Law postsTuesday July 10, 2018
Four Questions for Brett Kavanaugh
Turns out current SCOTUS nominee Brett Kavanaugh was for prosecuting POTUSes before he was, like, totally against it.
Here, via Jeffrey Toobin, is his POV when he was on the Starr commission investigating Pres. Clinton in the 1990s:
Kavanaugh, who “was considered one of Starr's intellectual heavy-lifters, pushed hardest to confront Clinton with some of the dirtiest facts linked to his sexual indiscretions with Lewinsky.” In a memo to Starr, he proposed that Clinton be asked the following questions, among others, before the grand jury: “If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying? . . . If Monica Lewinsky says that on several occasions you had her give [you] oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?” Starr apparently thought better of this plan ...
Then Kavanuagh thought better of the whole “Are presidents above the law?” thing:
Kavanaugh's service in the Bush White House—and, perhaps, his view of future Republican Presidential patrons—led him to revise his Clinton-era view of the rights of Presidents who are under investigation. In a law-review article from 2009, Kavanaugh said that Presidents should not only be free from the possibility of indictment while in office but should also be allowed to avoid questioning from law-enforcement officials. He wrote that Congress should “consider a law exempting a president—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”
Here are four questions I'd like to ask him:
- You‘ve been appointed to the highest court in the land by a president who gained office with help from Russia. How do you feel about that?
- Because of your views on presidents being above the law, would you recuse yourself from any decision involving Pres. Trump’s Russian scandal and/or Robert Mueller's investigation into same?
- If it turns out Pres. Trump's connections to Russia go deeper than already revealed, to the point where we have to question his loyalty to this country, would you resign?
- Have you ever ejaculated into your wife's mouth?
Louis Menand has a piece in The New Yorker on the legal and technological history of privacy in America that's worth reading. The following is one of its least important parts but it hit home.
In the late 1940s, the District of Columbia began allowing the Muzak company to pipe radio broadcasts (90% music, 5% news, 5% ads) into its buses and trollies at low volume. Two men objected, took their case to the U.S. Supreme Court, but lost, 7-1. The lone dissenter was William O. Douglas, who felt it was a privacy issue. “The beginning of all freedom,” he wrote, is “the right to be let alone.” Not many have agreed with him. Or: People agree but on a case-by-case basis.
As for why it was 7-1 when there are nine justices? Menand writes:
One Justice, Felix Frankfurter, recused himself. Frankfurter explained that his own aversion to Muzak was so visceral—“my feelings are so strongly engaged as a victim,” he wrote—that he was incapable of attaining the degree of disinterestedness necessary to render a judgment.
Many years ago, I wrote a piece on just this: my endless search for quiet:
In Taiwan in the late ‘80s I was forever asking restaurant managers to turn down their overly sentimental, usually western rock n’ roll so I could study during lunch. Tai da shung, I would tell them, pointing at the ceiling. Too loud. Ching... I would pantomime turning a dial. Back at my table, was it my imagination, or had the music actually gotten louder?
At a hotel restaurant in Portland, the waitress appeared both surprised and grateful by my request. You mean we can actually turn the music...down? Thank God! A teriyaki place I frequent in Seattle, on the other hand, has adamantly refused my entreaties. Because the kitchen help is listening to the same music and it's all they have to help through another day of drudgery? No, they play their own tunes. The music is for our benefit. Background noise, perhaps, so we won't hear one another chew, or so single diners might feel less lonely (listening to songs of love and loss). The real reason probably lies closer to my own reaction. As soon as I finish my food, I'm gone. There's no reading the rest of the chapter. There's no lingering there.
Over the years, I think I‘ve gotten better at blocking it all out. I guess you have to. There are no quiet places. At the Mariners game on Wednesday, my friend Jim complained about the overly loud music between innings, making conversation difficult, and I nodded, but I’m like the traffic cop now. “Oh right. That.” But back when I wrote the piece? The Mariners game was exactly one of the complaints:
At a baseball game my friends and I have to shout at one another to be heard over the PA system and its warmed-up rock classics. Ditto the bar after the game. Are we all such lousy conversationalists that we need to create so many impediments to conversation? Or does the loud, raucous background give the appearance that we are leading loud, raucous lives?
Anyway, now I know who to blame: Public Utilities Comm'n v. Pollak (1952).
John Paul Stevens Gets Legal on the NRA's Ass
I had two immediate thoughts when I went on Twitter this morning and saw what was trending:
- Repeal the Second Amendment: “Yeah, right. Good luck.”
- John Paul Stevens: “Oh no! Hope he's OK!”
Turns out they were related. Stevens, a former justice to the U.S. Supreme Court, appointed by Pres. Ford, had penned an Op-Ed in The New York Times entitled “Repeal the Second Amendment.”
OK, now I was intrigued. But not surprised.
In Chapter Six of Stevens' 2014 book, “Six Amendments: How and Why We Should Change the Constitution,” he takes on the Second Amendment, and comes out in favor of mitigation. He also focuses on the amendment's original meaning. The key is in the first clause, the whole “well-regulated militia” crap. To Stevens, the amendment was designed to protect states from the federal government. It was the Jeffersonian counterpoint to a fear of the Hamiltonian. Bluntly: It's a collective right rather than an individual right.
He repeats some of these thoughts in the Op-Ed:
In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.”
During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
And then in 2008 the conservative court, in a 5-4 vote, codified that fraud in District of Columbia v. Heller. Stevens dissented. He continues to dissent.
The piece is great. I'm a longtime fan of Stevens, who, as a kid, saw Game 3 of the 1932 World Series in which Babe Ruth supposedly called his shot, and who, as a justice, got more liberal as the court got more conservative. I also like that he begins the piece by applauding the millions that marched on Saturday—and the kids in particular who organized it.
Rarely in my lifetime have I seen the type of civic engagement schoolchildren and their supporters demonstrated in Washington and other major cities throughout the country this past Saturday. These demonstrations demand our respect. They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.
Would you buy a used car from this man?
From Jeffrey Toobin, or Toobs as my friend Adam calls him, in a piece called, “Donald Trump and the Rule of Law,” via The New Yorker website. This is the sum-up graf:
The Times' revelation [that Trump sent White House counsel Donald F. McGahn to ask AG Jeff Sessions not to recuse himself from the Russian investigaiton] makes an obstruction case stronger. Trump asked for loyalty from James Comey, the F.B.I. director, who was supervising the investigation. When Comey equivocated, Trump fired him, then put out a false story for why he did so, which he promptly undermined by admitting the real reason. And when e-mails emerged over the summer showing that Donald Trump, Jr., had met during the campaign with a Russian lawyer offering dirt on Hillary Clinton, the President participated in concocting a bogus story to explain them. (An especially incriminating version of Trump's role in the e-mail cover story appears in “Fire and Fury,” Michael Wolff's explosive new book.)
I'm reading the book right now, btw, about 1/4 of the way through. Much of it is what we always thought (Trump knows next-to-nothing about government, let alone governance, and doesn't care to know), or suspected (he didn't expect or want to win the presidency, but then felt it was his destiny). He is the joke we assumed he was, but, as Randy Rainbow sang, the joke's on us. That so many could've been suckered in makes one worry about the future of democratic government.
Toobs' piece is not only about Trump's contempt for the rule of law but about the gaps he's left, and the loyalty he's won, from traditional lawpeople, such as U.S. attorneys. “There are positions for 93 U.S. Attorneys,” Toobs writes, “but Trump has nominated people to fill only 58 of them, and the Senate has confirmed just 46.” The rest are acting U.S. attorneys, accountable only to Sessions and Trump. And, one hopes, to history, and to the rule of law. But that's just a hope.
Fasten your seatbelts.
The New York Times Magazine has a good piece by Jonathan Mahler entitled “All the President's Lawyers.” It's not only on Donald Trump's current plethora of lawyers, and not only some of his past lawyers, but the type of lawyer (and law) he prefers:
Trump Law does not concern itself with how you're supposed to do things. ''Donald would say, 'I hate lawyers who tell me that I can't do this or that,''' Goldberg told me. And so Trump Lawyers don't. It was an arrangement that worked for Trump and his legal teams for years. And so it continues in Washington. Under Trump Law, it is perfectly fine for the president of China to stay as a guest at Mar-a-Lago, for the lobbying arm of the Saudi government to spend hundreds of thousands of dollars at Trump's Washington hotel, for Trump to have a private dinner with the director of the F.B.I., James Comey, even as his agency was investigating Trump's campaign. Under Trump Law, it is O.K. for Trump not to divest himself of his assets or place them in a blind trust, and for the drafting and rollout of his Muslim travel ban to be overseen not by experienced government lawyers but by his 31-year-old senior adviser, Stephen Miller. Under Trump Law, Trump can appoint a national security adviser, Gen. Michael Flynn, who had worked secretly as a paid lobbyist for Turkey, and fire Comey, as he himself explained, to relieve the pressure of the Russia investigation.
Expect more of the same with this administration. Me, I think the law trumps Trump Law. I'll take David Boies.