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Tag: noah feldman
Trump’s One Great Accomplishment? Implicating The Entire GOP In Potentially Impeachable Crimes

Trump’s One Great Accomplishment? Implicating The Entire GOP In Potentially Impeachable Crimes

You don’t have to be a foreign agent to work for Donald Trump.

You don’t need decades of association with a Nazi-allied group.

You don’t even need to be a liar, though that is necessary if you’re going to say that Trump “has given more financial disclosure than anybody else” when he hasn’t even released one tax return, after promising to release them dozens of times, becoming the first president not to make this bare minimum of disclosure in more than 45 years.

The only absolutely necessary qualification to work for or with Trump is a willingness to abet his potentially impeachable crimes. And the good news for Trump is that nearly his entire party is proving that their prime concern is covering up his potential wrongdoing — even from themselves.

Last week, only one Republican in the House voted for a measure that would have required Trump disclose his tax returns and the official visitor logs to the White House. The Senate Intelligence Committee investigation into Russia’s interference with our elections is still being run by Senator Richard Burr (R-NC), a member of Trump’s transition team, who is reportedly slow-walking the entire process, ideally into irrelevance.

But despite their best efforts, the weight of the evidence demanding scrutiny of Trump’s campaign and presidency hasn’t been squelched.

Rep. Devin Nunes (R-CA), who led the House investigation until it became obvious even to Republicans that he was more interested in abetting Trump’s abuses of power than examining anything Russia or Trump did, had to recuse himself. As did Attorney General Jeff Sessions. And Rep. Jason Chaffetz (R-UT), whose sudden decision to retire from the House and his roost as chairman of the House Oversight Committee this term suggests that his imagined job of inventing Hillary Clinton scandals is nowhere near as much fun as concealing Donald Trump scandals.

Since Chaffetz made that announcement, he is suddenly doing some oversight into Trump’s possible violations of the Emoluments Clause and General Michael Flynn’s lack of disclosures of foreign payments in his background checks. But he’s still echoing the White House’s ridiculous accusation that Flynn’s background check can all be blamed on the Obama administration.

Trump is arguing that he didn’t trust Obama to vet refugees or his own birth certificate, but relied on his earlier endorsement of a general whom Obama later fired?

Abetting this nonsense is one thing. But when Trump repeatedly rejects the consensus opinion that Russia interfered in our elections after parroting Russia propaganda and celebrating the disclosures of Wikileaks, an organization his CIA director now calls “a hostile intelligence agency” — and his party fails to rebuke him en masse — then the choice made by that party is clear.

The GOP as a whole may not have been a part of the (alleged) crimes, but it’s all in on the coverup.

The question isn’t whether there is a case to be made for the impeachment of Donald Trump, but which case is the most compelling.

On Slate’s Trumpcast, Harvard law professor Noah Feldman convincingly argued that there are actually three cases for impeachment: corruption, abuse of power, and the violation of democratic norms, all potentially impeachable crimes.

Corruption is pretty obvious. You’re not supposed to use the presidency as a pop-up ad for the hundreds of businesses you still own and from which you directly benefit.

“In this constitutional sense, using the perks and tools of government to enrich the president personally is an impeachable offense, an offense that would grow out of a pattern of such acts of corruption,” Feldman wrote, noting that the odd advertisement for the president’s Mar-A-Lago resort that showed up on a State Department site this week could fit this pattern.

Is there an honest person alive who doesn’t believe Trump is using this office to enrich himself right now?

Abuse of power comes when you, say, accuse a former president of impeachable crimes with no proof or understanding of the law you suggest he broke. Or it could be from targeting the press as enemies of the people.

The Russia stuff, which has convinced many on the left that treason occurred in the Trump campaign, is the most complicated case to make, given that the alleged wrongdoing took place before the president took office. But the White House’s refusal to participate, for instance, in disclosing Mike Flynn’s entanglements or communication as National Security Advisor suggest that there could be a case for potential high crimes in office. Likewise, any attempt to reward a foreign interest for interfering in the 2016 election would be impeachable, Feldman suggests.

Democrats in Congress will be reluctant to mention the “I” word for fear of turning off “moderates.” This clinging to past propriety lingers on the left, despite America electing a birther who called Mexican immigrants rapists and couldn’t identify his own health care bill with the help of Google.

Yet it’s clear the GOP is rotting from the head. So the “I” word Democrats need to stress is independent investigation.

Two out of three Americans want such to see a commission that seeks the facts about Russia’s involvement in the Trump campaign, without the skew of partisanship. Conceivably, such a process could end in full absolution for Trump, but the public senses that something is amiss and is being hidden from them. And that alone is an indictment of the entire Republican Party.

 

Why Judicial Elections Are Idiotic And Bad For Law

Why Judicial Elections Are Idiotic And Bad For Law

By Noah Feldman, Bloomberg News (TNS)

Judicial elections are idiotic — but 38 states have them in some form. The U.S. Supreme Court grappled Tuesday with the contradiction inherent in using the electoral process to select public officials whose primary obligation is to be impartial. The precise question was whether a Florida rule that prohibits candidates for judicial office from personally soliciting campaign money violates the First Amendment. But the justices were really confronting was what to do about the strange phenomenon of judicial elections, a problem that goes to the essence of how the justices understand their own role. Unfortunately, their sense of judicial self runs headlong into their conception of the First Amendment.

The justices’ questions were revealing — and they said more about their conception of the judicial role than about how to solve the issue in Williams-Yulee v. the Florida Bar. Justice Sonia Sotomayor, who seemed most sympathetic to the Florida regulation, drew lessons from her own experience. “It’s very, very, very rare,” she observed, “that either by letter or by personal call that I ask a lawyer to do something, whether it’s serve on a committee, help organize something, do whatever it is that I’m asking, that that lawyer will say no. Isn’t it inherent in the lawyer­-judge context that people are going to say yes?”

Obviously, Sotomayor is correct. And the instinct to obey the authority figure isn’t limited to the Supreme Court. Justice Stephen Breyer made the broader point drawing on his experience and that of his brother, a federal district judge in San Francisco: “It’s a sort of a joke,” he began, “but it’s so true in the experience of the court of appeals that I had, my brother in the district court, district court judges I know, in state and federal systems, that the normal response … by a lawyer to a judge in any minor request or, you know, something normal, the answer is yes.”

Pause for a moment to think of what this means. The justices are acknowledging that, relative to lawyers at least, they’re basically omnipotent. When they ask for something, they get it. In this sense, they are closer to princes or bishops than they are to ordinary public officials.

Justice Antonin Scalia’s line of questioning made the justices sounded more like cardinals. He asked one of the lawyers whether the state could regulate certain judicial activities because they were beneath the dignity of the judge. He described what he called “an interest in judicial dignity. There are certain things that are infra dignitatem, as we say.” Later in the argument he returned to the concept, asking the lawyer for the state whether he was “relying on” the judicial dignity argument — an invitation the lawyer declined.

Justice Elena Kagan, the past dean of the Harvard Law School (where she hired me, among other questionable decisions), wanted to know about the constitutionality of the federal canon of judicial ethics that prohibits judges from soliciting money on behalf of nonprofit groups. “Who cares whether I solicit funds on behalf of my old law school,” she asked. “It doesn’t have anything to do with what rulings I’m going to issue, who I’m going to favor, who I’m not going to favor.”

The justices, in other words, were clearly thinking about this case in terms of their own conception of what it means to be a judge. The context, however, makes things more complicated.

Today’s justices are careful to remain aloof from even the appearance of connection to politics. The idea that judges in the states must dirty their hands by running for office strikes the justices as undignified and even coercive.

For the court’s liberals, then, it’ll be tempting to uphold the Florida regulation on the ground that judicial elections are special. The trouble is that, deep down, the justices seem to understand that judicial elections are preposterous. Given that their very structure would seem to undercut the possibility of impartiality, it’s hard to say with a straight face that the state should be allowed to limit free speech to keep such elections “clean.”

On the other side of the scale lies the First Amendment, which applies with its greatest force when political speech in the balance. Justice Anthony Kennedy has been a leading voice on the current court arguing that free speech outweighs almost all campaign-finance restrictions. For him, it would be difficult to treat judges running for office differently from other candidates. His free-speech pronouncements have tended to be absolute rather than context specific. Any special solicitude for keeping elections clean would tend to support campaign- finance regulation.

Judicial elections are therefore problematic for Kennedy, too. His instincts may tell him that judges are different — and the justice who cares most about the concept of dignity can hardly be deaf to the concern of preserving the dignity of his office. Yet Kennedy’s jurisprudence points toward freedom of speech as an absolute value for electoral candidates. To announce a free-speech right for judicial elections would be to acknowledge that judicial elections are no different than any others.

In a perfect world, I think the justices would strike down judicial elections as inherently unconstitutional. Then they could make the whole problem go away. But the states are laboratories of democracy, as Justice Louis Brandeis once said. Within those laboratories, the experiment is allowed to go terribly wrong. Judicial elections have been with us for almost 200 years, and despite the efforts of retired Justice Sandra Day O’Connor, they aren’t going to disappear anytime soon. Until then, judicial elections are a classic example of a hard case. And you know what they say about hard cases: They make bad law.

Noah Feldman is a Bloomberg View columnist. Readers may send him email at nfeldman7@bloomberg.net.

Photo: Scott* via Flickr

The Supreme Court’s Next Opportunity To Kill Obamacare

The Supreme Court’s Next Opportunity To Kill Obamacare

Nov. 7 (Bloomberg View) — Thought you were done with the U.S. Supreme Court and health care? Think again. The Court has agreed to review the question of whether the federally created health insurance exchanges violate the law’s expectation that the exchanges be created by a state. Reading the tea leaves can only tell you so much about what the Court is going to do. But from the standpoint of the Barack Obama administration, there is reason to be curiously concerned that the president’s signature legislative accomplishment is in jeopardy once again.

The legal arguments are a bit arcane, and I laid them out in a column this summer. To give you the bare minimum, the case involves the public exchanges that the Affordable Care Act anticipated would be set up by the states and therefore described as “established by the state” in the law. Only 14 states plus the District of Columbia have created such exchanges. As a result, the federal government established exchanges on the states’ behalf. Clever lawyers seeking to block operation of the ACA argued that the exchanges are illegal because they were not established by states. The U.S. Court of Appeals for the Fourth Circuit rejected the argument in King v. Burwell. A divided panel of the U.S. Court of Appeals for the D.C. Circuit accepted the argument in Halbig v. Burwell by a 2-1 vote.

Here’s where things get technical — and interesting. The Obama administration had to make a strategic decision of whether they would appeal the D.C. Circuit decision against them. Or, instead, ask the D.C. Circuit to review the case itself through the mechanism of all its members sitting together as a single panel, en banc.

Somewhat controversially, the administration decided to ask for en banc review. It’s reasoning presumably was that it wanted to avoid the Supreme Court if possible. While the D.C. Circuit was considering whether to accept the case en banc, the administration could argue to the Supreme Court to hold off any appeals by the challengers who lost in the Fourth Circuit. If the D.C. Circuit were to reverse the panel, then the Obama administration could then have asked the Supreme Court not to accept an appeal by the challengers who lost in the Fourth Circuit.

This strategy was plausible — but it didn’t pay off. Without waiting for the D.C. Circuit to rehear the case, the Supreme Court agreed to hear the appeal from the Fourth Circuit brought by the law’s challengers.

What does this decision reveal, if anything? It takes four votes of Supreme Court justices to agree to take a case, so there is no guarantee that a decision to grant a review will dictate a particular outcome. Nevertheless, in this situation, it seems probable that the four liberal justices would have strongly preferred to wait for the D.C. Circuit in the hopes of avoiding the issue, as the Obama administration must also have wished. It seems safe to assume that none of those four justices would have agreed to hear the case at this stage.

The same cannot be said of Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy. These justices all voted to strike down the individual mandate, which would have gutted the ACA. Presumably their hostility to Obamacare’s legality is unabated. It seems highly probable that those four would have cast votes to hear the case at this stage. By doing so, they avoided a scenario in which the D.C. Circuit reversed its panel, leaving no dispute among the appellate courts on the legality of the federally created exchanges. For them, a vote to take the case now is a strong signal that they would like to block the exchanges and sink Obamacare with this second legal torpedo.

The $64,000 question is: What about Chief Justice John Roberts? In 2012, Roberts split the baby. He voted to uphold the individual mandate and thus avoided banner headlines screaming that the Roberts court had struck down Obamacare. At the same time, Roberts blocked the element of Obamacare that would have essentially forced states to expand Medicaid. This part of the decision drastically reduced the scope of coverage under the law and therefore the law’s impact.

What will Roberts do now? He took substantial heat from conservative critics who were astonished and horrified to see the lifetime conservative betray the cause at its moment of potential judicial triumph. One possible interruption is that, scarred by this experience, Roberts would now go along with the conservative tide. The continuing unpopularity of Obamacare in opinion polls combined with the obvious weakness of President Obama after the midterm elections would provide some support for this possibility.

The other possibility is that Roberts will not deviate from his judicial restraint centrism. To strike down Obamacare now, having upheld it before, might look like opportunism or wishy-washyness. Given how weak the law increasingly appears, it would be a high price for Roberts to pay before the judgment of history if he now struck it down. Indeed, such a decision would vitiate his earlier restraints.

What seems almost certain is that the other conservative justices have decided to put Roberts to the test. They will not let him get away without standing up and being counted on Obamacare once again.  They have nothing to lose in any case by taking the gamble. For better or worse, the rest of us will be along for the ride. Stand by for a long six months of speculation while this case gets briefed and argued. A decision will come by the end of June. Its déjà vu all over again.

Photo: OZinOH via Flickr

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