Category Archives: Supreme Court

L’état n’est pas Donald Trump

L’affaire Trump has entered a new stage. In a scathing eight page letter to Democratic leaders in the House of Representatives, White House counsel Pat Cipollone declared that Donald Trump “cannot participate” in the House’s impeachment inquiry, complaining the “inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections.”

The Trumpies of course love the letter even though it reads like Trump himself sketched it out, filling it with his long list of lies and manufactured grievances, and then handed it to Cipollone. I can imagine Cipollone struggling to take out Trump’s usual adjectives like, “lil’ Adam Schiff,” and adding some legalese. The resulting argument would get a failing grade in anyone’s first year Constitutional Law course.

Where to begin? The Constitution gives the House of Representatives the “sole Power of Impeachment” (Article I, Section 2). It does not specify how the House shall operate, other than to say “The President, Vice President and all Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4)House practice dictates the procedure for the impeachment process, requiring that it pass, by simple majority, articles of impeachment.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. (Article I, Section 3).

There are many great commentaries on impeachment, and books as well, for readers interested in Googling for more detail. See Bob Bauer at Lawfare and Nate Robson and Mike Scarcella at Law.com.

But the bottom line is what it has always been. This is a political process, not a legal one. The outcome will be determined by the votes of elected representatives in both houses of Congress. The bar for removal from office is high and has never been met in the case of a president.

I personally would rather the House took a formal vote to “begin” an impeachment inquiry. I think that would strengthen its hand as it seeks court assistance to enforce its subpoenas. I assume Speaker Nancy Pelosi wants to delay putting members on record. But eventually articles of impeachment will have to be voted on and the record will be available for the voters to review come November of next year. A Senate vote is also likely and will create another record.

But if you insist on looking at this as a legal issue, it is clear from the language of the Framers that the House is serving the role of a grand jury in our criminal justice system. In that light the Cipollone argument fails miserably. No subject of an investigation gets due process rights at the grand jury level, except the right to invoke the Fifth Amendment protection against self-incrimination.

The Senate then is acting as the trial court. There the president will presumably have the right, subject to Senate rules, to confront his accusers, cross examine the witnesses against him and challenge their evidence. He will also have the right to present his own testimony and evidence. Then he will face the vote of the Senators, acting as jury. The Constitution requires a super-majority vote to convict and remove from office. That verdict will be final, see United States v. Nixon, 418 U.S. 683 (1974).

Trump asserts that he is not subject to the House proceeding because it is unconstitutional. He also claims that the House cannot proceed unless he consents. Clearly, this position would render the impeachment process untenable.

But beyond that argument, Trump asserts not only his right to refuse to cooperate, but also his right to prevent any employee, past or present, of the federal government, from cooperating. Here he invokes the right of an absolute monarch. This is not exactly a surprise. Trump has already proclaimed that “Article II” gives him the “right as President to do whatever I want to.”

In Nixon, the Supreme Court rejected President Richard Nixon’s claim to an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

Before the Supreme Court had its say, James D. St. Clair, Nixon’s attorney, told Judge John Sirica of the U.S. District Court for the District of Columbia:

The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.

Many historians now doubt that the infamous French monarch ever said, “létatc’est moi,” literally, “The state, it is I” as a statement of his absolute power. But one thing is certain, the Framers of the Constitution had two principal fears, foreign influence on the American government, and unfettered executive power. Trump seems to condone and encourage the first fear and advocate the second.

It was because of these fears that the Framers enacted the intricate set of checks and balances which, imperfect though they so obviously are, still act to protect us from tyranny today. This tyranny is exactly what Cipollone advances as the proper interpretation of the Constitution in Trump’s world. It is exactly what a unanimous Supreme Court held was not constitutional in United States v. Nixon. Cipollone admits his argument is contrary to the Nixon case. He says the Supreme Court got it wrong in 1974 and should reverse that decision.

I dissent. L’état n’est pas Donald Trump.

 

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Again With the Guns

I have now learned that a great way to increase the amount of public participation on your blog is to talk about guns. The feedback on my last post set a record.

I have also learned that having a reasonable debate on this subject is pretty much impossible. There is so much disinformation out there that people involved in the discussion seem to be speaking different languages.

Part of the problem is that there really is, as I noted in the last post, not a lot of good data on the effects of gun ownership and gun regulation. I know that sounds crazy and I have to tell you, as one who believes in making informed data driven judgments it is very frustrating. But it is true mostly because the government, which funds much of the academic research in the United States, has for years forbidden the organizations responsible for public health and safety to fund studies into the causes of death by gunfire. That leaves us arguing, for example, on the effectiveness of the assault weapons ban which expired in 2004. 

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Guns

On September 13, 1994, a ten-year ban on assault weapons was signed into law by President Bill Clinton. It had been supported by three former presidents, Gerald Ford, Jimmy Carter and Ronald Reason. The law had a built-in “sunset” provision and was allowed to expire on September 13, 2004, when President George W. Bush was in office.

The so-called Federal Assault Weapons Ban, part of the Violent Crime Control and Law Enforcement Act of 1994, was limited. It included a prohibition on the manufacture for civilian use of certain semi-automatic firearms that were defined as assault weapons as well as certain ammunition magazines that were defined as “large capacity”.

Limited or not, it was too much for the Republicans and the National Rifle Association. Democratic attempts to renew it have failed repeatedly over the years. California Senator Diane Feinstein has led the effort in the Senate. Her bill is pending before the Judiciary Committees in both houses. There have been no hearings.

To be fair, yes, some opinion writers try to be, questions have been raised about the effectiveness of the law, at least during the first few years after it was enacted. And the legal environment for gun control legislation has become more complicated in recent years, in great part due to the Supreme Court’s decision in District of Columbia v. Heller.

This 2008 opinion, decided 5-4 with  Scalia, Roberts, Kennedy, Thomas, and Alito in the majority, held for the first time that the Second Amendment gives private citizens the right to possess an ordinary type of weapon and use it for lawful, historically established purposes such as self-defense even when there is no relationship to a local militia.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Second Amendment, U.S. Constitution

I can go on for hours, and have bored many a person doing so, about how ridiculous and hypocritical the Heller opinion, written by Justice Scalia, is. But I’ll spare you. For now. Suffice it to note the opinion, dangerous though it is, still allows for the possibility that some type of weapons could be banned. One hopes, for example, the Court would allow the prohibition of nuclear bombs in a home arsenal. Still untested however, is a new ban on assault weapons.

But before a new ban can be tested, Congress has to act.

Congress is taking August off.

The Shooters Don’t Wait

On Saturday it appears a single shooter killed 20 people and wounded 26 others at a Walmart in El Paso, Texas. Police say he carried an assault rifle of the type banned by the expired law. He was captured alive by police within minutes.

Dayton Shooting MagazineThirteen hours later another apparently lone gunman opened fire on people in downtown Dayton, Ohio. The gunman wore body armor and also used an “AK” type assault rifle. Police say he carried the “high capacity magazine” pictured on the left. It holds 100 rounds, is designed for rapid fire and would have been banned under the expired law. The gunman was killed by police in less than a minute after he started shooting. In that minute he killed 9 people and wounded at least 27 others.

If only Scalia, who frequently argued that the Constitution has to be understood in terms of what its actual words meant at the time they were written, had limited his individual right to bear arms to those highly inaccurate and slow firing weapons in use at that time. You can’t do much damage with a musket or flintlock.

Even Background Checks Can’t Be Enacted

The House of Representatives passed H.R.8, the Bipartisan Background Checks Act of 2019 on February 27, 2019. The vote was 240 – 190. It is far from perfect. But it does establish new background check requirements for firearm transfers between private parties (i.e., unlicensed individuals). Specifically, it prohibits a firearm transfer between private parties unless a licensed gun dealer, manufacturer, or importer first takes possession of the firearm to conduct a background check.

On March 4, it was “Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 29.” Its fate now rests solely in the hands of Senate Republican Leader Mitch McConnell. It hasn’t been heard from since.

Congress is taking August off.

Most polls show a significant majority of Americans favor limits on high capacity, high speed weapons designed for military use. Most polls show a significant majority of Americans favor background checks.

Congress is taking August off.

Perhaps the solution is for voters to give members of Congress who block these measures a permanent vacation.

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Don’t be suppressed

Someone rings the doorbell right around Jeopardy time, not the best moment to interrupt, and I go downstairs to answer. There are two young men at the door. One carries a clipboard. The other a stack of papers. It is election season and I expect to get a pitch or two but instead am simply asked if I intend to vote. “Yes” I reply and the questioner proceeds to ask if I want to vote by mail. “No” is my answer and he launches into a fervent speech about how much easier it is and how they can help not only by supplying me with a “Vote by Mail” form but also with a ballot I can fill out to cast my vote right then and there. At that all my alarm bells go off and I ask them who they are and who they represent. They quickly cover by saying, “Well, if you’re not interested…” and heading off down the block.

I go back upstairs and rejoin Amy, knowing not to interrupt the sacrosanct Jeopardy-Wheel of Fortune hour until a commercial break, when I give my report. She agrees the encounter was strange but says it was not a big deal. The more I think about it, the more I think it is and hop in the car to see if I can find the young men.

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Justice Kavanaugh

It’s Justice Kavanaugh now. Damn it.

Not that there was really any suspense. The Republican take-over of the federal courts has been a decades long project and, as usual, the lackluster resistance of the Democrats has been powerless to stop it. It does not matter that Americans, by a 51-41 percent margin, disapprove of Brett Kavanaugh’s confirmation to the Supreme Court. Americans preferred the Democratic candidate for president in 2016. A lot of good that did her.

I can hear it now. Even from some friends and relatives. “You’re just a ‘g d’ east coast liberal Democrat.” And then there’s, “Elections have consequences.” Thank you Lindsey Graham. First of all, I’m from Chicago. Not even close to either coast. Second, I was born into a very Republican family and I have voted for many Republicans over the years. But the Republicans I respected are either dead, retired, or primaried out of office. What’s left is a group of people who see politics as a blood sport where winning is everything. People for whom cooperation is anathema and no tactic out of bounds on the road to victory.

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