, organizers, or ringleaders even if they were not present at the Capitol on Jan. 6. “We will pursue these leads wherever they take us,” Garland said.

            Garland voiced no second doubts about having sought the death penalty in the Oklahoma City bombing case, but said he had become aware over time of flaws in handling of capital cases. Biden has said he will support efforts to end the death penalty. Garland said he would support a moratorium on federal executions if President Biden adopts such a policy. Garland avoided any specific criticism, however, of the Trump administration’s policy of renewed federal executions: with more than a dozen since last summer.

            Garland was explicitly critical, however, of the Trump administration’s policy of separating migrant children from their parents after arrests at the southern border. He called the policy “shameful” and promised to cooperate with a congressional investigation into the policy.

            Garland’s credentials  and his pledge of independence may lend credibility to the most delicate question he will face after taking office: whether to open criminal investigations of the former president. For the immediate future, however, the issue rests with the Manhattan district attorney Cyrus Vance Jr., who last week finally got Trump’s tax returns and financial records to look for tax fraud or other possible financial offenses. Vance specified no timetable for the case. “The work goes on,” he said when pressed by reporters.

Supreme Court May Trim Voting Rights Safeguards

            The Roberts Court appears to be poised again to narrow federal safeguards for voting rights in the states. The justices are scheduled to hear arguments next week [March 2] in an important legal challenge brought by Democrats and minority group voters aimed at nullifying two Arizona laws that the challengers say have the effect of suppressing minority votes.

            The Grand Canyon State, it must be noted, has a history of racial discrimination in voting procedures comparable to the worst of the states in the pre-civil rights South. With its substantial Hispanic population, Arizona adopted an English literacy test as a prerequisite for voting when admitted as a state in 1912 and maintained that requirement until 1972. In fact, Arizona was one of the two states outside the South that were singled out for special federal scrutiny in the federal Voting Rights Act (VRA) because of their histories of racial discrimination.

            The two consolidated cases at the Supreme Court, Brnovich, Attorney General v. Democratic National Committee and Republican Party of Arizona v. DNC, pose the important, recurrent issue of whether the later-amended 1965 law prohibits election laws and policies that hurt minority group voting even if race-neutral on their face. In its ruling in the cases, the Ninth U.S. Circuit Court of Appeals found Arizona’s laws in violation of the federal law by following three other federal circuits that had similarly adopted a “results” test in applying the VRA.

            The Arizona laws at issue include one enacted in 2016 that was sponsored by a Republican legislator concerned with suppressing the minority vote in his politically competitive district. The law, known as HB 2023 and codified at Ariz. Rev. Stat. § 16-1005, prohibits the practice known as “ballot harvesting,” a get-out-the-vote tactic used by Arizona’s Democrats but not by the state’s Republicans.

            Arizona already had a law on the books that prohibited actual fraud in third-party ballot collection. The new law goes further to make it a low-level felony, punishable by fines or imprisonment, for anyone other than a family member or caregiver to collect a voter’s “voted or unvoted early ballot.” The other law at issue, codified at Ariz. Rev. Stat. §16-584, adopts a strict “out-of-precinct” (OOP) policy of discarding provisional ballots cast by voters outside their assigned voting precinct.

            The law requires that the out-of-precinct voter’s ballot be discarded in its entirety, not only for local races but also for district- or statewide races for legislative seats, Congress, or president. In a close race, the discarding of thousands of ballots under that policy could change the result, as plaintiffs argued through the four-year course of litigation and as dramatized by Joe Biden’s narrow 11,000-vote margin over President Trump in the 2020 election.

            Arizona may be thought of as a Republican state, based on the role that the state’s five-term senator Barry Goldwater played in birthing present-day Republican conservatism in the 1960s. The state’s longest serving senator, however, was Carl Hayden, a Democrat who served in the U.S. Senate from 1927 to 1969. Hayden’s colleague for two terms was a fellow Democrat, Ernest McFarland, who lost to Goldwater in seeking a third term in the 1952 election.

            Today, Arizona again has two Democratic senators: Krysten Sinema defeated her Republican opponent in 2018 by 56,000 votes and Mark Kelly beat his Republican opponent in 2020 by about 80,000 votes. Biden’s victory over Trump marked the ninth time the state voted for the Democratic presidential candidate out of twenty-seven elections since statehood.

            The evidence in a ten-day bench trial before U.S. District Court Judge Douglas Graves in October 2017 showed that the ballot collection and out-of-precinct laws affected minority voters, Hispanics and Native Americans, more than they affected white voters. But Graves accepted Arizona’s argument that the laws held up because they served the state’s interests in ballot security and administrative efficiency. On appeal, a panel of eleven Ninth Circuit judges voted 7-4 to find that H.B. 2023 had been enacted “with discriminatory intent” and that both policies “unduly burden minorities’ right to vote.”

            The Supreme Court agreed in October to hear Arizona’s appeal of that decision. The Court, it will be recalled, gutted the Voting Rights Act in a 5-4 decision eight years ago by effectively nullifying the act’s so-called preclearance requirement. That provision required states or counties with histories of racial discrimination to get approval from the Justice Department or a federal court for any changes in election laws or procedures. With that provision in effect, the three covered Arizona counties were frequently blocked from instituting proposed election law changes.

            At the Supreme Court, conservative groups and civil rights organizations have filed more than three dozen amicus briefs in the current cases to underline the high stakes for future voting rights cases. Even with the cases pending, however, Arizona lawmakers are working to make voting more difficult with pending proposals, for example, to eliminate no-excuse absentee voting and to bar election officials from sending ballot applications to voters except on the voter’s request.

            Supreme Court handicappers might view Arizona as a likely winner in the cases, given Roberts’ pivotal vote in the 2013 decision and the Court’s current 6-3 conservative majority after  President Trump’s three appointments. Conservative textualists can rule that way, however, only by ignoring Congress’s decision in 1982 to amend the law specifically to prohibit any voting practice that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

           

Courts Can Still Hold Trump Accountable for Riot

       President Trump’s team of second-string lawyers began their defense in his 2021 impeachment trial by contending that the former president should be held accountable for the January 6 Capitol riot, if at all, not in the United States Senate but in criminal courts.

            With the Senate evenly divided between Democrats and Republicans, six Republican senators joined the Democrats in rejecting the Trump lawyers’ plea to bar the impeachment trial altogether. The evidence expertly presented by the House managers showed, to any sworn-to-impartiality juror, that Trump incited the mob that he had summoned to Washington to stage what proved to be a deadly insurrection at the seat of the United States government.

The U.S. Department of Justice, under a new attorney general unbeholden to Trump, should take Trump’s lawyer, Bruce Castor, at his word and open a criminal file against citizen Trump, no longer protected by presidential immunity. The former U.S. solicitor general Neal Katyal, commenting on CNN midway through the trial, suggested that Attorney General-designate Merrick Garland should put the case at the top of his to-do list.

With the trial over, former White House adviser David Gergen, also on CNN, agreed. “Certainly, the Department of Justice and the FBI have grounds to investigate Trump,” Gergen remarked.

Most significant in the House managers’ offer of proof was the new disclosure that the organizers of the Jan. 6 rally at the ellipse had initially gotten a permit only for a rally, not for a march to the Capitol. The additional permit for the march was sought only after the White House took charge of the event. Trump himself directed the mob to march to the Capitol, initially promising that he would join them but backing out apparently because of security objections from the Secret Service.

            The path to the two-thirds majority needed for a conviction was never open to the House of Representatives even though ten Republicans joined in approving the article of impeachment on Jan. 13, making it the most bipartisan House vote on impeachment in U.S. history. Trump’s acquittal by a 57-43 vote on Saturday was likewise the most bipartisan impeachment vote in U.S. history as seven Republicans joined in voting to convict Trump of incitement and potentially disqualify their former president from ever again holding office in the national government.

            The Trump lawyers—courtroom pit bulls rather than constitutional law experts—contested the “incitement to insurrection” with a mix of political vitriol, legal poppycock, whataboutism, gaslighting, evasion, and outright falsehoods, as documented by fact-checkers at the New York Times. Their opening argument failed when the Senate voted 56-44 on Feb. 9 that Trump, though out of office, was “subject to a court of impeachment for acts committed while president.”

            The argument, rejected by the vast majority of nonpartisan legal experts, failed on the basis of constitutional text and historical precedent, as shown by the House managers. The Impeachment Article itself (Art. I, sec. 3, cl. 7) lists after removal from office by conviction a second available sanction “disqualification to hold and enjoy any Office of honor, Trust, or profit under the United States.” The House managers also noted as precedent the 1875 impeachment of the Grant administration’s secretary of war, William Belknap, who had already resigned after being caught up in a corruption scandal. The Senate voted 37-29, after full debate, to try Belknap on the article of impeachment approved by the House, but he avoided conviction on a 35-25 vote, short of the two-thirds majority needed for conviction.

             Impeachment is not a criminal proceeding, but lawyers on both sides devoted lots of words during the five-day trial (Feb. 9-13) to a Supreme Court precedent applicable to a criminal case. The Court’s decision in Brandenburg v. Ohio (1969) held, in a case brought against a speaker at a Ku Klux Klan rally, that the First Amendment permits criminal prosecution for political advocacy only if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

            The House managers introduced as evidence on the first prong the “big lie” that Trump propagated over a two-month period that he failed re-election only because the election was stolen. They also emphasized Trump’s role in summoning supporters to Washington on the very day that Congress was scheduled to complete the Electoral College vote count to confirm Joe Biden’s victory in the presidential election.

            The evidence that the Capitol riot followed promptly after Trump’s speech to the crowd on the morning of Jan. 6 speaks for itself as satisfying the second prong of the Brandenburg test: “likely to incite or produce such [lawless] action.” The House managers also introduced evidence from some of the rioters themselves that they marched to the Capitol in response to Trump’s instructions. The violence on Jan. 6, according to the lead House manager Jamie Raskin, was “a culmination, not an aberration.”

            The House managers also showed Trump’s “propensity for violence” in political rallies and in tweets throughout his presidency. Would the evidence suffice for a beyond-a-reasonable-doubt criminal court jury? Juries are hard to predict, as any veteran court reporter can attest, but this courtroom observer is confident that a reasonable jurist would find this evidence sufficient to let the case go to the jury. And the case belongs in the courts, the one branch of the United States government that Trump has failed to pressure into submission. 

Justices Turn Blind Eyes to Holocaust Victims

            Nine decades later, many of the grievous wrongs of the Holocaust have yet to be redressed, even imperfectly. Two groups of Holocaust victims went before the Supreme Court in December to ask the justices to open federal courthouse doors to their long-delayed pleas for a measure of justice, but the justices turned blind eyes to both groups in companion decisions issued last week [Feb. 3].

The unanimous decisions in Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon blocked two sets of plaintiffs, with U.S. citizens in both groups, from seeking compensation from the present-day German and Hungarian governments for wrongs inflicted by Germany’s Nazi art-looters and Hungary’s collaborationist wartime regime.

Foreign governments generally enjoy sovereign immunity from private lawsuits in courts of other countries, but a reform-minded Congress adopted significant exceptions to that international law principle in enacting the Foreign Sovereign Immunities Act (FSIA) in 1976. The law provides, in a section codified at 28 U.S.C. §1605(a)(3), that foreign governments can be sued in U.S. courts for “property taken in violation of international law.”

The two cases arose from different contexts. In the German case, the heirs of long-deceased German Jewish art dealers claimed in their lawsuit that Hitler’s art-loving deputy Hermann Goering pressured their ancestors, in the early years of Nazi rule, into selling a collection of medieval relics to Prussia’s cultural foundation at the bargain-basement price of $1.7 million in 1935 dollars.  

In the Hungarian case, fourteen Hungarian-born survivors, now living in the United States, Canada, Australia, and Israel, filed a class action on behalf of all Hungarian survivors seeking compensation for the money and property taken from them as Hungarian officials and employees of the state-owned railway confiscated herded Hungarian Jews by the hundreds of thousands on to trains destined for death camps.

The cases attracted relatively little news coverage even though several Jewish groups and Holocaust survivor organizations filed amicus briefs in October urging the justices to rule in the plaintiffs’ favor and allow their suits to proceed in federal courts. Earlier, however, a group of foreign international law experts, organized by two German-born academics, filed an amicus brief that emphatically rejected any exception to foreign sovereign immunity for international crimes or other “grave breaches” of international law.

The amicus briefs filed in support of the plaintiffs included one on behalf of the American Association of Jewish Lawyers and Jurists, written by Arthur Traldi, a Jewish American lawyer and a former war crimes prosecutor before the International Criminal Court. In his brief, Traldi criticized the foreign scholars for what he called their “myopic and decontextualized analysis” of the case.

In their decision, the U.S. justices were no less myopic. In his sixteen-page opinion for the unanimous Court, Chief Justice John Roberts treated the case only as a jurisprudential exercise in how best to apply international law without creating nettlesome issues for future case. Roberts does not refer, even glancingly, to the moral depravity of Germany’s persecution of Jews even in the Nazis’ early years before the death camps.

Roberts instead emphasized the so-called “domestic takings rule,” which protects a foreign government from suit in another country’s courts for a taking of property from its own citizens. That rule is important to limit outside interference with, for example, a country’s decision to nationalize domestic companies owned by, among others, foreign shareholders.

The Trump administration similarly emphasized the “domestic takings rule” in an amicus brief siding with Germany and Hungary in the two cases. The FSIA’s expropriation exception does not apply, the administration’s lawyers wrote, “when a sovereign has taken property of its own nationals,” not even “in the context of a human rights violation.”

The two cases attracted little news coverage even after the justices heard oral arguments on Dec. 7. The arguments prompted one veteran Court watcher, the Washington Post’s always thoughtful columnist Chuck Lane, to echo concerns that Justice Stephen Breyer raised during the session. As Lane noted in a Dec. 28 column, Breyer worried out loud about the possibility that China might haul the United States into a Chinese court to answer for the wrongs done to Chinese laborers in the 19^th century or that Japan might require the United States to answer for the wrongs done to the Japanese Americans interned in concentration camps in the United States during World War II.

Roberts closed his syllogism by writing genocide out of the case altogether. “We need not decide,” he wrote, “whether the sale of the [art dealers’] property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights.”

Breyer’s concerns surfaced in Roberts’ final paragraph. “As a Nation, we would be surprised—and might even initiate reciprocal action—if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States Government years ago,” Roberts wrote. “There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.”

By closing U.S. courts to the plaintiffs’ claims, the Supreme Court deprives them of any likely recourse. Two German commissions found, improbably, that the plaintiffs’ ancestors sold the medieval relics to Goering at a fair market price and not under duress. As for the now dispersed Hungarians, they are unlikely to imagine any realistic chance for redress in their former homeland, now led by the anti-Semitic autocrat Viktor Orban.