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The Major Questions Metadoctrine and The Slaughterhouse Cases

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In my last post I show how US v. Cruikshank (1876) and The Slaughterhouse Cases (1873) affect our gun control crisis. In this post I look at the connection between The Slaughterhouse Cases and Biden v. Nebraska, the recent case striking down Biden’s student loan reduction plan.

The Slaughterhouse Cases

I discuss The Slaughterhouse Cases here. The Supreme Court could have decided them strictly on the basis of the police power. The appellant butchers argued that the untrammeled right to earn a living was a right protected by the Privileges or Immunities Clause of the 14th Amendment. That’s obviously not true. The Court later takes up the purposes of the Reconstruction Amendments, and there’s nothing to support the Appellants’ argument.

But Samuel Miller, who wrote the majority opinion, explains that he and the other members of the Court have thought it over, and “ we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that, we have neither the inclination nor the right to go.”

One of the advisory opinions that follow is that the Reconstruction Amendments were not intended to change the balance of powers between the federal and state governments. Miller justifies this by saying that if Congress wants to make an significant change the balance of powers between the states and the US, it has to do so in language acceptable to the Supreme Court.

Earlier in the opinion, MIller said that the Reconstruction Amendments were intended to insure that Black people had a full range of rights, just like White people. Section 5 gives Congress the power to enact laws to secure that right. So at the very least, the Reconstruction Amendments change the relations between state and US governments enough to permit the US to protect the rights of Black people. It’s hard to imagine clearer language, and Miller doesn’t even hint at one.

Furthermore, by the time of The Slaughterhouse Cases Congress had enacted two civil rights laws and three enforcement acts. This effectively is a declaration of Congress’ understanding of its power, and that of the President. Miller ignores the views of the other two branches. Only the opinion of five members of the Supreme Court counts. The Supreme Court is the unelected final authority in our democracy.

So, we have three points from The Slaughterhouse Cases:

1. If the Supreme Court majority wants to issue a ruling in a case, it will do so, regardless of precedents it might have established.

2. If Congress wants to accomplish a major change in our government it must figure out some language that even the Supreme Court is afraid to reject, but likely that’s impossible.

3. SCOTUS is supreme; it ignores the other two branches if it chooses.

Biden v. Nebraska

Majority Opinion. John Roberts’ majority opinion addresses the standing of the Appellants. Most of them don’t have standing, but no matter, because Roberts asserts that Missouri does and one is plenty. The basis for Missouri’s standing is that it had created MOHELA, an independent nonprofit governmental corporation, which owns and services student loans. MOHELA refused to participate in the lawsuit (I wonder why) but the Missouri AG claims that Missouri can sue in its place. He says MOHELA would lose an estimated $44 million in fees for loan servicing. None of that would ever go to Missouri, ever, but so what?

Roberts and the Fox News Six say MOHELA is an “instrumentality” of Missouri, the instrumentality might lose money which is an injury sufficient for standing, and that’s good enough. What he means is that standing is available because he wants to rule on the merits. Just like in The Slaughterhouse Cases.

In her dissent Elena Kagan explains that standing rules arise from the Constitutional requirement that SCOTUS only has jurisdiction of actual controversies. If a plaintiff isn’t injured, there is no standing.

It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else’s injury. Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation. And that means the Court, by deciding this case, exercises authority it does not have.

On the merits, Roberts addresses the statutory power granted to the executive branch to waive or modify any provision of the student loan program in the event of a national emergency. He explains that “waive” doesn’t mean waive, and that “modify” doesn’t mean modify, if the change is big. A lot of money is a big change. He doesn’t even hint at the words Congress should have used to get its way.

He says his opinion is supported by what he grandiosely calls the Major Questions Doctrine, because there’s a lot of money at stake. I call it the Major Questions Metadoctrine, or MQM, for reasons that will appear.

Barrett’s Concurrence. Amy Coney Barret, who clerked for the odious Antonin Scalia, styles herself a textualist. She wants us to know that the MQM is very good, so she writes a concurring opinion. Most of is is technical legal stuff about canons of interpretation. Two points are worth mentioning.

1. Barrett cites a 2010 law journal article by John f. Manning, a Harvard Law professor: Clear Statement Rules and the Constitution. You don’t have to read past the abstract to find out what Manning thinks:

This Essay argues that such clear statement rules rest on the mistaken premise that the Constitution contains freestanding values that can be meaningfully identified and enforced apart from the specific terms of the clauses from which the Court derives them.

Barrett ignores this point entirely. The MQM is supposed to be a clear statement rule. There are a number of these, mostly directed to structural constitutional issues like federalism. The Slaughterhouse Cases could be seen as an application of a clear statement rule, if it weren’t so obviously unnecessary and wrong.

In Biden v. Nebraska the MQM is applied to enforce Congressional control over the purse. But as Barrett herself shows, that isn’t in the Constitution. In her view, this purpose is an emanation from the Appropriations Clause. The power of the purse is a judicial trope, already once removed from the text of the Constitution. The MQM is a further step from the Constitution. Thus, a metadoctrine.

2. Barrett offers a hypothetical to explain her view.

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction?

This is a laughable hypothetical. The Biden Administration didn’t just decide for funsies to reduce student debt. There was an economic catastrophe caused by a pandemic that killed a million Americans and sickened tens of millions.

The correct hypothetical is not a trip to a theme park, but a trip to the emergency room paid with the credit card.

This is shoddy work, but it’s all we an expect from rigid ideologues. It’s also an ugly parallel with the Reconstruction Era Supreme Court.

Conclusion

The parallels to The Slaughterhouse Cases are, I hope, obvious.

1. SCOTUS will ignore every restriction on its use of power if five members want to.

2. There is no statutory language clear enough if five (or more) members of SCOTUS don’t like the policy.

3. SCOTUS is very supreme.

Justice Jackson’s Brilliant Debut

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On her second day of oral argument at the Supreme Court, Justice Ketanji Brown Jackson showed the wisdom of her appointment and confirmation. A short clip of one of her questions in Merrill v. Milligan made the rounds on Twitter, giving everyone a taste of her skill and understanding. Her point was so powerful I wondered how the lawyer responded.

The case involves an Alabama redistricting map. Plaintiffs alleged that the map unfairly discriminated against Black voters by reducing the number of majoirity-minority congressional districts unfairly. A three-judge district court ruled that the map violated Section 2 of the Voting Rights Act.

Here’s a fairly neutral discussion of the legal context in which the case was argued. Sec. 2 gives individuals the right to sue to prevent any state action to dilute minority voting power. The leading case on Sec. 2 is Thornburg v. Gingles, 478 US 30 (1986). The case sets out three factors which the plaintiff must prove to establish a violation of Sec. 2.

1.The racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district”;

2. The minority group is “politically cohesive” (meaning its members tend to vote similarly); and

3. The “majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.”

The colloquy between Justice Jackson and Alabama Solicitor General Edmond Lacour concerns the first Gingles test. Lacour argues that plaintiffs were required to present a race-neutral map as a benchmark to show that Alabama’s map diluted Black voting power. The transcript can be found here. We start at page 52. Justice Amy Coney Barrett asks Lacour this question:

…if you were forced to adopt a map proposed by the plaintiffs that was racially gerrymandered because race was predominant in its drawing, that you would be violating the Fourteenth Amendment.

Therefore, the first factor of Gingles required to get past the hurdle that Justice Jackson was talking about, to get past that hurdle, it required race neutrality.

Is that your central argument?

MR. LACOUR: Yes, that –that is our core argument that it –it cannot be that they can come forward with a map that we would never be allowed to draw, call it reasonably configured and then force us to draw a map we would never be allowed to constitutionally draw.

You can think of that either –the problem is either race predominance or the problem is, when race enters in to the equation, then traditional districting principles necessarily have to yield, which is what the district court found on page 214 of the Milligan stay appendix, non-racial considerations had to yield to race.

He’s saying that the Constitution bars Alabama from drawing a map that uses race to create majority Black districts. After further discussion, Justice Jackson takes over.

JUSTICE JACKSON: Yes. I am so, so glad for Justice Barrett’s clarification because I had the same thought about what you were arguing, and I’m glad that you clarified that your core point is that the Gingles test has to have a race-neutral baseline or that the –the first step has to be race-neutral.

And –and what I guess I’m a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there’s a Fourteenth Amendment problem? And let me just clarify what I mean by that.

I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.

That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in –during the reconstructive –reconstruction period were actually brought equal to everyone else in the society.
So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves.

The legislator who introduced that amendment said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.”

That’s not –that’s not a race-neutral or race-blind idea in terms of the remedy. And –and even more than that, I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens. So they recognized that there was unequal treatment, that people, based on their race, were being treated unequally.

And, importantly, when there was a concern that the Civil Rights Act wouldn’t have a constitutional foundation, that’s when the Fourteenth Amendment came into play. It was drafted to give a foundational –a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.

So with that as the framing and the background, I’m trying to understand your position that Section 2, which by its plain text is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that that’s remedied, right? It’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the Fourteenth Amendment, given the history and -and background of the Fourteenth Amendment?

Lacour says:

The Fourteenth Amendment is a prohibition on discriminatory state action. It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.

That contradicts what Justice Jackson just said. She repeats her point using shorter words. Lacour repeats his earlier statement that Alabama shouldn’t have to sacrifice “other redistricting principles” for the sake of racial fairness unless plaintiffs prove Alabama’s map is discriminatory. He says plaintiffs have to prove specific racial discrimination before thay can use race as a factor in drawing lines. That would require plaintiffs to produce a race-neutral map as a matter of evidence. Justice Jackson says that the point of the Gingles test is to make that determination as required by Sec. 2. Lacour says:

Not if they’re allowed to sacrifice our principles to come up with their maps.

“They” refers to the Black Plaintiffs. Justice Jackson pokes at this response and Lacour says some words. Roberts moves to the next lawyer.

Discussion

1. Justice Jackson is right on the original purpose of the Fourteenth Amendment. In The Slaughter-House Cases SCOTUS construed it so narrowly that it became useless for equalizing government treatment of newly freed slaves, or anyone else, except in very rare cases. But recent scholarship has recovered the original intent. See, e.g. R. Barnett and E. Bernick, The Original Meaning Of The Fourteenth Amend: It’s Letter And Spirit (2018). I haven’t read this book, but based on reviews, it generally tries to extricate the original breadth of the Fourteenth Amendment in Line with Justice Jackson’s analysis. Barnett is a well-known originalist.

2. Lacour’s position is absurd. How can you not laugh at the idea that Alabama has sacred principles of drawing district lines? Of course it does: draw the lines so White people always win. Even if we could imagine some other principle, why should it be so important as to justify diluting minority voting power?

3. John Roberts has devoted his career to destroying the Voting Rights Act. The other right-wingers follow him because it suits their own partisan purposes. They all follow in the tradition of the revanchist SCOTUS of the Slaughter-House Cases. The idea that the Fourteenth Amendment is color-blind is madness.

4. The six right-wingers pretend that their decisions are guided by originalism. When this opinion comes out, look for the tortured logic dismissing the originalist argument so clearly laid out by Justice Jackson.

5. The coward Ben Sasse said that he couldn’t vote to confirm Justice Jackson because he only supported originalists. Obviously she is intellectually rigorous, using originalism as one of the tools of interpretation, just as she said in her confirmation hearing. The six right-wingers only care about original intent when it can be made to fit their preferred outcome.

6. The revanchist six claim that their opinions are driven by their judicial philosophy, not by political ends. They scold their critics for questioning their legitimacy. But the reality is that their so-called judicial philosophy is indistinguishable from right-wing Republican ideology.

Six Weeks: The Tactics of Sammy Alito’s Abortion

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Last night, Politico published a February 10 draft opinion in the Dobbs case, authored by Sam Alito, that overturns Roe and Casey entirely. I’ll leave it to experts to analyze the opinion. For my purposes, it matters only that it is legally and historically shoddy (meaning, Alito didn’t even care about making a convincing argument before taking away constitutional protections), and that it would also permit states to roll back protections for gay rights, contraception, and privacy generally.

I’d like to talk about tactics.

This leaked draft opinion, while not unprecedented, is almost that momentous. But the leak of the draft will in no way affect abortion access after June in any case. Since the oral argument, there was never a doubt that Casey, at least, was going to be effectively overturned. The only suspense, then, and now, concerned the scope of rights the Supreme Court eliminated and how John Roberts will vote.

The most hackish five justices support the Alito argument. And — in CNN reporting that is almost as important as the Politico leak — John Roberts would have voted to uphold Mississippi’s sharp restrictions on abortion in any case.

CNN legal analyst and Supreme Court biographer Joan Biskupic reported late Monday that Chief Justice John Roberts did not want to completely overturn Roe, meaning he would have dissented from part of Alito’s draft opinion, likely with the top bench’s three liberals.
That would still give the conservatives a 5-4 majority on the issue.

Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a woman’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.

CNN’s report suggests this leak more likely came from Roberts’ chambers than the most likely other source, Stephen Breyer’s. The most logical explanation for the leak is that Roberts is trying to get his colleagues to adopt a less radical opinion. And if that’s the purpose, it might have the desired effect, both by making it clear what a shit-show the original Alito opinion will set off, but also by exposing the opinion itself to the ridicule and contempt it, as written, deserves.

But that doesn’t change the fact that in one way or another, the national protection for access to abortion is gone by the end of the SCOTUS term next month.

So those who support equality for women (and LGBTQ rights, and privacy generally) should consider this leaked draft as an opportunity to use the next six weeks — assume the final opinion will be released in mid-June — to lay the groundwork for what comes next. Symbolically, those who support equality for women (and LGBTQ people) now have about as long as many states will permit abortions to do something to protect the right to abortion (and to marry who you love) going forward.

It’s not clear how overturning abortion access or the early release of this opinion will affect politics going forward. I can certainly see it driving the plurality of Republicans who support such a radical stance. I can also see this decision being decisive in defeating some anti-choice Senate candidates and maybe, because this was released before the run-off, the remaining anti-choice Democrat, Henry Cuellar. Gavin Newsom has already talked about adding abortion to California’s constitution, and California might not be the only such state. Perhaps it is not too late to find a way to put reproductive rights on the ballot as a referendum (though I assume it is). Certainly, this is way to make abortion support a litmus test for state-wide elections.

Certainly, this decision raises the stakes of Brett Kavanaugh’s lies in his confirmation and Clarence Thomas’ implication in his wife’s participation in a coup attempt.

Democrats are talking about abolishing the filibuster to pass abortion rights, but there’s no indication they have 51 votes to pass it. Maybe this would change things?

But there are other ways to mobilize what is a solid majority (including most large corporations) in the United States to undercut this decision, and possibly to change the tenor of politics in this country. Americans believe that women and gays (at least) should be treated as equals. A radical minority disagrees.

Use the next six weeks to figure out how to isolate them as a radical minority.

Update: Noted that this opinion will just end national protections on abortion access.

Update: Roberts is ordering an investigation, suggesting he is not aware of the leaker’s identity. Others have made persuasive arguments that this is from one of the radicals, attempting to keep the five vote majority.

This Is Not How You Wield Power: Toxic Punditry’s Lack of Self Awareness

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[NB: check the byline, thanks. /~Rayne]

This is complete and utter bullshit:

We all know asking Justice Clarence Thomas to recuse himself is merely pissing into the wind. Congressional Democrats are obligated to ask this of him but they know Thomas is corrupt and won’t give the demand a second thought.

What’s bullshit, though, is MSNBC’s Mehdi Hasan and Ayman Mohyeldin ripping into House Speaker Nancy Pelosi about a request by Democrats to Thomas for his recusal on cases related to the January 6 insurrection.

We all know as well the real problem is that Thomas should be removed from the Supreme Court. Pelosi was absolutely correct saying that Thomas should never have been approved as a SCOTUS jurist to begin with. His failure to report his spouse’s income appropriately — particularly Ginni Thomas’s income from her nonprofit — during the lead up to the 2010 Citizens United v. FEC decision was unacceptable, as was his meeting with the Koch brothers.

But the House had absolutely nothing to do with Thomas being approved in the first place. The Senate is responsible for review of nominees to the Supreme Court and their approval.

We all know, too, that the House may impeach jurists, but they cannot be removed without a two-thirds vote for conviction by the Senate.

And in this case, a Senate which is only nominally held by Democrats. They couldn’t convict and remove Trump twice after impeachment for the same reason — an inadequate number of Democrats in the Senate.

Where is this power that Hasan and Mohyeldin think Pelosi has as House Speaker when she cannot remove Thomas? Why are they insisting she launch a war she can’t win? (We can see how that works out for Putin in Ukraine.)

All these two boneheaded pundits (and others making the same argument like them) are doing is misogynist pontificating when they know it’s the Senate which can force the issue and only if there were two-thirds of the Senate willing to vote to convict Thomas for his continued corrupt practices.

Yet you don’t see pundits like Hasan and Mohyeldin going after Senate Majority Leader Chuck Schumer. Nope.

Why is that?

~ ~ ~

They’re literally filling empty air time with useless crap which only serves to damage the public’s opinion of House Democrats — the portion of government which has most reliably served the needs of the people during the Biden administration while the Senate obstructs its efforts.

They’re directly contributing to and amplifying the same poisoning of public opinion already performed by right-wing media outlets Fox News, Newsmax, and OAN, grossly distorting the public’s perception of US government.

It’s right there in front of their noses and they don’t see it:

Hello, Sam Stein, who’s with both MSNBC and Politico? You’re not doing a very good job breaking through to the public if they believe the complete opposite of the truth.

Dan Froomkin elaborated on media’s failures with help from Dean Baker; public opinion about employment is particularly telling.

An additional 21 percent didn’t know one way or the other. Only 28 percent said, correctly, that jobs were created. Less than half of those — only 12 percent — knew that it was more jobs created than in any other year in history.

Similarly, only 19 percent said they thought the U.S. economy experienced more job growth than normal in the past year. The plurality – 35 percent – said they thought more jobs were lost than usual, which is of course spectacularly wrong.

Media figures go out of their way to make sure something looks like it’s on fire or bleeding, so much so that it’s a joke.

But sure, keep beating on House Speaker Pelosi because that will effect the change needed as will pissing into the wind.

~ ~ ~

A pre-print study found that it’s not solely the public at fault when it comes to misperception — it’s not purely partisanship which mis- or disinforms their opinions.

A key problem is the business model: audience members’ understanding and opinions could be shaped by exposure to media, if media bought their time.

Unfortunately, cable and broadcast news don’t pay their viewers. They rely on advertising and subscription volume; their programming becomes little more than reductive clickbait fighting for audience attention. They’ll run the inflammatory material which skews public opinion the wrong way because good news is boring.

It makes sense, and yet the answer to running content which is both more attention-grabbing and -retaining to viewers and the ethically responsible content to run is right there under their noses.

Assuming, of course, the media outlets aren’t forcing their pundit-anchor class to promote corporatism über alles.

Why aren’t programs like Hasan’s and Mohyeldin’s contacting every goddamned Senator and putting them on the record one at a time on camera about their position on Thomas’s failure to recuse himself and whether they would vote to convict him if impeached for abuse of his office as jurist?

I’d pay to watch them squirm. I’d pay to watch Senators’ chiefs of staff run away from mics to avoid answering.

I’d pay to watch them ask Josh Hawley, Ted Cruz, and Tommy Tuberville if Thomas should recuse himself on any lawsuit in which they may be named as co-conspirators because Thomas’s wife Ginni sided with Hawley and Cruz on overturning or obstructing the election…and was it obstruction of Congress or overturning an election in which they had been encouraged to participate?

That’d be Must-See TV.

~ ~ ~

The other person who gets off lightly all the damn time to the point every media outlet forgets he exists: Chief Justice John Roberts.

He’s the administrative leader of SCOTUS. Every decision made during his tenure will be attributed to the Roberts’ court.

Clarence Thomas’s unmitigated corruption including the damage to democracy Thomas’s role in Citizen United played is the product of Roberts’ court.

The lack of a self-imposed binding code of conduct is Roberts’ failure. Thomas’s refusal to recuse himself from January 6 cases which may be decided by SCOTUS is also his failure.

The lack of legislation requiring a SCOTUS code of conduct with adequate teeth to ensure enforcement is Congress’s fault, but primary responsibility is that of the Senate. In its absence Roberts could administer his court in a way which enforces judicial ethics.

Why wasn’t Roberts a subject of Hasan’s and Mohyeldin’s critique when Roberts clearly has the power to rein in corruption among his jurists?

~ ~ ~

But the real power to which Hasan and Mohyeldin deliberately turned a blind eye wasn’t Nancy Pelosi’s as House Speaker.

It wasn’t even Chuck Schumer’s, or John Roberts’ power.

That pre-print study says it’s their own. How convenient these media figures with a bully pulpit have a handy favorite punching bag to use as clickbait, redirecting attention away from their own failures as media figures with sizable audiences whose perception they shape.

By the way, you have power, too. You should be exercising it by calling your representative and senators and demanding legislation to implement a code of ethical judicial conduct for the Supreme Court (since Roberts appears unable or unwilling to produce one), and impeachment and conviction of Clarence Thomas for his lack of ethics as a jurist.

Congressional switchboard: (202) 224-3121

On the Missing Inspector General Report[s] about Wilbur Ross’ Lies

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There was a big news blitz yesterday on the news that the Commerce Department’s Inspector General had concluded Wilbur Ross twice misled Congress about the rationale for including a citizenship question in last year’s census.

The claim was based off a letter from Inspector General Peggy Gustafson — who was nominated under President Obama — explaining what had become of a 2019 request to investigate whether Ross had lied. In her letter, which was publicly released, Gustafson revealed the outcome of her investigation.

Our investigation established that the then-Secretary misrepresented the full rationale for the reinstatement of the citizenship question during his March 20, 2018, testimony before the House Committee on Appropriations and again in his March 22, 2018, testimony before the House Committee on Ways and Means. During Congressional testimony, the then-Secretary stated his decision to reinstate the citizenship question was based solely on a DOJ request. That request memorandum was signed by the DOJ on December 12, 2017. However, evidence shows there were significant communications related to the citizenship question among the then-Secretary, his staff, and other government officials between March 2017 and September 2017, which was well before the DOJ request memorandum. Evidence also suggests the Department requested and played a part in drafting the DOJ memorandum. Further, the then-Secretary sent a memorandum to the Department on June 21, 2018, clarifying his deliberations regarding adding a citizenship question to the Decennial Census. In this memorandum, the then-Secretary stated he began considering the content of the 2020 Census, to include reinstating the citizenship question, soon after his appointment to Secretary.

This investigation was presented to and declined for prosecution by the Public Integrity Section of the DOJ’s Criminal Division.

She sent the report to Congress along with her letter. But the report itself has not been released publicly or, best as I can tell, even leaked with those who wrote stories on the letter.

Reports on DOJ’s declination created a great deal of outrage that Merrick Garland had declined to prosecute the case. Only, as an AP correction revealed, Garland’s DOJ hadn’t declined prosecution. Barr’s DOJ did.

This story has been corrected to reflect that the decision not to prosecute Ross was made by the Department of Justice during the Trump administration, not the Biden administration.

But corners of the media blitz left out a lot more details about the context of the original request. It came after a Republican strategist, Thomas Hofeller, died, leaving his Democratic daughter to go through his papers, only to discover he, and very racist plans for gerrymandering, were behind the census question. After that smoking gun was discovered, House Oversight (starting under Elijah Cummings before he died) did more investigation and then a bunch of Senators asked for an investigation.

And after DOJ kept appealing a District Court ruling on the question in NY, even the Supreme Court found that Commerce had misrepresented the reason for the question.

Finally, we have recognized a narrow exception to the general rule against inquiring into “the mental processes of administrative decision-makers.” Overton Park, 401 U. S., at 420.

On a “strong showing of bad faith or improper behavior,” such an inquiry may be warranted and may justify extra-record discovery. Ibid. The District Court invoked that exception in ordering extra-record discovery here. Although that order was premature, we think it was ultimately justified in light of the expanded administrative record. Recall that shortly after this litigation began, the Secretary, prodded by DOJ, filed a supplemental memo that added new, pertinent information to the administrative record. The memo disclosed that the Secretary had been considering the citizenship question for some time and that Commerce had inquired whether DOJ would formally request reinstatement of the question. That supplemental memo prompted respondents to move for both completion of the administrative record and extra-record discovery. The District Court granted both requests at the same hearing, agreeing with respondents that the Government had submitted an incomplete administrative record and that the existing evidence supported a prima facie showing that the VRA rationale was pretextual.

[snip]

That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA. 351 F. Supp. 3d, at 660.

John Roberts laid out the evidence that Commerce’s IG must also have relied on.

[I]t was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data. The December 2017 letter from DOJ drew heavily on contributions from Commerce staff and advisors. Their influence may explain why the letter went beyond a simple entreaty for better citizenship data—what one might expect of a typical request from another agency—to a specific request that Commerce collect the data by means of reinstating a citizenship question on the census. Finally, after sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data, further suggesting a lack of interest on DOJ’s part.

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.

After SCOTUS ruled Commerce could not include a citizenship question in the census, the plaintiffs asked the judge to sanction DOJ and Commerce officials who made misrepresentations to the court. Judge Jesse Furman made the government pay fees but did not further sanction the government witnesses in question.

That is, the underlying record has been known for some time. The only thing new in the record, as far as we know, is that — after a bunch of Senators asked for an investigation into this — the Commerce IG agreed with John Roberts and referred Ross for prosecution, only to have Barr’s hyper-politicized DOJ — a DOJ that was itself caught making untrue statements to the District Judge in the NY case — decline prosecution.

Which makes it all the more curious that Commerce didn’t publicly release the report along with the letter. The report is done. Why not release it publicly, as past derogatory reports about Ross were released?

One more detail that may explain DOJ’s silence in response to this news. The original letter from a bunch of Senators requesting the investigation wasn’t addressed just to Commerce. It was also addressed to Michael Horowitz, DOJ’s Inspector General. There’s no sign of such an investigation on their site (and I have thus far gotten no response to a question about this from them) — but they don’t include all their investigations.

But these stories are only about what the result of the Commerce Inspector General investigation was, and how Bill Barr’s DOJ responded. They’re not about whether there was an investigation at DOJ, and what happened if that investigation ended under Merrick Garland. They’re not about what a DOJ that has put great emphasis on voting rights has done with all this.

Pat Cipollone Believes the Golden Rule Is for Chumps

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The question and answer phrase of the Senate trial is far more interesting than the presentation of the cases. Both parties are obviously feeding their own side questions to rebut the other, or posing questions they think will make the other stumble (Chief Justice John Roberts has reportedly censored only one kind of question: any question that probes for the whistleblower’s name).

Later last night, the questioning became interesting for the whip count. There were a couple of questions posed by large numbers of Senators on record supporting Trump, including vulnerable swing state Senators like Martha McSally, Thom Tillis, and Cory Gardner, and it was interesting to see who else jumped on questions that obviously served only to suck up to Trump.

Over the course of several questions, there was a discussion on whether Roberts could rule on the appropriateness of witnesses or Executive Privilege. Pat Philbin argued that he could not, on EP (contrary to the rules), in response to which Schiff came back and said he could. Schiff argued that the Democrats would accept Roberts’ views without challenge. Jay Sekulow piped in to say Republicans would not. I keep thinking about how Roberts will be ruling on some of these issues on other appeals, and I think Schiff is playing to him on some questions as much as to the Senate.

Questions being asked by leaners (people like Lisa Murkowski and Susan Collins, who have asked a number together, though it seems like Mitt Romney went from leaning to supporting questions) are of particular interest. At one point, Collins asked why the House didn’t include bribery in its articles. Hakeem Jeffries gave an answer that Collins visibly responded to by saying, “he didn’t answer my question,” but Schiff came in shortly after and did answer it, pointing out that all the elements of bribery are included in the abuse of power article. Collins also asked the President’s lawyers what Trump had done on corruption in Ukraine prior to last year, which Philbin didn’t answer and then, when the question was re-asked by Democrats, said he couldn’t answer because it’s not in the record (though he has relied on non-public information elsewhere).

Then there are the alarming answers. Alan Dershowitz was asked, after he argued that if the President thought something that benefitted him personally was good for the country, whether that extended to nuking democratic states because he believed his reelection was good for the country and he agreed in theory.

Pat Philbin answered a question about whether it was okay to accept dirt to win an election. He said it was.

I was most interested, however, in a response Sekulow gave to a question offered by Marco Rubio and others, people who presumably were just feeding softballs to strengthen the President’s argument. They referenced a claimed principle espoused by Dersh and Sekulow, wherein you should always imagine how it would feel if the other party were impeaching a president of your party on the same fact set, which was originally a way to excuse Dersh’s flip-flop on abuse of power and impeachment. Rubio and others asked where the limiting factors on this would be — basically an invitation to repeat what Trump’s lawyers have said in the past, that you shouldn’t impeach within a year of an election or some such thing. Except Sekulow would not offer general principles. Instead of referencing the election — the right answer to the softball question — he focused on the claimed uniqueness of this impeachment (which is bullshit in any case). In other words, given an opportunity to answer a question about principles that would adhere beyond this impeachment, Sekulow answered that his Golden Rule only applies ot this impeachment.

How to Talk about Impeachment: Preventing Harm to the Country

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In the Atlantic, Yoni Appelbaum has a very long article making the case that the House should start the process of impeaching Donald Trump as a way to start reining in his abuses. At its core, the article argues that impeachment serves as a check on abusive Executive power, whether or not it succeeds. It describes five benefits of starting an impeachment proceeding.

In these five ways—shifting the public’s attention to the president’s debilities, tipping the balance of power away from him, skimming off the froth of conspiratorial thinking, moving the fight to a rule-bound forum, and dealing lasting damage to his political prospects—the impeachment process has succeeded in the past. In fact, it’s the very efficacy of these past efforts that should give Congress pause; it’s a process that should be triggered only when a president’s betrayal of his basic duties requires it. But Trump’s conduct clearly meets that threshold. The only question is whether Congress will act.

I don’t agree with everything in the article. I’ll also note that it dismisses the possibility Trump will be charged with bribery, with virtually no real consideration of the issue.

 The Constitution offers a short, cryptic list of the offenses that merit the impeachment and removal of federal officials: “Treason, Bribery, or other high Crimes and Misdemeanors.” The first two items are comparatively straightforward. The Constitution elsewhere specifies that treason against the United States consists “only in levying War” against the country or in giving the country’s enemies “Aid and Comfort.” As proof, it requires either the testimony of two witnesses or confession in open court. Despite the appalling looseness with which the charge of treason has been bandied about by members of Congress past and present, no federal official—much less a president—has ever been impeached for it. (Even the darkest theories of Trump’s alleged collusion with Russia seem unlikely to meet the Constitution’s strict definition of that crime.) Bribery, similarly, has been alleged only once, and against a judge, not a president.

I’ve argued there’s a good deal of evidence Trump did enter in a quid pro quo agreement — Trump Tower and dirt on Hillary for sanction relief and help with Syria and Ukraine — that would meet even the narrowed standards of bribery laid out in John Roberts’ McDonnell decision.

In any case, the Atlantic piece is very worthwhile. And it serves as welcome background for what I was initially trying to write when I wrote that bribery post.

First, there are more reasons than just Trump’s compromise by Russia to pursue impeachment. Rashida Tlaib laid out the following in the op-ed that preceded her “motherfucker” comment.

We already have overwhelming evidence that the president has committed impeachable offenses, including, just to name a few: obstructing justice; violating the emoluments clause; abusing the pardon power; directing or seeking to direct law enforcement to prosecute political adversaries for improper purposes; advocating illegal violence and undermining equal protection of the laws; ordering the cruel and unconstitutional imprisonment of children and their families at the southern border; and conspiring to illegally influence the 2016 election through a series of hush money payments.

David Leonhardt laid out the reasons this way:

He has repeatedly put his own interests above those of the country. He has used the presidency to promote his businesses. He has accepted financial gifts from foreign countries. He has lied to the American people about his relationship with a hostile foreign government. He has tolerated cabinet officials who use their position to enrich themselves.

Appelbaum describes all the ways Trump violated his oath of office this way:

The oath of office is a president’s promise to subordinate his private desires to the public interest, to serve the nation as a whole rather than any faction within it. Trump displays no evidence that he understands these obligations. To the contrary, he has routinely privileged his self-interest above the responsibilities of the presidency. He has failed to disclose or divest himself from his extensive financial interests, instead using the platform of the presidency to promote them. This has encouraged a wide array of actors, domestic and foreign, to seek to influence his decisions by funneling cash to properties such as Mar-a-Lago (the “Winter White House,” as Trump has branded it) and his hotel on Pennsylvania Avenue. Courts are now considering whether some of those payments violate the Constitution.

More troubling still, Trump has demanded that public officials put their loyalty to him ahead of their duty to the public. On his first full day in office, he ordered his press secretary to lie about the size of his inaugural crowd. He never forgave his first attorney general for failing to shut down investigations into possible collusion between the Trump campaign and Russia, and ultimately forced his resignation. “I need loyalty. I expect loyalty,” Trump told his first FBI director, and then fired him when he refused to pledge it.

Trump has evinced little respect for the rule of law, attempting to have the Department of Justice launch criminal probes into his critics and political adversaries. He has repeatedly attacked both Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller. His efforts to mislead, impede, and shut down Mueller’s investigation have now led the special counsel to consider whether the president obstructed justice.

As for the liberties guaranteed by the Constitution, Trump has repeatedly trampled upon them. He pledged to ban entry to the United States on the basis of religion, and did his best to follow through. He has attacked the press as the “enemy of the people” and barred critical outlets and reporters from attending his events. He has assailed black protesters. He has called for his critics in private industry to be fired from their jobs. He has falsely alleged that America’s electoral system is subject to massive fraud, impugning election results with which he disagrees as irredeemably tainted. Elected officials of both parties have repeatedly condemned such statements, which has only spurred the president to repeat them.

These actions are, in sum, an attack on the very foundations of America’s constitutional democracy.

Russia is but one of the reasons why Trump should be impeached.

Indeed, in the last day two new pieces of evidence about the damage Trump has done with his conflicts of interest have come out. A CREW report cataloging all the conflicts of interest generated from the use of Trump properties to curry favor with him.

  • CREW has identified 12 foreign governments that have made payments to Trump properties during his first two years in office, each of which is likely a violation of the Constitution’s foreign emoluments clause. At least three foreign countries held events at Trump properties during his second year in office, and two of them did so after having held similar events elsewhere in previous years.
  • Instead of pushing back on President Trump’s refusal to divest from his business, allies in Congress have embraced the arrangement. 53 U.S. senators and representatives made more than 90 visits to Trump properties during his second year in office, up from 47 visits by 36 members the prior year, and similarly, at least 33 state-level government officials visited Trump properties, likely resulting in taxpayer funds going into Trump’s coffers.
  • More than 150 political committees, including campaigns and party committees, have spent nearly $5 million at Trump businesses since he became president. In Trump’s second year in office, CREW tracked 33 political events held at Trump properties—13 of which Trump himself attended, meeting and speaking with wealthy donors.
  • Special interests held at least 20 events at Trump properties during the president’s second year in office. Since Trump took office, at least 13 special interest groups have lobbied the White House, some for the first time, around the same time they patronized a Trump property, suggesting that making large payments to Trump’s businesses is viewed as a way to stay in his administration’s good graces.
  • Over the past year, President Trump made 118 visits to properties he still profits from in office, bringing his two-year total to 281 visits. CREW also identified 119 federal officials and employees who visited Trump properties over the past year, up from 70 the prior year.
  • In addition to making frequent visits to his properties, President Trump and other White House staff have promoted Trump businesses on at least 87 occasions. Trump himself mentioned or referred to his company 68 times during his second year in office, more than double the 33 times he did so the prior year.
  • Paying members at Trump’s resorts and clubs have received benefits beyond getting occasional face time with the President. Four Mar-a-Lago members have been considered for ambassadorships since his election, and three other members—with no federal government experience—acted as unelected, non-Senate-confirmed shadow officials in Trump’s Veterans Administration.

Yesterday, the Inspector General for the General Services Administration released a report showing that GSA recognized that Trump’s Old Post Office property might present a problem under the Emoluments Clause, but basically blew off reviewing what to do about it.

We found that GSA recognized that the President’s business interest in the OPO lease raised issues under the Constitution’s Emoluments Clauses that might cause a breach of the lease; however, GSA decided not to address those issues in connection with the management of the lease. We also found that the decision to exclude the emoluments issues from GSA’s consideration of the lease was improper because GSA, like all government agencies, has an obligation to uphold and enforce the Constitution; and because the lease, itself, requires that consideration. In addition, we found that GSA’s unwillingness to address the constitutional issues affected its analysis of Section 37.19 of the lease that led to GSA’s conclusion that Tenant’s business structure satisfied the terms and conditions of the lease. As a result, GSA foreclosed an early resolution of these issues, including a possible solution satisfactory to all parties; and the uncertainty over the lease remains unresolved.

Congress doesn’t have to wait for Mueller to begin reviewing Trump’s conflicts of interest. Indeed, it’d be a far better use of the Oversight Committee’s time to chase down these issues than to interview Michael Cohen and in the process endanger a witness central to the Mueller probe.

Importantly, by focusing on the other ways — other than potential Russian compromise — that Trump has placed his self-interest above the good of the country, an impeachment inquiry might step beyond the debate as it currently stands, where impeachment is considered a political question, to one where it becomes a question of preventing ongoing damage to the country (on top of the legal remedy provided by the Constitution, as I noted in my bribery post).

Sure. An impeachment inquiry may not get 20 Republican votes in the Senate to impeach. But it might. In his first post after laying out why impeachment is necessary, Leonhardt laid out numbers showing that Trump is actually weaker than a lot of people assume.

In the days after I revealed that I had shared information with the FBI, I met with a few Republicans — that was a big part of the reason why I did go public. Remember, I didn’t go to the FBI about Trump, I went about information about the election year attack; but I suspected — and indeed confirmed — that even key members of Congress did not understand the full scope of the attack. My goal in meeting with those Republicans was to point out the damage they were doing by running interference for Trump instead of making sure that the country mounted an adequate response to those aspects of the attack that were not public. I started one meeting with a key Republican member of Congress (we both agreed we would not reveal we had met) literally by saying I was taking a leap of faith in even meeting with him. We agree on literally nothing in politics, except that we love our country. As I left that meeting, that member of Congress told me we may agree on more than I knew.

But that conversation was not about Donald Trump. It was, instead, about how the focus on winning a political fight over Donald Trump was distracting from ensuring the well-being of the country.

We are almost four weeks into a government shutdown that serves just one purpose: to ensure that Donald Trump doesn’t have to face Ann Coulter’s criticism, and the ego damage, of admitting he failed to implement a campaign promise he never delivered over two years of two-house Republican rule. We’ve had stupid government shutdowns before. But never before have we failed to fund the government because one narcissistic man put his own ego above the good of the country.

Now, more than ever, it should be easy to talk impeachment not as a way for Democrats to win partisan advantage by taking down Donald Trump, but as a way to protect the country from the harm he is doing. For the same reason, Democrats should be especially careful about how they talk about impeachment (as this great Balkans Bohemia thread argues); because to actually prevent further damage, impeachment needs to be a sober, legitimate process. That’s what impeachment needs to be about: not a political question. But a question about how to protect the one thing we all share — this country.

The Supreme Court Has Already Agreed that the Mystery Appellant Caused a “Direct Effect” in the United States

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I’d like to make a minor — but I think important — point about the DC Circuit opinion in the Mystery Appellant challenge to what is believed to be a Robert Mueller subpoena. Assuming that this is a challenge to a Special Counsel subpoena, then the Supreme Court has already agreed with Mueller — in dissolving a stay of financial penalties for blowing off a subpoena — that some company owned by a foreign country took an action outside the US that had an effect inside the US, in an investigation into what happened during an election.

This post will assume that this is a Mueller subpoena. Some of the evidence backing that assumption includes:

  • DC District Chief Judge Beryl Howell issued the original order; she presides over Mueller’s grand jury
  • A lawyer asked for Mueller’s latest sealed filing on the day a response from the Mystery Appellant was due
  • Greg Katsas recused from consideration of this case; he had said he would recuse on Mueller related issues
  • The secrecy for the hearing before the DC Circuit, and arguably the review process for this challenge, were exceptional
  • Mueller lawyers Michael Dreeben and Zainab Ahmad were seen returning to his office after the DC Circuit hearing

Judges David Tatel, Thomas Griffith, and Stephen Williams issued their order on December 18. The Mystery Appellant appealed to the Supreme Court, and over Christmas John Roberts took briefing on that appeal. Last week the Supreme Court declined to uphold the stay, effectively agreeing with the Circuit’s decision.

And that’s important, because a key part of the now-public (though still partly sealed) DC Circuit opinion explains how the presumed Mueller request overcomes the sovereign immunity of the company in question. The request must involve — among other things — an exception to sovereign immunity.

Taking section 1604 ‘s grant of immunity as a given, the government must check three boxes for the contempt order to stand. First, there must be a valid grant of subject-matter jurisdiction. Second, one of the Act’s exceptions to immunity must apply. And third, the contempt sanctions must be a permissible remedy. According to the district court, the government satisfies all three. We agree.

Mueller claimed that this qualified as an exception because the request involves an “act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere [when] that act causes a direct effect in the United States.”

Moving to those exceptions, in its ex parte filing the government steers us to the third clause of section 1605(a)(2). That provision denies immunity in an “action … based … upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere [when] that act causes a direct effect in the United States.” Ordinarily, the Corporation would bear the burden to establish that the exception does not apply. See EIG Energy FundXIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 344- 45 (D.C. Cir. 2018) (“[T]he foreign-state defendant bears the burden of establishing the affirmative defense of immunity,” including “‘proving that the plaintiff’s allegations do not bring its case within a statutory exception to immunity.”‘ (quoting Phoenix Consulting Inc. v. Republic of Angola, 216 F .3d 36, 40 (D.C. Cir. 2000))).

And because Mueller relied on an ex parte filing to make that case, all the judges involved — Howell, Tatel, Griffith, Williams, Roberts, and whoever else at SCOTUS reviewed this — relied on the argument that Mueller’s lawyers laid out about the request.

Here, however, the government relies primarily on ex parte evidence unavailable to the Corporation. We have repeatedly approved the use of such information when “necessary to ensure the secrecy of ongoing grand jury proceedings,” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1075 (D.C. Cir. 1998), and we do so again here. But where the government uses ex parte evidence, we think the burden falls on the government to establish that the exception applies, and we will conduct a searching inquiry of the government’s evidence and legal theories as a substitute for the adversarial process.

In a sealed discussion of Mueller’s ex parte filing, the DC Circuit finds a “reasonable probability” that that section covers this subpoena. It goes further and states that it doesn’t have to decide what the gravamen of the subpoena is, which suggests that something about this request makes it very clear that the company both possess the records and that they are relevant to Mueller’s investigation.

The “gravamen” of a subpoena may be the mere fact that an entity possesses the documents in question. Alternatively, the “gravamen” may be related to the content of the records and why they may be relevant to the government’s investigation. Indeed, the correct approach may well vary with the facts of a given case. Here, however, we need not resolve that issue [redacted]

There’s some other redacted discussion that dismisses a claim made by the corporation that will be interesting for the history books. But the DC Circuit is clear that the request — as laid out in an ex parte filing presumably written by Mueller’s lawyers — clears the subject matter question.

None of this analysis tells us enough about the company for us to guess what foreign company it is. The WaPo says it is a financial institution. I happen to think that Qatar or the Emirates’ investment authority are the most likely candidates but that’s just an educated guess.

Still, if this is indeed a Mueller subpoena, given the topic of Mueller’s inquiry and his fairly clear discipline at staying within the scope of it, that nevertheless is a signifiant revelation. That’s because Mueller is investigating events relating to an election. And most acts by a company owned by a foreign country that cause an effect in this country — if they have some relationship with that election — would be illegal. It could be the payoff for a bribe. It could be a more direct expenditure associated with the campaign. It could be a payment associated with activities that occurred during the campaign.

Maybe it’s something far more obscure. But any of the obvious applications here would all implicate a foreign country influencing — directly or indirectly — the election. And SCOTUS has already reviewed that Mueller argument, and found it reasonable.

That doesn’t mean SCOTUS has reviewed the evidence the company has, it doesn’t mean the company will turn over the evidence (though it would already incurred something like $300,000 to avoid compliance), it doesn’t mean the evidence proves whatever crime Mueller has cited in demanding it.

But SCOTUS has, at a minimum, found Mueller’s argument that such evidence would be relevant to his criminal investigation reasonable.

Update: Added language to make what happened — SCOTUS dissolved the stay — technically correct.

Update: And SCOTUS is now debating whether to allow the Mystery Appellant to file cert under seal or not.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Trump’s “Official Acts” to Pay Off a Russian Bribe Should Make Impeachment a Legal Issue, Not Just a Political One

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The pearl clutchers screamed about Congresswoman Rashida Tlaib saying that we need to impeach the motherfucker, Donald Trump, demeaning the presidency.* While I’m glad that she has refused to back down from her beliefs in the face of the attacks, I think her more substantial argument about impeachment deserves further attention (which I hope to return to in a later post). More important, I think that the response to Tlaib’s comments has resulted in members of both parties retreating to a debate about Trump’s impeachment using the old formulation that it’s a political, not a legal question.

It is true that impeachment is political question insofar as, so long as there’s the political will, a president can be impeached for anything, even lying about a consensual blowjob immaterial to an investigation into financial scandal. But impeachment is also a legal question. Indeed, the Constitution mandates that the President be removed from office if he is impeached and convicted not just for the unenumerated grab bag of “high crimes and misdemeanors” — where Congress exercises the political will to decide whether a blowjob merits impeachment — but also the enumerated crimes of treason and bribery.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

In spite of Emmet Sullivan’s question — as one of the only people who has read sealed documents laying out what Trump’s transition team did — about whether Mueller’s investigators considered charging Mike Flynn with treason, there’s no chance that Trump will be named in a treason charge.

But there is very good chance he will be named in a conspiracy involving a quid pro quo trading dirt and real estate deals for sanctions relief and other policy considerations.

The other day, I realized something ironic: in precisely the same period Trump was entering in an apparent quid pro quo with Russians, John Roberts was authoring a unanimous Supreme Court decision that clarified the limits of quid pro quo bribery.

And while the Supreme Court believed that Governor Bob McDonnell had not accepted bribes for setting up meetings in exchange for gifts, the language Roberts wrote in the weeks after Trump’s son told some Russians they would revisit Magnitsky sanctions if his father won does not so narrow the definition of bribery as to make Trump’s actions legally excusable.

Roberts described an official act this way:

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so.

Notably, the bribed public official doesn’t actually have to follow through on the official act he agreed to take, so it doesn’t help Trump that Congress has repeatedly prevented him from overturning sanctions on Russia.

Under this Court’s precedents, a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that the official agree to do so.

And there are a number of data points in the public record that suggest Trump did believe he had made a deal with the Russians and that Russia had what it believed was a commitment from Trump. For example, four of the people who attended the June 9 meeting testified (most under oath) that Don Jr said his father would revisit sanctions relief if he got elected.

Natalia Veselnitskaya said Don Jr said they’d revisit the topic.

Mr. Trump, Jr. politely wound up the meeting with meaningless phrases about somewhat as follows: can do nothing about it, “if’ or “when” we come to power, we may return to this strange and confusing story.

Ike Kaveladze said that Don Jr said they might revisit the issue if his father won.

There was no request, but as I said, it was a suggestion that if Trump campaign wins, they might get back to the Magnitsky Act topic in the future.

Rinat Akhmetshin said that Don Jr said they would revisit Magnitsky when they won.

A. I don’t remember exact words which were said, but I remember at the end, Donald, Jr., said, you know, “Come back see us again when we win.” Not “if we win,” but “when we win.” And I kind of thought to myself like, “Yeah, right.” But it happened, so — but that’s something, see, he’s very kind of positive about, “When we win, come back and see us again.” Something to that effect, I guess.

Anatoli Samochornov, Veselnitskaya’s translator, who is the most independent witness and the only one who didn’t compare his story with others, said that Don Jr said they would revisit the issue if Trump won.

A. Like I described, I remember, not verbatim, the closing that Mr. Donald Trump, Jr., provided, but that’s all that I recall being said from the other side.

MR. PRIVOR: That closing being that Donald Trump, Jr., suggested —

MR. SAMOCHORNOV: If or when yes, and I do not remember if or when, but if or when my father becomes President, we will revisit this issue.

And Ike Kaveladze, in the call back to his boss to report on the meeting that witnesses observed, was happy with the outcome of the meeting.

It’s not just the Russians who seem to have acted on the meeting. Michael Cohen’s allocution seems to suggest that the meeting tied directly to the negotiations over a Trump Tower, because he took steps to travel to Russian on the day of the meeting.

From on or about June 9 to June 14, 2016, Individual 2 sent numerous messages to COHEN about the travel, including forms for COHEN to complete. However, on or about June 14 , 2016, COHEN met Individual 2 in the lobby of the Company’s headquarters to inform Individual 2 he would not be traveling at that time.

Remember: a “senior campaign official” was involved in discussions about trips to Russia. And had the President’s personal lawyer actually taken this trip to St. Petersburg, the plan was to meet Vladimir Putin (who did attend the forum that year).

While the dates provided in Cohen’s allocution also suggest the disclosure that Russia hacked the DNC halted Cohen’s plans “at that time,” we know that the plans did resume after that canceled trip into July.

The Russians certainly believed they had an agreement. They put in some effort to meet again after Trump won. While finding an appropriate communication channel failed for the Agalarovs, Flynn and Jared Kushner moved to establish a back channel via Sergey Kislyak. When Trump met with Preet Bharara and reportedly agreed to keep him on, Veselnitskaya panicked, and suggested Trump planned to keep him on so he could take him out.

In its indictment of Veselnitskaya, DOJ just established that she was actually working as part of the Russian government when she claimed to have fought to get an MLAT request in her Prevezon case. And Veselnitskaya believed that after Trump won the election, he would take out the prosecutor whom she was facing in court. Ultimately, Trump did take out Preet, firing all his US Attorneys in an effort to do so.

And details from Mike Flynn’s allocution provide one important piece of evidence that Russians believed they had received a commitment from Trump.

After Obama imposed sanctions on Russia partly in retaliation for the election year operation, Trump’s team panicked, both because they wanted to improve relations with Russia, but also because Russia’s role in his victory delegitimized the victory. That is, even those unlikely to be unaware of any quid pro quo recognized that the public accounting of Russia’s role in helping defeat Hillary would make it all the more difficult to deal with Russia.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.

Trump’s response, however, was to reach out to Russia and assure them they didn’t need to worry about Obama’s new policy. In response, the Russians made it very clear that Putin had decided not to respond based on the assurances that Flynn gave Kislyak.

On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

Mueller, of course, has the full transcript of what Flynn said to Kislyak that successfully placated Putin. It is highly likely the transcript provides explicit evidence of an official act to pay off his side of the deal, sanctions relief.

All of which is to say that Mueller may well be finalizing a conspiracy indictment of Don Jr and Trump Org laying out a quid pro quo in which Trump agreed to provide sanctions relief (and some other stuff) in exchange for Russia’s help winning the election.

That Mueller might be able to show all this is bribery may not affect Republican willingness to take the action laid out in the Constitution, to convict Trump in an impeachment inquiry. But given that the Constitution specifically envisions impeaching a President who has accepted a bribe, commentators should stop treating impeachment exclusively as a political issue.

Update: I posted this before I had read this analysis from Jack Goldsmith raising concerns about investigating the President for foreign policy decisions. While I think Goldsmith raises key points, he focuses on actions Trump took as President. But that’s one reason I think the transition activities are so important. If I’m right that the calls to Kislyak amount to an official act, then Trump took it to undermine the official policy of the government, not set it as President. Further, The Trump team had been asked — and at least one person had agreed — to not undermine Obama’s policies during the transition. There were several efforts to hide that they were doing so: the indications they couldn’t reengage on Magnitsky sanctions using the same channels as they used during the election, the request for a back channel, and the meeting with Mohammed bin Zayed al-Nahyan that Susan Rice discovered by unmasking the identities of those who met with him.

The actions Trump took that led to Flynn and Comey’s firings were part of an effort to hide these clandestine efforts during the transition. Yes, they were conducted while he was President. But they were conducted to cover up actions taken before he became President. This is why I keep harping on the remarkable lack of curiosity about why Trump really fired Flynn. The public story Trump is telling is assuredly false. The real reason almost certainly ties back to these transition period actions.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

*Full disclosure: I donated to Tlaib’s campaign.

Kennedy

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Anthony Kennedy just announced his retirement, giving Trump a second SCOTUS appointment.

Things just got serious. That, after SCOTUS just gutted public sector unions and upheld Trump’s anti-Muslim bigotry.

Trump has said he’ll pick someone from his existing list, which includes lots of horrible people, as well as Mike Lee, who at least is good on civil liberties albeit horrible on cultural issues. Both bmaz and I think it’ll be Brett Kavanaugh, who’s very smart and has been groomed for this for a long time.

While this likely will end up absolutely horribly, here are several reasons it might end up less than horribly:

  • At the very least, this will focus this fall’s election, and SCOTUS just did a lot of things that will be horrible for Democratic voters, which should clarify issues
  • Any two GOP Senators (one, depending on what happens with McCain) can make demands. That means that a Corker-Flake-McCain (if he’s voting) axis could heavily influence the pick, if they chose to use that as their legacy in the Senate.

bmaz, on the other hand, is a realist. He figures this will put a third Alito-type on SCOTUS, which will doom us for as long as those young men remain around (even assuming RBG lives forever).

Finally, one more point. While Kennedy has been the swing vote for a decade, in fact this year John Roberts was often in that role. So as awful as he is, he may be more willing to work with Democrats to retain credibility at SCOTUS.

I can think of more possibilities, but for now, I’ll just post this as a thread.