Has the Police State Arrived?

Most everyone who has seen a World War II movie made before, say, 1980 (guessing) is familiar with the cliché-like scene in which a Nazi soldier demands, “show me your papers” or some variation. In the worst cases the soldier simply puts out his hand in a gesture well-understood that presentation of identification documents was demanded and not optional. That was the portrayal of Germany and conquered countries under the Nazis.

WWII ended in 1945. Now, 63 years later, we have arrived at a similar place. The video here ( https://bit.ly/2JUUFZZ) reported in HuffPost here (https://bit.ly/2t61NJh) shows an armed immigration officer asking passengers boarding a Concord Coach Lines bus whether they are U.S. citizens, followed by a Concord employee confirming (erroneously, per Concord’s tweet at https://bit.ly/2M0PtkK & Facebook post at https://bit.ly/2HWPVxG) that one must be a U.S. citizen to ride the bus. Concord Coach is an interstate passenger bus company.

What is going on here? Bangor is 130 miles from the nearest point in Canada. https://bit.ly/2JXI70o Fortunately, passengers in the video refused to answer, and no one was arrested. We can sympathize with the bus driver, who seemed to have been caught off guard by the patrolling Immigration & Customs Enforcement  officer looking over the boarding passengers. But, as the ACLU points out in the narrative with the video, this ICE interrogation practice is unacceptable.

It has no known demarcation. We are accustomed to answering questions about identity before boarding airplanes in what is a largely routine and orderly, if irritating, process. That process is in place because of the extraordinary threat posed by aircraft in the wrong hands.

Is the government now going to start hunting for aliens in our midst at bus stations and Amtrak stations? Car rental locations? How about bike rental kiosks? Subways? Local bus stops in Arkansas? Are we approaching the point at which the Trump-led government is going to require national identification papers on your person at all times and subject to inspection at any time by ICE or other officers? See https://bit.ly/2FmlvnY for some relevant history here and elsewhere if you think this is hysterical overstatement.

There is no plausible rationale for such government intrusion. No real-world demonstrable threat from illegal immigrants exists to justify this police-state tactic. Lengthy and thorough analyses of available data, which admittedly is not perfect (a problem that cuts both ways and so is really irrelevant), shows that the Trumpian claim that illegal immigrants bring crime to the United States is not supportable. https://wapo.st/2JUM4mT; https://nyti.ms/2GImBPa.

Of course, facts and truth have never had much sway in Trump’s world and his fan base accepts whatever he says simply because he says it. Nevertheless, it is vital to our democracy that we not allow false claims based on safety/security to undermine our basic freedoms. Trump and his advisors would do well to re-read the opening sections of the Declaration of Independence. So should everyone else. See https://bit.ly/2ldSeUj and the other materials cited there. Trump’s attempt to re-introduce Nazi-style measures to America will not be accepted quietly.

Donald Trump & Attorney General Sessions Committing Crimes Against Humanity

Attorney General Jeff Sessions graduated from law school 6 years after I did. While the schools were in different parts of the country, there is no reason to believe that, by virtue of geography or timing, the law taught to him was significantly different than the education I received. I can’t be sure of that, of course. But I am sure that going to law school does not, by itself, make you a better human being. I will explain why below.

Among the well-known graduates of the University of Alabama Law School are Harper Lee (wrote To Kill a Mockingbird); Hugo Black (Associate Justice of U.S. Supreme Court); and Howell Heflin (Democratic Senator who preceded Jeff Sessions and who voted against most progressive legislation but came to realize “we live in a nation that daily is trying to heal the scars that have occurred in the past. We’re trying to heal problems that still show negative and ugly aspects in our world that we live in today, and perhaps racism is one of the great scars and one of the most serious illnesses that we suffer from still today.”)

On the other hand, the notables list of UALS includes George Wallace (as Alabama’s governor, sworn to uphold the law, he defied the school integration ruling of the U.S. Supreme Court); Spencer Bachus (at the center of insider trading scandal under rules that exempt Congress from the prohibitions); and, not least, Roy Moore (defeated Senate candidate for Jeff Sessions’ vacated seat, multiply accused of sexual harassment of underage females and twice evicted from his job as Chief Justice of the Alabama Supreme Court for refusing to comply with federal court decisions).

No doubt there are many other notable UALS graduates on both sides of the divide that separates the two groups I have singled out. The same is certainly true of my law school, which graduated Ted Cruz, Anthony Scaramucci and Mitt Romney, all on the wrong side of the humanity divide.

I use the phrase the “humanity divide” because law school should instill in its students not only a respect for the law and legal institutions operating under a complex federal-state system with a constitution as the overarching legal framework for the whole, but also some sense of what is right, what is fair, what is justice. I do not suggest that “justice” is always obvious; clearly, it is not and we have long strings of conflicting Supreme Court decisions to prove it. Justice is hard sometimes but if you search deeply enough, you can usually find it.

As a people, we have, imperfectly for sure, but generally over time. adopted certain norms of civilized conduct from which we do not permit deviations that deny basic human rights and individual dignity to humans. (We are far behind the curve when it comes to protecting animals, but set that aside for today).

For example, we don’t torture prisoners. It’s not that we’ve never done it. We have, but as a societal norm under most controllable circumstances we don’t accept torture as legitimate. A soldier in combat conditions might torture a prisoner in an effort to get information that could save the lives of his comrades in arms. As a society we don’t approve of that torture but perhaps we can at least understand it in the circumstances. But, we don’t accept that behavior when it occurs in circumstances where imminent threats to safety are not present. Those situations are hard to identify sometimes, but we keep trying.

We don’t summarily execute criminals as a lesson to others. To reverse paraphrase our Attorney General’s position on separating children at the border, we don’t say “if you didn’t want to be shot in the head, you shouldn’t have committed a crime.” We don’t say “if you didn’t want to be drawn and quartered, then disemboweled in front of your family, you shouldn’t have robbed that bank.”

In declaring our country’s independence, our founders declared that we hold as self-evident truths that all men (defined now as humans, not by gender) are created equal and are endowed with inalienable rights, among them Liberty. Over time, in our quest for a “more perfect union,” as you would expect, the standards of what “justice” entails will change, and they have, sometimes dramatically. Recall, for example, that until 1954, it was permissible for schools to segregate students by race on the false premise that they were “separate but equal.” The Supreme Court changed that and, as a country and as a people, it is indisputable, I believe, that we are better off because of it. Men once were permitted to own other people as property. We put an end to that too, at the cost of much blood and sacrifice.

Remember that the second opening clause of the U.S. Constitution says “establish Justice.” We don’t always get it right but we keep trying. We have humanity. We show humanity in our treatment of others, even those found to have committed serious crimes against society. It would be more efficient to eliminate court appeals and just take convicted criminals out back and hang them from a tree. Or burn them at the stake. We don’t do that anymore. We have humanity. We have learned. At least we thought we had.

The Trump administration has shown little humanity since coming to power in 2017. It has departed, deliberately and with malice aforethought, from the moral standards that have governed our progress as a people for more than 200 years in a multitude of situations, none more egregious than the policy and practice of separating children from their parents who bring them across the border without required documents.

The Trump/Sessions deportation policy may, I emphasize may, be legal in some technical sense (I am not an expert in that field), but it is certainly not just. It lacks humanity in any meaningful sense. The practice of separating children, some mere babies, from their parents when they have arrived in the United States, whether illegally or legally seeking asylum, and placing the children in cages with no contact with parents who are in some cases deported without process and without their children, is, by any reasonable standard, inhumane, an offense against decency and against higher values to which we aspire. It is a practice of which the German Nazi Party would have been proud.

Among the many things wrong with the policy is that it conflates what the child did with what the parent did and punishes the child for the parent’s transgressions against U.S. law. Self-evidently, a toddler has no control over the parental decision to attempt entry into the United States without proper documentation. Yet, the children are removed from their parents and sent to “camps,” often hundreds of miles away. There are reports that many are unaccounted for. Whatever the reason behind that, there is simply no excuse for creating or maintaining such a system on the theory that it will teach the parents a lesson.

I believe the Trump/Sessions policy, on its face and as practiced, violates the 8th Amendment to the U.S. Constitution, which prohibits “cruel and unusual punishments.” In 2016 the U.S. Supreme Court said, ““Protection against disproportionate punishment is the central substantive guarantee of the Eighth Amendment.” Montgomery v Louisiana, 577 U. S. __. Surely locking a child in a cage away from her parents is disproportionate to anything the child did.

The Supreme Court elaborated on the history of imposing mandatory life sentences without parole on person who were juveniles at the time of their capital offense, noting that

Miller v. Alabama, 567 U. S. 420 (2012 … held that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on “‘cruel and unusual punishments.’” [citations omitted]

My point is not that the children being wrenched away from their parents on the southern border are being given life sentences. They are, however, being punished for a crime that they, acting on their own, could not have committed in many, if not most, cases. Locking a child in a cage is punishment. Put Donald Trump or Jeff Sessions in a cage and see how fast they agree.

In addition to U.S. law, there are other resources that inform our understanding of what treatment is appropriate, is just, for children of illegal immigrants caught at the border. According to the United Nations,

The International Law Commission was established by the General Assembly, in 1947, to undertake the mandate of the Assembly, under article 13 (1) (a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification”.

http://legal.un.org/ilc/

Article 17 of the Draft Code of the International Law Commission states:

“A crime of genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: … (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; … (e) Forcibly transferring children of the group to another group.” [emphasis added]

The Commentary on Article 17 includes this:

“(With regard to subparagraph (e), the phrase “forcibly transferring children of the group to another group”, was drawn from article II, subparagraph (e) of the Convention on the Prevention and Punishment of the Crime of Genocide. The forcible transfer of children would have particularly serious consequences for the future viability of a group as such. Although the article does not extend to the transfer of adults, this type of conduct in certain circumstances could constitute a crime against humanity under article 18, subparagraph (g) or a war crime under article 20, subparagraph (a) (vii). Moreover, the forcible transfer of members of a group, particularly when it involves the separation of family members, could also constitute genocide under subparagraph (c). [emphasis added]

Article 18 of the Draft Code of International Law Commission states:

“Crimes against humanity A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group: … if) Institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population; (g) Arbitrary deportation or forcible transfer of population; (h) Arbitrary imprisonment; (h) Forced disappearance of persons; (i) Rape, enforced prostitution and other forms of sexual abuse; (A) Other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm.” [emphasis added]

I am aware that international lawyers can, as lawyers will, make all manner of arguments about what exactly each word or phrase means and will argue that this draft language is not binding on the United States, and more. Maybe, but I don’t believe they can overcome the fact that this language frames the concept of inhumane treatment, especially of very young children, as understood by civilized people of the world.

In addition, the ACLU has reported that it has

uncovered tens of thousands of pages of evidence documenting U.S. Customs and Border Protection (CBP) officials physically, sexually, and verbally abusing children. The majority of these children are asylum seekers fleeing violence in Mexico and Central America. Some are teenage mothers. Some are escaping gang violence. Some are in need of medical attention. All of them have risked their lives to find safety – and tragically, CBP has shattered that dream for so many.

CBP’s abuses are not only unconscionably inhumane, but they also violate United States law and international human rights law, which give protections to migrants, refugees, and asylum seekers – no matter their country of origin.

The uncovered documents show CBP officials – including Border Patrol agents – committing the following abuses:

  • Threatening children with rape and death
  • Depriving children of food and water and holding them in freezing and unsanitary detention cells
  • Shooting children with Tasers and stun guns
  • Punching a child in the head repeatedly
  • Running over two 17-year-olds with patrol vehicles
  • Subjecting a 16-year-old girl to a search in which they forcefully spread her legs and touched her genitals

The violations are numerous. By law, CBP can’t hold unaccompanied children for longer than 72 hours. Children in CBP custody are entitled to safe facilities, adequate food and water, and proper medical care. And as federal officials, CBP officers are legally required to report all allegations of child abuse to law enforcement, child protective services, or the FBI.

All human beings deserve to be treated with dignity and respect, regardless of their immigration status – and children, in particular, deserve special protection. The misconduct demonstrated in these records is breathtaking, as is the government’s complete failure to hold officials who abuse their power.

https://action.aclu.org/petition/cbp-stop-abusing-children  [bolding in the original]

Also, read this if you have the stomach for it: https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrol-abuses/ice-cruelty-knows-no-bounds

Who bears the burden of guilt here? Apologies for the length of this, but you really need to grasp the enormity of what is being done to these children and their parents:

In an interview on Tuesday morning with conservative radio host Hugh Hewitt, Attorney General Jeff Sessions doubled down on his defense of the Trump administration’s practice of tearing apart families seeking refuge in the United States, including those seeking asylum. The interview revealed not only Sessions’ lack of basic empathy and compassion but also his willingness to deceive the public in defending this cruel policy.

During the conversation, Hewitt pushed Sessions to consider the implications of separating a child from his or her parent, even asking if Sessions could imagine his own grandchildren being taken from their parents. Yet Sessions would not be moved, opting instead to paint these devastated, vulnerable parents as criminals who are “just coming here because they’d like to make more money.”

Further questioned on the morality of detaining people seeking asylum, Sessions resorted to outright lies. The issue, Sessions explained, is that people are not pursuing asylum in the correct way, by arriving through a U.S. port of entry: “If you come to the country, you should come through … the port of entry and make a claim of asylum.”

Here’s what the Attorney General is not saying: Under its family separation policy, asylum seekers who have followed this exact protocol are still having their children ripped away. It happened to both Ms. L and Mirian G, two mothers who are a part of our class-action lawsuit. Fleeing the Congo, Ms. L, arrived at a port of entry near San Diego with her then 6-year-old daughter to seek asylum. Despite having committed no crime and having followed the correct protocol for seeking asylum, Ms. L and her daughter were detained. Four days later, her daughter was taken from her and sent to a government facility in Chicago. Ms. L was sent to an immigration detention center. The mother and daughter were kept apart by 2,000 miles for more than four months until the ACLU intervened on their behalf. Mirian G., an asylum seeker from Honduras, experienced similar cruelty: After presenting herself at port of entry, Border Patrol agents took away her 18-month-old son. She didn’t see him again for more than two months.

Sessions would have us believe that those who follow the rules will not be subjected to this kind of inhumane treatment, but that’s simply untrue. No one seeking asylum, even those not entering through ports of entry, should be treated like a criminal. But for Sessions to claim that the administration is only separating families who cross the border illegally is just wrong. Our clients did everything by the book and still had their children taken from them.

Sessions also spent much of the conversation attempting to portray the administration’s family separation policy as par for the course. “Every time somebody … gets prosecuted in America for a crime, American citizens, and they go to jail, they’re separated from their children,” Sessions argued. Parents seeking refuge in the United States who are prosecuted for crossing the border someplace other than a port of entry, Sessions’ line of reasoning goes, are simply being treated as any American citizen who is incarcerated.

But since when does the government refuse to reunite a parent and child after someone has served her time?

Crossing the border without proper documentation is a misdemeanor that typically carries the penalty of a few days in jail if you’re prosecuted. What the Attorney General failed to mention is that the government is refusing to give kids back to parents once they have served their time. Our client, Ms. C, experienced this firsthand. After Ms. C, an asylum seeker who was prosecuted for entering the country illegally, served her 25-day criminal misdemeanor sentence, she expected to be reunited with her 14-year-old son who had been cruelly taken from her. Instead, Ms. C was forced to wait more than eight months after serving her sentence before the two were reunited.

It is one thing to defend a morally reprehensible policy, but it is another thing entirely to spew lies in making that defense. On Tuesday Sessions crossed that line.

https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/jeff-sessions-deceitful-spin-family

What, I ask, do these fools in the Trump administration think the long-term consequences of these practices are going to be? What impact will they have on the attitude of people whose rights are disrespected in this way? How are they likely to think about the United States when they mature? Through these practices, the United States is guaranteeing a new generation of enemies who will see the promise of America as a vast lie perpetrated knowingly by a government that resembles the Nazi regime that took over Germany and overran most of Europe.

I submit that the practices and policies of the Trump administration being enforced by the Attorney General as outlined above are crimes against humanity and may be a form of genocide under international standards. As has been the case elsewhere, in time there will be a reckoning about all of this. The callous indifference and blatant disregard for human rights that is evident in these practices and policies will be returned one day to those that are responsible for it. The maintenance of civilization requires nothing less.

To help bring that about, please support the ACLU. It is using our legal system, the one designed as a bulwark against authoritarianism and the critical pillar of the checks and balances of the Constitution, to help defenseless children against egregious violations of human rights. If the government can get away with doing this to these children, it can do it to anyone. We must #RESIST with every means at our disposal.

Trump & Kim Jong Un — Read It and Weep

Republicans are having their usual asexual orgasms over the self-proclaimed “epochal event,” the “first in history,” etc. etc., culminating in a “joint statement” in which … what?

Before we get to that, it’s worth noting that the “historic summit” did not involve all of the actual parties to the problem allegedly being resolved. South Korea, a sovereign nation to whose secure existence the United States is officially committed, was not at the table. Of course, the leaders of North and South Korea had already met in late April and issued their own joint statement, about which more below. The Trump-Kim Jong Un meeting was apparently necessary because the United States is the patron of South Korea. Which raises the question of China that has been the patron of North Korea. Such are the vagaries of international relations.

There is also the fact that the pre-summit bargaining position of the Trump Administration, announced by the current Secretary of State Mike Pompeo in Trumpian/stentorian terms, that the U.S. would accept nothing less than “complete, and verifiable, and irreversible denuclearization of the Korean Peninsula” is nowhere in sight in the joint statement.

So, after a “comprehensive, in-depth and sincere exchange of opinions” [yes, the parties agreed they were sincere in their protestations of mutual affection] Trump agreed to provide “security guarantees” to the DPRK, and Chairman Kim Jong Un “reaffirmed his firm and unwavering commitment to complete denuclearization of the Korean Peninsula.”

What are those “security guarantees?” Has the United States agreed to protect North Korea from China? Or, is this just so much diplomatic frosting on the theatrical cake? Is Kim Jong Un’s re-affirmed dedication [which by definition preceded the summit] to “complete denuclearization” equivalent to “complete, and verifiable, and irreversible denuclearization?” Doesn’t seem like equivalence and, if not, what is it equivalent to? We have seen this before. And before.

Close reading of the actual joint statement reveals some further curiosities:

  1. “The United States and the DPRK commit to establish new US-DPRK relations in accordance with the desire of the peoples of the two countries for peace and prosperity. [What about the desires of the people of South Korea? Arguably, that was covered in the earlier joint statement of North and South Korea, known as the Panmunjom Declaration.]
  2. The United States and DPRK will join their efforts to build a lasting and stable peace regime on the Korean Peninsula. [In English: let’s work together for peace. Bravo]
  3. Reaffirming the April 27, 2018 Panmunjom Declaration, the DPRK commits to work toward complete denuclearization of the Korean Peninsula [The text of the Panmunjom Declaration for comparison with the content of the Trump-Jong Un joint statement is at https://reut.rs/2HVbCSN] The Trump-Jong Un statement is only 394 words (372 if you discount the redundancy of paragraph 2 with paragraph 3) while the earlier Panmunjom Declaration is very specific about many of the steps to be taken and comprises 1,127 words. The two Koreas had much more of substance to say than North Korea and the U.S.]
  4. The United States and the DPRK commit to recovering POW/MIA remains, including the immediate repatriation of those already identified.

Having acknowledged that the US-DPRK summit — the first in history — was an epochal event of great significance in overcoming decades of tensions and hostilities between the two countries and for the opening up of a new future, President Trump and Chairman Kim Jong Un commit to implement the stipulations in the joint statement fully and expeditiously. The United States and the DPRK commit to hold follow-on negotiations, led by the US Secretary of State, Mike Pompeo, and a relevant high-level DPRK official, at the earliest possible date, to implement the outcomes of the US-DPRK summit.[Lots of self-adulation (what else from these two?) but no additional substance. They’ll get together again soon to discuss implementation of whatever they think they agreed to.]

President Donald J. Trump of the United States of America and Chairman Kim Jong Un of the State Affairs Commission of the Democratic People’s Republic of Korea have committed to cooperate for the development of new US-DPRK relations and for the promotion of peace, prosperity, and the security of the Korean Peninsula and of the world.”

To avoid misunderstanding, I want to say that almost any rational communication between previously hostile and non-communicating nuclear powers is better than no communication. On the other hand, Trump has apparently made commitments regarding relations with South Korea related to joint military exercises (comments that top military leaders may already be walking back) that may not have been fully vetted and for which no meaningful quid pro quo was received. We cannot adequately assess the whole of the so-called “negotiation” until more is known about what happened in the private meeting between the two leaders.  They didn’t attack each other and stomp out of the room and that’s a victory of sorts but let’s keep our heads for a while. This may be nothing more than a publicity stunt for both sides.

Bottom line — Trump may be readying himself to receive the Nobel Prize but the Swedes had better wait to see the meat on the summit bone before deifying Trump as the great peacemaker. Among the many important facts we still do not know about this hastily arranged meeting and joint statement are the real reasons that Kim Jong Un has suddenly become such a pliable and reasonable soul. Trump’s propensity to oversimplify everything and turn them into a TV-show sound bite formula for his base may be masking some serious issues that have not yet surfaced. Kim Jong Un’s sudden change of heart/style/position must be thoroughly understood before the real meaning of these overtures can be assessed. Trump’s base may buy the idea that it was Trump’s tough talk that brought North Korea to the table, but that is far too simplistic and utterly improbable in light of the North Korean diplomatic history.

Final thought – Trump is going to present himself as the great negotiator again, the man who single-handedly solved the world’s most serious nuclear problem. Democrats better get ready fast to address those claims with a serious and understandable reality check because Trump’s claims will resonate with some voters who are not in Trump’s base or who are hanging on the precipice and swingable for the 2018 election.

For a similar opinion from elsewhere, see http://www.msnbc.com/rachel-maddow-show/summit-north-koreas-kim-trump-gets-his-spectacle-little-else.

Oh, one other thing. the Canadians and our other former allies in the G7 must be really frosted after being condemned by Trump as he was heading to Asia to pal up with yet another dictator (did you know, Trump and Jong Un were referred to as “the two dictators” by in a Fox broadcast without objection or even notice?). Trump’s motives in all this have to be considered suspect in light of the Russia connection and Putin’s ongoing efforts to sabotage U.S. elections. Mr. Mueller, you need to act soon. It’s getting late.

Get the Popcorn Ready for July 2

Ars Technica reports (https://bit.ly/2kRp1y9) that a federal judge has ordered the Environmental Protection Agency to provide documents on which Scott Pruitt, the Administrator of the agency, relied in stating, in March 2017, that carbon dioxide was not a major contributor to climate change. See https://bit.ly/2JowYWp Immediately after Pruitt’s statement, Public Employees for Environmental Responsibility (PEER) filed a Freedom of Information Act request for documents on which Pruitt relied in his conclusion which conflicts with the overwhelming consensus of scientific thought on the subject, including statements published by EPA itself before Pruitt assumed his position.

According to the Ars Technica report, the EPA refused the FOIA request and PEER sued the agency. On June 1, Beryl A. Howell, Chief Judge of the U.S. District Court for the District of Columbia issued a 19-page opinion ordering EPA to produce the documents by July 2 or explain why they can’t by July 11. https://bit.ly/2Jleztq

The opinion opens by observing that EPA’s own webpage contradicted Pruitt’s statement, yet “EPA has performed no search for and produced no records in response to the plaintiff’s FOIA request.” EPA stalled for over a year.

The judge would have none of EPA dissembling and stumbling attempts to shield the Administrator and avoid justifying the statements he made:

“Particularly troubling is the apparent premise of this agency challenge to the FOIA request, namely: that the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable. Such a premise runs directly counter to “an axiom of administrative law that an agency’s explanation of the basis for its decision must include ‘a rational connection between the facts found and the choice made,’” [case citations omitted] EPA’s strained attempt to raise an epistemological smokescreen will not work here to evade its obligations under the FOIA. [Opinion at 10]

In a major case of understatement, typical of judicial opinions, Judge Howell said:

“At the outset, EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change. The D.C. Circuit described as “substantial” the “body of scientific evidence marshaled by EPA,” which “scientific evidence of record included support for the proposition that greenhouse gases trap heat on earth that would otherwise dissipate into space; that this ‘greenhouse effect’ warms the climate; that human activity is contributing to increased atmospheric levels of greenhouse gases; and that the climate system is warming.”  [citations omitted]

And,

“EPA is construing the second part of the FOIA request far more broadly than the text supports in a thinly veiled effort to make the request more complex and burdensome than it is.”

And, finally,

“EPA has failed to demonstrate a viable legal basis for its refusal to conduct any search whatsoever in response to the plaintiff’s straightforward FOIA request. When the head of an agency makes a public statement that appears to contradict “the published research and conclusions of” that agency, Compl. ¶ 20, the FOIA provides a valuable tool for citizens to demand agency records providing any support, scientific or otherwise, for the pronouncement, and to oblige agencies to search for and produce any non-exempt responsive records. Compliance with such a request “would help ‘ensure an informed citizenry, vital to the functioning of a democratic society.’”

If the EPA had devoted the time spent resisting the FOIA request on actually complying with it, the agency would have been finished with this matter long ago. Now the agency has been ordered to finish the search in a month and report shortly thereafter on remaining issues.

I cannot avoid the conclusion that the professional agency staff at EPA knows that the documents sought to support the Administrator’s claims re climate change simply don’t exist. They are doing what they can to protect Pruitt from himself, but Chief Judge Howell has seen through the smokescreen. Pruitt has no meaningful science or internal agency research to support his right-wing political position that, as his President and enabler Donald Trump would put it, “climate change is a hoax.” So, July 2, assuming EPA does not continue to resist by appealing to the D.C. Circuit Court of Appeals, will be an interesting day of reckoning.

Law Professors’ Letter Thrashes Trump Claim to Powers of a King

I was in the middle of drafting a long and detailed dismemberment of the two letters recently published by the New York Times, letters written by Donald Trump’s attorneys to Special Prosecutor Mueller. https://nyti.ms/2Lg6kiQ  The letters escalate the conflict to a new and perhaps ultimate level by asserting that the president, under the U.S. Constitution is empowered to use his discretion to stop any investigation into any crimes he may have committed, including treason, and to pardon himself, along with any involved parties, including his family members, for any crimes alleged, whether or not formally charged or convicted. I was going to title it “Trump’s Attorneys Declare War on the U.S. Constitution.”

But there is no need for that because of the intervening publication in https://protectdemocracy.org/law-professor-article-ii/, widely reported, of a letter from a list of distinguished law professors that totally demolishes the Trump attorneys’ claims. If you do nothing else today, you should read the letter. To help you, I have reproduced it below, without the signatories and footnotes (in the interest of space) but you can see all of it at the link cited just above. Here is the letter:

“June 4, 2018

Donald McGahn II
White House Counsel
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Emmet Flood
Special Counsel to the President
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Dear Mr. McGahn & Mr. Flood:

We, legal scholars who study and teach constitutional and criminal law, write in connection with the President’s apparent belief that he is empowered by the Constitution to halt the Special Counsel’s investigation into alleged Russian interference in the 2016 election for any reason whatsoever, and his apparent view that he is not constrained by Congress’s duly enacted laws prohibiting the obstruction of justice. As reported in the New York Times, attorneys for the President wrote a letter to Special Counsel Robert S. Mueller asserting that the Constitution empowers him to “to terminate the inquiry, or even exercise his power to pardon,” and that he cannot illegally obstruct any aspect of the investigation because of these powers.[1]These views are incorrect.

First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, self-dealing, or an intent to corrupt or suborn the legal system are unauthorized by and contrary to Article II of the Constitution. Second, and even if one does not accept the foregoing construction of Article II, Congress has enacted obstruction of justice statutes that prohibit any person from acting “corruptly” to interfere with federal criminal investigations.[2] Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President.

(1) Article II and Faithful Execution

While Article II empowers the President to execute the laws, it also constrains him in so doing. The “Take Care Clause” requires that the President “shall take Care that the Laws be faithfully executed” (emphasis added). Article II contains a mandatory Oath of Office whereby the President must swear to “faithfully execute the office of President.” Like the Take Care Clause, the Oath also conceives of the President’s role as a duty—to “preserve, protect, and defend the Constitution”—not a personal power.

When the Founders thus defined the Presidency as an office bound and restricted by overarching duties of care and faithfulness (fidelity) to the Constitution and laws of the United States, they were invoking the well-known concept of treating a public officer as a fiduciary.[3] In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions.

The President’s duties of care and faithfulness are the fiduciary duties most explicitly required by the Constitution, a document that refers to many offices as “Offices of Trust,” invoking the legal concept of trusteeship (a fiduciary relationship). Mirroring the Constitution’s text, the Federalist Papersrepeatedly use the language of care, faith, and trust to describe the offices and duties of all three branches of the federal government and the way their powers should be exercised on behalf of the American people. George Washington, in the opening lines of his first inaugural address, spoke of the presidency as a “trust” committed to him by the American people.[4] The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty bound to act with faithfulness to the law and the people, not to his own selfish interests. A similar view of the office underlies the conclusion of the Department of Justice’s Office of Legal Counsel that a president may not pardon himself.[5]

It is not strange that the Founders chose to create a chief executive who would be bound to act for public-spirited reasons, rather than pursuing self-interest, self-dealing, or self-protection. Monarchy and all of its attendant ills were rejected by the Founders. The President would not be a king by another name.[6] By banning titles of nobility,[7] and providing that the President would be elected to a term of years,[8] not chosen on hereditary principles, and not ruling for life, the Constitution addressed the fear that a chief executive’s primary interest would be perpetuation of his dynastic successors and retainers rather than the good of the country. Many English kings had been foreign born, and still held lands and titles abroad, giving them personal interests that might differ from those of the citizenry. In response, the Constitution requires that the President be a citizen.[9] The President was to be given a salary while in office, and prohibited from imposing taxes or otherwise raising funds on his own authority, and also positively barred from accepting bribes, gifts, or other emoluments of office from foreign governments or state governments.[10] Typically monarchical kinds of financial self-dealing by the chief magistrate were therefore substantially checked. And importantly, the Constitution was conceived at a time when the English Bill of Rights constrained even the monarch from exercising the so-called “dispensing” power to dispense with or suspend Acts of Parliament.  Our Constitution similarly limits the President, and certainly cannot be read to grant him a power the British monarch lacked.[11]

These structural checks against abuses typical of monarchy further elucidate the Founders’ vision—seen in the Oath and Take Care Clause—of a chief executive bound to act with care and fidelity for the benefit of the country, not himself personally. Other structural provisions in the Constitution which evidence a norm against self-dealing support this reading.[12]

The President’s executive powers therefore would not permit him to terminate the Russia investigation by firing the Special Counsel or his Department of Justice supervisors; to order the destruction of evidence developed in the Special Counsel’s investigation; to pardon himself or other subjects of the Special Counsel’s investigation;[13] or to attempt to quash a subpoena, if the President takes any of these actions motivated predominantly by self-interest. Indeed, the Constitution, properly understood, would prohibit all of those actions under those conditions.

Because the President does have vast powers as head of the executive branch, and because the difference between public-interested (constitutional) and corrupt (unauthorized and hence unconstitutional) presidential actions may often turn on the reasons for which actions are taken, the lawyers for a President have an especially important obligation of their own to the Constitution and people of the United States. The President’s lawyers must counsel their client so that he understands that acting for the right reasons is the key to lawfully exercising the great powers he wields.

(2) Congress’s Obstruction Statutes and the Separation of Powers

In addition to internal constraints imposed on the President by the text of Article II and constitutional structure, the President is also externally constrained to avoid obstruction of justice.

The mistaken claim that Article II provides a complete defense to obstruction by the President rests in part on the incorrect premise that the Constitution grants him the exclusive right to exercise the executive powers. A President’s Article II powers must be read in conjunction with the restrictions the Constitution places on the federal government, Congress’s Article I powers, and the courts’ Article III powers, as well as laws duly enacted by Congress. The administration of justice involves all three branches of government.

The limitation on the President’s exercise of Article II powers is perhaps easiest to understand in the context of the Bill of Rights. For instance, it would violate the First and Fifth Amendments for the President to fire federal employees based on their race or religion. To give another example, the Due Process Clause requires that persons wielding prosecutorial power be “disinterested.”[14] The Constitution must be read as a whole; none of its provisions, including Article II, is an island.

Most importantly for our purposes, Congress can also exercise its constitutional authority to place limits on the executive.

When Congress legislates within its constitutional authority in a manner that restricts the President, the President is presumptively bound to comply with that law.[15] After all, Congress is expressly given power to enact laws “necessary and proper” for implementing the powers of the President.[16]

Congressional limitations upheld by the Supreme Court on the President’s exercise of his war powers, in a case such as Hamdan, are especially instructive. There, the Court held that Congress could specify procedures for the President to follow for trying military detainees at Guantanamo.[17] If Congress can constrain the President’s vast powers as Commander in Chief in times of war, then it can surely place limits on his conduct in his everyday role as the head of our domestic law enforcement agencies.

And, indeed, that is exactly what Congress and the courts have done.  Even though the executive branch is generally empowered with law enforcement responsibility, Congress has enacted civil service laws and created independent agencies limiting the executive branch’s power to hire and fire federal employees who enforce the law. In upholding the statute that provided for an independent counsel, rather than the Department of Justice, to investigate wrongdoing in the upper reaches of the executive branch, the Supreme Court “concluded [that] ‘we simply do not see how’ it is ‘so central to the functioning of the Executive Branch as to require as a matter of constitutional law that’ the President be understood to have unlimited control over the investigation and prosecution of potential crimes involving himself or his top aides.”[18] As Richard Pildes wrote recently, “Given the established constitutional principle that Congress can protect a federal prosecutor from the President’s domination in these type of cases, Congress can certainly constrain the President’s power in more limited ways . . . including by making it a crime for the President to act with a corrupt intent to stymie or shut down investigations of the President himself and his top aides.”[19]

It is only in rare cases that the President has constitutional power that is “both ‘exclusive’ and ‘conclusive’” on a particular issue,[20] thereby disabling Congress from legislating. And it would likewise be in only a very rare case that generally applicable federal criminal statutes would not apply to the President because of inconsistency with Article II. The Constitution, after all, directly contemplates that the President (and other officers) could be subject to criminal liability for their official actions.[21]

While the President might, for example, intervene directly in an on-going criminal investigation to advance a public-interested goal concerning national security or some other consideration, it is implausible to contend that Article II overrides Congress’s obstruction of justice statutes in circumstances where the President is acting to advance “narrowly personal, pecuniary, or partisan interests.”[22]

The federal obstruction laws, with their bar on corruptly-motivated actions, apply whether the president obstructs an investigation through firing officials leading it, shutting down the investigation, ordering the destruction of documents, or dangling or issuing pardons to induce witnesses to impede the investigation. Just as the President could not use otherwise lawful firing powers in exchange for a bribe without running afoul of federal bribery laws, he is not free to exempt himself from the application of the obstruction of justice laws.

* * *

The Office of the President is not a get out of jail free card for lawless behavior. Indeed, our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the “injuries and usurpations” that justified independence. Our Founders would not have created—and did not create—a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.

In sum, both Article II and the criminal laws of this country forbid the president from engaging in corrupt and self-dealing conduct, even when exercising Article II powers to execute the laws

We have no doubt that you take your professional roles very seriously—and we hope our legal analysis above provides some illumination as you continue to advise your client to faithfully execute our laws and to take care that those laws are faithfully executed throughout the Executive Branch.”

[Signed by 26 law professors]

Why Are Pruitt’s Basketball Tickets Not a Bribe?

On June 3, the New York Times reported that Scott Pruitt was given access, allegedly at market value, to University of Kentucky basketball tickets in a section that is reserved for ticketholders who donated at least $1 million to the university. Other perks were attached to the tickets, including watching from the players’ entrance as the team entered the playing court. The “market value” apparently was $130 per ticket, paid in cash and there is no receipt. An email from the ill-named EPA Ethics Office approved the purchase in advance in the belief that it would be paid by check.

The seats belonged to Joseph W. Craft III, a coal executive who gave more than $2 million to the Trump presidential campaign. According to the NYT report, Craft met with Pruitt seven times or more during Pruitt’s first 14 months as head of the Environmental Protection Agency. The “or more” results from the fact that the NYT has documents showing that Pruitt and Craft were scheduled to meet on two other occasions but, curiously, “officials would not confirm them.” The known and scheduled contacts occurred at meetings and speeches in Washington, Florida, Kentucky and Georgia.

As discussed at length in the NYT article, Craft has been aggressively pursuing the rollback of environmental restrictions on the coal industry. Pruitt, with the overt support of Donald Trump, has been happy to oblige, including, for example, repealing the Obama instituted Clean Power Plan to reduce greenhouse gas emissions from power plants and stopping enforcement of a rule prohibiting coal-powered plans from dumping toxic metals into rivers. The latter move was sought by a coal industry group on whose board Craft sits.

So, as you and your progeny experience worse air and water pollution and possible cancers and other adverse health consequences down the road, you have Scott Pruitt and Donald Trump to thank.

Returning to the main point of this post, I understand the notion that paying someone market value for an item can be seen as “not a gift” but a mere purchase like any other purchase. Clearly, when you buy something on Amazon, even at a discount from other available prices, no one would rationally argue that Amazon made a gift to you.

However, if you are exploiting a personal relationship with Jeff Bezos, the head of Amazon, who is selling you an item at a market price but it is an item that cannot be bought anywhere else unless you are a person of similar economic standing and advantage as Bezos, that, in my view, is quite another matter. To put the obvious meat on that bone, if Bezos has tickets behind home plate for the World Series, and if Bezos wants something you have or you have the power to deliver or even materially influence on his behalf, it is clear, I suggest, that Bezos would have effectively bribed you by “selling” his World Series tickets to you, even if you paid full price. You could not have bought those tickets in the open market and, even if you could get them on, say, StubHub, it would be most efficient, not to mention friendly, to accept the offer from your pal, Jeff.

Here are the relevant elements of the basic federal bribery statute:

18 U.S. Code § 201 – Bribery of public officials and witnesses

(a) For the purpose of this section—

(1) the term “public official” means … an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof ….;

(3) the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.

(b)Whoever—

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official… or offers or promises any public official to give anything of value to any other person or entity, with intent— [bold face emphasis added]

(A) to influence any official act; or

(B) to influence such public official… to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) to induce such public official … to do or omit to do any act in violation of the lawful duty of such official or person;

(2) being a public official … directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: [bold face emphasis added]

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person;

(3) ….

(4) ….

shall be fined under this title or not more than three times the monetary equivalent of the thing of value whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

(c)Whoever—

(1) otherwise than as provided by law for the proper discharge of official duty—

(A) directly or indirectly gives, offers, or promises anything of value to any public official … for or because of any official act performed or to be performed by such public official … [bold face emphasis added] or

(B) being a public official … otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person;

….

 (3) directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon any such trial, hearing, or other proceeding, or for or because of such person’s absence therefrom; [bold face emphasis added]

shall be fined under this title or imprisoned for not more than two years, or both.

In case you’re wondering, 18 U.S, Code § 641 defines “value” as “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.” The Department of Justice describes the two core sections of 18 U.S. Code § 201 as “bribes” versus “gratuities.” The critical difference is the lesser, but still significant, penalty for a “gratuity.”  https://bit.ly/2p2S0nU

I cannot claim expertise in the field of bribery of federal officials, but on the face of it, I do not understand how the sale, at any price, of restricted access tickets to a sports event is not the offer and acceptance of a thing of value and, in the obvious circumstances of this case and the relationship between Pruitt and Craft, therefore a bribe under 18 U.S. Code § 201. Add this to the long list of questionable actions by Pruitt, which have led to at least a dozen investigations into his conduct. I invite anyone with expertise in the area to enlighten me regarding how the sale of highly restricted sports tickets to the head of an agency that is being solicited to undertake acts in favor of the seller’s interests is not a bribe.

 

United Airlines Does Something Right

People familiar with my professional history of conflict with the airlines may find it surprising that I would come to the defense of the CEO of United Airlines in its latest dustup. But here I go.

Oscar Munoz, the UAL CEO, was verbally challenged by a person described as an “activist investor” at its recent annual shareholders meeting because the airline, following the Parkland Florida high school massacre, ended its discount program for members of the National Rifle Association. The “investor’s” objections were reported by, among others, inc.com at https://bit.ly/2s4fQ1h and Bloomberg at https://bloom.bg/2s8mnaw.  the story line being that some/many UAL employees were equally unhappy with Munoz’ statement that the NRA decision was made for “personal” reasons, namely, that a child of a United pilot had been killed in the Parkland shooting.

That decision was latched onto by the objector who was in fact not just a “lawyer with” the National Center for Public Policy Research but was in fact NCPPR’s General Counsel. His employer is a “conservative think tank” in Washington parlance, a tax-free organization, contributions to which are tax-deductible, despite its mission statement of

communications and research foundation supportive of a strong national defense and dedicated to providing free market solutions to today’s public policy problems. We believe that the principles of a free market, individual liberty and personal responsibility provide the greatest hope for meeting the challenges facing America in the 21st century.

 The NCPPR was set up in 1982:

to provide the conservative movement with a versatile and energetic organization capable of responding quickly and decisively to fast-breaking issues. Today, we continue to fill this critical niche through a top-flight research and communications operation driven by results and the bottom line. In the 1980s, The National Center helped change public opinion through vocal national campaigns aimed at supporting Reagan administration initiatives concerning the USSR, arms control, Central America and human rights. [emphasis added]

https://nationalcenter.org/about/

Before going further, I note for the record that I am one of those very liberal people that recognizes that the true and authentic conservative point of view regarding economics, the role of government and similar things is a responsible, if usually erroneous, alternative to the views of liberals who think like I do. Many intelligent and thoughtful people share some or all of the conservative philosophy and make rational arguments in support of that viewpoint. The sitting president and most of his enablers in the White House and Congress do not satisfy that definition, but that is for another day.

Now that my bona fides are declared, I return to the matter at hand. I understand the point of view that the primary job of a private business is to produce profits from its activities as a reward to risk-taking shareholders that have provided it with capital through stock purchases. But producing profits for shareholders is not, I suggest, the only function of private businesses which, broadly speaking, enjoy the benefits of public services, the protections of laws designed to prevent larger firms from conspiring against them, etc. They are permitted, sometimes subject to regulation, to consume vast amounts of public space, to exploit resources belonging to the entire nation and generally benefit from government support of their franchise. While there is tension about the amount and nature of regulation, there is, in short, a public dimension to the business of private enterprise that must be accounted for in any rational view of the role of corporations in American life.

So, what was the beef with United’s making a policy decision regarding how it would manage the discount component of its business? According to the reports, the NCPPR attorney said:

“I suppose you are ignoring the fact that the NRA had nothing to do with what happened in Parkland …. But, hey, congratulations on your virtue signaling. What exactly did investors get out of that?”

At least two observations are warranted.

First, the asserted “fact” that the NRA had “nothing to do with what happened at Parkland” assumes away the issue of responsibility for Parkland as if the truth of the matter were handed down on stone tablets. In reality, of course, a good case exists, and has been made repeatedly, that the gun culture promoted by the NRA and NRA’s success in preventing even the study of gun impact issues are elements in a direct line to the events at Parkland and the other mass shootings before and since. The NCPPR should save its smug presumptuousness for something else. The known facts about gun violence do not support their protestations of innocence.

Second, there is, of course, a potentially legitimate debate about whether private business corporations should ever do or say anything related to “political” issues. At least two points are relevant here.

One is that there is an inherent inconsistency between “keep businesses out of politics” and the “the free market rules and corporations should be able to do whatever they want, including risking the ire of customers and stockholders when they believe the public or their private interest warrants it.” Those positions are inconsistent.

Second, there is another fundamental structural inconsistency and incoherence in the “conservative” position that private business should stay out of politics. Many private businesses are perfectly fine being in politics as long as no one knows what they are doing, as in their role in funding SuperPacs under the aegis of the Supreme Court’s opinion in the Citizen’s United case. And when “conservative values” are at stake, as they allegedly are when NFL players kneel during the National Anthem, the Grand Ole Party is right there to tell those businesses to actively support the “conservative” position by punishing those players. Or else. So much for keeping businesses out of politics.

The inc.com article says that, based on emails received, the employees are against the NRA discount decision by 4 to 1, one retiree is quoted as saying that the “[A]irlines are very leftist.” That will come as a great shock to the airline managements that spend so much time and treasure in Washington railing against any form of regulation designed to protect consumers from deceptive price advertising. That is a subject for another day also, but the notion that the airlines are part of a left-wing political cabal is laughable. I will now laugh.  Then I’ll cry at the staggering ignorance that pervades our political life and public discourse.

A trend now clearly exists toward corporate responsibility and, whether the NRA and its enablers approve or not, the practice is likely to have staying power over the long term. See, for example, “8 Corporate Social Responsibility (CSR) Trends To Look For In 2018,” by Susan McPherson in Forbes, https://bit.ly/2GKeFJ7. Even some Republican businessmen who supported Trump in the past are now threatening to pull donations if the DACA program is not extended. https://politi.co/2klgIui

The NRA is, once again, on the wrong side of history on the issue of businesses in politics. UAL’s CEO Munoz has some good company and should … dare I end with this … stick to his guns.