If Trump Is Planning a Pardon for the Arizona Sheriff, He Might Want to Think again.

It does appear to be good law that even Federal Court criminal contempts are pardonable by presidents.  (I had  thought there might be a separation of power claim.)

However, the Supreme Curt has hinted, back in 1925, that a pattern of abuse could lead to impeachment.  The language might also provide some tools to persuade the Court to look differently at the Sheriff’s behavior, and any Trump pardon.

Here is what the court said in In the Matter of Philip Grossman, 267 U.S. 87 (1925)

A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor’s right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning confirmed by its common law origin and long years of practice and acquiescence.

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.
(Bold added.)

There just are not so many Supreme Court cases about impeachment, so every hint is meaningful.  This might stand for:

The proposition that use of pardons, in a pattern, could result in impeachment,

That acts that go to undermining the constitutional balance are appropriate for impeachment,

The idea hat the impeachment clause phrase “high crimes and misdemeanors,” is not necessarily limited to violations of the criminal code.

I would welcome additional suggestions.  Read and enjoy the full case.

More particularly, with respect to Arizona, the use of a pardon to undermine Federal authority is said to be particularly disturbing, for example in a “neighborhood.”   While the Sheriff is now out of power, such a pardon is far more threatening to Federal authority, than an individual violation of the law in the case the Supreme Court decided.

Indeed, a pardon for conviction for systematic abuses of governmental power in breach of the constitution would seem a classic exception requiring rethinking.

A sheriff’s county-wide pattern and practice of contempt for the constitution and the Federal Courts is far more damaging that an ongoing pattern of pardons for minor violations by individuals in a “neighborhood.”  Indeed, given that the case arose under the Prohibition Act, it is understandable that the Court felt the need to recognize that pardons might represent a threat to the enforcement of the law, and therefore hinted at remedies.

Time for second thoughts, Mr President.

Note:  This is a version of a very recent post on my access to justice blog.

 

 

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I have the Perfect Title For the Best Book on the Trump Presidency: One Million Minutes

While the exact number is subject to change when the nightmare ends, the concept is clear.  The book would begin something like this:

The now concluded Trump Presidency consumed one million minutes, five thousand presidential tweets, 100 million dollars in investigations, and ten cabinet firings or resignations.

Those minutes were perhaps the most fragmented, fast moving, chaotic, destructive, shocking, confusing and testing minutes in our nation’s history.

The damage done to nation, planet, international system and human beings will take decades to assess fully. 

Above all, the story of those endless minutes is the story of the ultimate resilience of our institutions, notwithstanding the weaknesses and failures of so many who were to play roles in those institutions as they faced the test.

I am less confident of exactly how the book will end, but I am confident that the ultimate resolution will put us on the road to recovery.

 

“Rants From The Madman”

Famously, when Jimmy Carter was president, the Boston Globe “accidentally” ran a headline over an editorial that read: “Mush From the Wimp.”  There was no Internet to make it go viral, but today surely it would.

Today, to label Trump’s tweets as “rants from the madman” seems almost an understatement, and there is already plenty of obvious commentary.  So here are some addition questions:

When will be start seeing resignations from the national security team?

Is the legal team now obliged to formally withdraw representations that they have made to the Fourth, and Ninth Circuits, and to the Supreme Court.  Remember, lawyers can not make affirmative mis-representations to a court.

Will we see resignations from the Solicitor General’s Office, or just an inability to find staff to do the work?

Is there any chance that the Supreme Court will now grant review in the “travel Ban case.”  The risk of them being dissed during the process, such as after hearing, or after decision, is great.  If I were Roberts, I would take no action till the Ninth Circuit agrees with the Fourth (as it surely will), and then see if I have seven or more votes to put the President firmly in his place.  If not, I would do nothing, at least till there is a split from another Circuit.  I do not see how the Court can afford to be seen to be baling Trump out after today.  And, a 5-4 either way would be an absolute institutional disaster for the Court (US v. Nixon was 9-0).

Does the almost systematic dissing of one cabinet member after another mean that a 25th Amendment majority is starting to build up?  What is Pence thinking tonight.

Many previously loyal Republican commentators seem numb tonight.  Republican politicians have fallen largely quiet.  When will they start raising issues of Presidential inability to do the job? 

Finally, whatever else you can say, you can not argue with the fact that each week, things move faster an faster.   Things that would, the prior week, have seemed crazy to suggest, actually happen.

Our brains are lagging indicators.  Like any tipping point, when it comes, it will come quicker than we can possibly expect.

 

Thoughts On Intent in Government Enactments

It seems to me that most f the discussion about the role of intent in analyzing the legality of government actions has been pretty fuzzy.  So let me offer some thoughts. Of course, this issue has come up most dramatically in the context of the appropriately nicknamed “Muslim Ban,” but obviously it is highly relevant to many actions in a time such as this in which every branch of government (except maybe the Supreme Court) is dominated by one party, in this case one with a long history of “dog whistling.”

One way of structuring the inquiry is to focus on where  and when the greatest dangers occur from refusing to look beyond the face of an enactment to find illegal intent.

Probably the greatest danger of completely hidden intent occurs when the action is taken by one person or entity.  Had the “Muslim Ban” been enacted through a legislative or even a regulatory process, then the evidence of intent would have come out in the back and forth.  While that evidence might have been rejected in a challenge, because the court would have relied on the supposed facial neutrality of the enactment, none the less the evidence would have been there for all to see.   So Executive Orders are an area of particular risk.

Different kinds of evidence of intent are not only of different probative value, but their being ignored can cause different kinds of harm.  Thus, ignoring statistical evidence of harm means that harmful enactments go into force, but do not necessarily represent a public endorsement of the illegal result.  On the other hand, ignoring the clear evidence of the statements of Trump and his “gang” of their goals, sends a strong public message that those goals are in fact allowed and not forbidden.  That is a terrible message.

Moreover, while the general discussion of this topic has suggested that campaign statements are less worthy of consideration in looking at intent, it may be that the harm in ignoring them is even greater than the harm in ignoring post election statements.  The reason is that ignoring such campaign statements of a winner tells the protected minority and politicians that it is acceptable to use discriminatory appeals to win elections is OK — and that those promises can be kept.  Is there anything worse in the entwining of race with elections and government?

So my general conclusion would be that clear evidence of illegal intent should always be relevant, but that the weight of the evidence should depend on a) the nexus between the person making the statement and their role in the enactment, and b)the extent to which the statement of intent increases the harm of legitimizing the illegality of the action.

 

 

 

 

 

A Contrarian View on Libel Law — Dealing with The Situation in Which The Courts Should Be Available to Establish The Truth, and Cheaply, While Making Sure that Libel Law Remains a Tool That Can Be Used By Truth Seekers To Counter Merchants of Hate

So the great and the good (and me, this time) get all upset when Trump talks about loosening libel law.  It not only fits with his ignorant aggrieved victim persona, but can be very effective at intimidating critics.

But maybe we should be thinking about it the other way.  Surely, if libel laws were easier to use, Trump would be the one in most trouble.  He is the one who shows the most contempt for the truth. the least consideration of the impact on others for his words, or tweets, the most propensity to state the impossible, the least willingness to back down, even when proven wrong, and the greatest tendency to make utterly inconsistent and destructive statements.

More importantly, while the increasing and consequence-free use of “false facts” is not caused by our current libel law, the difficulty of bringing libel cases against has made it much harder to stand up against such “facts” and to get social clarification and consensus for their falsity.

While public figure libel law has become more than a little technical over the years, the core reason remains the same, to prevent the victim of a good faith factual error from being held up to ransom and effectively silenced by litigation.  Its far more the cost of the litigation that acts as the deterrent (something Trump uses all the time) and so the effort is to cut this cases off quickly.

With 50 years of experience under our belts, and with the risks of lies in the political arena being far greater then they were then, maybe it is time for a nuanced look at the law, trying to make sense of a mix of goal, rather than see it as a matter of “loosening” or “tightening” them.

To be specific, I think most people would agree on the following:

Neither people or the media should be chilled from saying what they really believe to be true.

There IS a difference between a false fact and a misguided or wrong, or even maliious opinion.

The media should not bear huge litigation costs whenever someone does not like what they say.

Institutions to help in establishing truth are necessary function in a democracy.

When an assertion is beyond the bounds of reason, and the person responsible refuses to retract in any way, society needs mechanisms for establishing truth, and for doing so in a way perceived as legitimate by most.

Notwithstanding all the problems with the adversary system, the fact remains that the combination of a neutral fact finder, following formal rules, with presentation of evidence and confrontation of that evidence by all sides, and appropriate finality, is an amazing (if often expensive) engine for finding truth.

All of which leads me to the conclusion that the legal system needs some mechanisms for these situations, and that current mechanisms are failing.  Here is one thought:

A system of declaratory actions in which one who claims harm in a false statement about them can obtain a declaration of falsity, after a due process hearing.  State of mind is not in issue, and neither is damages, thus making this a far cheaper process for all sides.  A judgment would be subject to appeal, but not be res judicata in any subsequent damage action (Note to non legal jargon experts: this means that the truth or falsity finding can not be relied upon to obtain damages, even in a new case.)  As a practical matter, one found to have uttered a falsity is going to appeal to the court of public opinion to explain why they made the statement, but it is not at that point a legal matter.  Circumstances will be debated, but not at huge cost.  (Of course, truth can indeed change with new evidence over time.)

With such a new tool, no one would be precluded from attempting to obtain damages in a separate procedure, but current substantive legal standards for public figure libel would apply in that procedure.  Damages would depend on the level of culpability — i.e. contempt for the truth — as well as actual damage.  Thus a tool would continue to exist to use against that hate speech that was also libelous.  Such cases would be much rarer, much more expensive, and not used against the media, but against Nazi and hate groups that went beyond opinion.

I think that this would pass constitutional muster under New York Times v. Sullivan, given that nothing is being changed about speech suppressing substantive standards.

 

The Party-Switch Way Forward For the Senate

While there are many reasons for the slowness of the institutional response in the political system to Trump, one actually can be fixed quite easily.

Right now, the press are energized, the courts seem to be standing up for judicial supremacy, and the investigatory agencies are still able to get the most disturbing facts before the public.

The problem is that there is no truly independent set of investigations going on, because of the Republican failure.

The simple solution is for three or more senators to shift parties for the purpose of establishing the appropriate investigatory process.  Such a switch, perhaps by McCain, Lindsey and one more, could be limited to the organization of the Senate, and the Rs could still vote with their colleagues on all substantive matters if they wished.  Those three would have to expect to be primaried, but who knows, by the end of this they might be the safest Republican senators.

Anyway, just the threat of this should be enough to get McConnell to back down, set up a true investigation, and allow it to go wherever it goes.  The tax returns alone might be enough.

 

The Totally Unbalanced Amici List in the Ninth Circuit Tells the Whole Story

As a general matter, the line up of amici in a significant case provides some indication of how institutions are lining up on the issue.  If this were an issue on which the country were split, one might expect that those in support of the administration and those challenging Trump’s Executive order would be in rough balance.

So, I engaged in a quick research project and looked at the Ninth Circuit docket entries, which are here.

There are approximately twenty briefs, and only two were in support of the Executive Order.  One is from from Freedom Watch., and the other does round up a number of the usual suspects, with the list reading as follows:

Amici Curiae U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center

In contrast to the outpouring of states, technology businesses, law professors, advocacy organizations, etc supporting the challenge to the Order, this is a remarkably weak display.

No states, no Republican officeholders, no businesses.  Only a few frequent litigators and a few far-right frequent fliers, heavy on guns, English language monopoly, and border control.  Not a cross section of even just conservative America, let alone America as a whole.

That suggests to me the deep ambivalence of the institutional structures of our society, not only about the Order, but about the administration from which it came.

This adds to the increasing evidence that the policies of the last three weeks are built on shifting sand in terms of support.  At a minimum, this gives the courts far more freedom to follow the law, knowing that if that triggers a formal constitutional crisis (rather than just the de facto one we already have), the courts will have almost all the system on their side.