Tag Archives: rule of law

The “Best People”

Remember when Trump promised an administration populated by the “best people”?

I thought I’d devote a post to former Secretary of Labor Acosta before his particular scandal is eclipsed by others–most recently, Trump’s effort to appoint a nutcase supporter with absolutely no credentials to the Intelligence post being vacated by Dan Coats.

Gail Collins, as usual, summed up the Acosta situation with pith and vinegar:

On Wednesday, Secretary of Labor Alex Acosta tried to hold back the outrage that’s been building since people learned that, as a federal prosecutor in South Florida, he had brokered a very lenient punishment for Jeffrey Epstein, a rich guy who liked to have sex with underage girls.

Explanation: It was a good deal. You know how this administration feels about good deals.

“The Palm Beach state attorney’s office was ready to let Epstein walk free,” Acosta said in his calm, sort of toneless voice. “Our prosecutors … presented the ultimatum.” Which was that Epstein, who had molested a parade of teenagers, some only 14, had to serve at least a little jail time. The punishment Acosta wrangled with his alleged best possible efforts involved 13 months in prison, during which Epstein was free to spend most days at his office as long as he slept overnight in the clink.

Before the uproar caused Acosta to resign, Trump (of course!) defended him–in terms that, as Collins notes, displayed his total ignorance of what it is the Department of Labor does:

Ever since the Epstein scandal arose, Trump has been defending Acosta, stressing what an “excellent” job he’s doing. After all, the president told reporters, “our economy is so good, our unemployment numbers are at record lows.” You might have thought he was under the impression the secretary of labor had something to do with boosting the economy. As opposed to things like workplace safety and collecting job statistics.

And oh, yeah, human trafficking. Very embarrassing that Acosta is one of the people who’s supposed to protect underage women from being sold as sex slaves.

Hmm. Before this week, what do you think Donald Trump thought the Department of Labor did?

My husband and I recently spent a week with a cousin who lives near Palm Beach, the nexus of this scandal. She recommended a book by James Patterson and two co-authors, written in the wake of the sweetheart deal negotiated by Acosta. (The book was written long before Epstein’s recent arrest.) I downloaded and read it, and it was eye opening–if you can be nauseated and have your eyes opened at the same time.

Titled Filthy Rich: The Billionaire’s Sex Scandal–The Shocking True Story of Jeffrey Epstein, the book offered a view into a lifestyle enjoyed not just by Epstein, but by the obscenely rich milieu in which he traveled–a lifestyle incomprehensible to most Americans. Patterson is known for his fiction, but this book was solid reporting, with sources clearly identified.

Leaving aside the predatory sex (and the inevitable curiosity about which of Epstein’s “pals” participated, or at least were aware of his proclivities), what the book most vividly described is the gigantic gap between the criminal justice system encountered by the rich and that system as applied to the rest of us. The local police detectives who did their jobs and documented Epstein’s abuse–and the incredible extent of that abuse–were no match for Epstein’s high-powered lawyer friends, including Alan Dershowitz.

Donald Trump was a member of Epstein’s milieu for a number of years. Whether or not he participated in the sex (a reasonable question given his history), he clearly and fully accepted the billionaire club’s cultural assumptions, including the belief that the rules that apply to the “little people” don’t apply to them.

One “takeaway” from the book: In Trumpworld, the “best people” are pretty despicable specimens.

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Checks And Balances

There’s a reason Donald Trump has been focused on the selection and seating of highly partisan judges with little to no judicial experience. When he is sued over his autocratic actions, and the cases are heard by competent judges currently on the bench, he loses. Bigly.

The courts are part of that “checks and balances” thing the Founders were so hung up on.

The Washington Post considered Trump’s “win-loss” ratio, and Ed Brayton (Dispatches from the Culture Wars) commented on the report.

The Washington Post looks at the track record of legal challenges to Donald Trump’s policies, especially in regard to changing Obama-era regulations and issuing executive orders, and finds that he’s losing those cases in court at an astonishing, but predictable, rate.

It’s clear from the Post’s report that Trump and his cabinet of incompetents lost a number of cases simply because they ignored relevant laws prescribing the process that had to be followed.

Federal judges have ruled against the Trump administration at least 63 times over the past two years, an extraordinary record of legal defeat that has stymied large parts of the president’s agenda on the environment, immigration and other matters.

In case after case, judges have rebuked Trump officials for failing to follow the most basic rules of governance for shifting policy, including providing legitimate explanations supported by facts and, where required, public input…

“What they have consistently been doing is short-circuiting the process,” said Georgetown Law School’s William W. Buzbee, an expert on administrative law who has studied Trump’s record. In the regulatory cases, Buzbee said, “They don’t even come close” to explaining their actions, “making it very easy for the courts to reject them because they’re not doing their homework.”

Somehow, “homework” isn’t a word one associates with Trump, or with the Keystone Kop assortment of cabinet officials he has appointed. Usually, the “win rate” for government in these sorts of cases is about 70 percent. But as of mid-January of this year, a database at the Institute for Policy Integrity at the NYU Law School shows Trump’s win rate at about 6 percent.

Actually, that’s not bad for someone who clearly isn’t familiar with even 6% of the Constitution, and who has exhibited 0% knowledge of the rules and norms governing the office he holds.

Ed Brayton, as usual, cuts to the heart of the issue:

There’s a simple reason this is happening and it goes back to the old proverb that a fish rots from the head down. Trump could not possibly care any less about pesky things like legal protocols and requirements. He thinks if he just bellows out “I want this done,” it gets done. Following proper legal procedures is for the little guy, the plebes, the rabble, not for narcissistic wannabe dictators who are used to getting their way.

The only way Trump, McConnell and today’s GOP can game the system going forward is by corrupting the judiciary. And on that, their progress should terrify us all.

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Assaulting Democracy

The warning signs are everywhere.

Governing Magazine has added to the evidence that America is losing even the pretense of democracy.

In the first several years after the Affordable Care Act (ACA) helped states make more low-income people eligible for Medicaid, it was only Democratic-led states that took the federal government up on its offer. Republicans have since warmed to the idea — but only on their own terms, and sometimes even if it means going against voters’ wishes…..

While some Republicans in Georgia, Oklahoma and Wyoming are exploring the possibility of Medicaid expansion in their states, Idaho and Utah are undoing ballot measures that voters passed in November to expand Medicaid.

In Utah, the Republican governor responded to the success of a ballot initiative expanding Medicaid by signing a bill that would only cover people earning up to the federal poverty line; it would also cap enrollment if costs exceed what’s expected.

But the terms of the ballot measure, which passed with 53 percent of the vote, were to expand Medicaid eligibility to people earning up to 138 percent of the federal poverty line.

Utah has to get federal approval of this law, and similar measures were not approved during the Obama administration. The Trump Administration, of course, is hostile to pretty much everything the federal government does, so it might very well allow what is a clear repudiation of the will of the voters in Utah.

It isn’t only Utah.

Idaho is also eyeing a rollback of its citizen-led Medicaid expansion ballot measure. The initiative won handily, with 61 percent of the vote….But legislation to void the initiative is currently making its way through the Idaho statehouse.

And many of you will recall that in 2016, Maine voters approved Medicaid expansion, but the state’s certifiable nut-case then-governor, Paul LePage, prevented it from taking effect.

Whatever one’s position on Medicaid expansion, these are truly breathtaking examples of legislative and administrative chutzpah. The citizens of these states voted on an issue before them; in essence, they gave instructions to the people who are presumably in office to represent them. And those people simply ignored them.

This is not unlike Trump’s decision to declare an “emergency” that would allow him to defy a Congressional vote. Even if a member of Congress believes the wall should be built, he or she should be appalled by a Presidential action that strikes at the very heart of the Constitution’s separation of powers. It ignores as irrelevant the constitutional provision that vests decisions about spending in Congress, a provision that–before now–has constrained lawmakers and administrators alike.

Congress said no. That should have been the end of it. The President’s “emergency” is not only bogus, it ignores the clear division of authority mandated by the nation’s charter.

Yet every single Indiana Republican Representative voted against the House Resolution to reverse that dangerous attack on a fundamental element of American governance, placing the interests of their political party above both the good of the country and fidelity to their oaths of office.

Without the rule of law–without lawmakers and public officials who are willing to accept the decisions of voters whether they like those decisions or not; without lawmakers who are willing to insist upon compliance with the Constitution even when it is their party that is breaking the rules–we don’t have a democracy or a republic or even a legitimate government.

We have a banana republic.

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Reflections on Kavanaugh And The Rule of Law

I cite to a lot of publications, but I’ve not previously quoted (or, let’s be honest, read)  America: The Jesuit Review of Faith & Culture. That said, I am in full agreement with the article in which that journal withdrew its endorsement of Brett Kavanaugh.

But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

Congress and the Administrative Branch are broken and dysfunctional. Brett Kavanaugh’s nomination is an assault on what remains of the legitimacy of the judicial branch. Together with the shameful refusal to grant Merrick Garland even the courtesy of a hearing, it represents a surrender to toxic partisanship and an acknowledgment that we are in a virtual civil war.

About those “hearings”….

Many years ago, when I was active in Republican politics, I was asked whether I would consider being a candidate for a local judicial position. I explained that I lacked a judicial temperament—I tend to be an advocate, and advocacy in my view (then and now) is inconsistent with the judicial function.

We lawyers talk a lot about “judicial temperament,” because it matters. We The People are entitled to have our disputes adjudicated by sober, thoughtful people who can put aside their own prejudices and emotions, and fairly weigh the relevant facts.

The Kavanaugh hearing was not a trial. It was a job interview–his opportunity to demonstrate that he has the intellectual capacity, maturity and judicial temperament appropriate to a judicial position.

He failed.

Ignore his refusal to submit to an FBI investigation, or to a polygraph. Ignore his highly partisan past behavior. Ignore the committee’s refusal to provide over 90% of his work product for the Bush Administration, or to call the people who were identified as witnesses to Dr. Ford’s assault. Ignore the fact that there is irrefutable evidence that Judge Kavanaugh lied about his history of drinking to excess.

Just focus on his demeanor. And ask yourself if you would want this hostile, petulant, entitled man to rule on a case involving your Constitutional rights.

There was a reason the nation’s Founders created an independent judiciary. They reasoned that removing judges from the political process, from the need to respond to the “passions of the majority,” would allow them to rule dispassionately on the matters before them. Their judgments wouldn’t always be correct, but they would be rendered in good faith—based upon their reading of the law and facts, and not their personal re-election prospects.

When our elected representatives are asked to “advise and consent” to a lifetime judicial nomination, they need to recognize the difference between a conservative or liberal judicial philosophy and simple partisanship. We should be wary of a jurist who approaches the Constitution without a well-developed belief in his or her proper interpretive role, and we can agree with that philosophy or not, but disagreement does not disqualify the nominee.

Partisanship is another matter entirely. A judge who is committed to the fortunes of a political party, who will approach the issues from the perspective of a “team player,” poses a clear danger to the rule of law, and undermines respect for the judicial process. Kavanaugh’s entire history marks him as a highly intelligent partisan hack.

There is a reason the American Bar Association called for an FBI investigation and a delay in the confirmation vote. There’s also a reason the Republicans would have ignored it–along with the huge public backlash to the conduct of that farcical “hearing”– but for the position taken by Senator Flake.

Kavanaugh may yet be seated on the highest Court in the land.

These are really dark, dark days for the American Idea and the rule of law.

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Proving Woodward’s Point

As I said yesterday, anyone who has watched this deeply dysfunctional President has come to the same conclusions Woodward attributes to Trump’s staff. But thanks to the very low levels of civic literacy in this country, it may not be apparent to everyone how profoundly his proposed actions violate the most basic of our constitutional premises.

A couple of examples from the Washington Post:

President Trump has long derided the mainstream media as the “enemy of the people” and lashed out at NFL players for kneeling during the national anthem. On Tuesday, he took his attacks on free speech one step further, suggesting in an interview with a conservative news site that the act of protesting should be illegal.

Trump made the remarks in an Oval Office interview with the Daily Caller hours after his Supreme Court nominee, Brett M. Kavanaugh, was greeted by protests on the first day of his confirmation hearings on Capitol Hill.

“I don’t know why they don’t take care of a situation like that,” Trump said. “I think it’s embarrassing for the country to allow protesters. You don’t even know what side the protesters are on.”

I rather doubt that the Daily Caller’s reporter asked the appropriate question: Are you aware that the First Amendment to the Constitution specifically protects the ability of citizens to “petition their government for redress of grievances?” (The Daily Caller is a  website founded by conservative pundit Tucker Carlson and Neil Patel, former adviser to former Vice President Dick Cheney. Hence my assumption the reporter didn’t confront the President.)

It doesn’t really matter. Since Trump has given exactly zero evidence of ever having encountered the Constitution–let alone understanding it–I’m sure a reference to the First Amendment would have fallen on deaf ears.

In another Post column, David Von Drehle addressed the President’s utter contempt for the rule of law.

Here’s a question I never expected to ask:

Should law enforcement officials ignore crimes committed by their friends and associates?

I grew up thinking the answer was a simple no. The figure of Justice, with her scales in one hand and her sword in the other, wears a blindfold to symbolize her impartiality. Carved in stone over the doors of the Supreme Court are the words: Equal Justice Under Law.

As I got older and saw a few things, I came to understand that justice, as meted out by humans, is imperfect. Yet the principle of the matter — the goal for which we should aim and the standard by which we should measure — remains the same. Impartiality. Equality. Fairness.

So why am I asking?

On Labor Day, the president of the United States used Twitter to express precisely the opposite idea.

Von Drehle was referring to Trump’s angry eruption at the indictment of “two very popular Republican Congressmen.” He clearly believes that the role of the Justice Department is political, that since both he and Sessions are Republican, the department should protect Republican wrongdoing.

I don’t know what’s worse–that Trump would have such an uniformed view of what “law” means, or that he was willing to tweet his ignorance for the whole world to see. As Von Drehle concluded,

Nineteenth-century orator Robert Green Ingersoll once wrote, “Nothing discloses real character like the use of power.” In his pity for Paul Manafort, convicted tax cheat; in his hatred for truth-telling “rats” and “flippers”; and now in his assertion that the law should exempt his political allies, Donald J. Trump is disclosing his.

Sixty percent of us, plus or minus, noticed.

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