PACK THE COURT!

The President of the United States had every right to nominate Amy Coney Barrett to a vacant seat on the Supreme Court. That decision was entirely within his enumerated Constitutional powers.

And the Republican-led Senate has every right to confirm the President's nominee before the November 3 election, or in the lame duck session afterwards.

The problem lies in the hypocrisy of the Republican decision to confirm a nominee within 45 days of the presidential election. While it is within Mitch McConnell's right to do this, it is unethical, dishonest, and politically offensive, given the exact opposite ruling he announced when President Obama nominated Merrick Garland within nine months of the end of Obama's second term. The statements made at the time by McConnell, and by the Senator-formerly-known-as-Lindsey-Graham, are at great sacrifice to their integrity, be that consequential or not.

So much for ethics and politics.

The Democrats have no ability to block the confirmation of Barrett. She is apparently a highly intelligent and qualified nominee. The fact that she is a member of something called the Charismatic Christians, and a small group called People of Praise, that believes that the man is the head of the household and that abortion is a sin, speaks to her desirability as a Justice, not her competence.

Barrett's confirmation will produce a 6-3 conservative majority on the Court. The Affordable Care Act, reproductive rights of women, and a host of other rights we now enjoy will be at risk.  Barrett's adherence to so-called "textualism" or "originalism" is a serious problem and raises the question of how far this conservative majority would go. If we are really going to limit doctrine to the 1797 meaning of the words in our Constitution, then clearly we risk re-legitimizing separate-but-equal schools for blacks and whites, criminal penalties for the use of birth control devices, prosecutors hiding exculpatory evidence from defendants, and losing a host of liberties and freedoms the Court has added to our Constitution in the last 200 years.

So what shall we do? The answer, I suggest, is obvious. We cannot stop the Republicans from doing their dirty work this year. But we can reverse the consequences next year. To do that, we must:

 i) take back the Senate and the White House, and

ii) Enact legislation adding four Justices to the Supreme Court.

When I have advanced my "pack the court" proposal, some friends have challenged me. Their principal argument is that it will politicize the court. We will develop a see-saw, and succeeding administrations will delegitimize the court by adding members to suit political aims. The result? The court will be seen as just another political entity, and lose its "Supreme" status.

To which I say: Huh? Add politics to the Court's deliberations? Are you kidding? Do the names Garland, Gorsuch, Kavanaugh, Barrett mean anything to you? Is there any more blatantly political conduct this administration could have engaged in respecting the business of the Court?

Politics has been part of the Supreme Court's genome since day one. In the opening week of law school, one learns that the most significant case in all of Supreme Court history was the 1803 decision in Marbury vs Madison.  In truth, this was an entirely "political" decision wherein Justice John Marshall, appointed by former President Adams, severely criticized Adams' successor, Thomas Jefferson, and his Secretary of State James Madison. But at the same time, Marshall made an outrageous power grab. He declared the Court's right to veto executive and legislative action by asserting that action was inconsistent with the Court's view of the Constitution's provisions. Jefferson was apoplectic.

 Nowhere in the Constitution is there language suggesting that the Supreme Court was given authority to do that. Marshall just "reasoned" the power was there, even if not in plain sight. There is no acceptance of "textualism" or "originalism" in that decision – only political power.

Unsurprisingly, the decision has gone unchallenged in the 200+ years since. No court has ever come forth and argued that Marbury v. Madison was wrong. Not even the "textualists" aka "originalists." Why not? Because the case is not about the original meaning of Constitutional words. The case is about John Marshall's staking out the boundaries of the Court's power with respect to the other two branches of government. And no successive Court has been willing to cede away the power Marshall seized for the Court in 1803.

Interestingly the Marshall Court consisted of six Justices. Their unanimously declared right to strike down statutes as "unconstitutional “was neither challenged nor followed for 54 years thereafter. 

Then Chief Justice Taney, writing for a 7-2 majority, employed Marshall's power-grab to favor the political wishes of the South. The Court struck down the Missouri Compromise on the ground the Constitution did not authorize Congress to declare any state or territory to be slave free. Like Marbury, Taney's Dred Scott decision was an out-and-out political reach. He did not need to strike down the statute to reach his decision because he concluded the Court had no jurisdiction to hear Scott's claim in the first place. Why? Because, the Court ruled, Scott was a black man, and black men could not be citizens. Therefore, the Court had no jurisdiction over Scott's claim for freedom because there could not be diversity of citizenship!

Politics in the Supreme Court? Nah!

Historians believe the reprehensible Dred Scott decision had much to do with instigating the Civil War.

Which, in turn, brought about more Court politics. In 1863, President Lincoln, in an effort to further his goal of winning the war and ending slavery, buttressed the Supremes with a slight court pack: he added a tenth Justice.

And in 1866, to prevent the despicable Andrew Johnson from adding any more Justices during his term of office, Congress reduced the number of Justices (by attrition) to seven! And in 1869, when Johnson was out of office, they raised the number back to nine, where it has been ever since.

And when the conservative Supreme Court consistently struck down FDR's New Deal legislation, and the President threatened to pack the Court, the majority magically changed its view.

 Politics? Nah!

Bottom line: the Court has withstood centuries of political manipulation and survived in good health. 

Besides, there is nothing the Democrats could do to the image of this Court that is more corrosive than what the Republicans are doing today. And if packing the Court does diminish its stature in the eyes of the public, who bears the true responsibility for that?

The Democrats need to toughen up. They need to win, and then act.

I am convinced they will accomplish the former: it's the latter I worry about.

A bientot.

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THE ENEMY OF THE PEOPLE

We are besieged this week with press reports of Trump's assertions that he may not leave office even after the voters turn him out. Trump has used this stunt over and over again and the press has fallen for it each time. 

Every publication, from the New York Times, NPR, The Atlantic Magazine, Politico, etc., has front-paged the threat. And you can be sure that in the debate on September 29, Chris Wallace will ask the same question, and Trump will give the same answer.

The press is being suckered by the carnival barker. 

With the election less than six weeks away:

 Trump is looking like a loser. Polls put him behind in the swing states, behind in the electoral college, behind in the popular vote.

His management of the coronavirus pandemic has been unimaginably incompetent and corrupt. He relied on his instincts and told lies to the American public, and corrupted the heretofore respected government scientific agencies. His politically inspired spin efforts have directly caused the death of tens of thousands of Americans.

And Trump is an unalloyed racist. He has encouraged riots, supported white nationalists, appointed a cabinet full of swamp creatures, and is desperately trying to load the Supreme Court with conservative supporters whom, he thinks, will preserve his presidency even after the voters reject him.

And let's not forget his effort to do away with the Affordable Care Act and throw 23 million people off the health insurance rolls. And it is all of a piece because the people he will throw off those rolls are people who are the ones most adversely affected by his racist statements and so-called executive orders.

So, with the election just around the corner, what is it that NPR and the New York Times focus upon as front page news? Right: Trump's threats that he won't leave even if ( read "when"!), he loses the election.

"Step right up folks, and see the 2-headed dog!" and the press lines up to see the unimaginable.

Why? Surely the possibility of Trump's suggestion he will  produce a new Reichstag fire is a horrible thought. But why are sophisticated journalists giving credence to that threat? This is a man who, in under four years of his presidency has told more that 25,000 lies.Truth is meaningless. What counts is distraction: "Look at the shiny object! Pay no attention to reality! Pay attention to what I say, not to what I do!"

It's all a balance trick. It is called false equivalency: The unlikelihood of Trump succeeding in trashing our Constitutional democracy is balanced by the awful nature of the threat.

And it's not a surprise that Republican officials who fear Trump's base are hiding under the covers. Only a scant few are willing to speak out. And those that do, talk only about the generalities of preserving constitutional values. They dare not publicly utter a direct criticism of their chief Snake Oil Salesman. 

Unique among Republicans hiding in their Trumpian bunker was Richard Porter, a member of the Republican National Committee. He blamed the press for even asking Trump what he would do if he lost: 

"Of course he will respect the actual results -- it's a ridiculous question. He is just jerking your chain."

Let's face it. As a result of unforeseen consequences of our Constitutional structure, a minority of the public has elected a man who has lied and cheated his entire life. Why should we be surprised he continues to lie and cheat when he has the power of the presidency?

The question is how did our sophisticated press fall for this? How did they get sucked into lining up to buy a ticket to see the 2-headed dog?

A bientot.

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ONE AND DONE

It is common knowledge that Donald Trump does not read. But one assumes that the Attorney General of the United States does.

But it is apparent that SwampCreature Barr does not read history. Because if he did he would recognize why President John Adams was denied a second term by the electorate. If SC Barr had read past the chapter headings in the history of the election of 1800, he would have known that the reason Adams lost to Jefferson was the nation's keen resentment of The Sedition Act, which Adams enacted in 1798 and which he employed to prosecute and convict critics of his administration.

Barr recently directed United States Attorneys throughout the country to consider using the more modern version of The Sedition Act (20 years in prison) against Black Lives Matter demonstrators. That is a horrific suggestion. Not inconsistent, though, from an Attorney General who sees a connection between slavery and a government mandate to wear facemasks during a pandemic, and who directed the chemical assault on peaceful demonstrators to clear a church square for a Trump photo-op.

When a significant number of federal prosecutors criticised Barr's sedition directive, Barr was incensed. He issued a statement insisting that as Attorney General, he was in charge of the nation's justice system, not lower level employees of the Department of Justice. He compared the DOJ to a corporate entity, where the top management makes the decisions, not the lower level employees.

But Barr misconceives his role, and the role of federal prosecutors throughout the nation. The Department of Justice is not the Disney Corporation. It is not General Motors. The "lower level employees" of the DOJ have sworn an oath to "support and defend the Constitution of the United States," and "bear true faith and allegiance" to it. There's nothing in that oath that requires them to bear "true faith and allegiance" to Barr's political directives. Indeed the contrary is true.

The DOJ has promulgated a Justice Manual, setting out the Principles of Federal Prosecution, that puts teeth into that oath.  It instructs line prosecutors that they are required to make prosecution decisions "objectively." The law must be "faithfully executed," and before bringing a case, the prosecutor must be persuaded that there is probable cause to believe a federal crime has been committed, and the evidence is strong enough to "obtain and sustain" a conviction.

No matter what Barr says, all line prosecutors are bound by that oath and those Justice Manual requirements.  That's why honorable DOJ prosecutors withdrew from the Roger Stone case when Barr interfered with their sentence recommendation of the President's buddy. And a separate set of prosecutors withdrew from the Michael Flynn matter when Barr insisted on seeking leave of court to drop the case, even though Flynn had twice confessed in open court that he was guilty of lying to the FBI.

Of course now the spin is on, and one of Barr's assistants has blamed the press for accurately quoting Barr: he basically said Barr didn't mean "that kind of sedition" when he urged prosecutors to bring "Sedition "cases. But it became immediately clear that Barr was talking about the Black Lives Matter movement as 'seditious," when the same day, Trump made a campaign speech in which he effectively railed against Black History chapters in school books. These kinds of unamerican education programs would destroy the nation, he said. He didn't use the word "sedition," but that is what he described.

So this election is not so much about Democrats v. Republicans, the economy, or the coronavirus. It's about the advancing rot in the core timbers of the structure of our democracy.

 If your hair is not on fire yet, it should be. 

A bientot.

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THIRD-TERM FAIRYTALE

  

Forbes Magazine recently quoted Donald Trump saying he was considering "negotiating for a third term, because of the way he was treated in his first term." Yeah, he really said that, I'm not kidding.

But Trump says a lot of things that are here today and gone tomorrow. Truth is irrelevant, so we have claims of imaginary voter fraud via mail-in ballots, rigged elections, (three million fraudulent votes by immigrants in California in 2016), historic crowds at his inauguration, etc. While some medical professionals attribute this to Trump's "decompensation," I think this is  part of The Donald's shtick. These fairytales are designed to drive his "liberal" opponents nuts, and theoretically, at least, discourage them from vigorous participation in the election. Think back to the 2016 campaign where, even before the election that he expected to lose, and perhaps didn't even want to win, he refused to pledge to be bound by the result!

The success of this approach is marked by his opponents' reactions: Trump says he wants a third term, and the liberals run around with their hair on fire. Can he do this? How do we stop him? Is this the end of our democracy?

Please!

So, as a member of the bar who has represented Vice Presidents, has written briefs on election law and advised presidential candidates, I categorically assure my friends that there is no ambiguity to be found in the 22d Amendment. Not even swampcreature Bill Barr could find room to bicker about these words:

"No person shall be elected to the office of the President more than twice ...."

But, my friends, that does not mean Trump couldn't serve a third (and fourth!) term! 

So let me counter Trump's fairytales with one of my own: Here is what could happen that would not run afoul of the Constitution:

Assume, please:

 a) The Trump/Pence ticket wins a second term on Nov 3, 2020,

 b) Trump can't be elected President again in 2024, but the new Chairman of the Republican Party, convicted felon Roger Stone, puts together a new slate:  Pence/Trump, 

c) That ticket wins in Electoral College, and

d) On January 20, 2025, Vice President Trump is sworn in first, and then at noon, President Pence takes the oath and becomes President of the United States of America, 

d) Immediately after the swearing-in ceremonies are completed, President Pence resigns, and pursuant to the 25th Amendment,

e) Vice President Trump becomes President Trump for four more years!

f) Theoretically, they could pull the same stunt in the election of 2028 and the swearing-in in January 2029! 

Impossible, you say? Why would Pence surrender the opportunity to become President, after working so hard kissing Trump's ass for eight years?

Remember, this my fairytale, so here goes:

Because Pence is promised a Putin invitation for a cost-free solo ("Mother" stays home) trip to Moscow, where he is rewarded with i) a billion dollars in a hidden Deutche Bank account, and ii) a golden shower from the same women who peed on Donald Trump in 2013.

Howzat?

To my liberal friends: "Far-fetched," you say? "Ridiculous?"

So how come you believe Trump's fairytale and not mine?

A bientot!

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There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.

And if you would like to know more about my representation of Vice Presidents Agnew and Humphrey, and defeating Donald Trump in a meritless litigation he brought against my client, check out my memoir "The Client Decides" available at Amazon and on Kindle.

WHAT'S BEHIND THE CURTAIN, CHAD?

 

 

Last month, under the title "A Wolf in Trump's Clothing," I reported on the outrageous conduct of Trump's Acting Secretary of the Department of Homeland Security, Chad Wolf. In particular, I discussed Wolf's decision to disqualify all New York residents from the federal government's Trusted Travelers Programs  (think Global Entry, and the TSA security line at the airport.) Wolf did that because, he told the press, New York State was the only jurisdiction that failed to report to the feds the details of all of its residents who had state drivers' licenses. And that, Wolf said, interfered with the nation's fight against terrorism.

 

The real issue, of course, was that Trump and Wolf considered New York "a sanctuary state" because it refused to  reveal to DHS the details of its undocumented licensed drivers.

 

Governor Cuomo labeled  the DHS action as "political" and "criminal." He sued Wolf in federal court. In that litigation, Wolf's agency again defended its decision by asserting, this time in sworn statements, that New York State was the only jurisdiction in the country that denied drivers' license information to the Department of Homeland Security. New York's action, DHS told the court, was "unique" and denied the federal government the ability to make an adequate risk assessment as to which New York residents were terrorists and which were not. It was all a matter of national security.

 

Given New York's unique refusal to cooperate with the federal law-enforcement officers on this issue, the government moved for summary judgment before District Judge Jesse Furman. But before the motion came on to be heard, a remarkable thing happened: the US Attorneys office informed the court that the Department of Homeland Security wished to withdraw its defense of the New York State lawsuit.  "Newly discovered facts" revealed that the government's sworn statements submitted to the court were false! Indeed, the "newly discovered facts" were so material that they undermined the very rationale for the DHS decision to ban New Yorkers from the Trusted Traveler programs in the first place!

 

Furman was pissed. (Caution: my language choice, not His Honor's!) He ordered the government to submit sworn declarations explaining how false and misleading statements had come to be submitted to the court. He said he wanted new sworn declarations containing the gritty details: the specifics of each false statement, who said what, to whom, when where, why, etc., etc.

 

The government has now complied -- in a manner of speaking. Its submission consists of an extraordinary set of "hide and seek" documents.

 

Chad Wolf's designated spear-catcher on this very bad day in federal court was one Pete R. Acosta, the director of Homeland Security's Trusted Travelers programs. In his new sworn statement, Acosta clings to the assertion that DHS originally banned New York citizens from Trusted Traveler programs because withholding drivers' license information was a threat to national security. He said it was necessary for the federal government to learn whether or not drivers had traffic violations on their record! He did not explain how a stop-sign violation could help the government determine whether the driver was a terrorist.

 

In his original statement, Acosta had sworn that New York State was the only jurisdiction that denied drivers' license information to the federal government. That singularity, that uniqueness, he swore, was the central justification for the ban on all New York State residents from the TT programs.

 

But the "newly discovered facts'' reveal that New York was not unique. At the time of the ban, New York was not the only jurisdiction that refused to share drivers' license information with the Department of Homeland Security. The "newly discovered facts" revealed that 10 other jurisdictions also refused to share drivers' license information with the federal government.

 

This leads, naturally enough, to interesting questions: 

Before Acosta made the false declaration about New York's uniqueness, what efforts did he make to ascertain whether his sworn statement was true? Did he really believe what he said under oath, or was he just following orders?

 

Or did Acosta just make an honest mistake? Is that believable? He simply overlooked 10 other jurisdictions who were doing the same thing New York State was doing? That's 20% of the nation! And one of those jurisdictions is Acosta's home base, Washington D.C.!

 

Perhaps Judge Furman now knows the answer to some of these questions, but the public does not. While the new government declarations were indeed filed with the court, and if you had the right computer tool you could pull them up on your home computer, you still wouldn't know the truth. Why? Because the government chose to redact key portions of its submission from the copy it allowed the public to see! And it has asked the judge to approve that decision.

 

The government's claim of right to deprive the public of the facts is contained in a remarkable introductory letter written to Judge Furman by an Assistant US Attorney. The AUSA wrote:

 

"Most of the material redacted by the governments' public filings are protected by the attorney-client privilege, the law enforcement privilege, the deliberative-process privilege, and the work-product protection."  

 

Clearly, the AUSA who wrote that letter got an "A" in Kitchen Sink Lawyering 101.

 

While the government acknowledges that there exists "a presumption of public access" to its submission , it nevertheless suggests that the curtain of kitchen-sink privileges is broad enough to keep the public from seeing what the government has done, and why it has done it.

 

As a result, all of the "good stuff" in the recently filed Acosta declaration is missing. At one point there are almost four solid pages of just plain black. Nowhere is there a discernable believable explanation as to how Acosta could have sworn that New York was the only jurisdiction to deny drivers' license information to the federal government when there were ten other jurisdictions that were doing exactly what New York was doing. And again, one of those ten other jurisdictions was the DHS's home town, the District of Columbia!

 

That leaves us with a number of important questions:

 

Will Judge Furman tolerate the redactions? Will he agree that all of these asserted privileges overcome the public's right to know what the federal government has done?

 

Is this the end of the investigation? Will Furman want to know more?

Was Governor Cuomo correct in labelling DHS's action "political" and "criminal"?

 

New York State has demanded an injunction and counsel fees. The parties are negotiating these issues. Will they reach agreement?

 

If not, will Judge Furman grant New York State the right to take depositions of the DHS leadership? What lawyer wouldn't pay a fee for the opportunity to cross-examine Chad Wolf?

 

Given that Trump has just sent Wolf's name to the Senate, nominating him as the real Secretary of DHS, will the Democrats  get to cross-examine him? Or the House, which has just subpoenaed him? 

Will DHS's deceptions in this case be publicly explored?

 

The parties are obliged to report to Judge Furman in mid-September whether they have reached agreement on the counsel fee and injunction issues. If they fail, there is still some time before November 3 for the court to order discovery and let some sunshine disinfect this bit of the Trumpian swamp.

 

A bientot.

 

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FLYNN UPDATE

 

In the blog posted three days ago, I talked about the case against Lieutenant General Michael Flynn, who pled guilty to making willfully false statements to the FBI about his communications with the Russian Ambassador. After twice reaffirming his guilt in open court, he withdrew his plea and changed it to "not guilty." Whereupon S.C. (Swamp Creature) Barr's Department of Justice promptly thereafter asked the District Judge for '' leave of court'' to drop the prosecution.

 

District Judge Sullivan said "Not so fast, I want to hear both sides of the question so I can more intelligently decide whether to grant the leave of court you ask for."

 

Flynn then asked the Circuit Court of Appeals to reverse that ruling, and grant an immediate dismissal of the charges. S.C. Barr allied the DOJ with Flynn's position. In a 2-1 decision, a panel of the Circuit Court ruled in favor of the Flynn/ Barr bog critters, and dismissed the Flynn indictment.

 

But then, in a novel twist, the Circuit Court received two applications to have all twelve Circuit judges review the 2-1 panel decision. One of the applications came from Judge Sullivan, and the other came, sua sponte (on his own motion) from a judge on the Circuit Court, whereupon the Circuit Court voted to take up the question and hear the case en banc.

 

I noted that the strongest argument against the Flynn/Barr position was the fact that they were asking the Circuit Court to reverse a decision the District Court judge had not yet made. Flynn's application was "premature": Sullivan had not made any decision on the DOJ's application for leave of court to dismiss the Flynn indictment.

 

In a display of how quickly a court can act when it chooses to do so, on the 21st day after hearing the case, the en banc Court voted 9-2 to reverse the panel decision because it was premature: i.e., Judge Sullivan had made no decision on S.C. Barr's application for "leave of court" to dismiss the Flynn indictment.

 

Now what? Will the swamp creatures ask the Supremes for help? Will they get it? How fast?

 

Flynn is in a box.  And T has the key, which rhymes with P.  Will the voters care about Trump's pardoning another swamp denizen?

 

I doubt it. (I think Trump is cooked with or without the Flynn pardon!)

 

Trust me on this!

 

A bientot.

 

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