Hasen's Timely Warning

Stephen Griffin

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

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Posted 9:30 AM by Stephen Griffin [link]

The Centrifugal Forces of Democracy

Guest Blogger

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

Dan Tokaji
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Posted 9:30 AM by Guest Blogger [link]

Bernie Sanders's intellectual sleight-of-hand

Sandy Levinson

I have indicated quite a few times since 2016 my distaste for Bernie Sanders's purported self-identification as a "revolutionary," given his absolute unwillingness to address in any way the extent to which it is the Constitution of 1787 that most truly "rigs" the constitutional order in favor of the status quo.  The only two explanation for that refusal is either abject ignorance (and commitment to a simplistic Marxism that looks at any and all formal institutions as mere epiphenomena when compared with the one things that is really important, i.e., class structure) or political cupidity.  For better or worse, his flamboyant willingness to embrace the label of democratic socialist and to offer some (merited, by the way) praise of Fidel Castro even while (equally justifiably) denouncing his regrettable excesses, unfortunately suggests that ignorance or ideological rigidity is more likely to be the explanation than more ordinary political opportunism.

His unwillingness to support getting rid of the filibuster, should he win and have a Democratic Senate, is dispositive evidence that he is totally unserious about governing.  Mario Cuomo famously said that one campaigns in poetry and governs in prose.  Bernie speaks only his own form of poetry, unfortunately.  Assuming he can win, the most likely result is a massive disillusionment on the part of his young supporters, most of whom know almost literally nothing about the details of the American political process--in part because Bernie is so completely unwilling to educate them.  That, coupled, with the fact that it is truly delusional to believe that he is a plausible two-term president (the same is true, of course, of Joe and Mike) means that 2024 would be even more chaotic than things now, and by 2024 a smart Trumpista, instead of the ignorant oaf who now inhabits the White House, will lead to a crushing defeat of whatever remains of the Democratic Party.

But Bernie is also offering a most dubious argument when he suggests that a "first-past-the-post" plurality winner system is an accurate indicator of "the people's choice."  No!!!  Boris Johnson was not the choice of the English people.  56% of them indicated a preference for someone else, but the first-past-the-post system gave him an overwhelming victory that he has the effrontery to claim is a "mandate."  Abraham Lincoln got the White House only because of the Electoral College, having received 39.8% of the popular vote.  His argument about "ballots, not bullets," settling the issue of slavery int the territories was, alas,  demagogic gibberish.  For better or worse (I think for worse), we don'e have a national referendum system in this country, and his particular number of ballots ended up being far from majority ratification of his position on extension of slavery into the territories. (That he was morally correct is beside the point if one is using the language of popular sovereignty.)  His presidency was an artifact of a ridiculous system for choosing presidents, whatever one thinks of Lincoln substantively as a President.  I think it is clear that he was far more serious about governing than Bernie appears to be, but who knows, since another feature of our awful system is that candidates run basically to be an elective monarch without having to tell us until it is too late whom they will pick not only as VP, but, in many ways more importantly, as cabinet members.  And Lincoln did pick, or accept, the awful choice of Andrew Johnson to be his second VP, perhaps because, like too many politicians, he wanted to believe he was immortal.

If Bernie comes in with, say, 45+% of the delegates, earned by getting 45+% of the popular vote in the Democratic primaries, then he will have a good argument, even if not a knock-down one, to get the nomination, since he would undoubtedly be the second choice of enough delegates (presumably those pledged to Warren) to make a plausible claim to majority approval.  But if he has the support of, say, only 33%, it's an entirely different all game.  At that point, the super-delegates, who are actually experienced not only in practical politics, but also in discerning people who might actually have relevant political skills, should feel absolutely free to select the person they believe to be the best candidate.  My own hope is that that would be Elizabeth Warren, but who knows? In any event, the argument that serious participation by the super-delegates would contravene "the people's choice" is meretricious nonsense.  If one accepts the self-evident truth that Donald Trump was not "the people's choice" with his 46% of the popular vote, then one should be equally skeptical of self-serving arguments by Bernie and his supporters.
Posted 7:48 PM by Sandy Levinson [link] (42) comments

E.R.A. Puzzles

David Pozen

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Posted 11:43 AM by David Pozen [link]

The Easy and Not So Easy Fixes to an Election Meltdown

Guest Blogger

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

Ciara C Torres-Spelliscy


Ciara Torres-Spelliscy is a Professor of Law at Stetson, a Brennan Center Fellow and the author of Political Brands. You can reach her by e-mail at ctorress at law.stetson.edu.

Posted 9:30 AM by Guest Blogger [link]

Arguing with Nihilists as the House Burns

Joseph Fishkin

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

One oddity of writing a book like Election Meltdown is that the worse things get, the better it is for the book. That is, the more conspicuously our election system actually does melt down, the more Rick Hasen’s book feels relevant, urgent, even prescient. Rick is a good small-d democrat and an altogether decent human being, so I’m certain he was not especially tempted to hope for anything like the Iowa Caucus meltdown. But good lord. As it happens, I had just started reading his book while the caucus was collapsing under the weight of its own incompetence and I felt like I was reading a field guide.
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Posted 9:30 AM by Joseph Fishkin [link]

Balkinization Symposium on Richard Hasen, Election Meltdown

JB

This week and next at Balkinization we are hosting a symposium on Rick Hasen's new book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

We have assembled a terrific group of commentators, including Joey Fishkin (Texas), Tabatha Abu El-Haj (Drexel), Nate Persily (Stanford), Daniel Tokaji (Ohio State), Franita Tolson (USC), Ciara Torres-Spelliscy (Stetson), Guy Charles (Duke), and Steve Griffin (Tulane).

At the conclusion, Rick will respond to the commentators.
Posted 9:00 AM by JB [link]

Collective Amnesia and Public Policy: The Case of Title IX

David Super

     In evaluating policy proposals, one crucial question often is the seriousness and prevalence of the underlying problem.  Where existing policies have largely dealt with a problem, people naturally are reluctant to impose tougher measures and may even consider ratcheting down existing policies.  The awareness and memory of the severity of a problem among policymakers and voters therefore is crucial.

     This is a constant problem in anti-poverty policy.  Many upper-middle-class people wildly over­estimate the availability of jobs for very low-skilled people with tenuous child-care and transportation arrangements.  They similarly overestimate the competence and effectiveness of the agencies charged with administering anti-poverty programs.  They may assume something like the government agencies with which middle-class people interact:  sometimes annoying, but ultimately fairly reliable.  The Trump Administration and other opponents of anti-poverty programs have skillfully exploited this widespread ignorance of the realities low-income people face to advance policies denying aid to those who cannot prove regular employment. 

     This lack of awareness is a predictable result of a society sharply segregated by income and wealth:  most affluent people have little occasion to discuss these sorts of issues with low-income people.  Other policy ignorance is more deliberate:  we assume a problem away because we want to avoid the implications of dealing with it.  We accept that Bashir al-Assad, Abdel Fattah al-Sisi, andr Muhammad bin Salman are better than the alternatives because we do not want to risk higher gas prices or face our complicity in their crimes. 

     Another case in point is the Trump Administration’s imminent release of rules weakening Title IX protections.  Education Secretary Betsy DeVos has argued that current policies overreact to the extent of sexual violence.  Her supporters argue that criminal prosecution provides an adequate response.  This might sound plausible to many because we do not hear about, or forget, cases where accused sexual assailants readily manipulate the criminal justice system to avoid accountability. 

     Today’s events in particular illustrate our collective ambivalence and amnesia about sexual violence.  On the one hand, movie producer Harvey Weinstein was convicted on some counts after a trial featuring testimony of several celebrities.  On the other hand, Los Angeles is turning out en masse to pay tribute to the late basketball superstar Kobe Bryant.  Since his untimely death, he has been called a “hero”, a “role model”, and much more.  He received a tribute at the Super Bowl and had the NBA All-Star Game’s MVP award renamed for him..   

     All this ignores the seriousness of the charges against Bryant.  And rather than defend himself against those charges in court, Bryant hired lawyers who followed a well-established formula that so devastated the accuser’s life that she fled the state.  Yet despite receiving no judicial exoneration, and despite pursuing these heinous tactics, the accusations against Bryant are widely forgotten or treated as insubstantial.  Rare dissenters have been excoriated; Gayle King received death threats for merely asking about rape charges against Bryant.  Several media outlets that routinely publish me on a variety of issues wanted nothing to do with an earlier version of this essay. 

     Collectively, we will remember the Weinstein verdict as “proof that the system works” – particularly when one has well-known actresses to testify and even then only after decades of abuse – but will forget the far more typical Bryant case.  This selective amnesia plays directly into the Administration’s efforts to undermine Title IX because it obscures the criminal justice system’s woeful failure to effectively deter rape.  Remembering more clearly the Bryant case therefore is important to making sound policy choices.

     On June 30, 2003, a Colorado luxury hotel’s management directed a nineteen-year-old summer concierge to welcome Bryant.  She told sheriff’s investigators the next morning that Bryant choked her, bent her over a chair, pulled down her underwear, and raped her.  Forensic examination found injuries inconsistent with consensual sex.  Prosecutor Dana Easter said “It was a physically violent assault. It was a very degrading assault. It was clearly perpetrated by someone who thought he was entitled,” 

     Bryant reportedly first denied any sex and then said he believed it was consensual while admitting the woman never expressly agreed.  Her blood stained his shirt. 

     To prevent defendants from retraumatizing victims who report their crimes, Rape Shield Laws make evidence of an accuser’s prior sexual conduct inadmissible with two main exceptions.  First, if the defendant claims that an encounter was consensual, he may introduce his prior sexual experience with the accuser.  Second, if the defendant claims that he did not have sex with the accuser, he may introduce evidence that the accuser’s sexual encounter with someone else was the source of physical evidence. 

     Neither exception applied to Bryant’s case:  he had no prior sexual encounters with his accuser, and he was no longer denying that he had had sex with her.  Yet that did not save her:  Colorado’s version of the Rape Shield Law proved no match for Bryant’s lawyers. 

     One of Bryant’s lawyers made “almost pornographic” assertions in a preliminary hearing about his accuser’s sexual history, violating a court order by repeatedly using her name in front of the reporters and curious townspeople in the courtroom.  This triggered a firestorm of tabloid harassment and countless death threats.  When she sought therapy, a tabloid offered a participant money to report on what she said.  Court personnel compounded the problem by repeatedly making confidential information public. 

     Bryant’s lawyers persuaded the trial judge to admit testimony on the accuser’s sexual history notwithstanding the Rape Shield Law.  Eventually, she concluded that the only way to escape was to ask the prosecutor to drop the charges and move out of state.  When I teach Evidence, I use the Bryant case to launch a discussion of how much the Rape Shield Law has actually accomplished. 

     Bryant subsequently settled his accuser’s civil lawsuit, avoiding the risk of a civil jury confirming her accusations.    

     The immediate result was a drop in survivors’ willingness to report sexual assaults; rape crisis counselors said that they feared the same kind of public humiliation. 

     The issue is not just that Bryant has passed away.  When O.J. Simpson dies, we surely will not see a similar outpouring of grief despite his Hall of Fame career and multiple records.  Claus von Bulow’s obituary was dominated by the death of his wife.   Even though Simpson and von Bulow were acquitted – which Bryant was not – widespread belief of their guilt has forever tarnished their names. 

     The difference likely is the nature of their alleged offenses, with our society continuing to trivialize sexual violence and remaining all-too-ready to accept any attempts to explain it away, no matter how implausible. 

     That is why Title IX is crucial.  Although it does not displace criminal prosecution, it learns from countless cases like Bryant’s that other means are needed to allow women to attend school without the threat of sexual violence.  The Administration’s proposal would disable campus disciplinary proceedings, permitting many of the same tactics that allowed Bryant to evade responsibility.

     Just as Bryant’s avoidance of a criminal conviction entitled him to remain at liberty and to continue to play basketball, nobody suggests that those found responsible for sexual assaults in campus disciplinary proceedings should suffer criminal sanctions.  But we can never achieve equal educational opportunity for women if offenders are free to retraumatize their victims continually on campus until their victims, like Bryant’s accuser, eventually disrupt their lives and flee. 

     Undoubtedly having these accusations resurface now is hurtful to Bryant’s widow and surviving children; this is regrettable.  Those heaping lofty praise upon Bryant, however, should try to imagine how it must sound to the woman whose life his defense team mauled. 

     Those celebrating Bryant also should consider the message they send to other survivors of sexual assault:  even if they bravely come forward, they may be so thoroughly discounted and pilloried that not only is their assailant not convicted but his name remains unsullied.  Further, those acclaiming Bryant should consider how this will impact men who may be tempted to force themselves on unwilling women.  We should not send them the message that violent abuses of their position will soon be forgiven. 

     Finally, forcing ourselves to remember how Bryant was able to prevent the criminal justice system from even holding a trial on credible accusations of sexual assault shows the importance of Title IX in protecting women from sexual violence.  

     @DavidASuper1
Posted 2:41 PM by David Super [link]

No, I Don’t Support Anti-BDS Laws

Andrew Koppelman

Posted 9:13 AM by Andrew Koppelman [link]

How US Law Harms the Fight Against Disinformation

Jill Goldenziel

Posted 12:19 PM by Jill Goldenziel [link]

Law Clerks and Jurisprudence

Mark Tushnet

Posted 2:27 PM by Mark Tushnet [link]

How do republics die? Reflections on "constiitutional rot"

Sandy Levinson

Steve Levitsky and Daniel Ziblatt have written a justifiably much-discussed book on "How Democracies Die," but it's worth attending to the oft-quoted statement from Benjamin Franklin that we established a "republic," and the question was whether we could in fact keep it.  "Democracy" can refer only to the numbers of people who are actually part of the decision-making pool; a "republic," on the other hand, requires as well a certain disposition on the part of the demos in order to assure the genune legitimacy of the decisions reached.  I am especially influenced by the fact that a philosopher friend and I are embarking on reading through Montesquieu's Spirit of the Laws, which I confess I've read only in fragments. It is sobering reading in these parlous times. Early in the book he offers his famous argument that a republic to maintain itself requires a strong sense of civic virtue on the part of both citizens and leaders alike.  It is, to put it mildly, not easy to inculcate or maintain, and there is no reason at all to believe that the United States has in fact been successful in doing so. Indeed, what is most striking is the overlap between his discussions of the "despotic" temperament and the current polity here and in many places abroad.

There might be some debate as to when our republic actuall died (assuming, of course, that it actually operated  even for an instant).  It is surely before the election of the egregious lout who occupies the office once held by Lincoln or Roosevelt.  Reading Montesquieu, I am tempted to say that one possible death-date of the Republic is 1971, with the abolition of the draft and the reliance, therefore, on an all-volunteer army.  No longer do most American youths (or their parents) have to ask what devotion to the country might really mean, including elements of sacrifice and a concomitant duty to make sure that it is in fact defensible that lives be lost, on all sides, in the name of the policies being pursued by our leaders.  To be sure, some members of the armed forces are genuine patriots who instantiate a sense of public service that may in fact generally be lacking in the population at large.  (Everyone should read a stunning full-page piece on the editorial page of the NYTimes by Alex Kingsbury on a classmate of his from college who is a career officer in the Army.  Among other things it conveys is the information that Dwight Eisenhower is the last US President who had a child serving actively in the military.  And, of course, George HW Bush is the last president who himself could honestly claim to be a veteran.  It is striking that the only veterans currently running for the office are Tulsi Gabbard and Pete Buttegieg.)  But it's also worth noting that only an extremely small percentage of Americans enlist, and many of them do so because the armed forces are thought to offer a way out of what might be distinctly straitened circumstances (not to mention, at least until the Trump Administration, an accelerated path to citizenship for resident aliens).  Along with genuine dedication to the US comes what appears to be ever-increasing contempt for the civilian population and its materialistic values (completely instantiated, of course, in the lout in the White House).

But I was also stunned last night by several passages from Jill Lepore's truly outstanding one-volume history of the US, These Truths, a book that should also be read by every American.  I had read most of it shortly after it came out, when I was spending my usual fall semester in Boston.  I brought the 900-page book back with me to Austin and nearly finished it, but got distracted by various teaching duties, and I chose not to take it back with me to Boston this past fall in order to complete the last 100 pages or so,  So only now did I finish the book.  I was almost literally stunned by a passage near the end, when she is describing a now-traditional gathering held at the JFK School at Harvard eery four years, after the presidential elections, when the various campaign managers come up and offer their analyses of the campaign:

'I've sat around these tables with some of these other guys before,' Jeb Bush's campaign manager said.  In a room about the size of a tennis court, its walls painted martini-olive green, the campaign managers of the candidates for president of the United States in 2016 sat around a broad conference table to debrief after the election.  They were warriors, after the war, standing atop a mountain of dead, remorseless.  They had gathered at Harvard's Kennedy School, as campaign managers had done after every presidential election since 1972, for a two-day tell-all.  Most of what they said was shop talk, some of it was loose talk.  No one said a word about the United States or its government or the common good. Sitting in that room, watching, was like being a pig at a butcher's convention:  there was much talk of the latest technology in knives and the best and tastiest cuts of meat, but no one pretended to bear any love for the pig.  (Emphasis added)

Isn't this the perfect evocation of our truly decadent polity, at least in Montesquieu's sense?  There is, it should be emphasized, nothing remotely partisan in her description.  Campaign consultants and managers are, with some exceptions, the equivalent of lawyerdom's hired guns, willing to use their talents for whoever hires them.  (Is it fair to evoke Alan Dershowitz here, at least inasmuch as he seems recklessly indifferent to the actual consequences of failing to convict our truly dangerous lout of a president, even if, as I have earlier argued, he might have been motivated in part by a relentless, and often admirable, defense lawyer's suspicion of sanctimonious prosecutors?)  To be sure, most differentiate between Democrats and Republicans, but is that enough to temper her critique?

No doubt, many of the actual supporters of the candidates, including Trump, are willing to speak the language of common good, even if the ultimate lesson is that there is no consensus on wherein that good consists.  But she is describing the ideology of the professionals who increasingly dominate the actual campaigns and, crucially, the way they talk at a place like the Kennedy School when describing their actions.  Perhaps we should expect the same kind of amoral professionalism if, for example, one brought together the generals of World War II or Vietnam.  I.e., there is a time and place for politics, but one can also learn a lot from the way that dedicated professionals talk about their craft. After all, I presume that teachers at West Point are willing to learn from the decisions made by Confederate or Nazi generals and to incorporate innovations that will help the US to win future wars.  So should we be grateful that the campaign managers would talk about knives and techniques and be indifferent to the victims of the slaughter?

There is one other aspect of the JFK gathering that Lepore didn't mention, but might have:  The various campaign managers, I suspect, were expected to be "good sports" in the sense of not refighting the political battles presumptively decided by the election.  As a matter of fact, I seem to recall reading that there was palpable tension between Corey Landowski and Robby Mook, the managers, respectively, of the Trump and Clinton campaigns, in contrast to the presumably more "professional" demeanor of the other participants.  This, of course, raises the general question of "civility" and how one should be expected to behave in the presence of those one views not simply as one's political adversaries, but, instead, as agents of true evil.  (For some of us, Attorney General Barr is in this last category.  Should we be expected to shake his hand or otherwise treat him with the respect ordinarily accorded Attorney Generals?)

I apologize for these more-than-usual rambling thoughts.  Perhaps, though, they relate to the epistolary exchanges Jack and I traded in our book Democracy and Dysfunction.  I, of course, emphasized the importance of our formal structures or governance, while Jack focused more on cultural features, including "constitutional rot."  Although I continue to believe that our formal Constitution may have us in an almost literal stranglehold, I trust the reader will realize that I find much merit in the notion of "constitutional rot," a notion that I think Montesquieu would endorse.  The real question is whether the "volunteer" military and the JFK gatherings are illustrative of the phenomenon and, if so, exactly why (or why not).
Posted 12:52 PM by Sandy Levinson [link] (108) comments

Accountability at Cooper Hewitt, in contrast with the White House

Sandy Levinson

The New York Times has a fascinating story today about the insistence by the Smithsonian Institution that the director of the Cooper Hewitt Museum in New York be dismissed because of highly debatable allegations of conflicts of interest relative to the purchase of her wedding dress and then the venue of her wedding.  For obvious reasons, I'm not competent to assess the validity of the complaints other than to say that the Times article certainly provides grounds for doubt and curiosity about why the Institution is so adamant, given that the Cooper Hewitt Board is happy with the now ex-director's leadership.  But the real point of this posting is that we now seem to live in a world where it is only the President of the United States who is held unaccountable for behavior that increasingly draws scrutiny and discipline with regard to even high executives of other organizations.  The lout in the White House famously proclaimed, upon taking office, that the laws of conflict of interest don't even apply to him, so that it is irrelevant that he is clearly flouting, at the very least, the spirit of the Emoluments Clause and conflict of interest statutes.  (Of course, Josh Blackman and Seth Tillman have provided legal analyses that the Emoluments Clause simply doesn't apply to the President at all, an argument I'm certainly not persuaded by, though I don't regard it as "frivolous" in a way, say, that is true of Alan Dershowitz's argument about Trump's ability to do anything and everything he thinks benefits his election prospects.)  And, equally "of course," it would be easy to go through the Wall Street Journal and find multiple stories about business executives who have been fired or turn to the sports pages and find stories of coaches who have been suspended, with or without pay, while further investigation of allegations takes place.  There is, I continue to believe, something profoundly wrong with this picture.
The only real defense of the special treatment accorded the President appears to be an almost literally insane reliance on "the voice of the people as the voice of God," so that elections become the exclusive mechanism for holding presidents of the United States accountable.  (No one seems to suggest that Boeing should be have waited for the next shareholders meeting to fire their own chief executive.) Perhaps there should be a special dispensation during election years" that would make us especially reluctant to remove presidents in the last year of their term.  However,  I think that is ultimately indefensible if in fact one has good grounds, as we do, to fear the demented instability of an incumbent.  But I think it is truly idiotic as an argument for a president in say, the first or second year of his/her term, unless we simply want to give up, as I fear that is increasingly the case,  and accept the the notion, propagated by the DOJ, that the most important office holder in the land is unaccountable to any genuine legal or institutional constraints.

I also increasingly believe that the only real answer is to get rid of the presidential system entirely, via my constitutional convention.  It is not that parliamentary government is perfect; that, too, is an idiotic assertion.  But, all things considered, it presents fewer dangers than does presidentialism.  As Max Weber presciently suggested a century ago, Caesarism is built into the DNA of modern presidentialism. Donald Trump merely makes that clear to all but the terminally ignorant (and deplorable).  But one should acknowledge that Barack Obama's campaign in 2008, when I happily supported him over Hillary Clinton, also had a healthy supply of Caesarism, with its large Trump-like rallies and vacuous promises.  And I continue to be genuinely angry at Bernie Sanders, the ostensible "revolutionary," for his resolute (and therefore demagogic) unwillingenss to address the fact that the constitutional system itself makes his pie-in-the-sky promises almost truly irrelevant so far as their actual enactment is concerned.  Though perhaps a Sanders presidency would foment a genuine revolution when his gullible admirers come to realize that not even Bernie can turn the sow's ear that is our constitutional system into a silk purse.

Needless to say, I don't expect anything to come of such criticisms, not only because we inexplicably venerate a truly flawed Constitution, but also because Article V, coupled with our general distrust of popular democracy, makes the idea of a constitutional convention repugnant to most "thoughtful" Americans (including my wife, friends, and professional colleagues).  So, as with Corvid-19, we all have to hope for the best and ignore the fact that there may be relatively little we can do to avoid the pandemic.

ADDITION:  One new point:  We would not be having the conversations we are about the degree to which the Attorney General is merely a lackey and lickspittle of the President were we living in the system found in roughly 45 of our states, where the Attorney General is not an appointee of the governor.  (In Tennessee, the AG is appointed by the state Supreme Court.)  One doesn't have to go all the way to a parliamentary system in order to "unbundle" at least the control that presidents exercise over the Department of Justice.  As Steve Griffin suggests in his thoughtful post below, Barr's paean to DOJ "independence" puts paid to the most truly extravagant theories of the unitary executive, but I certainly don't trust the lickspittle Barr to be anything other than the faithful servant of his master, even if he would prefer fewer tweets.  90% of the American states offer a model--call it, if you wish, "a little laboratory of experimentation"--in how to achieve genuine independence.

UPDATE:  According to the New York Times, six trustees of Cooper Hewitt have resigned to protest the removal of Caroline Baughman.  The official rationale offered by the basically silent Smithsonian Institution is that she violated its conflict of interest rule, which says that "employees must not engage in private or personal activities that might conflict, or appear to conflict, with Smithsonian interests...."  (emphasis added).   I note that the "appearance" standard is notoriously subject to abuse.  Appears to whom?  It requires no evidence at all of actual conflict, so long as someone with power can say "well, it looked like a conflict to me."  Let that go, though, and assume that her acceptance of a wedding dress for $800 (though the designer said that it was far simpler than the one advertised on the Web for $3000) was a conflict.  Continue to ask yourself why the lout in the White House, not to mention the lout who is our Secretary of  Commerce, and the loutish children who  "advise" their loutish father are not treated with any similar sort of scrutiny.  One rarely sees such obvious evidence of the sheer arbitrariness of public standards.  It is no surprise that fewer and fewer people have any regard for what is sometimes called the "rule of law" as an operating ideal (instead of mystifying ideology) in our system.   
Posted 1:06 PM by Sandy Levinson [link] (40) comments

The Death of the Unitary Executive

Stephen Griffin

As a practical matter, the theory of the unitary executive died today and we will all be better off for it.  In this interview with ABC News, Attorney General Barr obviously sought to quiet the turmoil inside his department by staking out an area for decision making independent of the President.  The problem is as it has been elaborated by many leading scholars, the unitary executive theory does not allow for this.  It is helpful to be familiar with the evolution of the theory to grasp the full implications of Barr's statement.  In fact until now, Barr was one of its leading proponents!  It would have been interesting if the interviewer had asked Barr how his claim to independence from the White House was consistent with the theory.  That's because the unitary executive stresses the sole responsibility of the president (not the Attorney General or any other principal or inferior officer) to control the executive branch.  Indeed from this point of view, the President is the executive branch, the entire executive branch, implying no one can be independent in the way just claimed by Barr.

In truth, the proponents of this theory never had a good account of how it could be reconciled with our system of criminal investigation and prosecution.  But there's more.  With the death of the unitary executive, the theory of public meaning originalism which supported it has also taken a heavy hit.  Roughly, public meaning originalism allowed proponents of this theory to develop its account of "executive power" without worrying about the historical context in which the Constitution was adopted.  This meant they couldn't show that any single framer (yes, including Alexander Hamilton!) actually self-consciously accepted all the tenets of the theory as it has been elaborated since its advent in the Reagan administration.

For those interested, there is an excellent upcoming conference at the University of Texas where I'm sure these issues will be explored in detail.  Stay tuned.
Posted 6:33 PM by Stephen Griffin [link]

Pardon?

Gerard N. Magliocca

One aspect of the President's running commentary on the Roger Stone trial and sentence is puzzling. If he really thinks that Stone is being treated unfairly, then he can pardon him. He does not have wait until the sentence is handed down to issue a pardon. So why isn't he pardoning him?

Consider a somewhat related hypothetical. Suppose President Ford had not pardoned Richard Nixon. Then after federal prosecutors indicted the ex-President for various felonies, Ford started saying that Nixon was being treated badly and that a trial was bad for the country. He kept up these complaints during the Nixon trial, at sentencing, and during the appeal. Setting aside the propriety of those sorts of comments, the President could do something to stop that case--he's not a helpless bystander. Ford's pardon (though controversial) avoided the sorts of entanglements with the DOJ that we see now.

I can reach only one of two conclusions about the lack of a pardon for Stone. Either the President is too scared of the political blowback to issue a pardon, or he is trying to look like he's helping Stone (to placate Stone's supporters) without actually helping him. Maybe that'll change after the election.


Posted 11:03 AM by Gerard N. Magliocca [link] (64) comments

The idiocy of politics as horserace

Sandy Levinson

We are being told right now that Bernie Sanders has "won" New Hampshire with approximately 26% of the popular vote.  Yes, he is coming in first (apparently), by 2% over Pete Budtigieg.  But surely it is at least as significant that 74% of Sanders's New Hampshire neighbors voted against him.  And, I say with some regret, given my own support for Elizabeth Warren, that the total vote for Sanders and Warren, the ostensible "progressive" candidates is less than 40%.  My own view, for what it is worth, is that Amy Klobachar is the big winner of the primary inasmuch as she should clearly take over from Joe Biden as the "moderate" candidate.  But our tendency to view the primaries as horse races, where coming in first is literally the only thing that seems to count, is truly perverse.  Of course, one explanation may be that we have all become inured to the first-past-the-post system of elections that (perhaps fatally) afflicts our (and the UK's) political system.

I can't really blame our defective Constitution for this particular feature of our contemporary politics. States (or even political parties) could, for example, move to an alternative transferrable vote if they really wanted to offer a more plausible "winner" of a primary.



Posted 11:12 PM by Sandy Levinson [link] (108) comments

The Trump Impeachment as a "Precedent"

Stephen Griffin

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Posted 4:52 PM by Stephen Griffin [link]

Credit Where Credit Is Due

John Mikhail

In his post on Sunday, Sandy attributes the January 31 scholars' letter on impeachment to me, but in fact the credit for drafting and circulating it goes to Frank Bowman and Michael Gerhardt.  Together with Sandy and several other Balkinization contributors, however, I was pleased to sign the letter and consider it to be a worthy attempt to clarify three basic points about the historical meaning of "high crimes and misdemeanors" that have been called into question in the current trial: (1) impeachable conduct need not be criminal, (2) grave abuses of power can be impeachable, and (3) a president may not abuse his powers to secure his own re-election merely because he believes it is in the public interest.  It is discouraging that such simple points need to be underscored at a time like this, but, as Charles Darwin once aptly remarked in a very different context, "Great is the power of steady misrepresentation."
Posted 10:32 AM by John Mikhail [link]

Alan Dershowitz as a messenger

Sandy Levinson

It is a cliche that it is often easier to slay messengers whose messages we find repugnant than to address who is sending the messages in the first place.  So it is, I think, in some very real way with Alan Dershowitz, who is the subject of much ridicule and opprobrium for his defense of Donald Trump. Don't get me wrong:  I have denounced Dershowitz's substantive arguments as "preposterous" and have signed a marvelous letter drafted by Georgetown Prof. John Mikhail demonstrating exactly why they fail.  But that is, in some way, beside the point with regard to understanding the critique leveled at Dershowitz and understanding the importance of his conduct.  (Full disclosure:  I have known him since 1971, and we have been sometime colleagues at the Harvard Law School.  He has always been very friendly to me.)

First, does his argument about the meaning of the Impeachment Clause violate Rule 11 of the Federal Rules of Civil Procedure:  I.e., is it "frivolous"?  The answer is not really, for a simple reason:  In terms of what Philip Bobbitt has labeled the "modalities" of constitutional argument, Dershowitz is focusing relentlessly on one of them, "textualism," which relies for its strength on a naive approach to language that can be summarized by "what meaning of 'no' do you not understand?"  Or, as with Chevron, it requires persuading the reader that language is either clear and unambiguous or open to interpretation and reinterpretation.  The argument, therefore, is that the Impeachment Clause, read by the ordinary person (including US Senators) clearly seems to suggest that a president must commit either bribery or treason or "other High Crimes and Misdemeanors" that are in some genuine way comparable to those clear crimes.  The authors of the Constitution could have substituted other words and they obviously did not do so.  Is the language self-evident in its meaning?  No, but law professors teach their impressionable students certain "canons of construction" with regard to texts that need to be "filled in" that make Dershowitz's reading non-frivolous.  To be sure, he veers away from textual interpretation to include some historical arguments as well.  It is there, I believe, that he is demonstrably and unequivocally wrong, as demonstrated by Mikhail, Laurence Tribe, Noah Feldman, Frank Bowman, and others.  But so long as one relentlessly sticks to text and makes what I have in much other work called "protestant" appeals to sola scriptura, then one cannot, alas, simply dismiss Dershowitz's argument out of hand.  What one should do, instead, is to criticize a form of "textualism" that leads one to accept even "absurd" results in order to prove one's fidelity to the text.  It is worth noting that Antonin Scalia's most enduring legacy, at this point, is his insistence on the importance of text, and it is worth noting as well that the most able defender of textualism in the legal academy is the current Dean of the Harvard Law School, John Manning.  One of his predecessors, Elena Kagan, has herself paid ample attention to texts, unlike an earlier generation (perhaps typified more by her colleague Steven Breyer, who looked at "purpose" and was therefore much less likely to feel confined by "literal" interpretation).   What Dershowitz as messenger is revealing is first that the Framers really did a remarkably bad job in drafting the Impeachment Clause.  I.e., I have no doubt at all that Baldwin et al. are completely correct in what the Framers thought they were doing (a kind of "original intent" argument), but in their zeal to get out of Philadelphia (and after their thoroughly regrettable rejection of George Mason's suggestion to make "maladministration" a ground for impeachment), they adopted language that, to be sure, might have had a "term of art" meaning to well-educated lawyers (however many there actually were at the time in America, given that many such lawyers rejected the arguments for secession and remained loyal to their Majesty King George III).  Contrary to Charles Black, the Impeachment Clause was not the product or sustained debate and thought.  And things weren't helped, of course, by the fact that any discussion was completely abstract, given that everyone knew that George Washington, with his absolutely Roman character of selflessness (save, of course, where slaves were concerned, at least during his lifetime) would not present a threat to the Republic.  And, equally "of course," they had the deluded belief that the Electoral College would serve as an effective line of defense against electing a demagogue who might make impeachment a necessity.  So instead of condemning Dershowitz for making a relentlessly textualist argument, one should instead condemn the Framers for so ineptly drafting an Impeachment Clause that turns out--this is a "lesson of experience" that they counseled us to learn from--to be a genuine danger rather than source of protection to the Republic that they hoped to create and maintain.  And, incidentally, one should certainly feel free to go on to criticize an obsession with text that does indeed justify a reckless indifference to consequences and even licenses "absurd" consequences.

Secondly, Dershowitz, from one perspective, is simply acting in the highest traditions of the "zealous" defense attorney, where, after all, he earned his justifiable fame and perhaps even fortune.  I believe his great mistake is to confuse impeachment with a criminal trial.  Were Trump charged with a criminal offense and threatened with jail, I would have no criticism of Dershowitz or any other defense attorney putting the state to its full measure of proof.  And I would have no hesitation to applaud his making a "void for vagueness" argument with regard to the almost opaque Impeachment Clause (unless one restricts it, as Dershowitz argued, to what everyone might agree would be "High Crimes and Misdemeanors" punishable as such in the statute books).  My most important teacher at Stanford was the great Anthony Amsterdam, who wrote a classic student note on the void for vagueness doctrine in the US Supreme Court and who pointed out that a fundamental norm of due process is that people actually know in advance what kind of conduct will make them liable to lose their freedom.  But, as I've argued several times before, impeachment ought not be analogized AT ALL to a criminal trial.  It is a means of disciplining an unusually important public employee whom we have reason to be suspicious of.  Just as the law in its majesty doesn't regard deportation as a punishment--you can look it up--so it should not regard loss of a job as the kind of punishment that justifies Alan Dershowitz or any other criminal defense attorney from pulling out all stops to defend a client.  Any president, like any basketball coach, should know that "abuse of power," as defined by the onlooking interpretive community, will get one fired even if, to be sure, there is no codebook that details every possible such abuse and thus frees the employee for any liability for conduct not mentioned in the code.  This, after al, is what Marshall was getting at in McCulloch when he referred to the U.S. Constitution as a "great outline."  That means we have the duty of filling it in, using our common sense and "lessons of experience" to do so.  It was there that Dershowitz's argument was so problematic.

Dershowitz comes from a tradition of criminal defense lawyers that quotes with pride Lord Brougham's statement in 1821, regarding his in effect threatening to bring down the monarchy in order to protect his client, Queen Caroline, from whom the King sought an annulment:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.  To save that client by all means and expedition, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torment, the destruction which he may bring upon others.  Separating they duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion. 

This is Alan Dershowitz's credo, and I dare say that it has been taught by many law professors over the years, especially to students who imagine themselves defending the unpopular.  (I taught a course on professional responsibility, by choice, for about 20 years, including once at Harvard.  It is a telling criticism of law schools, students, and faculties, that it is generally not a high-status course; this is one of the reasons, ironically enough, that most law schools (though not Yale) require it, because students would rarely take it voluntarily.  My own view is that it's the single most important course in the curriculum, not least because it is also the most emotionally draining if taught with the requisite degree of seriousness and intensity.  I used to begin my course with Plato's Gorgias, about the ethics of teaching rhetoric and how to make "the lesser appear the greater."

Now it's possible that Dershowitz actually supports Trump and believes that it is good for the country that he remain president.  That is an open question; he has noted that he voted for Clinton in 2016 and has carefully refrained from offering any show of support to Trump in this year's election.  For whatever reason, he chose to represent Trump before the Senate, and he did so with the same kind of zealous vigor that he represented prior clients, some of them notorious (think only of OJ, some of them unknown figures who were in fact the victims of zealous unfair prosectors.  He has notably questioned the degree to which one should automatically trust local prosecutors, let alone police who have incentive to lie and who are often in effect excused by prosecution-friendly local judges.  I suspect that both of us believe that a serious weakness of the contemporary Supreme Court is that there is not a single member who has ever visited a client in jail, nor is that likely to change even if a Democrat wins in November.  Barack Obama did not really go outside the box in selecting judicial nominees, though one or two former public defenders managed to get on the "inferior" federal bench.  (Not the least of the paradoxes of the present time is that political liberals have fallen in love with federal prosecutors, ex-FBI and -CIA directors, while Trumpistas are denouncing them!)  So the real question is this:  Is there any reason to select out Alan Dershowitz for criticism that doesn't apply, perhaps more deeply and fundamentally, to any and all of the lawyers who appeared before the Senate to defend their master?  Dershowitz carefully sequestered himself from the discussion about witnesses, nor did he give a campaign speech for Donald Trump.  Nor, I am confident, does he share the basically fascistic views of Attorney General William Barr.

Ironically or not, perhaps one difference between Dershowitz and the Trumpista lawyers is that the latter sincerely believe they're serving the country by trying to keep the individual, Donald J. Trump, in power because he's Making America Great Again, whereas Dershowitz is "merely" behaving in the traditions of the zealous advocate and attempting, perhaps, to vindicate a notion of the Constitution that makes it especially difficult to displace a president by impeachment.  I have noted that Charles Black begins his book with excessive veneration of the Office of the President and goes on to suggest that it should indeed not be easy to fire a president.  Laurence Tribe agrees in the book that he has co-authored on impeachment.  Ditto Cass Sundstein and Michael Gerhardt.  I have become the outlier in believing that we ought to adopt a considerably more disenchanted view of all presidents and, like Ross Perot, view them merely as our employees who can be fired (or, at least, be suspended) as easily as a football coach or other high-flying executive who is usually given way too much deference.

Alan Dershowitz's performance does indeed raise a lot of questions.  And his particular statement that a sincere belief that one's re-election would serve the public interest would be enough to justify almost any corrupt behavior that was not an absolute liability crime per so is ridiculous beyond belief.  (I believe that he has tried to walk back from that assertion.)  But the main point is that his zealous advocacy in behalf of his client raises significant questions about whether we should really continue to regard the Constitution as a model of careful drafting--the answer is hell, no--or be untroubled by a seeming indifference to the social consequences of one's legal argument at least outside the very specific context of a criminal trial threatening the client's liberty.  Alan Dershowitz has performed a public service in placing both questions before us.
Posted 2:48 PM by Sandy Levinson [link] (134) comments