#452 Musings Beyond the Bunker (Friday September 9)
Good morning,
This one’s long. By all rights, it probably should be three Musings. But here goes…
A REVIEW OF THE CONTINUED DECLINE INTO THE ABYSS
Our nation is in a very bad place.
Over the past five plus years, we have been subjected to many indignities by Mr. Trump and his acolytes. What began as an unhinged and angry man “grabbing women by the pussy,” running for office based on some sort of “American carnage,” that we had to “take back” our country, that “murderers and rapists” had to be prevented from coming across the border, and a thinly-veiled appeal to the “replacement theory,” has evolved to a full-on attack on our nation’s laws, principles, and democracy.
We have been subjected, before our eyes, to active attempts to restrict access to voting. We have watched Republican legislatures politicize the certification of electors and usurp the power of impartial professionals to determine the fairness of elections. Many of these same people argue that the last election was stolen, without a scintilla of evidence and after over 60 unsuccessful lawsuits, the majority of which were adjudicated or dismissed by Trump-appointed judges. But no matter, the rhetoric lives on…
We have been subjected to the active encouragement of violence by Mr. Trump. This behavior most notably led up to the January 6th violence at the Capitol—“it will be wild”—but also includes admonitions to “let that guy have it” at his rallies and other provocations to violence. It extends to insults of those with disabilities, mocking of those who stutter, and a sense that there is some superior “type” of American (i.e., white, male, entitled). We have been subjected to the invocation of words previously reserved only to Nazi Germany, the Soviets, and modern despots like Orban and Putin, demeaning the press as being “the enemy of the people.” We have watched our news being delivered hyperbolically, with warnings of the radical left taking America away from its roots, by people unfamiliar with journalistic ethics and the need for editing, fact checking, and even-handed reporting of all the news.
THEN THERE IS THE SUPREME COURT
Since the McConnell court-packing scheme, we have watched a court read the Second Amendment, in a manner they claim an “originalism” designed to effect the founders’ intent, but which is inconsistent with the prior reading of the Amendment by prior Courts, while ignoring the actual words of the amendment. The same court decided, against overwhelming evidence to the contrary , that a woman’s right to an abortion not an unenumerated right retained by the people under the Ninth Amendment. To create this Potemkin Village of phony judicial reasoning,Justice Alito maintained (wrongly) that historic precedent and practice is conclusive of the proposition that the Founders hadn’t intended for the right to exist. To do so, he ignored publications, pronouncements, and practices of the time. Other rights are now at risk, as they are not specifically enumerated in the Constitution. Clarence Thomas was kind enough to provide a road map for some of these.
Lest we forget, the Founders believed that rights were broad and in the possession of the people—not granted by the government. Lest we also forget, the Bill of Rights were an “add on” to clarify that the Constitution was not intended to usurp rights, calling out specific rights and reserving to the states and the people the balance of all the other rights, unless specifically limited by the Constitution (see, e.g., the ninth and tenth amendments).
The finding that a constitutional right to abortion isn’t protected necessarily depends upon the characterization at various stages of its development. When a fetus becomes viable and when abortion is “immoral” is a legitimate debate with multiple possible answers. However, it fundamentally ought not be a legal decision. How these issues are resolved fundamentally is a religious decision and not empirical or scientific. Those who maintain that a fetus is a life as of a certain date base their reasoning on spotty interpretation of science and on religious views of ensoulment.
The Court’s religious bent hasn’t stopped there. It also has decided that a public prayer session at the 50-yard line of a football game between two public schools—orchestrated and led by one of the coaches—does not cross the line between the separation of church and state. They see no coercive or exclusionary nature of such a display. The Court has decided that the State of New York’s limitations on the public carry of arms is preempted by the Second Amendment (again, subject to the novel reading of that Amendment that began with the Heller case).
In another bizarre twist involving the application of a novel reading of the Constitution and all prior precedent, the Court believes that executive agencies like the Environmental Protection Agency are not permitted to expand from the logical wording of Congressional legislation to further intent of such legislation. Basically, under this holding, if Congress doesn’t specifically provide for something in the legislation itself, the agency is handcuffed. Needless to say, Congress lacks the breadth and depth of staffing, experience, and knowledge to foresee each and every application of legislation (staff, experience and knowledge possessed by civil servants in the executive branch). This ruling has the potential of crippling the federal government in giving force to duly adopted legislation.
The conservative attack on the opinions of the past century is a political siege engine. Some will suggest that the conservative whittling away of constitutional interpretation expanding rights is nothing more than a difference in judicial philosophy and close reading of the Constitution. They will argue the conservatives “didn’t start the fight” and that the Court became politicized by virtue of the Bork confirmation hearings. On the first point, the inconsistency of the Court’s rulings belie a slavish devotion to “textualism” or “originalism.” They interpret the Second Amendment as if entire phrases, legislative and judicial history don’t apply. They read the Constitution’s view of unenumerated rights not through the words of the Ninth, Tenth and Fourteenth Amendments, but by action of the parol evidence of Justice Alito’s incorrect research on knowledge, practice and history from the 18th century. The narrow ruling on the extent of executive agencies’ powers to enforce Congressional legislation is a political philosophy under the guise of finding unconstitutional overreach. As to Bork’s confirmation hearing, it wasn’t fair, but it hardly seems monumental in light of what has transpired and it cannot be used as the justification for a religious fervor and conservative governing philosophy that is driving the remaking of our laws.
STATE COURTS NO LONGER CAN OPINE ON LEGISLATIVE OVERREACH?
This same court will hear a case in its next term that will test the recently fabricated “independent legislative doctrine,” a concept heretofore unknown in jurisprudence or constitutional interpretation and absurd on its face. Its implications are profound and I count four Justices who likely will vote to support this on the basis of “textualism” and “states’ rights.” One more and it’s the law of the land.
In a nutshell, the State of North Carolina is arguing that because the Constitution says that state legislatures determine the nature and manner of federal elections, their decisions are final in all instances and not subject to judicial review for constitutionality, including equal protection. The State makes this argument in a gerrymandering case, in order to overturn the Court’s determination that the gerrymandering of the state legislature was egregious and violative of equal protection. But because the U.S. Constitution does not expressly provide for the determination of constitutionality by State courts, the State argues the state court’s determination of the legislature’s action as unconstitutional is itself unconstitutional.
On this reasoning, a whole host of functions of our government will fall by the wayside, including, ironically, if one is to be consistent, judicial review of Congress’s actions. Let’s recall that judicial review by the Supreme Court is not to be found in the Constitution either. It emerged from the clever mind of Chief Justice John Marshall years after the Constitution’s adoption. Perhaps it’s time to repeal Marbury v. Madison...
BUT NOW AN ABSURD RULING WITHOUT PRECEDENT OR LOGIC BUT PROTECTIVE OF TRUMP
Beyond all of this, the act that has me now convinced that we are in uncharted territory toward authoritarian government that utilizes sophistry and mental gymnastics to achieve an absurd, yet politically significant, result is the actions of Judge Aileen Cannon. In an unhinged break from prior norms and understandings of executive privilege and the role of the courts in ongoing criminal investigations is the decision by this judge to appoint a Special Master to intervene in the investigation of former president Trump.
The Special Master ostensibly is being named to review 11,000 seized records to determine the whether the documents seized by the FBI at Mar-a-Lago may have been wrongfully seized and whether the documents seized might be privileged (either attorney client privileged or under executive privilege). It is an order created out of whole cloth. This farce began with the judge inexplicably announcing early, before the arguments were made by the parties, that she was inclined to intervene and name a Special Master (twice). It has been universally declaimed and defies understanding as anything other than a concession thrown to Mr. Trump without justification, precedent, or logic. On its face, the appointment of a Special Master doesn’t seem wholly unreasonable, but consider the following:
No one is suggesting that anything that could even remotely be determined to be an attorney-client privileged communication would be retained by the government. Indeed, the FBI has individuals serving as “filters” to set these documents aside. The Special Master will add nothing to this exercise. The government has no interest in treading on Mr. Trump’s attorney-client privileged documents. Further, it is safe to say that the government has tiptoed around Mr. Trump’s indifference to the ownership of government documents and their return, “negotiating” this for months.
None of this is outside of the realm of politics. The ramifications of this appointment likely will be a significant delay to the inquiry regarding the government documents illegally retained by Mr. Trump after a series of attempts to get him to cooperate. The order also blocks the federal government from examining the materials seized until after what will be an extensive and time-consuming review. One cannot help but see that delay is the stock-in-trade of Mr. Trump in his myriad current legal troubles.
The judge went beyond what even Mr. Trump’s lawyers were seeking, in that it directs federal investigators to cease using the evidence they seized in a criminal investigation, notwithstanding that they have been doing so for over a month. Apparently Judge Cannon takes her lead from the Supreme Court, which adopted an over-broad rejection of Roe v. Wade, rather than Justice Roberts’s more constrained concurrence merely to permit the Mississippi restrictions that the state was seeking. In the words of Ryan Goodman, a law professor at NYU, “Judge Cannon had a reasonable path she could have taken – to appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise. Instead, she chose a radical path.”
It should strike no one as surprising that the judge in this instance seems little concerned with the delay. Judge Cannon, appointed by Mr. Trump a mere two years ago, was chosen by Mr. Trump’s attorneys in a flagrant act of forum shopping—bypassing Magistrate Reinhold, who issued the original subpoena. Judge Cannon is a Trump appointee, without prior judicial experience until her appointment two years ago, and she is a card-carrying member of The Federalist Society. This judge is a member of a group that has a political agenda of furthering the careers of judges of specific political and judicial points of view. It is a political organization that is furthering political objectives. Her rulings are being reviewed and vetted by the Federalist Society, which will inform future Republican presidents of her fitness for potential future judicial appointments. The Federalist Society is a well-oiled machine that has orchestrated a takeover of the courts. As Paul Rosenzweig, former homeland security official in George W. Bush administration and prosecutor in the independent counsel investigation of Bill Clinton, said “Enjoining the ongoing criminal investigation is simply untenable.”
Most distressing about this decision is that the judge has conflated the question of attorney-client privilege, which is owned by the client (in this case, Mr. Trump) and Executive Privilege, a far more amorphous concept, but one that is taken to mean the privilege of a sitting President in protecting important and confidential communications and consultation in carrying out his or her functions as president. Until this ruling, no court has held that there was an Executive Privilege of a former president over documents that belong to the government. It is WE the people who own these documents. Of course, the national archivist must ensure that national secrets are protected (and, hence, the importance of presidents returning OUR property at the end of their term). But Mr. Trump has NO RIGHT to these documents. Peter M. Shane, legal scholar in residence at NYU said, “The opinion seems oblivious to the nature of executive privilege.” For sure.
In deciding that the Special Master must cull the documents, the judge asserts repeatedly that one of her objectives is to protect Mr. Trump’s reputation from disparagement. But that is not the role of the court—anyone subject to a valid seizure will suffer reputational risk. Her language seems positively fawning over, and protective of, the reputational damage that might be caused the very person who evaded, ignored and obfuscated valid subpoenas for months and whose attorneys misled the archivist regarding the complete delivery of these documents. As Harvard law professor Ronald S. Sullivan, Jr. notes, “This court is giving special considerations to the former president that ordinary, everyday citizens do not receive.”
She has expanded the nature of executive privilege, stating that the Supreme Court had not “ruled out the possibility” that a former president could ever prevail over the current president. She maintains, contrary to all other precedent or commentary, that a former president apparently can assert executive privilege and be shielded for life from any consequence. She seems unmoved by the fact Nixon wasn’t allowed to do this, or that this case is not a question of inconvenience or embarrassing disclosure, but involves a criminal investigation regarding government secrets and the identity and safety of agents.
Dare I say it…This judge is part of a greater overall enterprise. She is not credible, as an inexperienced judge beholden to Mr. Trump and treading on complex constitutional ground with an opinion that defies the vast majority of constitutional scholars. She is part of an orchestrated effort to modify our federal courts. This is part of a larger, well-orchestrated objective to expand the executive, to identify the executive not as an accumulation of civil servants, but the president alone, minimizing legislative oversight, and using originalism to suit their purposes. This judge has little justification for her actions, which are highly suspect. As Duke University law professor Samuel W. Buell noted, “To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier.” If RICO applied here, she might well be ensnared in its reach.
ON A PERSONAL NOTE
I once was a naive and idealistic youngster embarking on a career in the law in large measure out of love for the law, its fairness, its nobility, its maintaining and protecting rights and norms for a functioning fair society, and its ability to control the excesses of human nature. These past few years of attacks on these things and others I took for granted have left me sadder but wiser. I no longer recognize the law, the courts or my country. And I believe their best days are well behind us.
SOLDIERING ONWARD
There are many potential actions the government can take to resolve this absurd ruling. And it must be overturned if we are not to create a dangerous precedent in the future. The most logical next move is an appeal to the Eleventh Circuit. Six of that court’s 11 active judges are Trump appointees. That may not bode well. But David Lash assures me my cynicism is misplaced—after all, many Trump-appointed judges held against the absurd spate of cases challenging the 2020 election. I hope he is right and, in a fit of optimism, I want to agree.
Finally, Mark DiMaria suggests that choosing a Special Master with the appropriate experience in law and national security will be difficult. He suggests one of the few people alive suited for the task: “Cannon could always appoint Barack Obama to serve as the Special Master, as he is perhaps one of the minimal number of individuals with appropriate security clearance and legal knowledge who would be qualified.” Ah, Mark, ever the dreamer…!
Have a good day,
Glenn
P.S.: Thanks to The New York Times for some of the quotations of scholars.
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