Regulating Hate Speech in Social Media

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Recently, Facebook released an audit of its policies relating to hate speech and other troubling forms of speech. The audit blistered Facebook for being too slow and too tepid in its response. Facebook has traditionally been a proponent of “free expression” and its reluctance to regulate any kind of speech is laudable in many ways. But this is not a First Amendment issue. Facebook is a non-governmental actor not subject to the First Amendment. It can create whatever rules it wants for its platform. Facebook’s decisions on what speech to forbid or regulate are heavily influenced by the desires of its advertisers and other stakeholders – you and I. So what speech is permitted on Facebook is really the product of community self-regulation.

Whenever Americans talk about regulating speech it ought to make us uncomfortable. Facebook is correct that the default social and legal norm in this country is free speech. But even when a government actor is involved, free speech has well-defined limits consistent with the First Amendment. One of those limits is on hate speech.

Hate speech is speech or expressive conduct that conveys a viewpoint of hostility and hatred against another person or group. It is speech that does more than stimulate debate or discomfort. It attacks others on the basis of a characteristic or viewpoint in such a way as to threaten them. It is not speech directed at ideas, but at people, and often endangers peace and order.

The component of potential violence has always been the key. In Virginia and West Virginia “fighting words” statutes have existed for over 200 years forbidding face-to-face statements to another likely to result in violence. This concept forms the basis of many U.S. Supreme Court cases upholding statutory language that forbids speech likely to result in violence and rejecting statutory language regulating speech that merely creates controversy or discomfort.

But the devil is in the enforcement details. Facebook’s policy defines hate speech as a

direct attack on people based on protected characteristics – race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity and serious disease or disability. . . . We define attack as violent or dehumanizing speech, statements of inferiority, or calls for exclusion or segregation.

Deciding whether speech is or is not “dehumanizing” involves a lot of subjectivity. And there is considerable room for disagreement about whether a “statement of inferiority” promotes or risks violence. But remember, Facebook’s policy is not governed by the First Amendment and it can prohibit speech on its platform that could not be prohibited by a government.

The display of a noose is expressive speech that conveys a threat of violence played out over hundreds of years of experience. NASCAR acted swiftly and appropriately to investigate what was first reported to be a noose hung in a black driver’s garage stall. Can anyone doubt that if a Facebook user posted a page showing nothing more than a noose, it would send a palpable threatening message to a large community in America? The point is that some alleged hate speech can be the subject of debate. Some can’t.

Public mores about speech are in powerful flux. Take sexual matters for example. My parents told me that when they were growing up even mention of sexually transmitted diseases was socially inappropriate. That has certainly changed. So too, the kind of racist or homophobic comments and jokes that were common in “polite” society in the not-too-distant past now mark out the speaker as an ignorant buffoon, or worse.

In our daily lives we collectively exercise social disapproval and shame to prevent inappropriate or harmful speech. We decide what we will tolerate. And it is no different when it comes to Facebook’s grudging move toward more active policing of the speech on its platform. This was forced upon Facebook by the complaints of advertisers, employees and platform users. It was not the product of government regulation, but rather regulation by we the people. It is a good thing.

I am ready for the ration of grief I will get from my libertarian friends. They will say that my position invites the kind of hair-trigger political correctness so prevalent on today’s college campuses. First off, I will say that I was not aware offensive speech had its own political party. What we are talking about is not political correctness so much as social correctness. As far as excessive college speech codes go, the fault lies with the immature students and weak college administrators who permit the ”microaggression” and “safe space” nonsense. Yet the basic idea that speech can threaten and harm is still sound.

I am opposed to uninviting speakers because of their viewpoint, or shouting down unpopular ideas. But one argument in favor of college speech codes resonates in today’s environment. Free speech is important, but it is not the only civic and democratic value to consider. Fairness and inclusiveness are two others. When a public university issues a speech code, it must hew to the First Amendment. But when Facebook issues and enforces its hate speech policy, it can and should be more sensitive to the evolving public understanding of the harm that kind of speech does to our country.

Trump’s Obstruction of Congress: The Real Constitutional Threat

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In the ongoing trial of Donald Trump, the House Managers have laid out a case on two articles of impeachment. Article I – abuse of Presidential power – received the most time and attention by the House Managers and the President’s defense team. However, Article II, charging the President with obstruction of Congress, describes conduct that will have more far reaching consequences for the nation. At the President’s direction, the White House and federal agencies have refused to produce a single document. He has also directed key federal employees to refuse to appear for testimony. If a President can unilaterally declare impeachment proceedings in the House to be invalid, and on that basis deprive those proceedings of crucial evidence, what is left of the impeachment power?

But unilaterally declaring the House impeachment proceedings invalid is exactly what the President, through his White House Counsel, did in an October 2019 letter. The letter asserted that the impeachment inquiry was invalid because the House failed to take a vote to authorize an impeachment inquiry before two of its committees began issuing subpoenas. The letter cited precedent from earlier impeachments. The real objection was that the House had not taken a preliminary vote making House members who supported it politically accountable. Therefore, according to White House Counsel Cipollone, “President Trump cannot permit his Administration to participate in this partisan inquiry.”

As we have heard, the Constitution bestows on the House of Representatives “the sole Power of Impeachment.” What does this really mean? It means that no other branch of government – neither the Senate, nor the courts nor the President — can decide what constitutes “Treason, Bribery or other high Crimes and Misdemeanors” for purposes of impeachment.

Furthermore, Article I, Sec. 5 of the Constitution gives the House, not the President, the power to determine the rules of its proceedings. No other branch of government can insist upon or determine the rules by which the House exercises its power of impeachment. Even if all prior impeachment inquiries started with a House vote, which is dubious, it is not for the President to decide that the House is bound by this precedent. There is nothing in the Constitution requiring such a vote.

The President’s defense team has argued that several privileges were involved in the President’s decision to defy subpoenas for witnesses.  Among these is executive privilege, which is the privilege of the President to maintain the confidentiality of communications between himself and other members of the executive branch, usually involving sensitive military or national security matters.  Executive privilege is rooted in the doctrine of separation of powers. But when President Nixon tried to shield the Watergate tapes by a blanket claim of executive privilege, the Supreme Court rejected the claim. As with any other claim of privilege against producing relevant evidence, the assertion of executive privilege must be specific.

The problem with executive privilege as an excuse for a blanket refusal to cooperate is that is has never been asserted either generally or specifically.  The White House Counsel’s letter referred to privileges the President could potentially invoke but did not actually assert executive privilege.  Even in the Senate trial so far, the President has not asserted executive privilege. To do so, the President would have had to identify the particular document or communication containing privileged material.

Even more fundamental, a privilege that has been waived cannot be asserted.  In the House Manager’s brief, they state

Regardless, executive privilege is inapplicable here, both because it may not be used to conceal wrongdoing – particularly in an impeachment inquiry – and because the President and his agents have already diminished any confidentiality interests by speaking about these events in every forum except Congress.

The President himself declassified the call record with President Zelensky.  He has asserted in public what he has and has not discussed with Ambassador Sondland, Chief of Staff Mulvaney and Ambassador Bolton about holding up security aid in exchange for investigations. This destroys privilege as to the subject matter of these communications.

If the House can be thwarted in its search for facts in an impeachment inquiry by the blanket refusal of the President Trump to cooperate, then the impeachment power will be neutered. There will be no sensitive matter on which a future President will not likewise make that same assertion.  The result will be that the power to check a reckless and lawless President will no longer exist. The power to subpoena material from the executive branch is essential for Congress to exercise the power of impeachment that it alone has.  As House Manager Schiff argued, without Article II (Obstruction of Congress) there can be no future Article I (Abuse of Power).

The first Article of Impeachment alleging abuse of power is serious.  It alleges a perversion of the power of the President into a tool for the President’s personal benefit at the expense of an ally. This seriousness of this conduct should not be minimized. But in terms of its long term damage to the Constitution, it pales before the second Article. We may finish the impeachment trial without a conviction on Article I, but if there is no conviction on Article II our constitutional power to check the executive will be in tatters.

What Are We Going To Do About It?

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Even before the upcoming public impeachment hearings, we know the facts. Despite the blizzard of falsehoods issued by Presidential tweet to cover up the crime – it was a “perfect call”, there was no quid pro quo — all these have been discredited, one by one, then abandoned. Most recently, Ambassador Gordon Sondland changed his earlier testimony and now remembers that he did tell a Ukrainian diplomat that military aid would be withheld if there were no investigation of Hunter Biden’s company.

We know this: the President used our money, not his own, to squeeze a desperate country into providing political dirt on Joe Biden, Trump’s possible opponent in the 2020 election. This extortion was intended to benefit himself, not the country. The military assistance he withheld in this shakedown had been allocated by our representatives in Congress for the fight against Russia in eastern Ukraine. Trump’s July 25 call with Ukrainian President Zelensky was so improper – so illegal – that even White House staffers were shocked and attempted a cover up. So the question is not what happened. Rather, the question is what are we going to do about it?

Trump’s apologists are flailing. One assertion is that the whole impeachment inquiry is tainted because we do not know the identity of the original whistleblower, and that person might be hostile to Trump. But it is completely irrelevant how the inquiry began or the sentiments of the person who began it if the inquiry has produced the truth – and it has. All of the major allegations in the whistleblower complaint have been corroborated by actual witnesses to the call.

Another argument is the standard “whataboutism.” What about Joe Biden? Why didn’t “they” do something about Biden when he publicly threatened consequences for Ukraine if a corrupt prosecutor were not removed? But Trump is President and Biden never was. Biden never took action on any such threat, if one were actually made, while Trump did. Whataboutism is simply an attempt to deflect attention from the conduct of the President with an argumentative tactic used on elementary school playgrounds.

Trump’s enduring support among his partisan base suggests that many people may simply be rejecting the plain facts. After all, politics operates at an emotional level at least as much as an intellectual one. Some of Trump’s supporters will be loyal no matter what. He is the leader of their team, their tribe. This causes them to reject uncomfortable actual facts and accept “alternative” facts. It has been happening this way nearly every day during Trump’s Presidency.

There is another segment who are beginning finally to acknowledge the facts about what Trump did – they have little choice. But they argue that Trump has committed only a small “political” offense that should not result in his impeachment or removal from office. As a general matter, it is legitimate to debate the seriousness of an offense when determining the punishment. In this case, however, Trump’s offense is not trivial. It involves corruption and abuse of power.

But wait, there’s more. The nation has just come through a contentious debate over the Mueller Report on interference in the 2016 election. Part of what Mueller and his team investigated was whether the Trump campaign or individuals close to the President conspired with Russia to produce and use unfavorable information against his then opponent Hilary Clinton. On July 25 could there have been any doubt in Trump’s mind that soliciting a foreign government to interfere in our elections was a seriously wrong thing to do? Yet this is exactly what Trump did in his call with Ukrainian President Zelensky.

I have written earlier that a special circle in hell is reserved for Congressmen and Senators who are smart enough know the damage Trump is actually inflicting on our system, yet who spin the facts to defend him or remain silent. It is said that these people fear the political consequences if they honestly evaluate the facts and conclude that Trump crossed the line. They are calculating what they stand to lose from holding Trump accountable even if they believe the Constitution and the good of the nation requires it. This is corrupt in itself.

Those of us in this part of West Virginia are relying on three elected officials to make the right call on this important matter: Congressman Alex Mooney and Senators Shelly Moore Capito and Joe Manchin. It will probably be the most important vote they take in their political lives.

Expecting Congressman Mooney to be a fair judge of the facts is a fool’s errand. He has taken every opportunity to cling to Trump’s coattails. He recently barged into a secure hearing room to disrupt a deposition that was not open to the public. Mooney’s claim that the procedures were unfair is absurd since they were basically the same procedures used in previous impeachment inquiries and Republican committee members were participating in the deposition. So now I expect Congressman Mooney to produce some other equally shallow reason to oppose holding Trump accountable. He’s just waiting for someone in the Republican leadership to tell him what that is.

Despite Congressman Mooney’s antics, it seems likely that the House will vote to impeach the President. That means a trial will be held in the Senate, where both of our Senators – one Republican and one Democrat – will have a vote.

Writing in the Washington Post, Jennifer Rubin said:

When a politician demands a private benefit (opposition research for a politician’s private use) in exchange for performing public act (releasing aid), that is called soliciting a bribe. That sort of mixing private gain with public conduct is precisely the definition of corruption. It is this sort of corrupt dealing that the impeachment clause in the Constitution contemplated when it refers to “treason, bribery or other high crimes and misdemeanors.”

If these facts are confirmed in a Senate trial, the only way our Senators could spare Trump from removal is if they conclude that the offense is not serious enough to justify removing the President. This is essentially what happened when President Clinton was impeached for illegal conduct that did not amount to a breach of national trust.

At this present moment we have a different situation. If Trump is not removed he will be emboldened to do more of the same to preserve his power and future Presidents may be as well. We know the facts. They are bad. What are we going to do about it?

Reforming Corporate Behavior

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We have heard for years that the sole purpose of a corporation is to make money for its shareholders, end of story. This notion gained ascendancy after a 1970 article published in the New York Times by economist Milton Friedman, who huffed that the idea that corporations have a broader responsibility to society is “pure and unadulterated socialism.”

Friedman’s article provided intellectual cover for the slash and burn corporate greed in the following two decades. But today Friedman’s article seems like an odd period piece and his ideas out of step. In fact, the Business Roundtable (BRT) recently repudiated Friedman’s view and announced henceforth that satisfying other corporate stakeholders, such as employees and customers, will be given equal importance to producing wealth for shareholders.

The Roundtable, formed in 1972, is a group of about 200 chief executive officers of America’s largest corporations. Chief executives are employees of the corporations they lead, although clearly the most important and influential of them. CEOs are hired by corporate boards of directors and these directors are elected by shareholders. So CEOs lack the power to declare unilaterally that the mission of their corporation will change. The recent statement of the BRT is not binding on anyone, but each CEO certainly sought the approval of his or her directors before signing on to it.

The BRT’s original leadership were bi-partisan business statesmen. But the BRT soon evolved into a forum for chief executives to attack labor unions and the taxation of business. These were the libertarian views of the infamous Koch brothers and their ilk, who spent millions of dollars promoting this “free market, shareholder primacy” concept using an army of captured think-tanks. And the BRT began functioning like a trade association for chief executives, lobbying for compensation tied to corporate share price.

Much blame for today’s lack of corporate social responsibility has been placed on using short term financial results and share price to determine executive compensation. Large, publicly-traded corporations must report quarterly to the Securities and Exchange Commission on their financial and business position. These reports often drive share price. Short-termism encourages a focus solely on the near term results of a particular activity or policy, instead of on the value that can be created by long-term investment in employees, customers and communities.

Writing in the Harvard Business Review, author Andrew Winston neatly sums up the problem this way.

The world faces enormous, thorny challenges that business is feeling: climate change, growing inequality (and awareness that these CEOs make hundreds of times more than their employees), water and resource scarcity, soil degradation and loss of biodiversity and more. These issues require systemic efforts, cooperation, and pricing of those “externalities” (like pollution and carbon emissions) that business has been able to push off on society. The current shareholder-obsessed system is not fit for this purpose.

It is probably most accurate to say that the BRT’s new policy statement is a recognition of the change that has already taken place in the business environment, rather than an exercise in leadership. As The Economist magazine put it, the CEOs “have either seen the light or caved in, depending on whom you ask.” As one example of the change around them, polling among millennials reveals that this important demographic does not want to work for, or patronize, businesses that do not share their more progressive viewpoint.

Of course there are skeptics and opponents of the new policy statement. Some ask how we could expect a corporation like ExxonMobil, which has spent decades questioning climate science and undermining global action, to act responsibly now merely because its CEO has signed the BRT statement. Not likely because the energy giant would have to rethink its entire business. Energy companies have billions of dollars worth of coal, oil and gas still underground. Corporate managers cannot by law intentionally erode the value of the investments of their shareholders, many of whom are retirees, widows and orphans.

Former Treasury Secretary Lawrence Summers notes that most of the Roundtable’s CEOs are sincere and want to do the right thing. “But in a world of fierce competition, good intentions are not enough.” He advocates a program of legislation and regulation to complement and implement the BRT statement. These would include raising the federal minimum wage and penalizing the transfer of jobs overseas.

Assuming that the CEOs have “seen the light,” it may be because important political figures are also calling for better controls on how corporations behave. Businesses have no “right” to operate as a corporation. Corporations are chartered by the states in which they are organized and must follow the legal rules of those states. Theoretically, nothing prevents the state of Delaware, where many large corporations are headquartered, from amending its law to require, say, a ceiling on the difference between a CEOs compensation and that of the average corporate employee in the state.

Massachusetts Senator Elizabeth Warren has a plan for that, as she does for most everything. Recall that the basis of the Citizens United case that opened the floodgates of corporate money into politics was that corporations are to be treated like people under the First Amendment. Warren’s plan turns the tables. If corporations are to have the rights of people, they should have the corresponding obligation to act like good citizens, not like sociopaths whose entire obligation is to make money.

Warren’s proposal is called the Accountable Capitalism Act. It would require any corporation with revenue over $1 billion to obtain a federal charter, which would obligate the corporation to consider the interests of all stakeholders in corporate decisions. Under the bill workers of the corporation would elect 40% of the directors, and corporate political activity would have to be authorized by 75% of the shareholders and 75% of the directors, many of whom would be workers.

Writing in the online journal Vox, Matthew Yglesias says that there is “no getting around the fact that Warren’s proposal would be bad – really bad – for rich people.” So you can expect them and their political allies to marshal every resource at their disposal to oppose it. Warren’s entire proposal might be difficult to enact even if Democrats sweep in 2020. But you can be sure that pressure on corporations to act in more socially responsible ways will be on the political agenda for years to come.

Donald Trump: Guilty of Obstruction of Justice

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Special Counsel Robert Mueller has now delivered his final report on the investigation of Russian meddling in the 2016 election to the Justice Department. This investigation was broadened mid-stream to include potential obstruction of justice by the President through his interference with the Russia investigation. The final report consists of two volumes – the first devoted to Russian meddling and the second to the obstruction issue. The evidence of Russian meddling is stunning. The evidence of obstruction of justice is equally compelling, although the report was careful not to assert directly that the President committed a crime. Instead, it politely concludes that the evidence “does not exonerate” him.

In his May 29 public statement, Mueller referred to the Justice Department policy barring the indictment of a sitting President. Charging the President with a crime, he said, was “not an option we could consider.” It is important to understand that Mueller did not say the evidence was insufficient to make out a case of obstruction, only that Congress must decide this question in an impeachment proceeding. Mueller reiterated what he said earlier in his report — if his office had been confident that the President did not commit obstruction of justice, it would have said so. But “we are unable to reach that judgment.”

The rest of us are not constrained by the Justice Department policy. Anyone reading the Mueller Report with an ounce of objectivity will conclude that Trump actually did violate federal criminal law several times. That is also the conclusion of nearly 1000 former U.S. Attorneys and prosecutors who have signed an online letter concerning the report. They said:

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

What Constitutes Obstruction of Justice?

Several federal statutes prohibit obstruction of justice, but the proof elements necessary for a conviction are the same for each one. First, the defendant must have committed an “obstructive act.” Any act can be obstructive if it has the potential to block, render more difficult or hinder a proceeding.  An effort to influence a proceeding can be an obstructive act, even if done subtly, cleverly, or with “cloaking of purpose.” And an improper motive can render conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority. A conviction for obstruction of justice does not depend on the success of the obstructive act.

Second, there must be a connection between the obstructive act and an official proceeding. One statute requires a connection to judicial or grand jury proceedings. Another requires a connection to a “pending” federal agency proceeding or congressional inquiry. Still another requires a connection to an official proceeding that need not be pending or about to be instituted at the time of the offense. The obstructive act must be objectively likely to obstruct the proceeding and the actor must subjectively contemplate a particular proceeding he hopes to influence.

Finally, the act must be done with corrupt intent, meaning “knowingly and dishonestly” or “with improper motive.” This element is satisfied when the actor had the intent to obtain an improper advantage for himself inconsistent with official duty and the rights of others.

Using this framework, the report analyzes ten categories of conduct by the President. I will focus on two of these.

The Termination of FBI Director James Comey.

Immediately after he took office, President Trump began an effort to influence and control FBI Director James Comey. On January 27, Trump invited Comey to dinner at the White House and asked him repeatedly whether he wanted to remain as Director. At the end of the dinner Trump told Comey “I need loyalty.” Then in February following Michael Flynn’s forced resignation, Trump spoke in private with Comey – but only after clearing the room of everyone else.  Trump said “I hope you can see your way clear to letting this go, to letting Flynn go. He’s a good guy.”

Twice in testimony before Congress – March 20, 2017 and May 3, 2017 – Comey declined to answer questions about whether the FBI investigators had ruled out anyone in the Trump Administration, including the President. Trump was furious.

Over the weekend of May 5, Trump decided to fire Comey and began the draft of a letter doing so. The draft specifically referred to the Russia investigation and that Trump was not a target. On May 8, Trump informed his staff, as well as Attorney General Sessions and Assistant Attorney General Rosenstein, that the decision had been made. Rosenstein offered to write a memo recommending that Comey be removed because of poor handling of the Clinton email issue, but the resulting memo did not mention the Russia investigation. Comey was fired on May 9, 2017.

Firing Comey was an obstructive act. It had the natural and probable effect of impeding the investigation by delay and disruption. It had the natural tendency to chill and discourage other investigators. Trump followed the firing with public statements that heaped scorn on the investigation, calling it a witch hunt, among other things. These actions had the potential to affect a successor director’s conduct. Firing Comey had the necessary connection to the FBI’s investigation of Russian meddling, which could have and did result in indictments. In addition, Trump knew that Flynn was under investigation and asked Comey to “let Flynn go.”

Finally, Trump’s firing of Comey was in response to Comey’s unwillingness to state publicly that Trump was not a target of the investigation. Substantial evidence indicates that the intent behind this was to protect Trump himself and the campaign from investigation. As soon as Flynn became a target, Trump asked for Comey’s loyalty. He was furious when Jeff Sessions recused himself. Trump knew that the investigation could uncover his dealings with the Russians concerning a Trump Tower in Moscow, which continued up until June 2016.

Trump dictated a press release about the firing that falsely said it was in response to a recommendation from Rosenstein. Press Secretary Sarah Sanders then falsely told reporters that Rosenstein “on his own” decided to come to the President about his concerns with Comey. But because of push-back from the Department of Justice that the firing was not Rosenstein’s idea, a new narrative was developed. During an interview with Lester Holt on NBC on May 11, Trump admitted that he had made the decision to fire Comey regardless of the recommendation from Rosenstein, saying “this Russia thing with Trump and Russia is a made up story.” The initial pretextual reason offered by Trump for the firing adds to the intent element because it shows he had concerns about the true reason.

Trump’s Efforts to Remove Mueller

It is hard to overstate the effect that the appointment of Special Counsel Mueller had on Trump. According to notes taken by a person present at the meeting where Trump was told of the appointment, the President said “Oh my God, This is terrible. This is the end of my Presidency. I’m fucked.” Trump berated Attorney General Session for leaving him exposed to a Special Counsel.

Trump immediately claimed that Mueller had conflicts of interest but Steve Bannon and others told him the alleged conflicts were “ridiculous and petty.” On June 14, 2017, The Washington Post reported that the Special Counsel was investigating whether the President had attempted to obstruct justice. The following morning Trump issues a tweet storm criticizing this new development, calling the investigation “the single greatest WITCH HUNT in American history – led by some very bad and conflicted people.”

On Saturday, June 17, 2017, Trump called White House Counsel at home Don McGahn and directed him to have Mueller removed. McGahn failed to carry out this instruction, so Trump called a second time.  In this call he said “Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be Special Counsel. Mueller has to go. Call me back when you do it.”  Instead of carrying out these instructions, McGahn was prepared to resign. Through the intervention of other White House staff, McGahn was convinced to stay and Mueller was not fired.

The Mueller Report makes quite clear that the attempt to remove the Special Counsel would be an obstructive act. Removal would delay further activity and chill the actions of any replacement Special Counsel. And, since Trump knew his actions were now under investigation by the Special Counsel, there is a connection to a potential judicial proceeding. Intent is shown by the sequence of events. On June 13, Rosenstein testified before Congress that there was no cause to remove Mueller and Trump dictated a press release that he had no intention of firing Mueller. The next day the media reported Trump was under investigation. Trump immediately began calling McGahn for the purpose of having Mueller removed.

Implications for an Impeachment Inquiry

Robert Mueller handed the issue of President Trump’s potential criminal liability to Congress for the only proceeding available to try a sitting President – impeachment. Impeachment is not a criminal trial, rather it is a political one. The Constitution says that a President may be impeached for “treason, bribery or other high crimes and misdemeanors.” To remove Trump, his conduct need not actually constitute a chargeable crime. Some acts, say a gross violation of the Emoluments Clause, are impeachable even though they are not crimes. And not every crime is a “high crime or misdemeanor” as we saw in the impeachment of Bill Clinton.

Scholars and constitutional lawyers agree that a “high crime or misdemeanor” is an abuse of power by a high official that constitutes an offense against the state or a violation of the public trust. In an impeachment proceeding, it should not matter whether we agree with Trump’s policies and decisions. The sole question should be whether he has inflicted a serious political injury to the country through an abuse of power enabled by his high office. Does removing one chief investigator inquiring into Trump’s own conduct, and threatening the removal of another, rise to that level? We may soon find out.

Impeachment Trial of Justice Elizabeth Walker – Day Two

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The historic impeachment trial of Justice Beth Walker resumed on October 2, 2018. This trial day was short, consisting of only one witness called by the House impeachment managers and closing arguments by the parties.

The West Virginia Constitution declares that “any officer of the state may be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.” Walker has been charged in the Articles of Impeachment, which were broadly drafted to cover the conduct of the four Justices involved, in this language:

[Walker] did, in the absence of any policy to prevent or control expenditure, waste state funds with little or no concern for the costs to be borne by the tax payers for unnecessary and lavish spending for various purposes including, but without limitation, . . . to remodel state offices, [and] for regular lunches from restaurants.

Walker’s conduct described at the trial could only conceivably fall into the categories of maladministration or neglect of duty. If she has committed offenses, it is hard to see how they could rise to the level of a high crimes and misdemeanors, which are limited to serious offenses against the state like treason.

The trial has been presided over by Judge Paul T. Farrell, a Circuit Judge from Huntington who was appointed temporarily to fill the seat of suspended Chief Justice Loughry.  Farrell is Acting Chief Justice for the purpose of the impeachment trial. In his October 1 charge to the assembled Senate, which is functioning as the “court of impeachment,” Farrell said:

This is your decision and your decision alone . . . I urge you all to be West Virginians. Not Democrats, not Republicans, simply West Virginians, and base your decisions on what is best for the state of West Virginia and what is fair not only to Justice Walker, but what is fair to the House members who have brought these charges.

The witness called today was Mike McKown, former State Budget Director. He testified that the state was required to adjust its budget mid-year in FY 2017, which required almost all state agencies to take significant cuts. Because the budget for the Supreme Court of Appeals is not controlled by the Legislature, no budget cuts were imposed on the Court. Instead House managers emphasized these cuts as context within which to view Walker’s “excessive” spending to renovate her office.

In the closing argument from the House impeachment managers, Senators were asked to consider that Walker continued participating in state-paid lunches until a FOIA request was made about them, and to weigh heavily what she did “when no one was looking.” As for the renovations to her office, House managers argued that while everyone else in the state government was required to tighten their belts, Walker was spending money for a cosmetic renovation of her office rest room that benefitted nobody but her. Using a golf analogy, the House managers argued that Walker was asking for mulligans (extra chances) when she apologized and expressed regret.

Walker’s counsel argued that since she didn’t take office until January 1, 2017 she was not responsible for policies that were adopted before, especially since she had no power as an individual Justice to change them. He pointed out that she had been the sole Justice to vote against substantial salary increases for the Court’s staff during the 2017 budget crisis. While the House managers had suggested that ethical standards applying to lawyers should also apply to Justices in impeachment proceedings, Walker’s attorney argued well that lawyer disciplinary rules and “best practices” are not incorporated into the state’s Constitution as standards by which to remove a Constitutional officer.

At about 12:50 p.m., the court of impeachment was called back into session and Senators cast their ballots through the electronic voting system. An aye was a vote in favor of sustaining the articles of impeachment; a nay was a vote rejecting them. The vote tally showed one aye and thirty-two nays. The lone aye vote was cast by Senator Stephen Baldwin (D-Greenbrier). Chief Justice Farrell declared the articles of impeachment rejected as to Justice Walker and dismissed the proceedings.

However, Senators gathered in regular session shortly after the impeachment vote and agreed to censure Justice Walker. The censure is, in effect, an admonishment that will not affect her tenure in office.

Impeachment Trial of Justice Elizabeth Walker – Day One

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Beth Walker is the first of four Justices of the West Virginia Supreme Court of Appeals to face an impeachment trial in the state Senate.  Her trial began Monday, October 1, 2018. She is alleged to have failed to control wasteful spending on working lunches which the Justices enjoyed on argument days and other days when there were administrative of judicial conferences. She is also alleged to have wastefully spent $130,000 on the renovation of her office.

Regarding the lunches, the House impeachment managers sought to show that court employees such as security guards and clerks who were not working directly on legal matters shared in the lunches. They further showed that the lunches were purchased, not from fast food restaurants or the Capitol cafeteria, but rather at “upscale” restaurants in Charleston. The average cost of one of these lunches was $16.77 with tip. This is somewhat more than the $13 GSA per diem for federal employee travel reimbursement in Charleston. The GSA rates were incorporated by reference into the 2016 and 2018 versions of the Supreme Court of Appeals travel policy. The House impeachment managers will argue that the GSA rates should apply to working lunches that did not involve travel.

Justice Walker was not initially concerned about whether it was appropriate for her and other Justices to enjoy working lunches paid for by the state because, as an employment lawyer for 26 years, she knew that employer-paid working lunches were typical and not considered income to the employee. For that reason, she testified, that accepting these lunches was not illegal and did not cause her total compensation to exceed the $136,000 authorized by law.

When another Justice began not participating in the lunches, Walker also began to have some personal concerns and requested the total amount spent on these lunches in 2017. When she ultimately got these figures she repaid the state 1/5 of the total. Walker maintains there was nothing ethically wrong about these lunches but that she simply decided as a personal matter not to participate. The House impeachment managers pointed out that her personal concern did not begin until the “spotlight” of a FOIA request was shined on the practice. But the West Virginia Judicial Investigation Commission exonerated Walker of any wrongdoing in connection with the lunches.

Walker replaced Justice Benjamin, to whose former office she was assigned. Although she could have requested used furniture from storage, she proceeded with a design contract with an outside firm. This was not out of the ordinary as Justices typically do not ask for used furniture for their offices. The outside design firm chosen was low bidder, but the price it proposed was later raised in a change order. Walker’s objective was to have an office that was functional, brighter than Benjamin’s dark office had been and a place where she and her clerks could work comfortably. The House impeachment managers sought to show that when the renovation money spent by Benjamin in 2010 is added to the amount spent by Walker in 2017, it was the second highest amount among all. Although she testified that she regretted overspending taxpayer funds on her office she admitted that she had not repaid these excess costs.

As an Associate Justice who began her term on January 1 2017, Walker was not involved in the adoption or failure to adopt policies on taxable fringe benefits, the use of state charge cards, home offices, or the inventory of state property. The Court’s Chief Financial Officer testified that individual Justices were not able to issue or modify Court policies. Walker was not paid a per diem by the state for days when she worked; she did not use a state car; she never asked for reimbursement for mileage in her personal car; and she never used a state credit card.  She paid for her judicial robe and catering at her swearing in ceremony out of her own pocket.

Walker was contrite about the working lunch allegation and office renovation overspending.  She apologized to the assembled legislators and the state taxpayers.  She admits that she should have been more aware and sensitive about overspending.  However, she does not believe these things amount to grounds to remove her from office. She believes she can contribute to the restoration of public confidence in the court.

On Day 2, the House impeachment managers will call one additional witness and then Walker’s attorneys will call witnesses.

Kavanaugh’s Disqualifying Flaw

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Yesterday, much of the country was riveted to their televisions, or other devices, watching the testimony of Christine Blasey Ford and Brett Kavanaugh before the Senate Judiciary Committee. I went a number of places last evening and this was all anyone could talk about. The ostensible issue is whether Kavanaugh, President Trump’s Supreme Court nominee, committed a sexual assault on Ford in 1982 as she claims. The larger and more important issue is what kind of person should serve on the Supreme Court.

Unfortunately, the way the inquiry was set up we are really unable to determine whether Kavanaugh did it. The Senate Judiciary Committee is not a court of law. The devices we have honed over centuries for finding the truth, notably compelling witnesses to testify and then cross-examining them, were not used. Ford and Kavanaugh each got an opening statement and then were subject to questions from Senators. Republican Senators ceded their opportunity to question Ford to a prosecutor specially retained for this purpose. Ford answered whatever questions were asked of her and seemed to be genuinely trying to help the process. Kavanaugh was combative, answering the questions from “friendly” interrogators but arguing with Democratic Senators and frequently interrupting them. Committee Chairman Charles Grassley ran the proceeding as a political spectacle not a trial.

Republican Senators were upset that Kavanaugh has been put in this position. They repeatedly questioned the motivation of Ranking Member Diane Feinstein for holding onto Ford’s letter, in which she initially raised the allegation, until after Kavanaugh’s vetting process had nearly gotten to its end. They might have a legitimate point about this, but that point doesn’t go to whether Kavanaugh is actually guilty of sexual assault or whether he is appropriate for the Supreme Court. Instead it simply complains about the partisan behavior that pervades everything these days, of which the Republicans are equally guilty.

To be fair about this, I confess I don’t know whether Kavanaugh did it. Each witness was 100% certain that his or her own story was correct and the other’s was wrong. Ford’s testimony was compelling.  She did not say or behave in any way that suggests she is making the story up or that she has a political axe to grind. After all, the letter in which she raised the allegation against Kavanaugh was written at the point when Kavanaugh was one of several on Trump’s list for consideration and before he was actually nominated. She had nothing to do with the manner in which the allegations were brought forward by Feinstein and the Democrats. In fact, she asked for confidentiality and is as much a victim of the circus as Kavanaugh. There are holes in her recollection but she didn’t try to fill them in to make the story better or more complete.

Kavanaugh’s anger and emotion were also genuine, which perhaps suggests that he is telling the truth as he believes it. He repeatedly pointed out that the three other people whom Ford says were present at the party cannot confirm it took place. He presented a calendar from high school in which he listed the places he planned to be and showed how after these events he wrote in who had been present. There is no meeting or party listed of the sort that Ford alleges. He also pointed to a lot of women who would attest to his character, although this kind of evidence is rarely allowed in court because how one behaves in other circumstances is not proof that he acted in the same way in the circumstance in question.

There are a number of other things that could be said for and against the stories of Ford and Kavanaugh. But we are not going to get any other facts or testimony because the Republicans are resisting the call of the Democrats for an FBI investigation of the allegations. They feel this is just a ploy on the part of the Democrats to delay the vote on the nomination until after the mid-term elections in November. Perhaps they can now understand the Democrat’s fury at the refusal of Mitch McConnell to bring forward President Obama’s nominee Merrick Garland until after the 2016 election.

In any event, if the objective is to find the truth then more information rather than less is appropriate. Kavanaugh, who has been a federal judge for twelve years, repeatedly dodged the question of whether he wanted an FBI investigation. Clearly, if such an investigation provided no corroboration for Ford, then Kavanaugh would sail through the nomination vote. Instead, it almost looks like he and the Republicans are afraid of what would be learned if the FBI interviewed Mark Judge and others. So I don’t think the Republicans are interested in the truth so much as getting their nominee across the line. And maybe Democrats really don’t care as much about the truth as preventing this.

Even Chairman Grassley conceded that if Ford’s allegations are true it would be disqualifying for Kavanaugh. Nobody disputed this. Yet after yesterday’s hearing any honest broker would have to say that it is possible they are true – that Kavanaugh actually committed the sexual assault. I think the real question the full Senate will confront is whether we are prepared to put someone onto the Supreme Court for life about whom there is this much doubt. Do we care about the integrity of the Supreme Court or not?

For me there is an easier way out of this quagmire. In my view Kavanaugh disqualified himself yesterday when he forcefully claimed that he is the victim of unjust character assassination by the Democrats on the Judiciary Committee who only want revenge “for the Clintons.” This is a glimpse into the way Kavanaugh views the world and it is not pretty. The Democrats did not concoct the allegations against him. The Democrats were not the ones seated in front of the Committee telling a believable story of sexual abuse by laughing frat boys. Yet Kavanaugh filters this as something insidiously partisan. Keep in mind that this is a man who evaluates disputes for a living, but when the dispute involves him he sees nothing but a nefarious plot by his political foes. His mode of thinking and his combative way of presenting it speak volumes about how fair and even handed he could be on the Supreme Court. You can bet that as a Justice he would scorch Democrats and their concerns as his own revenge. The Senate proceeding was not perfect as a truth finding process, but the stress it created exposed Kavanaugh’s disqualifying flaw.

High Crimes and Misdemeanors

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Impeachment of the President has occurred twice in American history and was preempted in a third case by the resignation of the President. This little-used mechanism of republican government has recently been on the lips of many, fueled by an unpopular President and a special counsel investigation into the conduct of his subordinates. If a President is impeached by the House of Representatives and convicted by the Senate, he or she is removed from office, but may be subject to later criminal prosecution. The constitutional grounds for impeachment are “Treason, Bribery or other high Crimes and Misdemeanors.” Treason is defined in the Constitution itself and bribery has a clear legal meaning. But what are high crimes and misdemeanors?

I am certainly not a constitutional scholar, but the answer to this question and much more can be found in several sources. Most useful were Raoul Berger’s Impeachment: The Constitutional Problems (1974) and Impeachment: A Citizen’s Guide (2017), by Cass Sunstein. Understanding the history of the language is important.

At the 1787 Constitutional Convention, delegates agreed on a unitary executive – the President — who would not share executive power with other officers. But how prevent this President from becoming as oppressive as the king just overthrown? The preliminary solution was that the President would be elected for a term of four years. An abusive or incompetent President would not be re-elected. This did not satisfy skeptics, who argued that much mischief could be accomplished within four years. The final solution was to add the remedy of impeachment, a tool used from time to time by the British Parliament and American colonial legislatures to control abusive royal ministers.

Checks and balances on the potential misuse of power are everywhere built into the Constitution. The idea that Congress could remove the President through impeachment worried James Madison and others who feared the legislative branch would have too much power and that the President would end up serving at the pleasure of Congress. This concern was driven by initial drafts of the impeachment clause that included “maladministration” as a ground.

But through Madison’s arguments, the convention moved from this broad language toward the notion that the President should be impeachable only for a narrow and specified category of abuses of the public trust. Madison proposed treason and bribery as the sole grounds for impeachment. The terms “high crimes and misdemeanors” were added near the end of the debate to satisfy George Mason, who argued that treason would not reach many great and dangerous offenses. There was no discussion on what the terms meant.

There was no discussion because “high crimes and misdemeanors” had an accepted meaning at the time with which these delegates were familiar. The terms had been in use in English political life since 1642. Here in a nutshell is what these terms mean.

  • The terms high crimes and misdemeanors do not refer to criminal conduct in the ordinary sense. Criminal conduct on the part of the President is neither necessary nor sufficient for impeachment. There was no such crime as a misdemeanor when the terms were first in use – petty crimes were called trespasses. High crimes and misdemeanors may be also be criminal, such as bribery, but lots more is covered.
  • The non-criminal nature of impeachment is confirmed by other parts of the Constitution. The Fifth Amendment guarantees that no person shall be subject to double jeopardy for the same offense. Because the impeachment provision declares that a convicted President can be subject to later criminal prosecution, impeachment was clearly meant as a non-criminal proceeding. Furthermore, while a criminal defendant is guaranteed the right to a trial by jury by the Sixth Amendment, a President is tried by the Senate.
  • High crimes and misdemeanors are political offenses against the state, and impeachment is designed to secure the state not punish the offender. Impeachment has been reserved for gross abuses of power or violations of the public trust. Remember that impeachment was used mainly to rid the state of the king’s corrupt ministers, who were not subject to the normal criminal process.
  • The modifier “high” refers both to the position of the offender and the seriousness of the offense. Impeachment is reserved for especially serious offenses. Only officers in high positions of trust can commit these egregious political offenses.
  • Intense political opposition and a general sense that the President is a failure are not sufficient grounds for impeachment. Nor is a sense that the President’s policies are wrong and harmful to the nation. If these points were not true, both Jimmy Carter and George W. Bush would have been impeached.
  • Because high crimes and misdemeanors are political crimes that cannot be committed by someone who does not hold high political office, they do not include reprehensible conduct committed before a President is elected, unless the conduct procured his or her election. An example might be some fraud or misconduct by the candidate that improperly influenced the election, like the Watergate bugging cover-up by President Nixon.

Arguing for the impeachment of Justice William O. Douglas in 1970, then-Congressman Gerald Ford famously asserted that “an impeachable offense” is whatever the House, with the concurrence of the Senate, “considers it to be at a given moment in history.” But this view is wrong. The terms high crimes and misdemeanors have a relatively precise meaning that was intended, in part, to limit the availability of impeachment. When considering this limit, the two actual impeachments of sitting Presidents were probably unconstitutional.

President Andrew Johnson was a Southerner who oversaw Reconstruction with a galling sympathy for the South. He was hugely unpopular for this. But his impeachment in 1868 was specifically for firing Secretary of War Stanton in violation of a statute passed by Congress to prevent him from firing Stanton. Johnson in good faith believed he had the right to fire officials who worked for him and that the statute was unconstitutional. This position was later vindicated by the Supreme Court. Johnson avoided conviction in the Senate by a single vote. This is an example of an intense disagreement between Congress and the President over matters of policy and law, which are rather frequent and are not egregious abuses of power simply because a majority of Congressmen might say they are.

When President Bill Clinton was impeached, he was a relatively popular President who had implacable opposition among Republicans. They believed him to be a liar and relentlessly sought grounds to impeach him. Recall that Kenneth Starr produced an investigatory report that focused on Clinton’s relationship with Monica Lewinsky and his efforts to cover it up by lying to his wife, his staff, the Cabinet and the American people. But Cass Sunstein remarks that

the impeachment of Bill Clinton is almost incomprehensible, at least if it is explored in the light of the debates in the late eighteenth century. You would have to work really hard to make a minimally plausible argument that Clinton committed an impeachable offense.

Clinton did lie under oath about his affair and this is unlawful, but it wasn’t an impeachable offense because it was not an abuse of his Presidential authority. It was a tawdry offense that practically anyone could commit.

One thing common to these two impeachments was the extreme factionalism in Congress at the time. In Federalist No. 65, Hamilton noted

the prosecution of [political offenses] will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.

Factionalism and passion will always be present in the midst of supercharged political issues, but in our present situation it will do nothing but get in the way of sound judgment.

Some commentators have argued that we have been too timid in the use of the impeachment mechanism. In an excellent opinion piece in the online journal Vox, published on November 30, 2017, Ezra Klein observes

There are plenty of people who simply should not be president of a nuclear hyperpower, and Trump is one of them . . . . We have grown too afraid of the consequences of impeachment and too complacent about the consequences of leaving an unfit president in office. If the worst happens, and Trump’s presidency results in calamity, we will have no excuse, no answer to give. This is an emergency. We should break the glass.

The piece concludes with a proposition at odds with the original meaning of the impeachment clause: “being extremely bad at the job of president of the United States should be enough to get you fired.”

However, events are moving quickly and there may be more to consider than bad job performance. Two days after this post was originally written, Trump’s former national security advisor, General Michael Flynn, pled guilty to lying to the FBI about his contacts with the Russian ambassador, and according to the Washington Post “court records indicate he was acting under instructions from senior Trump transition officials in his dealings with the diplomat.” Working in tandem with a foreign power to defeat a political adversary in a contest for the Presidency, and then attempting to obstruct an investigation into it, or to cover it up, is a “high crime and misdemeanor” in the true, original sense.

The best approach may be to consider only the actions said to be the basis of the potential impeachment behind an imaginary veil of ignorance about the President and his policies. It should not matter whether we agree with his policies and decisions. The sole question should be whether he has inflicted a serious political injury to the country, an abuse of power, enabled by his high office. Put another way, would we consider Trump’s actions to be a gross abuse of Presidential power if committed by a President whose policies we supported? If the answer is yes, then he should be removed.

Partisan Gerrymandering and the Constitution III

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This is the third and final in a series of posts on the issue of political gerrymandering as raised in Gill v. Whitford, the Wisconsin case recently argued before the U.S. Supreme Court. In that case the Republican majority of the legislature intentionally redrew state district boundaries to ensure that in the future Republicans won a majority of seats even when Democrats prevailed in the state-wide popular vote. The Democrat challengers in court claimed that their rights to free association and speech under the First Amendment and their right to equal protection under the Fourteenth Amendment were violated by this. How the Supreme Court resolves this case will determine how well our democracy works for decades.

Recall that a test has never been found that reliably distinguishes the acceptable application of political power in drawing district boundaries from unconstitutional vote dilution. For that reason, courts have repeatedly expressed skepticism about whether political gerrymandering cases are justiciable – capable of being decided consistently and fairly.

This shouldn’t be a Republican versus Democrat issue in the traditional sense because either party can be disadvantaged by political gerrymandering. But it is an issue that divides conservative jurists from more liberal ones. During the argument of Gill before the Supreme Court, the four conservative Justices emphasized lack of justiciability and staked their position that gerrymandering is a political issue that has no judicial solution. Chief Justice Roberts was concerned that invalidating the gerrymandering in Wisconsin would lead to a wave of these cases reaching the Supreme Court since, unlike most cases, the Court is required to hear redistricting cases. This, argued Roberts, would draw the Court too much into the political realm reserved for the legislative branch.

On the other hand, the four liberal Justices emphasized the damage to individual rights created by gerrymandering and seemed more open to judicial intervention. Justice Ginsburg told the lawyer from Wisconsin that the case involved “the precious right to vote” and speculated that if the result of an election were preordained because of gerrymandering the people would lose their incentive to go to the polls.

Justice Anthony Kennedy occupied the middle ground, as he does on so many issues, and seemed supportive of the challengers’ social science approach as perhaps finally providing a satisfactory tool for judging these cases.

The challengers proposed two major methods by which to test partisan gerrymandering. These would work in tandem. The first is called “partisan symmetry.” It is based on the idea that the electoral system should treat similarly-situated parties equally so that they are able to translate their popular support into legislative representation with approximately equal ease. Asymmetry is found where there is a marked difference between the number of seats each party would win in the hypothetical election where the popular vote is split equally.

The challengers showed at trial that over the three elections in Wisconsin after redistricting, Republicans would have won between 61.6% and 62.7% of the seats if the state-wide popular vote had been perfectly tied.

The second test proposed by the challengers is what they called “the efficiency test,” a mixture of political science and statistics. This test analyzes actual elections. Gerrymandering works either to “pack” or “crack” districts of the victimized party. Packing is to transfer to a district already partial to one party voters from that same party. The transferred voters no longer pose a threat to the other party in the district from which they came and are unnecessary to elect their party’s candidate in their new home district. Cracking is to split a district heavy with voters of one party and transfer them to districts where they will be in the minority and can no longer elect their candidate of choice. The efficiency test treats votes as “wasted” in a district if they are more than required to elect a favored candidate (packing) or if they are cast for a losing candidate (cracking).

The challengers showed at trial that votes for Democratic candidates were wasted at a rate of from 9.6 to 13.3 percentage points higher than the rate at which Republican votes were wasted.

Both these tests start from the proposition that registered Democrats will vote for Democrat candidates and registered Republicans will vote for candidates from their party. Skeptics argue that this makes the tests proposed by the challengers nothing more than disguised tests of proportionality – assuming that results are constitutional only when they reflect the size of the voter group under consideration. That would ignore what legitimately occurs when a charismatic candidate from one party draws votes from registered voters of the other party. The challengers answer this criticism by pointing out that their statistical arguments are based on many races in many districts over many election cycles, which evens out the anomalies.

In the long run, this case may be decided on a more straightforward issue that does not get into the weeds of political science and legal tests. Justice Sotomayor asked the lawyer for Wisconsin “Could you tell me what the value is to democracy from political gerrymandering? How does that help our system of government?” The lawyer had no satisfactory answer.