Me and Bruce

December 19, 2019

Some of you may think that my comments on the subpoenas and Bruce Ackerman’s comments on the rules for the trial of the impeachment charges are in conflict. If the Senate adopts the rules used for the trial of the charges against Andrew Johnson, Bruce accurately describes the Senate process. I’m not convinced the Senate will go that way, but Bruce is right that it is important to understand what that track means. My own comments were aimed at Republican complaints that Democrats should have investigated more. As I outlined,  the significance of whatever the Court does about the subpoenas, will be entirely political. The evidence is sufficiently out there already .


The Supreme Court on the Trump Subpoenas

December 17, 2019

The Supreme Court decided to hear the Trump Administration’s appeals from lower court orders that tax returns and other documents be provided. What does that mean?

The Court set the case for argument in March. The Court has a lot of control over timing. But generally, decisions are announced when the various opinions are finished.  That can take a long time in controversial cases. So sometime in June is likely.

Four members of the Court can set a case for hearing. Those who vote to take a case don’t have to vote for the side requesting it but, if they are favorably inclined, those four are only one vote short. Statistically, the Court decides in favor of the party requesting review between two-thirds and three-quarters of the time. That suggests Trump’s team probably wins.

But given the importance of the decision, the Court might just feel that it should make the final decision. Trump has belittled and attacked lower court judges. It would be harder for him to attack the Supreme Court.

A Supreme Court decision for the Administration could affect momentum. Deciding for Trump could anger Democrats and bring more to the polls, making Democratic victories more likely in 2020. It could also lead some Trump supporters to relax about the election, also making a Democratic victory more likely.

It will be difficult for the Court to justify deciding for Trump. The cases aren’t in his favor. Other presidents have had to comply with subpoenas. Deciding for Trump will make the Court seem totally political. Some members of the Court’s conservative majority would regret that. They think of themselves as judges, not partisans. Chief Justice Roberts explicitly said the Court is composed of judges, not partisans. Of course, we’ll see.

Legally, what’s already been disclosed makes a very strong case that Trump violated the Constitution, and broke the law, in ways that justify impeachment. As I’ve described, Trump put his personal interests above the national interest. He had previously decided to support and ship arms to Ukraine, stopping only to get a campaign message in his favor from the Ukrainian president. He changed back only when the story of the phone call came out. Everything was about his campaign and nothing about American interests.

Republicans talk about calling the whistle-blower. That would compound the violations of law, and the whistle-blower has nothing relevant to offer. Any decent judge would sustain objections to calling the whistle-blower to testify. All the evidence has now come from others. Not a single fact comes from the whistle-blower, who could only testify about what he or she heard or saw in the transcript. Other people heard the call, and saw the transcript. With the investigation done, the whistle-blower has nothing to offer. Most of what he or she said was hearsay and is inadmissible. Law enforcement uses hearsay as a tip – it checks on that tip by going back to people with direct knowledge and verifying or contradicting what the whistle-blower said. Here, the whistle-blower’s allegations were repeatedly corroborated. The whistle-blower’s relevance ends at that point.

Juries sometimes ignore the law and vote to dismiss what is clearly established. That’s the real relevance of the subpoenas. I doubt Senate Republicans will do their duty on the current record – most have made it clear they don’t care whether Trump is innocent or guilty. But additional disclosures could make it politically as well as legally impossible to ignore the evidence.

— This commentary was broadcast on WAMC Northeast Report, December 17, 2019.


Zuckerberg, Facebook and the Responsibility of Publishers

December 3, 2019

This post is about law and social media.

Zuckerberg has not been willing to take responsibility for the lies distributed on Facebook. And by now everybody but Donald is aware that social media are the major repositories of fake news. And that’s not an accident.

Broadcasting stations, newpapers and other publishers must carefully avoid publishing libel and defamation on their media. That requires them to make real effort to prevent publication of scurrilous material.

Until the 90s, those rules arguably applied to the internet. But then communications law removed publisher liability entirely for “interactive computer service[s]”:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

As Dan Solove comments, courts interpreted the statute:

to immunize any ISP [internet service provider] or website for comments made by their users – even when the ISP or website has knowledge the comments are defamatory or invasive of privacy and take no steps to do anything about it.

Some of the results have been outrageous. The statute removed liability even when internet providers knew stories were false. In one infamous case, an anonymous source posted messages falsely linking a small businessman to the Oklahoma City bombing. A crushing barrage of angry callers made it impossible for him to do business.  AOL removed the posts when notified, but variations were reposted immediately and the victim couldn’t get AOL to block them, post retractions or even act more quickly. The courts sided with AOL. And Congress moved in only to protect copyright owners.

In this wild west of unsubstantiated internet allegations, who’s responsible? It’s generally worth suing only corporate defendants who can pay for the damage, which usually means the ISP.  And immunizing fraud on social media makes it harder to hold other media responsible. Once a story is “out there,” other news organizations are stuck. Without a good way to hold companies responsible for checking facts, gossip, lying and fake news dominate the industry.

Recent hearings made clear that Americans find it outrageous that Zuckerberg and his company have no responsibility for the garbage they “share”. It’s time to change. There is no reason for giving huge internet companies, vastly wealthier than print media, advantages that print doesn’t share. But Facebook won’t accept responsibility for most of the lies it distributes.

Radio and television stations, newspapers and other publishers are legally responsible. The very famous case of New York Times v. Sullivan came to the Supreme Court because the Times published an ad taken out by leaders of the Civil Rights Movement that had some inaccuracies. Those who placed the ad in the Times and the Times itself shared liability to anyone injured. The law at the time violated the First Amendment in other ways, which the Supreme Court corrected in that and subsequent cases. But if constitutional requirements were satisfied, publishers were and are responsible.

The deeper meaning, however, is that this problem illustrates that there is no such thing as purely private action. Law always either allows, forbids, or empowers some people over others. One cannot get to the bottom of our economic or social problems without looking at the interplay between public and private decisions, no matter what free market ideologues try to tell you.

— This commentary was broadcast on WAMC Northeast Report on December 3, 2019.


The Threat of the Alt-Armed Wing

October 15, 2019

I spoke last week about Trump’s intentions. His intentions are particularly scary because of the growth of wrong-wing violence. Time Magazine published an excellent summary as The Terror Within, in its August 19 issue.  Vera Bergengruen and W.J. Hennigan first broke their story on Time’s website. They explained that white nationalists are responsible for a multiple of the deaths and injuries from any other causes of terrorism in the U.S. since 9/11, more than all other causes put together. But Congress and this Administration frustrated FBI efforts to assign more agents to stop mass killers from mowing us down. As a result it gets worse.

Violence has spread as copycat crimes. Potential killers are separated from others like Communists who used to work in cells. That makes them harder, though not impossible, to find. The FBI has a good record of stopping more Muslim terrorism in the U.S.  But, what I refuse to call the right-wing because there is nothing right about them, feasts on assault weapons newly made available courtesy of the wrong-wingers on the U.S. Supreme Court. And, as the authors of the Time article put it, we now have “a Commander in Chief whose rhetoric appears to mirror, validate and potentially inspire that of far-right extremists.” Nothing has been a better predictor of armed revolution and dictatorial takeover than the spread of weapons among the public.

The president elides the necessity of blaming killers by referring to good people on both sides and attacking Antifa, which stands for Anti-Fascist, as if there is an equality between those trying to take our democratic institutions down and those standing up to the Fascists and trying to stop them.

In a prior era, the House Committee on Un-American Activities would have challenged the president’s loyalty. But conservatives and their wrong-wing-nut allies insist on a correspondence between investigations of the left and right as if illegal activity on the alt-wrong means that there must be at least equal and opposite illegality on the left – no evidence required. The Court has barred removing American citizenship from American citizens. But that might be the best way to protect ourselves from a disloyal president before he has the opportunity to do serious damage.

A second problem traces back to how we handle armed might in this country. Trump invited many members of the military into his Administration and then fired them. They had the backbone to resist some of the nonsense being cooked up in the White House. But they are no longer in the military. How deep can Trump get into the loyal ranks of the military before putting people in charge willing to do his bidding. Dictators have followed that dangerous pattern to power in many countries. The NRA claims it’s prepared to protect the country against governmental abuse. But their definition of abuse is public servants trying to enforce the laws about grazing cattle on public land, not presidents trying to engineer a wrong-wing takeover.

The country switched to an all-volunteer military at the height of the war in Vietnam to calm some of the controversy over that war. But if the military installs a dictator, we will see the mistake after it is too late.

Trump must be removed from office before it is too late.


Corruption Overwhelming America

August 20, 2019

This commentary was drafted in anger when I learned that pig farmers are refusing to allow inspections to look for the microbes that are killing people. Upton Sinclair’s The Jungle exposed the filth of the meat-packing industry in 1906 and led directly to the Pure Food and Drug Act and the creation of the FDA, the Food and Drug Administration. Now they want to undo a century of relatively clean food by claiming regulation is bad – yes, particularly bad for filth in the food industry.

This country’s reputation for honesty and responsibility long gave us a huge market edge. American institutions check on errors and misbehavior. That drove our legal and corporate culture. Now we’re inviting the world to ditch its confidence in us, and inviting each other to be cynical about business and political claims, threatening our economic power and democratic system.

Everyone has a reason why you can’t check on them. China is more honest about their meat than our pig farmers. Police refuse to allow information to be made public about their behavior because the people might realize who is trustworthy and who isn’t. The President denies Congress’ authority to get information from him. Even George Washington turned papers over. Trump is the first President since Richard Nixon to refuse Congress his tax information, lest the American people get an honest look at his economic behavior, bankruptcies and unreliability.

Republicans lump everything under the title of regulation and, making no distinction, claim all regulation is bad. Regulation is a problem because they might have to take responsibility for the poisons they want to emit, the toxins and dangerous bugs in the food they want to sell us, and the financial shenanigans they use to fleece us of our money. No one has the right to poison or injure anyone else. That’s irresponsible at best, legally tortious and probably criminal.

The so-called Supreme Court authorizes corporations to force us into arbitration with arbitrators the corporations choose so that the arbitrators are only beholden to the corporations, and anyway, they have no power to cure corporate misbehavior. Heaven forbid corporations should have to own up for their sins. Why should they – no one else does.

We have fussed about the bribery rampant in other countries because it prevents law from working to produce decent and proper behavior that justifies reliance. Preventing investigations is almost as bad. We’re now allowing corporate and political America to behave like the Mafia where there is only accountability for hurting each other – the purpose of the organization is to fleece the public, impose protection rackets, and, where people object, kill. In this complex world it is increasingly difficult to protect yourself from dishonest business.

But the President does it – shouldn’t we follow his example? He failed to fire Mueller but he fires everyone else who might insist on honesty and accountability. Now he’s now moving federal agencies halfway across the country to encourage the staff to quit rather than relocate. What a step forward.

There’s a stench in the White House but who’s left to complain? Too many corporate officers can no longer be watched because Trump destroyed the civil service. Who’s to complain about what they do?

 


John Paul Stevens

July 23, 2019

I lot of us will miss Justice Stevens. As a judge on the Seventh Circuit Court of Appeals, based in Chicago, Stevens had a reputation as the sharpest mind on the Court. President Ford’s nomination of Stevens for the Supreme Court was widely hailed as an excellent appointment.

Stevens was always sensitive to the consequences of his decisions on those who had the least resources to deal with it. Dissenting in an antitrust case, Stevens wrote:

The transparent policy concern that drives the decision is the interest in protecting antitrust defendants–who in this case are some of the wealthiest corporations in our economy–from the burdens of pretrial discovery.[1]

As he gradually became beloved by liberals, he kept repeating that the Court had changed around him but he himself had not changed. One thing had changed. Stevens learned what was actually happening in the real world outside the Supreme Court building. He realized that the criminal justice system was not nearly as accurate as one would want when the question is whether to put someone to death, turning him from a supporter to an opponent of the death penalty.[2] He came to understand the role that affirmative action played in overcoming discrimination against people with black and brown skins. In a 1995 case about giving black contractors a leg up in government contracting, Stevens wrote: “The consistency that the Court espouses would disregard the difference between a “No Trespassing” sign and a welcome mat.”[3]

After his appointment he refused to discuss politics and followed neither party’s views consistently. In Bush v. Gore, he voted against the Court’s decision to stop the recount, the centuries old solution to disputed elections, writing that: 

the Florida court’s ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted.[4] 

But in a case from Indiana, he upheld identification requirements that, as Justice Souter detailed in dissent, clearly burdened the poor, the aged and the infirm.[5] Stevens later realized that the fear of fraud was made up, described it as “a fairly unfortunate decision,” and described Souter’s dissent as “one of his best opinions.”[6] 

In gerrymandering cases, Stevens became an advocate for “the symmetry standard, a measure social scientists use to assess partisan bias, which is undoubtedly ‘a reliable standard’ for measuring a ‘burden . . . on … representative rights’ ….”[7]

He was not perfect. I represented a group of political scientists as friends of the Court in a 1986 case. There was an issue that plaintiffs’ attorney and I both thought such transparent nonsense that we didn’t bother to brief it. Sure enough Stevens fell for it, though the majority of the Court went our way. It wasn’t Stevens’ last mistake but it proved he was human.

I’ve always felt that the term “Justice” in the title of members of the Supreme Court is a term that needs to be earned. During one argument in the Supreme Court, a woman lawyer kept referring to William Rehnquist, who was then the Chief, as Judge, and Rehnquist kept lambasting her for it. Stevens interrupted, “It’s all right counsellor; the Constitution makes the same mistake!” It does, indeed, in Art. III, sec. 1.

Stevens was not only smart. He was a judge; not a partisan. He cared about the effect of his decisions and showed a willingness to learn. Stevens clearly earned the term Justice.


[2] Linda Greenhouse, Supreme Court Justice John Paul Stevens, Who Led Liberal Wing, Dies at 99, https://www.nytimes.com/2019/07/16/us/john-paul-stevens-dead.html

[3] Adarand Constructors v. Pena, 515 U.S. 200, 244-45 (1995). He continued: “It would treat a Dixiecrat Senator’s decision to vote against Thurgood Marshall’s confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in “consistency” does not justify treating differences as though they were similarities.”

[4] Bush v. Gore, 531 U.S. 1046, 1048 (2000) (Stevens, j., dissenting)

[5] Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 211-12 (2008) (Souter, J., dissenting).

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 466 (2006) (Stevens, J, dissenting). Stevens continued, “The symmetry standard ‘requires that the electoral system treat similarly-situated parties equally, so that each receives the same fraction of legislative seats for a particular vote percentage as the other party would receive if it had received the same percentage.’ This standard is widely accepted by scholars as providing a measure of partisan fairness in electoral systems.”

 


This Dishonorable Court

June 11, 2019

Last week we talked about ways to block appointments that could make this Court even worse. Is it worth it?

First, if allowed to fester, patterns of Court decisions can last for long periods.

In 1876, the Court denied any federal jurisdiction to prosecute racially motivated violence intended to change political control of government, setting the stage for segregation and intimidation which the Court finally began to address 64 years later. In 1883 the Supreme Court held that Congress had no power to ban racial discrimination in public accommodations. That remained the law until Congress and President Johnson took the Court on in 1964, a reign of discrimination and violence which continues to corrupt race relations.

Later in the nineteenth century, the Court set itself against the economic ideas of the Populists, Progressives and many state governments. That finally changed in 1937, after almost half a century, by which time President Roosevelt was on his way to appointing the entire membership of the Supreme Court.

Republicans like to blame the Warren Court for everything they don’t like but it was the Burger Court, with four Nixon appointees, that decided Roe v. Wade. Abortion foes still struggle to reverse it after nearly half a century.

In other words, patterns of judicial decisions can last for long periods despite concerted efforts to reverse them.

Second, what the Court has been doing under Chief Justice Roberts is very damaging to American decency and democracy.

In an infamous case, Chief Justice Rehnquist wrote that even if evidence turns up after a defendant had been convicted and shows that the defendant was probably innocent, the conviction was still final and no hearing to consider the new evidence is required.  So the petitioner, Leonel Herrera, was executed. We call the members of the Supreme Court “justices.” But justice had no sway in their thinking. The Court has revisited the issue several times, but it has not changed the law.

Instead the Court keeps getting worse, moving political power away from ordinary Americans. They let states monkey with election arrangements to prevent opposition supporters from voting. They protect partisan gerrymandering of legislative districts in order to protect incumbent parties.

While eviscerating ordinary voters’ rights, they protect the use of corporate cash to control the political process while attacking the political voice of American workers by shredding their unions’ economic base. That combination of support for corporate power and decimation of everyone else’s has been catastrophic for the electoral strength of ordinary Americans.

Beyond its blatant political partisanship, the Court repeatedly attacks the pocket books of ordinary Americans, protecting corporations from responsibility for the harms they do to customers and workers, protecting them from antitrust laws, undercutting employee wages and hours laws, and making us responsible for contract provisions that we may never have seen much less read or understood or had any realistic choice to decline.

The conservative majority has not been friendly to environmental protections that affect our air, water and warm our globe. Heaven forbid corporations should be responsible for the damage they do.

Past experience indicates that these decisions and the damage they are doing to American democracy and the economic system can fester for a very long time. But these problems are time bombs, so the nation can’t wait.


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