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Speaker Nancy Pelosi has delayed submission of the House-passed impeachment articles against President Trump to the Senate. Reportedly, this is based in part on advice from Harvard law professor and prominent Trump resister Laurence Tribe. The ostensible reason for the delay is concern, arising from statements by Mitch McConnell and others, that the Senate will not give the articles fair and impartial consideration. It’s somewhat surprising that House Democrats would expect anything but a partisan Senate response to their partisan impeachment. In any event, if Pelosi’s delay is indeed Tribe’s brainchild, the real motive is quite different.

For a long time, well before the Ukraine issues arose, Tribe has been urging Democrats to find a way to effectively impeach Trump while denying him the ability to defend himself in a Senate trial. Tribe’s original proposal was for the House to pass a simple resolution declaring Trump “guilty” of impeachable offenses, an action that would not involve the Senate. (See here for a description and critique of the proposal.) Tribe reasoned that this action would be “deliberately stigmatizing” to Trump by branding him with a “Scarlet I” of impeachment that he would be forced to carry through the 2020 election. The beauty of it, Tribe suggested, was that Trump would have no opportunity to shed his Scarlet I through the “misguided” and “old school” process of a Senate trial called for by the Constitution.

Tribe’s original proposal gained little traction. This is fortunate since it so obviously flouted the Constitution as well as basic considerations of due process and fairness. Unfortunately, Democrats now seem to be thinking of resurrecting it in a slightly different form by attempting to postpone a Senate trial on their impeachment articles indefinitely. This may be a “hail Mary” maneuver that will prove too outrageous to pull off. However, the fact that it is apparently receiving serious consideration doesn’t speak well for the bona fides of this impeachment effort.       

Assessments of the impeachment case against President Trump based on the so-called “Ukraine affair” rest mainly in the eyes of fiercely partisan beholders. Most evidence amassed thus far is subject to diametrically opposed interpretations. A prime example is Trump’s either “perfect” or virtually criminal July 25 phone call with Ukrainian President Zelensky. For pro-impeachers, led by House Intelligence Committee Chair Adam Schiff, the rough summary of the conversation demonstrates a corrupt “quid pro quo,” even amounting to bribery, whereby Trump conditioned military assistance for Ukraine on Ukrainian investigations of Trump’s political opponents, primarily Joe Biden. In Schiff’s embellished telling, Trump clearly demanded that Zelensky find (or even fabricate) negative information about Biden:

“I hear what you want. I have a favor I want from you, though and I’m gonna say this only seven times, so you better listen good . . . I want you to make up dirt on my political opponent, understand? Lots of it… on this and on that.”  

Trump and his anti-impeachment defenders maintain that the summary contains no hint of a quid pro quo.

This dichotomy carries over to the recent public hearings. Pro-impeachers in the House and the media portray the voluminous testimony as a steady stream of “bombshells” producing mountains of evidence against Trump. Anti-impeachers consider the hearings a boring amalgam of nothingburgers. As the New York Times’ Peter Baker observed:

“[L]istening to Republicans and Democrats, or their friendlier media, would give the impression of two radically different sets of hearings, one that presented damning, incontrovertible evidence that the president abused his power or one that revealed that the whole proceeding was a partisan sham.”

An excerpt from the November 20 hearing illustrates how even seemingly minor points are magnified through very different lenses. The excerpt is an exchange between Daniel Goldman, Schiff’s counsel, and witness Gordon Sondland. It involves what Rudy Giuliani, Trump’s personal lawyer, allegedly insisted Zelensky must do to gain his meeting with Trump:

Goldman: “Now, for Mr. Giuliani by this point, you understood that in order to get that White House meeting—that you wanted President Zelensky to have and that President Zelensky desperately wanted to have—that Ukraine would have to initiate these two investigations. Is that right?”

Sondland: “Well, they would have to announce that they were going to do it.”

Goldman: “Right. Because Giuliani and President Trump didn’t actually care if they did them, right?”

Sondland: “I never heard, Mr. Goldman, anyone say that the investigations had to start or had to be completed. The only thing I heard from Mr. Giuliani or otherwise was that they had to be announced in some form and that form kept changing.”

Media outlets including the New York Times, the Washington Post and Vox seized upon this exchange as another “bombshell” and a major takeaway from Sondland’s testimony. They said it proved that Trump had no genuine interest in Ukrainian corruption and viewed the mere public announcement of an investigation involving Biden as sufficiently damaging to him. Pro-impeachment pundits joined this echo chamber. For example, the Post’s Eugene Robinson wrote:

“The most devastating part of Sondland’s testimony, for me, was when he said that Trump wasn’t actually interested in having the Ukrainians unearth any new information. He just wanted Biden smeared.”

But Sondland said nothing of the kind. It was Goldman who asserted that Trump didn’t care whether Ukraine actually conducted the investigations, as he tried to put words in Sondland’s mouth. Moreover, this assertion is at odds with a straightforward interpretation of what Giuliani was demanding, according to Sondland.

On the face of it, Giuliani’s message as described by Sondland simply meant that Zelensky’s public commitment to conduct the investigations was sufficient to earn his meeting with Trump–not that it needn’t be followed up by the actual investigations. Indeed, the public announcement was a safeguard to ensure that Zelensky did not renege on his commitment and would in fact conduct the investigations. Sondland confirmed this later in his testimony: “The way it was expressed to me was that the Ukrainians had a long history of committing to things privately and then never following through.”

Finally, Goldman’s assertion not only misrepresents Sondland’s testimony but also contradicts his boss. As noted previously, Schiff’s argues that Trump very much did want the investigations to go forward to produce “dirt” and “lots of it” on Biden.

This example is just one small episode from the impeachment drama. (Future posts will address impeachment more broadly.) However, it shows how readily partisans will run with and even distort anything that superficially appears to support their preconceptions without pausing to engage in the slightest critical analysis.

There’s something about Trump that frequently causes his critics to lose all sense of rationality and perspective. This phenomenon, known as “Trump derangement syndrome,” regularly afflicts his political opponents and much of the media. It also exacts a heavy toll on liberal law professors, particularly those who call Harvard home. A striking example is the recent proposal by Laurence Tribe for the House of Representatives to declare Trump guilty of impeachable offenses without going through the nuisance of a constitutionally-prescribed Senate trial.   

Trump’s opponents almost universally believe he is guilty of obstruction of justice in connection with the Russia investigation and perhaps other impeachable “high crimes and misdemeanors.” If so, their recourse under the Constitution is for the House of Representatives to adopt articles of impeachment and submit them to the Senate for trial. The House’s role is like that of a grand jury—to investigate and indict (impeach) the president if it finds the charges well founded. House members then act as prosecutors and the Senate constitutes the jury. Impeachment requires only a majority vote in the House; conviction requires a two-thirds Senate vote.

But House Democrats face a dilemma. While they may have the votes to impeach Trump, there’s no chance the Senate would convict him. Another complication is that a majority of American voters oppose impeachment; thus, impeaching Trump could be both futile and politically costly. Coming to the rescue, Tribe offers a solution to this dilemma: the House can simply bypass a Senate trial and issue its own “verdict” declaring Trump guilty of impeachable offenses. This guilty verdict would not remove Trump from office or impose an actual legal penalty on him. (Doing so would constitute a patently unconstitutional bill of attainder.) However, Tribe assures that it would be “deliberately stigmatizing” by branding him with “a ‘Scarlet I’ that Trump would have to take with him into his reelection campaign.”      

Tribe asserts, without much explanation, that the impeachment process provided for in the Constitution whereby the House acts as investigator and prosecutor while the Senate serves as the jury is “misguided” and “old-school.” He complains that a Senate verdict in Trump’s case would be a politically driven “whitewash.” Under his proposal, the House need not “play the Senate’s corrupt game.” Rather, it can act as combined investigator, prosecutor, judge and jury.

Apart from rewriting the Constitution’s impeachment provisions, Tribe conveniently ignores the obvious fact that politics undoubtedly would drive the House’s actions just as much as the Senate’s. He blithely assumes that Trump would have “ample opportunity” to defend himself in the House and even notes the “possibility” that the House might “unexpectedly” exonerate him. However, it is inconceivable that Trump would get objective and unbiased treatment from the kangaroo court process Tribe proposes. The vast majority of Trump’s would-be House Democratic jurors already presume his guilt, as does Tribe.

In sum, Tribe’s proposal flouts the Constitution as well as fundamental considerations of due process and fairness. It’s a sad commentary that animus toward Trump can cause a distinguished constitutional law professor to abandon so readily so many basic American legal values.

While Tribe’s proposal fortunately hasn’t gained much traction so far, it does have the enthusiastic endorsement of another liberal lawyer and virulent Trump critic, Harry Litman. Litman praises Tribe’s proposal as providing “an outlet for House members to respond to the extraordinary gravity of the president’s assault on the rule of law” as well as “some sort of reckoning for Trump’s outrages.” Litman illustrates another of the proposal’s negative features—its elitist, anti-democratic nature. He emphasizes that it affords a way to avoid the “intolerable” (to elites) alternative favored by a majority of Americans of leaving Trump’s fate to the voters in 2020.

Trump has been shattering norms of presidential behavior from the outset of his term. Instead of responding by upholding our bedrock legal and ethical values, however, his opponents too often choose to compete with him in a contest to undermine them.        

Breaking two years of silence, Special Counsel Robert Mueller made a public statement at the Justice Department on May 29. With the investigation complete, he announced his resignation and his intent to say nothing more concerning his report, including commenting on “any additional conclusions or hypotheticals about the President.” He stated that the report “speaks for itself” and “is my testimony.” He emphasized that, if push came to shove, “[a]ny testimony from this office would not go beyond our report.”

Mueller briefly addressed the approach he took to the investigation and his conclusions. Nothing he said went beyond the four corners of his written report. However, because of the points he chose to emphasize or perhaps because he was speaking at all, politicians and the media widely viewed his comments as a revelation. What they revealed was subject to debate. As one pundit put it:

“At long last, the sphinx of Washington spoke on Wednesday, and here is what President Trump heard: ‘Case closed.’ Here is what the president’s adversaries heard: ‘Time to impeach.’”       

If keeping score, Trump’s adversaries generally thought they heard more to their liking than did Trump and his supporters. The latter turned up the rhetoric vilifying Mueller. The former claimed that Mueller clearly meant to convey the following:

• He believes that Trump obstructed justice and would have said so but for a legal opinion by the Justice Department’s Office of Legal Counsel (OLC) holding that a sitting President can’t be indicted.
• He invited Congress to impeach Trump.
• His remarks confirmed the almost universal (albeit unfounded) view among Trump opponents that Attorney General Barr engaged in serious misrepresentations or even outright lies in characterizing the report.

Mueller said none of these things. He did restate the report’s conclusion that charging Trump with a crime was “not an option” under his interpretation of the OLC opinion. He also reiterated the report’s conclusion that he lacked “confidence that the President clearly did not commit a crime,” thereby again refuting Trump’s (but not Barr’s) claim that the investigation “exonerated” him on obstruction. However, neither Mueller nor the report said he would have accused Trump of obstruction but for the OLC opinion. Indeed, Barr asserted that Mueller told him repeatedly that this was not Mueller’s position. In a joint statement issued after Mueller spoke on May 29, Mueller’s office and the Justice Department affirmed Barr’s account and said that Mueller had not contradicted it.

Mueller’s statement did not mention impeachment. He did cite a passage from the OLC opinion that obviously referred to it. However, this hardly constitutes an impeachment invitation by Mueller as Trump opponents claim. Indeed, it’s unlikely he meant to encourage impeachment. Mueller would be a key witness in any impeachment proceeding, but the one thing he made abundantly clear in his statement was that he wanted no part of it.

With regard to Barr, the joint statement referenced above puts to rest the notion that Mueller contradicted him on the point about the OLC opinion. Mueller also said in his statement that he did not question Barr’s good faith in declining to release the introduction and executive summaries of the report in advance of the full redacted version. Some in the media assert that by affirming Barr’s good faith on this point, Mueller implicitly questioned his good faith on other, unspecified points. The basis for this  assertion is unclear.

In sum, Mueller left things where they stood before he spoke—in the same state of politically polarized confusion over his strange and ambiguous treatment of the obstruction question that has existed since the report was issued. The only real news from the May 29 statement was his intent to walk away from this mess. It’s hard to imagine that he will get away with that.

There’s a broad consensus on the left that, although Mueller was unwilling to say so, the facts and analysis laid out in his report demonstrate that Trump obstructed justice. This will almost surely lead to at least exploratory Congressional hearings on impeachment. How can Mueller justify refusing to testify fully about his investigation and report? His work is of great public interest. He conducted it as a public servant, along with a number of other government employees, at a cost to the taxpayers likely to exceed $30 million. Clearly, he owes Congress and the public his unconditional cooperation. Even if impeachment proceedings to do not ensue, Mueller needs to forthrightly address the many substantive ambiguities in his report. If he doesn’t, others surely will. There were immediate rumblings of discontent from Mueller staffers about Barr’s handling of the report; presumably, someone on Mueller’s staff leaked his March 27 letter to Barr on this subject. The leaking will only intensify and produce unverifiable, diverse takes on the meaning of the report unless Mueller speaks up officially.

In the unlikely event Mueller somehow avoids elaborating on the substance of the report, he still has a lot of explaining to do about his approach to the job. For example:

Mueller’s bosses at the Justice Department expressed surprise at his position that the OLC opinion prevented him from making a traditional prosecutorial decision on Trump and obstruction; they obviously disagreed with his interpretation. As a Justice Department employee, Mueller rightly considered himself bound by the OLC opinion but why didn’t he feel equally bound to defer to his superiors’ controlling interpretation of the opinion?

Mueller apparently believed that the only decision he could make regarding Trump and obstruction was whether to “exonerate” him. What was the source of his authority to decide whether Trump merited “exoneration” and what legal standards applied in making this determination?

Once Mueller ruled out “exoneration,” the only apparent purpose of the investigation as it pertained to possible obstruction by Trump was to develop and preserve evidence for potential future use. Why then does the report include extensive analyses of the facts and law applying to an obstruction case against Trump?  Why not simply compile and catalogue the relevant evidence without issuing a lengthy report (volume II) that gratuitously explores the legal and evidentiary pros and cons of prosecuting him when that was not an option to consider? Doesn’t this create the very kind of unfairness that Mueller claimed he wanted to avoid by not making a prosecutorial decision?

The OLC opinion had the same impact on Mueller’s consideration of whether Trump committed a crime relating to Russian election interference (volume I of the report) as it did on obstruction. Yet Mueller made what looks like a traditional prosecutorial decision on the election interference question, finding “insufficient evidence” of a crime involving Trump with no mention of “exoneration.” Why such strikingly different approaches to these two questions?

As the messenger who first announced the outcome of the Mueller investigation, Attorney General William Barr has been thoroughly demonized by those unhappy with the message. Among other things, they accuse him of torching his reputation, lying to Congress, and even losing his soul. There are calls to impeach him, prosecute him for perjury, and lock him up in the capitol basement for contempt of Congress.

These unhinged attacks sprung initially from Barr’s March 24 letter conveying the Mueller report’s two main bottom lines: its unequivocal conclusion that Trump was not complicit in Russian election interference and its more equivocal conclusion (or non-conclusion) to neither charge Trump with obstruction of justice nor “exonerate” him. Critics claim that Barr’s letter misrepresented the report. They also criticize Barr’s determination announced in the letter that Mueller’s evidence was insufficient to establish an obstruction offense. The attacks have persisted weeks after release of the redacted but largely complete report.

No doubt the war against Barr reflects frustration over the results of Mueller’s investigation–that it put to rest the “collusion” narrative Democrats and much of the media relentlessly flogged for the past two years and that it stopped short of accusing Trump of a crime. There’s also considerable angst over where to take these issues now. Some on the right suggest that targeting Barr is a ploy to deter him from inquiring into the origins and initial phases of the Russian interference investigation. Whatever their motive(s), the attacks on Barr are spurious.

Barr’s March 24 letter accurately and fairly captured the two main bottom lines of Mueller’s report

Once word got out that Mueller’s report was done, Barr came under intense pressure to disclose something about it right away. Immediately releasing the full 448-page report or even its executive summaries was not an option since both needed review for redactions. Saying nothing would have generated a flood of criticism from all sides. Faced with this dilemma, Barr issued his March 24 letter reciting Mueller’s two “principal conclusions” as stated above.

The main criticism of Barr’s letter is that it failed to capture the many negative aspects of Trump’s behavior detailed in the report. However, the letter did not purport to be a summary of Mueller’s report; it simply announced Mueller’s bottom-line conclusions. Barr’s descriptions of Mueller’s bottom lines are entirely faithful to the report; he quoted them verbatim. By including Mueller’s statement that the investigation did not “exonerate” Trump, Barr clearly telegraphed that the report had significant negative content about him. If Barr wanted to mislead, he could have omitted this caveat and said only that Mueller did not charge Trump with obstruction. It’s also noteworthy that the report contained no “bombshells” that Barr omitted. Its content on obstruction primarily validates and fleshes out incidents involving Trump that were already widely known through Trump’s public statements and media-reported leaks.

Critics make much of Mueller’s March 27 letter to Barr, leaked on the eve of Barr’s testimony before the Senate Judiciary Committee. In it, Mueller complained that Barr’s letter “did not fully capture the context, nature, and substance of this Office’s work and conclusions” (presumably on obstruction) and, as a result, “[t]here is now public confusion about critical aspects of the results of our investigation.” Mueller enclosed redacted versions of the introduction and executive summaries of his report and urged Barr to release them immediately. But Barr says Mueller assured him in a subsequent phone call that nothing in Barr’s letter was inaccurate or misleading; instead, according to Barr, Mueller was concerned about “misguided” media coverage. Barr also says Mueller declined his offer to review the letter in advance. Had Mueller accepted, he could have made known any concerns he had and worked with Barr to produce a mutually acceptable statement.

More fundamentally, the source of confusion over Mueller’s conclusion on obstruction is Mueller’s own curious treatment of this question, not anything Barr said about it. Indeed, this confusion has only intensified with release of the report. The report (II-1-2) says Mueller’s approach was heavily influenced by the Justice Department position that a sitting president cannot be criminally indicted but does not say he would have found criminal conduct but for this position. It goes on to say (II-2):

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

All of this hardly cleared the air on obstruction. Mueller did essentially the opposite of what everyone assumed his role to be: He declined to decide whether or not the evidence could prove beyond a reasonable doubt that Trump committed a crime but opted to decide instead whether it conclusively proved his innocence. This strange approach has left politicians, pundits and the general public pretty much where they were before the report—still debating the obstruction question, usually along familiar pro- versus anti-Trump lines. (Hopefully, Mueller will eventually appear before Congress to clarify this and other aspects of his investigation and report.)

Barr appropriately made the prosecutorial decision on obstruction and his decision is sound on its merits.

Barr’s March 24 letter observed that Mueller’s failure to reach a traditional prosecutorial decision on obstruction left it to him to make this call. He then stated that he and Deputy Attorney General Rosenstein, in consultation with other Justice officials, “concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” 

Critics question Barr’s determination on obstruction and, remarkably, even his right to make it. Taking the second point first, Barr clearly had both the right and responsibility to decide when Mueller wouldn’t. The notion advanced by some that Mueller didn’t “intend” for Barr to do so but instead wanted Congress to decide on obstruction in the context of impeachment is unsupported by the report and ludicrous on its face. Deciding whether Trump (or anyone else) has committed a federal crime warranting prosecution is manifestly the responsibility of the Justice Department. That responsibility ultimately rests with the Attorney General. Mueller’s “intent” is immaterial, although he surely understood this. (His March 27 letter did not question Barr’s decision on obstruction.)

Turning to the merits, it’s easy to argue, as many have, that aspects of Trump’s behavior described in the report align at least conceptually with the legal elements of obstruction. However, deciding whether to bring a criminal prosecution is a judgment call that entails more than conceptual box-checking. The key question is whether the government can prove each element of the offense beyond a reasonable doubt to the satisfaction of an impartial jury. The Mueller report itself (II-7) points to several complications in prosecuting an obstruction case against Trump. Some of the incidents the report describes occurred in public view and were “facially lawful acts” under the president’s constitutional authority. Also, there was no underlying crime. The report notes that while the absence of an underlying crime does not preclude an obstruction prosecution, it does bear on the question of intent.  

There is, however, another consideration that makes successful prosecution of Trump highly unlikely: Trump took no concrete action to obstruct the investigation. He railed against the investigation from start to finish, viewing it (perhaps with some justification as it turns out) as a contrived effort by his opponents to undercut the legitimacy of his presidency. In the course of his often impulsive rants, he threatened to take various actions against it. However, Trump never followed through on any of these threatened actions although he certainly had the ability to carry them out.

The case for prosecuting Trump is based almost entirely on what he said, not what he did. For example, Trump asked Comey to go easy on Flynn but did nothing when Comey persisted; he urged Sessions to “unrecuse” himself and limit the scope of the investigation but did nothing when Sessions failed to do either; he demanded that subordinates fire Mueller but did nothing when they disregarded him. Obviously, he knew his wishes were not being carried out in these instances.

The only action Trump took potentially relating to the investigation was firing Comey. But the Mueller report (II-74) questions whether this had a predictable effect of impeding the investigation (in fact, of course, it had the opposite effect). In any event, the report (II-75) also indicated that the catalyst for firing Comey was not a desire to impede the investigation but Trump’s displeasure over Comey’s refusal to publicly acknowledge what he privately told Trump—that Trump was not a target.

Given these facts, how could a jury find beyond a reasonable doubt the requisite corrupt intent to convict Trump of obstruction? If Trump was intent on obstruction, he could have and surely would have carried out at least some of his potentially obstructive threats.

Making prosecution even more dubious, the White House provided extraordinary cooperation to Mueller. This couldn’t have happened without Trump’s acquiescence. Remarkably, Trump allowed White House Counsel McGahn to undergo 30 hours of questioning by Mueller’ investigators. (His testimony is widely considered the most damaging to Trump of all the evidence Mueller developed.) A president bent on obstruction never would have allowed his White House counsel to be interrogated by the investigators. Instead, he would have invoked executive privilege and otherwise stonewalled the investigators’ access to White House staff and records.

Why do Democrats continue to persecute Barr?

While Barr might have handled some things differently, he did nothing that calls into question his honesty or integrity. But even if Democrats disagree, the salient question for them at this point should be what the Mueller report means in relation to Trump, not Barr, and specifically whether it provides a basis for impeachment. Instead, they still have their guns trained on Barr. House Judiciary Democrats rejected Barr’s offer to testify before them based on an unusual demand that committee staffers participate in the questioning. (This came complete with silly theatrical stunts.) Then they voted to hold Barr in contempt for refusing their demand for the few remaining redacted lines of the Mueller report they can’t already see—a demand Barr probably can’t legally meet because these lines contain grand jury information. They are now considering physically arresting Barr and locking him up in the capitol basement jail.

Most likely the continuing assaults on Barr are diversionary or temporizing tactics by Democrats to forestall their day of reckoning on impeachment. That’s perhaps understandable. While the Democratic left flank is intent on impeaching Trump, cooler heads apparently recognize the lesson of the Clinton impeachment fiasco: Attempting to remove a sitting president without bipartisan and broad public support (which is lacking here) is folly both substantively and politically. It rightly comes across as nothing but a partisan coup to undo the result of a legitimate election and makes us look like a banana republic.

Many political trial balloons have been floated in the contest for the 2020 Democratic presidential nomination. One truly awful idea–advanced by such groups as “the 1/20/21 Project,” “Demand Justice” and the aptly-named “Pack the Courts”–is to increase the number of Supreme Court justices in order to nullify the current majority, whose decisions they don’t like. This radical idea should have died in the 1930s with the failure of FDR’s infamous court-packing scheme. Regrettably, however, several presidential candidates have expressed openness to it.

Why is this such a terrible idea? Because it poses an existential threat to the federal judiciary. Federal courts can’t function effectively unless their judges are politically independent and objective both in fact and in public perception. Every federal judge takes a statutory oath to “do equal right” to all litigants by dispensing justice impartially. Controversial cases arise frequently, often producing decisions that are unpopular with one political faction or another and subject to intense debate over their legal merits. This is to be expected. However, the judiciary will lose its credibility, and hence its value in our system of government, if its decisions come to be widely viewed as the product of political bias rather than objective legal analysis.

The resurrected court-packing scheme rests on two premises that are antithetical to the concept of an independent, impartial judiciary. One is the explicit and spurious charge that the Supreme Court as now constituted is illegitimate. The other is an implicit mindset that judges are mere politicians in robes who serve the agenda of the party responsible for their appointment. As one leading court-packing proponent, former Hillary Clinton political operative Brian Fallon, puts it:

“At Demand Justice, we strongly believe that reforming the court — especially by expanding it — is the cornerstone for re-building American democracy . . . The Kavanaugh court [sic?] is a partisan operation, and democracy simply cannot function when stolen courts operate as political shills. We are thrilled to work in coalition with the team at Pack the Courts to undo the politicization of the judiciary.”

The hypocrisy in describing court-packing as a means to depoliticize the Court is breathtaking. Over recent decades, both parties have done everything within their power to politicize judicial appointments to the Supreme Court and lower federal courts. The court-packing proposal, if implemented, would put the final nail in the coffin. Court-packing is fundamentally an exercise in raw political power designed to offset one group of supposed “political shill” judges by adding political shills more to the proponents’ liking. Its objective is not to depoliticize the Court but to re-politicize it in a different direction by shifting its alleged bias from right to left. The claim that this will somehow advance democracy is equally risible.

In addition to its intellectual dishonesty, this ultimate escalation in partisanship would likely trigger a continuous expansion in Court membership with no end in sight. If Democrats won the White House and Senate in 2020 and succeeded in packing on enough additional justices to shift the majority to their side, Republicans could be counted on to add even more justices in order to regain the majority the next time they controlled the appointment process.  

Like other proponents (see here and here), Fallon contends that the current Court majority is illegitimate because Republicans “stole” a Supreme Court seat from the Democrats when they stonewalled President Obama’s nomination of Merrick Garland to replace the deceased Antonin Scalia. This argument is disingenuous since Democrats almost surely would have stonewalled a Republican president’s nomination had the situation been reversed. (See here.) Both parties share a sordid history in recent years of blocking the other party’s judicial nominees for political reasons. One particularly shameful example was the Chuck Schumer-led filibuster against Miguel Estrada’s nomination to the Court of Appeals for the D.C. Circuit. Schumer feared that placing such an outstanding nominee as Estrada on the D.C. Circuit would position him eventually to become the first Hispanic-American elevated to the Supreme Court.

The notion that the Supreme Court seat was “stolen” from Democrats also is nonsense. Obviously it never belonged to them in the first place. No president is entitled to confirmation of his or her nominations; the Senate has the constitutional right to withhold its advice and consent to Supreme Court (and any other) nominations. Republicans deserved harsh criticism for denying Garland a confirmation hearing, but they had no obligation to confirm him. In the final analysis, Democrats “lost” the vacant Supreme Court seat (if they insist on viewing it that way) not by theft but because they lost the 2016 presidential election. In fact, this vacancy may well have determined the outcome of the election. Polling confirms that Supreme Court appointments are a key consideration for presidential voters, and the pending vacancy was a major factor in 2016 voting, particularly among Trump voters.

No one who values and respects the federal judiciary could embrace the court-packing proposal as a matter of principle. Supporting it probably is bad politics as well. While court-packing may offer red meat to Democratic primary voters, at least those on the far left, it would likely be a significant political negative in the general election. Unlike court-packing advocates, most Americans favor an independent, nonpartisan federal judiciary and are concerned that the courts are already too politicized. (See below.)

There is a desperate need to halt the downward spiral of cynical moves and counter-moves by both parties that have driven judicial appointments ever deeper into the hyperpartisan abyss. However, the remedy certainly is not to resurrect court-packing. Instead, we must somehow find a way to revive the bipartisan appointment process that served the Nation well in the not too distant past. It featured an understanding between the political parties that well-qualified judicial nominees of good character deserved confirmation regardless of which party controlled the White House and Senate. This understanding applied to both “liberal” and “conservative” nominees as long as they fell within the mainstream of legal thought. There was also a bipartisan consensus that election results matter and thus a president’s choice of nominees was entitled to some degree of deference.

Under this longstanding and commonsense regime, Supreme Court justices as ideologically disparate as Antonin Scalia and Ruth Bader Ginsburg were confirmed by overwhelming Senate majorities. Unfortunately, we have now descended to the point where party line votes are the standard practice for Supreme Court and even lower federal court confirmations. The threat this poses to the continued viability of the judiciary is quite real. While the public still has far greater confidence in the federal judiciary than the two political branches, they view judicial decisions as increasingly tainted by political bias. Court-packing would re-enforce this perception in spades.   

At a time when we need reliable media, the media is becoming ever less reliable. Public trust in it is low. While broad-based accusations of “fake news” against the mainstream media may be largely spurious, embarrassing examples of false stories surface with some regularity. Recent examples include the Special Counsel’s repudiation of a widely circulated BuzzFeed report, the Covington high school boys fiasco, and the Jussie Smollett hoax. Such media misfires stem from excessive and uncritical reliance on anonymous sources, mindless echoing of social media feeds, rushing stories to publication in order to scoop the competition, and failure to seek verification of stories deemed “too good to check”.  

Serious questions of tendentious or at least dubious editorial judgment frequently arise as well. One recent example is the Washington Post’s initial failure to publish Vanessa Tyson’s sexual assault allegation against Virginia Lieutenant Governor Justin Fairfax versus its decision to run full speed with Christine Blasey Ford’s accusation against Brett Kavanaugh. There is no apparent substantive justification for the Post’s starkly different treatment of the two accusations. Indeed, Tyson’s story seems, if anything, the more worthy of publication. Both accusers are serious people who leveled serious charges against prominent public figures. Tyson’s charge of actual rape by Fairfax was more severe than Blasey Ford’s allegation that Kavanaugh drunkenly groped her. Tyson’s account also was more plausible on its face since she offered full specifics while Blasey Ford could not provide many key details.

The Post explained its decision to decline Tyson’s story as follows:

“The Post, in phone calls to people who knew Fairfax from college, law school and through political circles, found no similar complaints of sexual misconduct against him. Without that, or the ability to corroborate the woman’s account—in part because she had not told anyone what happened—the Post did not run the story.”

This explanation doesn’t hold water. At the time the Post published Blasey Ford’s accusation, there were no similar complaints against Kavanaugh either. Likewise, there was no independent corroboration of her account—just a couple of somewhat vague statements she had made to third parties. Notably, the Post had the ability to seek independent corroboration of Blasey Ford’s account but made no serious effort to do so. She named “two other teenagers” who were present when she was assaulted, one who was a close friend of hers. However, the Post merely left messages for them on the day it published her story. When Senate investigators contacted the two individuals shortly after the story appeared, evidently without difficulty reaching them, neither corroborated her account.

On the surface, all that’s left to distinguish the two cases is that one of the accused is a white Republican while the other is an African-American Democrat. Thus, critics can easily portray this as an example of bias—political, racial, or both—on the part of a leftist, elitist publication.  

Unfortunately, media outlets rarely embrace the kind of transparency, candor and accountability regarding their actions that they demand from those they criticize. In fact, they are regressing. Several major news outlets, including the Post and the New York Times, abolished their internal “ombudsmen”. This not only freed them from somewhat arms-length internal critics but left the field open for less knowledgeable sources with their own biased agendas to fill the gap in media criticism.

Clearly, there is a need for greater self-awareness and critical self-examination on the part of the media. A first step in this direction would be for the Post and others to restore the ombudsman position. While this is far from a solution, it would at least show some openness to serious criticism and accountability. Surely it would also do more to promote increased public trust in the media than sponsoring Super Bowl ads.

President Trump recently announced his intention to issue an executive order that would deny United States citizenship to children born in this country to illegal immigrants. Whether this is a serious proposal or simply a pre-election political ploy remains to be seen. Regardless, it provides a useful case study in two contrasting theories of constitutional interpretation: “originalism” and “living constitutionalism.” “Originalists” (usually conservatives) believe that the Constitution should be interpreted and applied in accordance with the generally understood meaning of its language at the time of its adoption. They view the Constitution as a document whose provisions, as thus understood, are enduring law and can be changed only by formal amendment. By contrast, “living constitutionalists” (usually liberals) tend to view the Constitution as a fluid and malleable document whose meaning can change over time, without amendment, in order to accommodate evolving societal values, norms and conditions.

The Constitution’s birthright citizenship provision is set forth in the opening sentence of the Fourteenth Amendment, ratified in 1868, as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” On its face, this language clearly covers the American-born offspring of illegal immigrants. They are in fact born in the United States and are subject to its jurisdiction, i.e., its judicial authority and laws. The original understanding of the provision is consistent with its plain language. Its main purpose was to overturn the Supreme Court’s infamous Dred Scott decision and grant citizenship to African-Americans born in the United States. However, the congressional debates on the proposed constitutional amendment make clear that the language was viewed as all-encompassing with the sole exception of persons not “subject to the jurisdiction” of the U.S. Government. This exception, in turn, was understood to apply only to children of foreign diplomats and children of the members of certain Native American tribes which were not considered subject to U.S. law at that time. (A later law made all Native Americans citizens at birth.)

Given the above, it’s hard to see how any self-respecting originalist could support Trump’s proposal. If he implements it, the originalist majority on the current Supreme Court will undoubtedly rule against him in the event the proposal survives judicial challenge long enough to reach the high court.

It’s less certain that judges espousing the living Constitution theory of interpretation, and thus feeling less constrained by the original meaning of the constitutional language, would come out the same way. Living constitutionalists might reason that the framers of the Fourteenth Amendment never considered illegal immigrants, particularly at their current volumes, and could not have intended to confer automatic citizenship on all their children. Accordingly, they might well conclude that a broader, evolutionary reading of the “subject to the jurisdiction” exception would better serve contemporary conditions and needs—i.e., a reading that extends the exception to cover those in the country illegally who owe no allegiance to the United States.

I’d submit that the above analysis offers three cautions for those inclined to prefer living constitutionalism over originalism: (1) While originalism may be regarded as a conservative legal approach, it can produce liberal policy results. (2) The notion that the Constitution “evolves” does not necessarily mean that it evolves only in the direction of expanding constitutional rights; it can just as easily evolve to restrict such rights. (3) If judicial interpretation of the Constitution is not anchored to its text as originally understood, there are no objective criteria to constrain judges. They are left free to act on their own subjective views of how best to mold the Constitution to fit contemporary needs and values as they see them.

Given the hyper-politicization and downright toxicity that define Brett Kavanaugh’s confirmation process, it’s hard to predict what bearing an objective analysis of Christine Blasey Ford’s accusation against him will have on the outcome. Very little of the massive political and media attention heaped on this subject addresses the specifics of the case. Another challenge is the age of the accusation and lack of key factual details supplied by Blasey Ford. If one does focus on the specifics, however, a recent development looks to be highly relevant.

Last Saturday night CNN reported that Blasey Ford had identified a longtime friend, Leland Keyser, as someone who attended the party where the alleged assault occurred. After Keyser was contacted by the Senate Judiciary Committee, her lawyer submitted a statement to the Committee that “Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without Dr. Ford.” Keyser’s statement means that none of the four people named by Blasey Ford as attending the party support her claim that it ever happened. Kavanaugh and Mark Judge, whom she named as a witness to the assault, both vehemently denied her allegation. The other person she named as being at the party but not witnessing the assault, Patrick (“PJ”) Smythe, told the Committee he had no knowledge of any of it.

On top of the absence of witness corroboration, there seem to be no other investigative avenues available to either confirm or refute Blasey Ford’s accusation given her own lack of recall as to the date (even the year), location, and other basic aspects of the alleged assault. Therefore, the truth or falsity of her charges probably can never be determined definitively. Nevertheless, Keyser’s lack of knowledge casts serious doubt on Blasey Ford’s account as she has presented it thus far, particularly since Keyser is a close friend and supporter of hers. (She says she believes Blasey Ford even though she cannot vouch for any of her story.)

Blasey Ford and her lawyers brushed off Keyser’s lack of recall. Blasey Ford told the Washington Post that she didn’t expect Keyser to remember “because nothing remarkable happened there, as far as Keyser was aware.” In commenting on the CNN story, Blasey Ford’s lawyer added that Keyser couldn’t be expected to remember the party because “nothing of consequence happened to her.”

These explanations strain credulity when considered in relation to Blasey Ford’s account of the events of that night. According to her Post interview and letter to Senator Feinstein, the “stumbling drunk” Kavanaugh and Judge “corralled” her into a bedroom as she was headed for a bathroom up a short flight of stairs from the living room. They played loud music from the bedroom and Kavanaugh put his hand over her mouth to stifle her screams. She feared Kavanaugh might kill her. Kavanaugh was on top of her on a bed trying to remove her clothing. At some point Judge jumped on top of Kavanaugh and her, “sending all three tumbling.” She got away, ran across to the bathroom, and locked herself in. (It’s reasonable to assume that Blasey Ford would have resumed screaming audibly upon her escape from Kavanaugh.) Kavanaugh and Judge then “loudly stumbled” down the stairs and engaged the other two people who were there (Keyser and Smythe). She subsequently exited the bathroom, ran down the stairs, and “fled the house.”

The events Blasey Ford describes were raucous and dramatic to say the least. Surely they would have been quite “remarkable” to Keyser, as well as frightening and memorable, if she had noticed any of them. Moreover, it’s hardly plausible that Keyser could have been completely oblivious to the loud and chaotic scene going on around her, particularly since she was one of only two other people in the house. The lawyer’s suggestion that Keyser put all of it out of her mind because nothing bad happened to her personally is no more plausible.

Finally, victims of sexual assaults often fail to tell others about them for a variety of reasons. But is it plausible that Blasey Ford would not have said anything to Keyser about Kavanaugh and Judge either as she was fleeing the house or within days thereafter, if only to warn her about them? After all, she describes them as dangerous, perhaps even homicidal, sexual predators and it was certainly foreseeable that her close friend Keyser might encounter them again. At the very least, one would have expected Blasey Ford to give Keyser (as well as her other friends who ran in the same circles) a general warning to steer clear of these guys without necessarily going into the details of her assault.

Of course, none of the above proves that Blasey Ford’s accusation is untrue. Absent a Perry Mason moment at the upcoming hearing or another game-changing development, we probably will never know for sure where the truth lies here. However, the lack of recall by anyone supposedly present at the party, particularly Keyser, raises a host of questions for Blasey Ford. Hopefully, they will be explored fully and fairly at the hearing.

N.B. The Kavanaugh confirmation mess changes daily. New uncorroborated charges of sexual misconduct against him emerged last night. It would not be surprising to see more come out of the woodwork as the week progresses. However, such accusations may backfire against Kavanaugh’s opponents and generate sympathy for him if they continue to be unsubstantiated and increasingly far-fetched. For example, Michael Avenatti, showboating lawyer for porn star Stormy Daniels, claims to have multiple witnesses who say Kavanaugh organized and participated in gang rapes of drunken girls while in high school. If the FBI missed something of this magnitude during their many background investigations of Kavanaugh, calls for them to do more on the case clearly are misguided.

 

 

 

 

 

Republicans were roundly condemned for denying Merrick Garland a confirmation hearing. If his hearing would have degenerated into anything like Kavanaugh’s, maybe they did him a favor. The Kavanaugh hearing unfolded with all the seriousness and probity of a Jerry Springer show. CNN derided it as “one of the most vindictive and ill-tempered congressional hearings in memory.” The New York Times described it as the “new reality” of Supreme Court confirmation hearings, consisting of “pandemonium, protesters and razor-sharp partisan lines.” Republican Senator Lindsay Graham observed that comparing the hearing to a circus was unfair to circuses.

Republicans got it off on the wrong foot by pushing too quickly in their desire to get Kavanaugh seated by the start of the Supreme Court’s October term. This resulted in an obviously rushed document-production process featuring a massive data dump on the eve of the hearing and the initial withholding from public access of documents that were later cleared for release. However, disputes over documents were largely a sideshow. Most Democrats announced their undying opposition to Kavanaugh as soon as he was nominated or even before. It’s clear that all Democratic members of the Judiciary Committee were poised to vote no even had they been furnished every unredacted page of every document that passed Kavanaugh’s way during his White House years.

With Chairman Grassley only 13 words into his opening statement, Democrats began taking turns attempting to sabotage the hearing with carefully choreographed interruptions expressing faux outrage over document issues. They were abetted by equally organized outbursts from plants in the audience. One wonders how the protesters seemingly monopolized public seating. Did they crowd out ordinary members of the public who simply wanted to observe the hearing? Do they face any consequences? No matter; Democratic senators generally praised the protesters for their outrageous behavior. In a particularly disingenuous exchange, Senator Durbin told Kavanaugh:

“There have been times where [the protesting] was uncomfortable. I’m sure it was for your children. I hope you can explain this to them at some point but it does represent what we are about in this democracy . . . What we’ve heard is the noise of democracy.”

What was Kavanuagh to “explain” to his young daughters, that the vituperation heaped on their dad by an uncivil mob was a civics lesson-worthy example of democracy in action?

Outbursts from the audience persisted throughout the hearing as did grandstanding and demagoguery by senators opposed to Kavanaugh. Two Judiciary Committee Democrats, using the hearing as a stage to audition for their upcoming presidential election bids, led the charge. Kamala Harris was the first to interrupt Grassley and later drew attention by her evidently false and McCarthyesque insinuations that Kavanaugh had contacts with Trump lawyers relating to the Mueller investigation. However, the grandstanding Oscar went to Cory (“Spartacus”) Booker, who flaunted his courage in violating Senate rules and risking expulsion to release confidential emails about Kavanaugh. It turned out that the emails already had been cleared for release, as he apparently knew. In any event, they had little significance. (See here and here.)

There’s a tendency to pick “winners” and “losers” from such events. In that spirit, I’d offer the following:

Kavanaugh was the primary winner. He successfully executed the standard nominee game plan of displaying legal acumen while saying little of substance, avoiding major gaffs, and suffering abuse from senators as gladly as possible. From a nominee’s perspective, the confirmation process has become akin to a fraternity initiation rite in which the goal is to emerge unscathed from a few days of unpleasant but inevitable senatorial hazing.

Presidential wannabes Harris and Booker also could be considered winners insofar as their histrionics played well with the Democratic base and their media allies. (See here and here.) However, this doesn’t bode well for the public. It signals that Democrats plan to defeat Trump in 2020 by out-Trumping him with falsehoods, violation of norms, and boorish behavior that equals or exceeds his own.

It’s hard to see any positives for other Committee Democrats. They seem to have won no converts. If anything, their over-the-top theatrics probably solidified support for Kavanaugh among Republicans and pushed the few Democratics still on the fence closer to voting for him. One of these fence-sitters, Joe Manchin, said of their tactics: “Not the way I was raised.”

In fairness, Democrats had little ability to impede Kavanaugh. They effectively made themselves irrelevant bystanders this time around with their pointless filibuster of the Gorsuch nomination. Their only realistic goal was to show their base what a disruptive “resistance” they could be. But their efforts fell short even here as they were still rebuked by leftist interest groups. These groups reserved special scorn for Ranking Committee Member Dianne Feinstein who was the one Democrat to refrain from the initial interruptions and, even worse, had the temerity to apologize to Kavanaugh for the “circumstances” of the hearing.

In the final analysis, the primary losers from this sorry spectacle are our governmental institutions, and ultimately therefore, all of us. For those (hopefully few) who take it seriously, the hyperbolic rhetoric about Kavanaugh undermines confidence in his integrity as a judge. More generally, the increasing politicization of judicial confirmations demeans and threatens the integrity of the federal judiciary as a whole. Partisans on both sides constantly reinforce by their words and actions a growing perception that judges are merely “politicians in robes” who decide cases based on their policy preferences rather than objective legal criteria.

The Senate also emerges as a major loser. Its abuse of confirmation hearings over the years has stripped them of any value. Confirmation hearings for Supreme Court nominees are of surprisingly recent vintage. The first occurred in 1916, and it was not until 1959 that a nominee was subjected to serious questioning. Hearings over the next few decades were sometimes illuminating in exposing the weak qualifications or ethical shortcomings of several nominees. However, their value greatly diminished in the aftermath of the 1987 Robert Bork fiasco. Bork, an eminently qualified if arrogant nominee, engaged in substantive and robust debate with Senators at his ill-fated confirmation hearing. For this, he was mistreated so severely that his name became a verb. (Bork: To “obstruct (someone, especially a candidate for public office) through systematic defamation or vilification.”)

Later nominees learned from Bork’s experience that the best approach is to say as little as possible about their substantive legal views. This led current Justice Elena Kagan to describe confirmation hearings (some years before her own) as a “vapid, hollow charade.” With Kavanaugh, the hearings have degenerated from charade to downright ugly farce. On top of this, the willingness (even enthusiasm) of Senator Booker and others to flout Senate rules and release confidential documents (or at least pretend to do so) will likely result in even greater reticence to share documents with the Senate for future confirmations.

Confirmation hearings have become so worthless, if not worse than worthless, that some have called for their abolition. A less extreme approach might be to remove cameras from the hearing room. This would at least discourage the shameless posturing and demonstrations. One recurring question asked at these hearings is whether the Supreme Court is right to prohibit television coverage of its proceedings. Kavanaugh’s hearing certainly strengthens the case for continuing the ban.