Justice Alito’s Masquerade

A not-so-hypothetical state law of the near future:

“It is the policy and law of the state of [Gilead aka Any Republican-Controlled State] that the purpose of females in society is to serve the interests of males in all matters. Therefore, the legislature hereby declares:

    • The crime of rape in which a male forces a female, by violence, intimidation or otherwise, to engage in sexual intercourse is abolished;
    • Any female forced to engage in sexual intercourse as stated in section (1), must, if impregnated, take every measure to assure to the maximum extent medically possible that the child thus created be born alive, regardless of the circumstances of its conception or any medical issues involving its birth, survival, or future existence;
    • Any female who fails to comply with section (2) hereof shall be guilty of the felony of murder in the first degree and shall be punished by death.
    • Any female convicted under section (3) hereof shall submit to such medical tests as are necessary to determine paternity and shall forfeit all her property rights to the male who impregnated her.”

Seems insane, I know, but given the theocratic posturing of Republicans and their insistence on a society in which women’s rights are subordinated to those of men, it is not beyond imagining that the removal of constitutional protections for abortions will lead to state statutes similar in substance to the one set out above. In fact, multiple Republican-controlled states have already enacted severe restrictions on abortions with no exceptions for rape and incest.

In a recent post I raised some serious ethical concerns about the relationship between Supreme Court Justice Clarence Thomas and his wife’s involvement in efforts to overturn the 2020 election. I mentioned some issues related to Justice Alito’s November 12, 2020, speech before the Federalist Society, the far-right organization whose vetting and approval is essential for appointment of judges that Republicans in the Senate support. A rough transcript of the Alito speech can be seen at https://otter.ai/u/ezh-387rQb7p7Yq87udbMb4Eovk if you have the stomach for it.

In light of Alito’s remarks, just over a year ago, it was no surprise that he had authored the majority Supreme Court opinion that was leaked to and reported by Politico. https://politi.co/3s96yA6

Alito opened his Federalist Society speech with an homage to the role of the Society as a bastion of free speech, open dialogue with, he claimed, no political or other agenda, ignoring, among other things, the role it plays in vetting conservative candidates for judgeships, including on the Supreme Court. Keeping with his theme of what he was not speaking about, Alito noted the “previously unimaginable restrictions on individual liberty” that arose during the pandemic but insisted,

I am not saying or even implying, I am not diminishing the severity of the viruses threat to public health. And putting aside what I will say shortly about a few Supreme Court cases, I’m not saying anything about the legality of COVID restrictions. Nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker.

Then,

All that i’m saying is this. And I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020. Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War. Think about access to the courts, or the constitutional right to a speedy trial. trials in federal courts have virtually disappeared in many places who could have imagined that

Alito continued –

the COVID crisis … has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive Fiat rather than legislation. The vision of early 20th century progressives and the new dealers of the 1930s was the policymaking would shift from narrow minded elected legislators, to an elite group of appointed experts in a word, the policymaking would become more scientific. That dream has been realized to a large extent. Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people’s elected representatives. And what have we seen in the pandemic sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion?

We had a covid related case from Nevada. So I will take the Nevada law as an example. Under that law, if the governor finds that there is, quote, a natural technological or manmade emergency, or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population. To say that this provision confers broad discretion would be an understatement.

Now, again, let me be clear, I’m not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate, and I’m not passing judgment on this particular issue. statute,

I want to make two different points. First, what we see in this statute, and what was done under it is a particularly developed example of where the law in general has been going for some time, in the direction of government by executive officials, who were thought to implement policies based on expertise. And in the purest form, scientific expertise.

Second, laws giving an official so much discretion can of course, be abused. And whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.

When I read that, my first reaction was that a politician like Ted Cruz was speaking, making a classic right-wing anti-deep state conspiracy claim. The speech reads like a game of “which cup is the pea under,” with Alito repeatedly disclaiming the intention to make the very points he was making.

Alito next attacked the leading precedent for the constitutionality of public health measures, Jacobson v Massachusetts, 197 U.S. 11, decided in 1905. He started with a judge joke that would appeal to the ultra-conservative audience:

The case concerned an outbreak of smallpox in Cambridge, and the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading. Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge.

Almost as if signaling the lawyers waiting to challenge the national health policy regarding COVID, Justice Alito offered up multiple grounds for limiting and distinguishing Jacobson in the future and segued into a discussion of “religious liberty” with the observation that,

It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right. And that marks a surprising turn of events.

Noting that a Supreme Court decision in 1990 (Employment Division v. Smith, 494 U.S. 872) had “cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment,” Alito noted that Congress promptly passed, and President Clinton signed, the Religious Freedom Restoration Act with nearly unanimous support.  But, according to Alito,

today that widespread support has vanished. When states have considered or gone ahead and adopted their own versions … [t]hey have been threatened with punishing economic boycotts.

Some of our cases illustrate this same trend.

Note that the majority opinion in Employment Division was authored by none other than Antonin Scalia, the leading icon of the conservative judiciary and originalist thinking on the Supreme Court (the Constitution must be interpreted according to its “public meaning” in the late 18th century). Scalia wrote:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition….

Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

This precedent, apparently, was a bridge too far for Alito who appears to believe that the assertion of any religious grounds for conduct exempts that conduct from state regulation. The mind boggles.

His speech then launched into a protracted series of complaints about the Supreme Court’s treatment of religiously motivated “good works,” even if, and perhaps especially if, they lead to discriminatory treatment of people outside the penumbra of a particular religious belief. Such belief, Alito appears to believe, despite all the denials, is by itself a sufficient basis to permit denial of services to others not committed to the same ideas.

For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed….

The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.

Alito likened the trend he perceived to the treatment of Germany and Japan after 1945: “It’s not dark yet, but it’s getting there.”

Alito reviewed with disdain the Supreme Court’s treatment of the COVID pandemic, arguing that deferring to state governors on public health grounds led, in Nevada, to opening the casinos and,

“So if you go to Nevada, you can gamble, drink and attend all sorts of shows…. But here’s what you can’t do. If you want to worship and you’re the 51st person in line, sorry, you are out of luck. houses of worship are limited to 50 attendees.”

And on and on.

Since I am now at risk of writing a critique as long as the original speech (almost 5,000 words), I will cut this short. Suffice to say that the tone of Alito’s remarks was consistent with the tenor of the draft opinion released by Politico. And while Alito initially focused on religious freedom, he also complained that “Support for freedom of speech is also in danger.” His main reference there was to “things you can’t say if you’re a student or professor at a college or university or an employee of many big corporations.”

He also specifically complained that the Supreme Court’s decision on same-sex marriage had led to claims of bigotry against people who continued to assert that marriage was the union between, and only between, one man and one woman. Repeating “old beliefs” in public was predicted to lead to accusations of bigotry, just as Alito and other dissenters had expected.

Alito was clearly playing to the prejudices and fears of the arch-conservatives in the Federalist Society. He complained about attempts of individual senators to influence the Court’s decision-making, labeling a brief a group of them filed as an attempt to influence it by means other than legal argument and referencing another country where tanks were brought to bear against a high court in another country.

Following a likely-obligatory shout out to Scalia again, Alito ended his tirade with this signal [corrected for obvious transcription issues]:

… in the end, there is only so much that the judiciary can do to preserve our Constitution, and the Liberty it was adopted to protect. As Learned Hand famously wrote, Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it. For all Americans, standing up for our constitution and our freedom is work that lies ahead. It will not be easy work.

Taken as a whole, this, speech resembles the work of politics, not law.  It is an ultra-conservative judge speaking to an ultra-conservative political body and, in words more elegant than those typically used by Donald Trump, warning them that their religious liberty and other “rights” are at risk from liberals bent on helping “others” and placing their needs ahead of those of “true Americans.” It appears now that with Alito’s draft opinion in circulation, the ultra-right is on their chosen path to having the state control the lives of females who comprise about half of all Americans. Welcome to Gilead.

I will have more to say about the irreconcilable paradox of Republican conservative politics in the next post. For now, it is sufficient to observe that the idea of lifetime appointments has been fatally undermined. No country, certainly not this one, can withstand the theocratic authoritarianism that has infected the Supreme Court under the phony guise of “religious liberty.”

Is Twitter the Next Republican Echo Chamber?

Social media are awash in problematic and near hysterical responses to the announcement that Elon Musk is cleared to buy Twitter. Having paid little attention to Musk, I have nothing useful to say about the acquisition as such.

I am, however, interested in the assertion that Musk is a “free speech absolutist” and that he will, therefore, apply that principle to his management of Twitter with dire consequences. Many observers believe this means Trump’s Twitter account will be restored, with predictable results. Trump himself reportedly says he won’t rejoin Twitter but anyone who has been mentally functioning for the past five years knows Trump’s word is meaningless. Meanwhile, people like Trump’s children have remained on Twitter all along, promoting their schemes, lying and all the rest. Is the furor just about Trump?

In any case what does “free speech absolutist” mean? Yesterday, Musk tweeted this:

By “free speech”, I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people.

Putting aside the logical issues with those sentences, if Musk really means that free speech must “match the law,” there would be little to worry about. Summarized, the law is that speech that is, for example, in furtherance of a criminal conspiracy or that is demonstrably false and harmful may be regulated, not only by private entities but by the government itself. The classic example is shouting fire in a crowded and darkened theater. Such “speech” is dangerous, and the speaker may be held to account for it. Similarly, solicitation of a crime combined with actual steps toward executing the crime may be prosecuted. Speech that is normally covered by, for example, attorney-client privilege that prevents compulsory disclosure loses its privileged status if, for example, the attorney-client communication is part of a criminal enterprise.

If, on the other hand, Musk means that going forward Twitter will not discipline participants and will depend entirely on the government to do so, we will have an example of the most cynical form of disinformation in history. Why? Because Musk knows that the government is not going to undertake direct regulation of social media platforms like Twitter and claiming to depend on “the law” to do so is the height of cynical misdirection.

Mr. Musk may, on the other hand, actually believe that speech is absolute in its “freedom,” so that, for example, Donald Trump should be free to claim in Future Twitter that the 2020 election was stolen and that no consequences should attach to such false claims. Maybe.

I don’t know for sure what Musk actually thinks. Twitter participants appear to be dropping out in large numbers over fear that Musk will turn Twitter into a platform for free-form lying by right-wing lunatics. Others argue that they will “stay and fight.” Many right-wing conspiracists are rejoicing at what they believe will be the New Twitter where anything goes, including blatantly false statements about important matters like elections. Such statements are already appearing in a multitude of tweets.

Staying and fighting may not be a viable strategy if indeed Twitter is going to adopt the policy that anything goes. If it does, it will almost certainly and very quickly attract the Flat Earth and other crazies who have nothing useful to say and are not open to reason. In that case, Twitter may well die, and Musk will lose a lot of money.

I say that because I am confident that a social media platform of Twitter’s scope will not long endure as a home for lunatic fringe participants. There are, of course, plenty of them already participating. Usually, the best approach is to just block them.

Maybe Twitter really is worth $44 billion but the investment could easily be squandered by turning the platform into what Trump’s Truth Social was supposed to be but never achieved. The good news is that it won’t take too long to see which way the mendacity is blowing.

Twitter as a free-to-lie/cheat/steal platform, Twitter as the new home for Fox News and the like, can be replaced by a platform that respects truth, rejects disinformation and honors the true meaning of the idea of “free speech.” Call me naïve, if you like, but $44 billion for a platform that promotes false information is probably a bad investment. We’ll see.

What a Picture is Worth ….

Island Paradise

We returned recently from our twice-postponed [COVID] celebration of my wife’s birthday and our wedding anniversary. We have generally visited one or the other Hawaiian islands at least every other year. My wife lived there for eight years, and I have traveled there for business and pleasure many times. Hawaii remains one of the great travel experiences in the world.

The pandemic disrupted the rhythm of our visits and at a bad time. The second postponement was necessary because the Governor and health chief publicly announced that the islands could not handle a wave of COVID cases in visitors and, therefore, no one should come for a while. Extraordinary and sad for everyone.

Then the situation improved and off we went. The actual going and coming had some issues but we’ll just leave them unsaid. We want to share a few of the reasons Hawaii is special – photos of the birds, the flowers, the extraordinary trees and the “scenes.” These are a very small sample so, by all means, book yourself a dream trip. And while you’re there, book a birding tour with Oahu Nature Tours. It’s run by Michael Walther who is extremely knowledgeable about the wildlife and t geography/geology/history of the islands. He and his delightful partner Cecilia took on a great ride around the island in a Mercedes sedan. We went places you would never know about on your own and had a great day’s unique experience.

News About the News

I am puzzled by an Opinion piece published in the Washington Post, entitled “It appears CNN and the New York Times forgot a lesson of the Trump years.” https://wapo.st/3v3aynM

The lead paragraph says,

Two of America’s most important news outlets, CNN and the New York Times, are signaling that they will continue and even increase some of the both sides-ism, false equivalence and centrist bias that has long impaired coverage of U.S. politics and therefore our democracy itself. I hope they reconsider.

The ensuing argument suggests that these decisions have something to do with limiting coverage intended “to reaching people whose views might not be in the mainstream,” including in particular Black people who “disproportionately lack power and influence.”

The changes, according to author Perry Bacon, Jr., are wrapped in the cloth of “independence,” citing, importunings that Times’ staff not use Twitter so much and a CNN memo saying the network “must return to largely covering ‘hard news.’”

Mr. Bacon notes that,

Twitter was essential to the rise of Black Lives Matter — and also was a useful platform for former president Donald Trump. Trump is now off Twitter, but it remains a powerful tool for movements and activists, particularly on the left and outside both parties’ establishments.

In terms of independence, let’s be honest, the Times and CNN are declaring freedom from the left — they are not worried about being cast as too aligned with the Republicans.… I suspect independence and not doing advocacy are just updated terms for problematic forms of objectivity and neutrality that mainstream news organizations have long favored. During Trump’s presidency, the Times and CNN played an important role in signaling to the nation that he was behaving in extreme and at times anti-democratic ways. This honest coverage was nothing to be ashamed of. Now, these news executives are implying some of that coverage was misguided and won’t happen in the future.

I worry that what these executives want in the future is for their coverage of political issues to be perceived as equally independent from Republicans and Democrats. Such an approach is likely to lead to false equivalence and obfuscation — for example, reporters being worried about forthrightly identifying inaccurate statements by politicians. It basically encourages Republicans to continue to lodge bad-faith claims of media bias. It will put Black reporters in a bind, since honestly describing that the aim of some GOP-sponsored voting laws is to make it harder for Black people to cast ballots might sound like what a civil rights advocate or a Democrat might say.

The problem here, I suspect, is that of which view of journalistic history we take here. My experience, and that of many, many others inside and outside of journalism, was that CNN helped Trump’s campaign and his presidency with its non-stop coverage of his every utterance, no matter how false or destructive. CNN became Fox-Light for a very long time. If there was a turn-around at all, it occurred during the worst days of the pandemic, when Trump’s dissembling, lying, incompetence and malfeasance regarding COVID, supported across the board by the Republican Party, was daily killing Americans by the thousands and tens of thousands.

Mr. Bacon speculates that what is coming is, “replacing political commentary with more reporters standing in front of buildings like the White House and summarizing the words of elected officials. Such an approach will no doubt limit anti-Republican commentary and make GOP officials happier. But the goal should be to inform the audience, not appease officials in each party equally. When I watch cable news, I learn the most from the commentators ….”

Maybe what’s at the root of the problem is that the Trump-era media, here looking mainly at New York Times, Washington Post, CNN and the old MSM networks, became confused about the distinction between actual “news” (what happened, when, etc. focusing on genuinely significant facts about significant events) and “arguments.” With the view that a 24-hour news cycle must be covered, and that “breaking news” was the only item of interest at any moment, it wasn’t surprising perhaps that major media bought into the Trump/Bannon “flood the zone” approach.

An alternative, still available, would be to revert to the model that worked well back in the day. For example, CBS’s Walter Cronkite, a news figure trusted by most Americans at the time, presented the “news” every evening. He was followed by Eric Sevareid who “analyzed” or “interpreted” a selection of important events. They did not need constant panels of political shills arguing endlessly and repetitively about what was happening, what it meant, and who was winning.

This is how Wikipedia summarizes Cronkite’s career:

Walter Leland Cronkite Jr. (November 4, 1916 – July 17, 2009) was an American broadcast journalist who served as anchorman for the CBS Evening News for 19 years (1962–1981). During the 1960s and 1970s, he was often cited as “the most trusted man in America” after being so named in an opinion poll. Cronkite reported many events from 1937 to 1981, including bombings in World War II; the Nuremberg trials; combat in the Vietnam War; the Dawson’s Field hijackings; Watergate; the Iran Hostage Crisis; and the assassinations of President John F. Kennedy, civil rights pioneer Martin Luther King Jr., and Beatles musician John Lennon. He was also known for his extensive coverage of the U.S. space program …. Cronkite is known for his departing catchphrase, “And that’s the way it is”, followed by the date of the broadcast.

When Cronkite spoke editorially, it was clear what he was doing, as in his famous report on the Vietnam War after the Tet Offensive:

We have been too often disappointed by the optimism of the American leaders, both in Vietnam and Washington, to have faith any longer in the silver linings they find in the darkest clouds. They may be right, that Hanoi’s winter-spring offensive has been forced by the Communist realization that they could not win the longer war of attrition, and that the Communists hope that any success in the offensive will improve their position for eventual negotiations. It would improve their position, and it would also require our realization, that we should have had all along, that any negotiations must be that – negotiations, not the dictation of peace terms. For it seems now more certain than ever that the bloody experience of Vietnam is to end in a stalemate…. To say that we are closer to victory today is to believe, in the face of the evidence, the optimists who have been wrong in the past. To suggest we are on the edge of defeat is to yield to unreasonable pessimism. To say that we are mired in stalemate seems the only realistic, yet unsatisfactory, conclusion. On the off chance that military and political analysts are right, in the next few months we must test the enemy’s intentions, in case this is indeed his last big gasp before negotiations. But it is increasingly clear to this reporter that the only rational way out then will be to negotiate, not as victors, but as an honorable people who lived up to their pledge to defend democracy, and did the best they could. [https://bit.ly/3L3DxgY]

Clear separation between “news” – the facts – and “opinions, interpretations, evaluations” is still possible but it requires a major change of focus by the media, an end to click-bait headlines followed by often inaccurate and confusing mixtures of “what happened” and “what it means.” It also requires resistance to the idea that “news” consists of constantly covering the most clownish and false claims just because someone “famous” said them. The best case in point was the constant coverage of the daily “press conferences” held by Trump to promote himself and his administration’s alleged response to the pandemic.

The separation of news and opinion will require more work from editors to be sure that “reports” are factual, clear about the unknowns in situations in which facts are unclear, and free of opinions of reporters about the importance of “facts” reported. Have reporters stick to facts and interpreters do the evaluating. Forget the panels of political shills and when an interpreter makes claims that are false, tell the audience that there is no evidence to support the statements made. It’s not easy to do this, obviously, but being clear will be appreciated by the audience in the long run.

Donald Trump — A Gangster in the White House

I write to give you the gist of Jeffrey Toobin’s excellent True Crimes and Misdemeanors.

If there is anything to be disappointed about, it is that the book was published in early August of 2020 and thus does not address Trump’s (and other Republicans’) incitement of the January 6 attack and his second impeachment. But there is likely little that Toobin could add at this stage to what is known about that, given the stonewalling by most of Trump’s enablers and the apparent indifference of the Department of Justice to the entire matter.

That limitation aside, this book, like the exceptional Where Law Ends by Andrew Weissman, displays throughout the gift of clear exposition. A complex tale told well. And, like Weissman, Toobin pulls none of his punches in judging the behavior of most of the participants in the criminal enterprise that defined the Trump presidency. If there is anything to complain about in that regard, it’s Toobin’s obvious fascination with and adoration of the role, style, and grit of Speaker of the House Nancy Pelosi, perhaps the only major player to come out of the Trump crime spree as a genuine hero in Toobin’s eyes.

The book reads like a true crime novel, and it is all about crimes. Sad to say, it’s also not a novel. It’s true. All of it.

So, where to begin? The book opens with a summary analysis of Trump’s survival despite the findings of the Mueller Report. There is plenty of blame to go around but much of it rests at the feet of Mueller himself:

Mueller’s caution and reticence led him to fail at his two most important tasks.  Thanks to the clever actions (and strategic inaction) of Trump’s legal team, Mueller failed to obtain a meaningful interview with Trump himself. Even worse, Mueller convinced himself – wrongly – that he had to write a final report that was nearly incomprehensible to ordinary citizens in its legal conclusions. [True Crimes at 8]

Toobin ends the opening with the observation that,

everyone – friends as well as enemies – knew what [Trump] had done. It was obvious to any sentient observer that he did what he was accused of in the Mueller Report and in the articles of impeachment. [[True Crimes at 11]

The book then narrates the story of how that happened, beginning with James Comey’s betrayal of the country by his decision to ignore FBI policy about disclosing details of investigations at all, let alone on the literal eve of an election, with the result that Hillary Clinton’s candidacy was undermined at the last minute. The subsequent narrative will be familiar to everyone who was paying attention but the details, including many not previously revealed (to my knowledge) propel the story forward. Toobin concludes, “it appears likely, if not certain, that Comey cost Clinton the presidency.” [[True Crimes at 28] Indeed.

Toobin makes a compelling case that Robert Mueller was hyper-focused on bringing his investigation to a rapid close and thus failed to pursue “the single most important piece of evidence,” namely, the testimony of Donald Trump himself. But,

Mueller didn’t. He backed down. He couldn’t bring himself to launch a direct legal attack against the president of the United States. [True Crimes at 197]

Of all the mistakes made, and in truth every serious investigation of complex events will have some, the failure to force Trump’s testimonial hand stands out as the largest and the least understandable in light of Mueller’s assignment. Everyone – Mueller’s team, Trump’s lawyers – knew Trump would perjure himself if questioned under oath. He would have had extreme difficulty responding to skilled cross-examination of his conduct and motives. This is particularly important because Mueller believed that Trump’s “state of mind” was critical to bringing charges against him. For me, that will always remain a mystery. State of mind is simply never directly knowable, despite what we’ve seen in some phantasmagorical science fiction movies. It is inferable from conduct in context and circumstances, always.

Mueller made other mistakes. He should have squeezed Michael Cohen, Trump’s personal lawyer whom they had dead to rights on campaign finance violations and lying to Congress. Without ever asking whether his jurisdiction might include the Cohen issues, Mueller turned the case over to the Southern District of New York. Because those prosecutors, accomplished though they were, saw their role narrowly – Cohen was the target, not Trump – they never sought Trump’s tax returns or his financial records.

In a precursor to what was to come, William Barr, who had once been Mueller’s boss at DOJ, volunteered in June 2018 a 19-page memo to Deputy Attorney General Rod Rosenstein, who had appointed Mueller as Special Counsel, attacking the legitimacy of the Mueller investigation. Barr argued that the president could, for any reason or no reason (the legal standard for “at will” employment firing), fire the head of the FBI (Comey) and such action could not be attacked as obstruction of justice. Barr also objected on constitutional grounds to any attempt to force Trump to testify. [True Crimes at 234-235]

Thereafter, negotiations over Trump’s possible testimony were postponed while Rudy Giuliani was brought in to lead Trump’s legal defense team. At a “get-acquainted” meeting with Mueller’s team,

Giuliani wanted to nail down Mueller’s commitment that he would follow the [DOJ Office of Legal Counsel] policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236, italics mine]

When I read that, I almost gagged. Zebley was Mueller’s former Chief of Staff at the FBI and his top aide in the Trump investigation. Zebley was the subject of much critical assessment in Andrew Weissmann’s Where Law Ends, discussed in detail here: https://bit.ly/3Jn8ye3

I can think of no plausible reason for Mueller or his team to offer such a concession at that point, or likely at any point, in the investigation without getting something of extraordinary importance in return. But, no, the point was “volunteered” away. Astonishing and inexplicable in my opinion.

Many key players in the prolonged saga of Trump’s presidency come in for harsh criticism in Toobin’s accounting, including Judge T.S. Ellis, the judge in the first trial of Paul Manafort, Trump’s former campaign chair. Toobin notes the judge’s “partisanship and incompetence.” [True Crimes at 238] Strong words, indeed, but justified by the shocking events he narrates.

One beef I have with Toobin relates to the central issue in the Mueller investigation. Mueller concluded that there was no evidence proving that Trump or his campaign “colluded” with Russia. Toobin accepts this finding, with the qualification that Trump and his inner circle certainly wanted to collude. [True Crimes at 269] Given the failure to examine Trump personally under oath or to subpoena his taxes and financial records, Toobin’s total acceptance of Trump’s innocence on the collusion issue is, I think, unjustified. Even more so because Trump’s answers to the written questions ultimately submitted to him by Mueller included 36 instances of “don’t remember” by the man who repeatedly claimed to have a genius level mind and memory. [True Crimes at 273]

Toobin holds nothing back in stating that Rudy Giuliani’s involvement in the Ukraine extortion episode “must rank among the most disastrous pieces of advocacy in the history American lawyering.” [True Crimes at 292] No doubt, but Toobin also holds nothing back regarding the Mueller Report itself. He correctly concludes that the Report established that “Trump committed several acts of criminal obstruction of justice.” [True Crimes at 300] Using his gift of snark to full advantage, Toobin paraphrases the Mueller conclusions on obstruction:

We can investigate the President, but we can’t prosecute the President. If our investigation determined that he was in the clear, we’d say that – but we’re not saying that. Nor are we saying that he’s guilty of anything. So we’re not saying he’s guilty – but we’re not saying he’s innocent either. Basically. [True Crimes at 302]

Toobin characterizes the decision to avoid saying whether prosecution was warranted as a “gift to Trump.” [True Crimes at 302] Right again.

For several reasons, a special mention must be made of then- Attorney General William Barr’s issuance of a second letter, two days after he received the 448-page Mueller Report, interpreting the Report to say things it did not say and drawing conclusions the Report did not draw. Or, as Toobin put it, Barr put “a stake in Mueller.” [True Crimes at 307] And then, one of the highlights of the entire book for me,

Many on Mueller’s team, especially at the lower levels, were incandescent with fury at Barr.” [True Crimes at 308]

I don’t think will ever forget that phrase, “incandescent with fury” that so graphically describes how I and many others felt when Barr’s treachery sank in.

The book goes on to cover Trump’s Ukraine extortion scheme, the outrageous efforts of the White House and outside counsel to defend the indefensible, the refusal of Republican senators to hear the evidence through witnesses and their determination to protect Trump at any and all costs. Toobin is unsparing in his condemnation of these efforts, and all are worth reading.

The main thing that really surprised me in the book was an omission. I may have missed it, though I doubt it. There was no discussion of the fate of the full written report (I will not dignify it with the term “transcript,” since it was in no sense an actual transcript) on the Trump-Zelensky call that was widely reported to have been sequestered in a White House server to which access was extremely limited. I have seen no reports about whether the Biden administration has opened the server to discover its contents or whether the server was removed with by the outgoing administration to, again, protect Trump from further exposure of his crimes.

I also strongly disagree, as I have previously written, with the decision of the House managers (mainly the Speaker) to limit the impeachments to narrowly drawn issues, given the breadth and depth of Trump’s crimes in office. The House was not bound by the self-imposed limitations of the Mueller Report and, knowing, as the House did, that conviction of Trump was completely unlikely, they should have thrown the book at him, exposing for the watching world the range and importance of his crimes in office.

I also must record my fundamental disagreement with Toobin’s judgment about the proper role of the Senate in the impeachments. He says,

The senators were nothing more, and nothing less, than politicians were supposed to decide the president’s fate based just in part on the evidence at trial but also on their overall sense of what was best for the country.

That view is far too narrow and validates the refusal of the Republican Party to come to grips with the realities of Trump’s presidency. There remains, and history will confirm, no doubt that Donald Trump committed multiple crimes in office and that he committed crimes in attempting to stop the peaceful transfer of power to the Biden administration. To say that the Senate’s judgment was rightly based on a self-interested determination of “what was best for the country” makes a sham of the entire constitutional process. I do not believe the Founding Fathers, if they had been able to imagine a president like Trump, would have intended that the Senate could just say “it’s in our best interest to keep the leader of our party in power, so he’s ‘not guilty’ regardless of what he did.” I believe the Founding Fathers, whatever their other flaws, wanted and expected more when the extraordinary remedy of impeachment was brought against a president.

Toobin does not spend much time on Trump’s handling of the pandemic because that was not the primary topic of the book. But, as some of the Republican senators observed, the people would eventually render their judgment of Trump on election day in 2020. And they did. For reasons I still cannot grasp, Trump received more than 74 million votes, despite everything. But, fortunately for the republic and the world, Joe Biden won more than 81 million votes and a sufficient margin in the Electoral College to take the presidency. Then, Trump incited a coup to try to stop the transfer of power to the new president.

This was what Trump cared about the most. Toobin presciently notes,

Trump had no great passions on the issues, no policy agenda that he was determined to enact. For Trump, his presidency was more about him than what he could accomplish. For this reason, the only verdict that has ever mattered to Trump is the one rendered on Election Day.

Thus it was written and thus it was done.

You may recall Michael Cohen’s testimony before Congress in which he likened Trump to a mafia boss. While Cohen’s handling of Trump and his legal affairs was problematic, to say the least, it appears that he correctly identified the central idea of Trump’s personal code of conduct.

The central question facing us now is, I think, whether the current Attorney General, Merrick Garland, is just another Robert Mueller. As an earlier post has discussed, the statute of limitations has already run on one of Trump’s obstruction crimes. Garland has publicly stated he will follow the evidence and the law even if it leads to Trump. More lawyers have apparently been hired to work on Trump matters.

Meanwhile, time marches only in one direction. The country waits for action. Trump’s crimes, and those of his enablers in the White House and Congress, stretch well back into his presidency, with the capstone being his incitement of the attack on the Capitol on January 6, 2021, more than 15 months ago. The nation waits ….

Ballet in Hawaii – Oh Yes!!

You probably recall the experience of being invited to the home of a relative or friend to see the “slides” of their vacation somewhere. If you were fortunate, enough alcohol was served to get you through the seemingly interminable photos of places you hadn’t been and people you didn’t know, but you were sure a grand time was had by all. And how can I gracefully get out of here? If the internet had existed back then, the “slide show” would surely have been a popular meme.

I recall that because I did it, mostly to relatives who, I had convinced myself, were interested in what we had seen and done on the many trips I took for business and pleasure. I now doubt they were interested but tolerant enough.

That said, if you have followed this blog for long, you know that I occasionally post photos of places and sights that I think are worth sharing. The good news is you don’t have to look.

But I hope you will look at these few shots because they represent the future of ballet in Hawaii and these young people are genuinely amazing and deserving of support. What? Ballet in Hawaii? Indeed.

Our recent, twice postponed (pandemic) vacation/anniversary/wife’s birthday trip to Honolulu let to a surprising and inspiring discovery. As usual, we had planned many elements of the trip, but we found ourselves on the first day with … no plan! We had expected to be jet-lagged and not much into activity, but upon looking for something to do, we came upon https://ballethawaii.org. Their final studio performance was the next day, so we bought tickets and took an Uber to the studio.

What a wonderful surprise! These young and gifted people put on a show to remember. Short pieces involving different members of the group and covering the full range of classical and modern themes. Their commitment to the discipline of ballet was evident in the quality of their dancing and their obvious enthusiasm for this difficult art form.

These are two professional shots of the group that they kindly shared with us.

Below are a few of the shots I took. I wanted to capture some of the dancing, but the setting was too intimate for me to be clicking away while they did their thing.

You can see the Performing Ensemble up close here: https://ballethawaii.org/performing-ensemble/  Note them well. Someday, we’re sure, we’ll be seeing some of these names in major dance companies around the country.

Strong At Every Position

The title of this post is a phrase often used in sports journalism to describe a team that has highly rate players in every position on the starting team. It is a gross understatement as it applies to the American Ballet Theater dancers and others involved in producing Don Quixote last night at the Kennedy Center. The program can be seen here: https://bit.ly/3J4cFeI

The evening began when Devon Teuscher, principal dancer with ABT, emerged on stage to announce that the evening’s performance was dedicated to Ukraine and its fight for independence. She then invited “those who are able” to stand for the playing of the Ukraine national anthem. The audience roared its approval and virtually everyone was on their feet. A wonderful moment.

The performance that followed was extraordinary as well. From the spectacular stagecraft to the dancing itself, words almost fail. The ballet has three acts, the middle one being somewhat slow but with elegance that reminded me of scenes from Swan Lake. The first and third acts were just high-energy explosive displays of artistry, discipline and skill. The unison of the dancing groups was surreal.

The leading role of Kitri, the heroine whose affections are the subject of the main “contest” for her hand in marriage, was performed by Christine Shevchenko, a native of Ukraine, making the evening’s dedication even more poignant. Her extraordinary biography is here: https://bit.ly/3u2yvek and last night she lived up to her credits, dominating every scene in which she appeared. Phenomenal in every way. That is not to take away from the other dancers. Everyone was exceptional in their assigned parts.

The evening ended with another surprise. Shevchenko, having taken her bows with the others, ran off stage and returned with the Ukraine flag, producing another roar of approval from the standing crowd. This is the photo, hurriedly taken with a cell phone to capture the unexpected moment.

New York City Ballet company is coming to the Kennedy Center in June. That too will be spectacular. There are likely seats left. Get yours before it’s too late!

 

Trump’s Documents – Trump’s Crimes

By now you are likely aware that Trump’s attempts to prevent the disclosure of emails and other documents related to his attempted coup on January 6 are failing across the board. This is clearly the correct outcome. The observations of one judge, in particular, have attracted some news attention but, as usual, have disappeared into the fog of astonishing disclosures about Republican obstruction and corruption in Congress and elsewhere.

I am therefore using this forum to share with you a few quotations from the March 28 opinion in Eastman v Thomson, the federal District Court opinion that heard Trump attorney John Eastman’s claims of attorney-client and work product privilege for a tranche of 111 emails demanded by the January 6 Select Committee. These messages related to Eastman’s role, and Trump’s actions, in Trump’s legal and political strategy regarding the results of the 2020 election. [NB: footnotes and citations, the bane of effective communication, have been omitted; my helpful headings are underscored & italicized; opinion points of emphasis bolded by me] [NB2: the opinion is 44 pages long; you can read the whole thing here, https://bit.ly/3tZ0tax , but the gist is set out below. I read it so you don’t have to.]

There Was No Election Fraud in 2020

In the months following the election, numerous credible sources–from the President’s inner circle to agency leadership to statisticians–informed President Trump and Dr. Eastman that there was no evidence of election fraud.

… after “dozens of investigations, hundreds of interviews,” the Department of Justice had concluded that “the major allegations [of election fraud] are not supported by the evidence developed.”

By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing.

Eastman’s Plan to Overturn the Election

Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.

Knowing that his legal theories were invalid, Eastman addressed the mob that assembled on January 6 at Trump’s invitation:

We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office.

But,

Before the Joint Session of Congress began, Vice President Pence publicly rejected President Trump and Dr. Eastman’s plan.

Then, and then, they threw themselves on the railroad tracks …  [NB3: paraphrase of 1969 song, Along Came Jones]

Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

As the attack progressed, Dr. Eastman continued to urge Vice President Pence to reconsider his decision not to delay the count.

The rampage on January 6 “left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol.”

As the House of Representatives later wrote, January 6, 2021 was “one of the darkest days of our democracy.”

 Refusal to Produce Documents to January 6 Select Committee

 Dr. Eastman declined to produce any documents or communications to the Select Committee and asserted his Fifth Amendment privilege against production.67 During his deposition, Dr. Eastman asserted his Fifth Amendment privilege 146 times.

 NB4: You know, the Fifth Amendment that says you don’t have to testify to facts that might incriminate you. The government must find someone else to incriminate you. Or some documents ….

 The plan proposed by Dr. Eastman’s memo involve actions by the Vice President without recourse to the courts.

Litigation was never Dr. Eastman’s motivation for planning the events of January 6, perhaps because, as he conceded, his legal theories would be rejected “9-0” by the Supreme Court.

The true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6.

Trump Committed Crimes

The crime-fraud exception applies when (1) a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime,” and (2) the communications are “sufficiently related to” and were made “in furtherance of” the crime. It is irrelevant whether the attorney was aware of the illegal purpose or whether the scheme was ultimately successful. The exception extinguishes both the attorney-client privilege and the work product doctrine.

The Select Committee alleges that President Trump violated 18 U.S.C. § 1512(c)(2), which criminalizes obstruction or attempted obstruction of an official proceeding.

President Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.

Together, these actions [meetings at White House, statements to the January 6 mob] more likely than not constitute attempts to obstruct an official proceeding.

Dr. Eastman does not dispute that the Joint Session is an “official proceeding.”

A person violates § 1512(c) when they obstruct an official proceeding with a corrupt mindset. The Ninth Circuit has not defined “corruptly” for purposes of this statute. However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,” meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c).

President Trump and Dr. Eastman justified the plan with allegations of election fraud—but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.

President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election.

President Trump likely knew the electoral count plan had no factual justification.

The plan not only lacked factual basis but also legal justification.

Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states.

Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.”  But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.

The illegality of the plan was obvious.

… Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.

… the evidence shows that an agreement to enact the electoral count plan likely existed between President Trump and Dr. Eastman.

President Trump likely knew that the electoral count plan was illegal.

President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371.

Dr. Eastman himself repeatedly recognized that his plan had no legal support.

Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law….”

Dr. Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law; they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election.

The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.

President Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol.

Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.

Finally,

Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory.

At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.

The Stench from the Bench

The Washington Post reported recently that Supreme Court Justice Neil M. Gorsuch would join Mike Pence, Ron DeSantis, and Trump’s White House press secretary Kayleigh McEnany in speaking to the Federalist Society. They did and the media, as reported, was excluded. https://wapo.st/3 Jua6Dz  Even rev.com, the repository of many political speeches, could not acquire a transcript.

 I have it on pure speculation, good enough in a Trumpworld, that in a rare act of dexterity, Mike Pence got off his knees and stood erect at the podium during his portion of the show. One wonders how he was received given his shocking one-time decision to comply with the Constitution and the law in connection with Trump’s ongoing attempt to overturn the 2020 election by whatever means will work for him, including violence against the police.

A related question is hanging regarding DeSantis who swings between sycophantic adoration of Trump and hints that he may run against Trump in 2024. McEnany has no such problem. She’s not running for anything but the money. Her connection with the truth is so remote she could satisfy her obligations by just sending a copy of Big Little Lies to sit on the podium during Pence’s talk.

This wasn’t Gorsuch’s first such speech. He did a victory lap at the Federalist Society in November 2017 just after his confirmation to the Supreme Court. https://politi.co/3LySkRt Not surprisingly, perhaps, the only other Justice present then was Justice Alito who has spoken to the Federalists multiple times. In Gorsuch’s 2017 speech, he,

vowed to continue to expound the group’s favored judicial philosophies from his new post. “Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch,” the justice vowed.

Very interestingly, neither the Supreme Court nor the Federalist Society would say whether Gorsuch was paid to appear and, if so, by whom. Why, I wonder, would they not answer that simple question if he were not going to be paid? Refusing to answer in this context is analogous to pleading the 5th Amendment.

To be fair, it is reported that “liberal justices” are also “often guests of progressive organizations such as the American Constitution Society.” Despite all of that, or because of it, the justices are making public statements defending the high court’s impartiality and integrity. Retiring Justice Stephen Breyer wrote in his book that,

“Political groups may favor a particular appointment but once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”

Well, maybe not “all of us.” The sordid conduct of some Justices has now reached the nadir of ethical practice. Justice Clarence Thomas, for example, has defended the court’s “independence” during a lecture at the University of Notre Dame, but failed to mention that his wife, Ginni Thomas, is an avowed right-wing sycophant and Trump lover. She has been widely reported to have played a role in the January 6 attack on the Capitol, has argued far and wide that the 2020 election was stolen, and on and on. And now, we have reports that Ms. Thomas texted multiple times with Mark Meadows, then serving as Chief of Staff to Trump, that Meadows should do everything in his power to overturn the election.

As you likely recall, Thomas was the sole dissenting vote in the case about whether Trump had to turn over documents to the January 6 Select Committee. In Thomas’s participation in that case, there was no mention of his wife’s activities and no apparent concern about the grotesque conflict of interest, or appearance thereof. He apparently thinks he has no disclosure obligations, no recusal obligations regarding participation in cases in which his spouse is actively and aggressively interested.

Something is rotten here – ‘here’ meaning ‘right here,’ not Denmark – and the stench, has only gotten worse in recent days.

Lest we forget, judicial “ethics” also did not stop conservative icon Antonin Scalia from taking trips paid for by … someone not him. Indeed, according to New York Times reporting, Justice Scalia took more than,

258 subsidized trips … from 2004 to 2014. Justice Scalia went on at least 23 privately funded trips in 2014 alone to places like Hawaii, Ireland and Switzerland, giving speeches, participating in moot court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong. [https://nyti.ms/3Dk8fPE]

A private individual provided Scalia with a free room at his ranch even though he had business before the Supreme Court. Again, according to the Times,

legal experts said they saw nothing wrong with Mr. Scalia’s accepting a free room at Mr. Poindexter’s lodge. While the Ethics in Government Act, adopted after Watergate, requires high-level federal employees, including judges, to fill out disclosure reports for reimbursements worth more than $335, the visit to the ranch might not have required a formal disclosure, because accommodations provided by a private individual are exempt under current rules.

WHAT????

All my years in private practice I fretted over conflicts of interest issues and Supreme Court justices can accept luxury hotel accommodations if they’re provided by “private individuals?!?!” No wonder “Supreme Court members took 1,009 paid trips between 2004 and 2014.” According to my calculations, that averages to 11 trips per year per Justice. And these are not trips to Bridgeport.

The destinations often are luxurious, including the Casa de Campo Resort in the Dominican Republic, where Justice Samuel A. Alito Jr. was listed as a speaker for an event last February, or Zurich, where Justice Scalia traveled at least three times on privately funded trips.

In 2011, a liberal advocacy group, Common Cause, questioned whether Justice Scalia and Justice Clarence Thomas should have disqualified themselves from participating in the landmark Citizens United case on campaign finance because they had attended a political retreat in Palm Springs, Calif., sponsored by the conservative financier Charles G. Koch. Mr. Koch funds groups that could benefit from the ruling. The disclosure report filed by Justice Thomas made no mention of the retreat. It said only that he had taken a trip, funded by the Federalist Society, a conservative legal group, to Palm Springs to give a speech.

Over roughly a decade, Justice Scalia took 21 trips sponsored by the Federalist Society, to places like Park City, Utah; Napa, Calif.; and Bozeman, Mont. The Federalist Society also paid for trips by Justice Alito during that period, but not for any liberal justices, the disclosure reports show.

The disclosure reports, such as they are, reportedly “show that the majority of the privately funded trips — by far — are sponsored by universities.” Maybe, but it’s a fair bet that on those trips, the Justices don’t stay in dorm rooms. Are we to believe the suggestion that universities paid to send Justices to Singapore, Hong Kong, Ireland, and Switzerland? I also note that universities are sometimes litigants or amicus curiae (friend of the court) in cases of major importance.

The cited Times story about all this was published almost exactly five years ago. At that time legislation was pending in Congress to “require the Supreme Court to create a formal ethics system, beyond the Ethics in Government Act, like the one that governs actions of all other federal judges. That system is known as the Code of Conduct for United States Judges.” It should say “United States Judges Other Than Supreme Court Justices” because it apparently does not apply to them in any meaningful way – each of them decides for himself whether his conduct raises ethical concerns.

Chief Justice Roberts has argued that the Supreme Court, even though it generally abides by this judicial ethics code, is not obligated to do so. It restricts how much judges can be paid for private travel, and limits other activities outside the court, such as allowing private organizations to use “the prestige of judicial office” for fund-raising purposes.

Richard L. Hasen, a professor of law and political science at the University of California, Irvine, said that society could benefit when justices — who are paid about $250,000 a year, far less than they would earn in private practice — leave Washington to speak about how the court works.

“Society could benefit.” Perhaps, if that’s what the Justices always spoke about to other judges, law students and the like. Somehow, I doubt that’s what Scalia was talking about in Zurich.

Self-policing is a nice concept but fails in practice a good deal of the time. And since the Supreme Court is the top of the third branch of government, enshrined in the Constitution and the final word on the constitutionality of state and federal laws, self-policing seems a particularly inapt way of assuring fair, neutral decision-making.

The sitting Chief Justice has defended the current approach by arguing that the Justices “consult the code for lower-court judges in assessing their own ethical obligations.”  They may “consult” but are not bound to follow.” Extraordinary.

The “both sides-ing” of the ethical issues involving speeches and political leanings by Justices cannot be allowed to obscure the fundamental obligation of judicial neutrality embodied in the American Bar Association’s Model Code of Judicial Conduct [bolding is mine] set out below, along with the corresponding Code of Conduct for United States Judges.

ABA: CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Judges’ Code: Canon 1

A Judge Should Uphold the Integrity and Independence of the Judiciary.

 ABA: CANON 2 
A judge shall perform the duties of judicial office impartially, competently, and diligently.

Judges’ Code: Canon 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

ABA: CANON 3
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

Judges’ Code: Canon 3

A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

ABA: CANON 4
A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Judges’ Code: Canon 4

A Judge May Engage in Extrajudicial Activities that are Consistent with the Obligations of Judicial Office

 Judges’ Code: Canon 5

A Judge Should Refrain from Political Activity

The Judges’ Code is accompanied by a lengthy commentary on each section that only a lawyer can appreciate. Suffice to say that, in substance, the ABA Code and the Judges’ Code are essentially the same.

A commission appointed by President Biden to consider some of these issues stated in its report that “this voluntary system may not be the best approach to conflicts of interest that may affect the public’s perception of the court. “It is not obvious why the court is best served by an exemption from what so many consider best practice,” the report said. Indeed, a masterpiece of understatement.

Ironically, I suggest without a hint of irony, Justice Alito who often speaks at the Federalist Society’s meetings, had this to say at its November 2020 convention:

Judges dedicated to the rule of law have a clear duty. They cannot compromise principle or rationalize any departure from what they are obligated to do. And I’m confident that the Supreme Court will not do that in the years ahead. When we look back at the history of the American judiciary, we can see many judges who were fearless in their dedication to principle …. [https://bit.ly/3uEG2iE]

Many, but not all, it seems. Furthering the irony, Justice Alito’s very next words were, “and one who is especially dear to the Federalist Society springs immediately to mind I’m referring to Justice Antonin Scalia.” To quote the infamous Mr. Barry, I am not making this up. I will have much more to say about J. Alito’s extraordinary speech in a future post.

Most of the comments I have read about this issue constitute the highest [lowest?] form of tiptoeing by the graveyard. The stench of politics wafting from the High Court is gag-inducing. The pussyfooting by Democrats only makes it worse: “Justice Thomas’s participation in cases involving the 2020 election and the January 6th attack is exceedingly difficult to reconcile with federal ethics requirements.” https://wapo.st/3DqCQLB “Exceedingly difficult?” Really?

This is the same Justice Thomas and his wife, Ginni, whose text messages to Mark Meadows, Chief of Staff to Trump urged Meadows and Trump to “stand firm” in pursuing legal strategies to overturn the election she claimed was stolen from Trump. In keeping with the circus-of-the-obvious that Washington has become, Democrats in Congress were shocked, yes, I say, shocked, and even “outraged” to learn of these messages. https://wapo.st/35r6N1C

Now some experts see problems with this sordid example of non-self-regulation:

Legal ethicists, even some who in the past have been sympathetic to the notion that justices’ spouses are entitled to their own political activities, said the revelations presented a serious problem for the Supreme Court.

“The public is going to be deeply concerned whether a justice can be fair when his wife has been such an active participant in questioning the outcome of the election,” said Steven Lubet, a professor and judicial ethics expert at Northwestern University law school.

Louis J. Virelli III, a Stetson University law professor who wrote “Disqualifying the High Court: Supreme Court Recusal and the Constitution,” said that “this situation is problematic” considering the Jan. 6, 2021, attack on the U.S. Capitol by hundreds of Trump’s supporters. “It is so stark.” [https://wapo.st/3LtMno4]

Not surprisingly to anyone with a functioning mind, “Congressional Republicans came to Clarence Thomas’s defense.” Names: Senate Minority Leader Mitch McConnell, House Minority Leader Kevin McCarthy, leading House shrieker, Jim Jordan. Icons of ethical conduct, every one. Some of them, McConnell in particular, it is said, oppose Thomas even recusing from January 6 cases. We should not be surprised since the last Republican known to believe in democratic principles appears to have died some time ago.

Experts in judicial ethics seem to be falling all over themselves to avoid speaking the dreaded words: RESIGN. The lawyerly hair splitting is disturbing because this is not a problem curable by disclosure or recusal in this case or that. The High Court may well end up deciding multiple cases arising from the January 6 attack and the conspiracies that led up to and followed it.

Even if recusal, the step short of resignation, were adopted by Thomas for those cases, the Court would be deprived of one voice and one vote in an already small group of decision-makers. The burdens on other Justice would increase and the possibility of tie-votes on crucial constitutional issues would increase. Ginni Thomas’s own words proof how tone-deaf and substance-indifferent she and her husband are: ““Clarence doesn’t discuss his work with me, and I don’t involve him in my work.” Sure.

Just imagine:

“How was your day, honey?”

“Fine. Just the usual run-of-the-mill insurrection cases, you know, the attempts to overthrow the government. But you know we can’t talk about that, right?”

“Of course not, so let me tell you what I did today….”

More rules and self-enforcing principles of recusal do not serve the interests of the United States, which should be the only focus here. The interests and feelings of Justice Thomas and his wife are irrelevant. They brought this problem on themselves, and the country should not bear further the costs of their conduct. Thomas has already shown himself to be indifferent, at best, to the high ethically duty that should be the watchword of every Justice on the Court. Resignation is the only appropriate remedy, and it should be forthwith, before more interference with the Court’s business and more impairment of its already wounded reputation occur.