Trump’s new travel order is still unconstitutional

Trump’s new executive order on travel and entry today continues to temporarily block entry to six predominantly Muslim countries (removing Iraq). It appears to fix two of the biggest constitutional problems:

  1. It no longer includes a preference for “religious minorities” in Muslim countries, a provision that was designed to benefit Christians over Muslims, as Trump himself said to the Christian Broadcasting Network.
  2. It clarifies that Green Card holders and those already holding visas are permitted to enter.

The Ninth Circuit, by a 3-0 decision, had blocked the first travel ban only on the basis of the Due Process clause of the 5th Amendment, a relatively narrow constitutional ruling that focused mainly on problem #2, because the Green Card holders and visa holders were denied due process.  Many observers criticized the “religious minority” exception because it most clearly violated the Establishment Clause in its text.

But the problem is that if this revision is only in response to the unanimous Ninth Circuit opinion, they don’t address the other constitutional problems under 14th Amendment (Equal Protection) and the Establishment Clause, and the two statutory problems based on the Immigration and Naturalization Act and the Religious Freedom Restoration Act.

Judge Leonie Brinkema of the Eastern District of Virginia focused on the Establishment Clause in her opinion blocking the first order on Feb. 13th.  It summarized President Trump’s public comments calling for a “Muslim ban,” for three pages. Even setting aside the preference for religious (Christian) minorities, it held that the public comments were sufficient to show an unconstitutional purpose of “advancing one religion over another” (citing McCreary County (2005) and Santa Fe (2000)).

Brinkema wrote, “The ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” Even if the ban did not apply to all Muslims, it was still discriminatory because “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise… It is a discriminatory purpose that matters, no matter how inefficient the execution.”

These same problems don’t magically disappear just because the old order has been revoked. You can’t “unring a bell,” as lawyers often say. Once government officials have stated the discriminatory purpose, they need to fix this problem with extra protections. The same purpose still applies here.

It seems to me that the only fix now would be to get rid of the blanket temporary bans on Muslim countries entirely, and actually implement a vetting plan without a ban. The problem would remain that the Trump administration could apply its vetting in a discriminatory way, but we can cross that legal bridge when we get to it (no immigration pun intended). This leads me to think that, because the Trump administration did not attempt to fix its order with a more permissible method — one that would survival legal challenges but also would be open to anti-Muslim manipulation in practice — then this “revision” is really meant to trigger another round of court battles to fire up the base and drive cultural wedges. Bannon wants a nationalist fight, a culture war, rather than effective policies. This new order is a second battle on this immigration front of the culture war. And their timing is intentional: a distraction from the Russian scandal/Sessions perjury charges, as lawyers will challenge this order all around the country.

In any event, Brinkema did not need to address the Equal Protection argument nor the statutory arguments under the Immigration and Naturalization Act (which prohibits religious discrimination) and the Religious Freedom Restoration Act. There are complexities to those arguments based on the legal standing of non-citizen non-residents without visas, which is why the Establishment Clause remains the most important barrier. But undoubtedly all of these arguments will get fleshed out in the near future in some big decisions.

I also wonder if there is a political cost to removing the “religious minority” exception, because Christian groups have mobilized to support persecuted Christians in Muslim countries. Now those refugees, who are the most popular refugees among the Republican base, are now unprotected and excluded. I wonder if any evangelical groups complain publicly. I would hope religious groups would complain about the ban for many humanitarian reasons.

 

“On the Media” on NPR: Zephyr and I talk about Emoluments and the power of state attorneys general to sue Trump entities

Here’s the link: http://www.wnyc.org/story/americas-lost-anti-corruption-history

And here are my other posts explaining the quo warranto powers (and duties) of state attorney generals to dissolve or enjoin corporations and LLCs that violate state and federal law:

1. State Attorneys General Can Enforce the Emoluments Clause with Quo Warranto vs. Trump’s Hotels

2. Is Trump Receiving “Office-Related” Emoluments?

 

Sessions committed perjury and must resign.

Did Sessions commit perjury? I have seen commentators rightly note the intent requirement, and then give Sessions wiggle room, offer some hand-wringing, and then give him the benefit of the doubt. These arguments ignore the rest of our legal system’s treatment of intent and they ignore the details of the Sessions timeline. We discussed these events in my Administrative Law class yesterday as the story was breaking. Some students raised a valid concern: Sessions’s answers to ambiguous questions from Sen. Franken and Leahy should not be the basis for perjury, because of the ambiguity. My answer is that you have to put the two answers together in the context of how hearings and testimony work, and once you do, the perjury (or “false statement”) charges stick. The bottom line is that once Sessions gave a false (or at best, misleading) answer to Sen. Franken, he was given a direct opportunity to correct the false statement five days later from a very similar written question by Sen. Leahy.  His failure to disclose or correct his false answer to Franken in his written response makes a strong case for perjury and/or a criminal false statement under 18 U.S.C. 1001(a).
Let’s start with the facts (and a more complete timeline is here):
Throughout last summer, there were major questions about the Trump campaign’s Russia contacts. These concerns spiked in August with Paul Manafort’s resignation as campaign manager when it was revealed he had been on the pro-Putin Ukrainian payroll and failed to register himself in the U.S. as a foreign agent (a crime). It is revisionist to say that the Russian contacts story was revealed after the election. It had been a major story throughout the campaign, and then peaked in December. Every member of the Trump campaign and every appointee knew that Russian contacts were an enormous concern going into the confirmation hearings. Each nominee had to be prepared to answer such questions honestly.
On January 10th, Sen. Franken asks Sessions an unclear question about Russian contacts, ending with the question: “[I]f there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”

The problem is the answer: “Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.”

Let’s be as fair as possible to Sessions here. It is not easy to explain everything you mean in live testimony. It could be unclear what he meant by “the Russians,” and he might mean to be saying that he did not have communications about the campaign. Franken’s question was unclear and broad, and it was implicitly about other Trump officials, not Sessions. (That’s also what makes Sessions’s defensive shift to a personal denial so strange. Why jump to deny a charge that was clearly not even alleged?)

But in the end, his live testimony was false. He did “have communications with the Russians” during the campaign. So this is what normally happens in confirmation hearings: the nominee reviews his testimony with lawyers afterward to make sure he or she did not accidentally mislead or lie. The nominee has days to amend their testimony, to give written clarifications if anything was untrue or misleading. If he or she does, then the problem is resolved. There is no “gotcha” for the earlier false statement, because the nominees have ample opportunity on their own to clarify.

Not only did Sessions fail to correct his false or misleading answer, but he continued to mislead when given a direct opportunity to clarify or disclose one week later in a written answer to Sen. Leahy.

First, on Jan. 12 (two days after Franken’s question), the Washington Post broke a huge story about national security adviser-designate Michael Flynn’s interactions with Russia’s Ambassador Kislyak.  On Jan. 15, Pence appears on “Face the Nation” to discuss Kislyak. At this point, every nominee has been reminded about Kislyak, that he was a really big deal, and that meeting him is a really big deal. If Sessions had somehow forgotten meeting Kislyak, he was undoubtedly reminded with a ton of bricks from the media storm around Flynn. At that point, any nominee would think, “Wait, did I meet with the same guy? And if I did, did I say anything under oath to the contrary?”  It would be problematic enough to fail to clarify Sessions’s live answer. But the problem is worse.

On Jan. 17, five days after the Washington Post story, and a week after the false answer to Franken, Sen. Leahy, the ranking Democrat on the Judiciary Committee, sends Sessions a letter asking about Russia, among other things:

Several of the President-Elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after Election Day?

RESPONSE: No.

Boom. There’s the case for perjury/ criminal false statement. Now let me be clear: by itself, the answer to Leahy appears to have wiggle room. But you cannot read the answer to Leahy by itself. It may be a second lie on its own, but more clearly, it is a failure to clarify the false statement in the live testimony, it continues to mislead, and it builds a strong case for intent to mislead and deceive.  Keep in mind, there are reports that Sessions did discuss the 2016 election with Kislyak, so in fact, both statements under oath may be false. In the very least, Sessions should have clarified his answer to Franken on his own initiative, especially once the Flynn/Kislyak story exploded two days later. But Leahy gave Sessions a gift, a fairly direct opportunity to disclose, clarify and correct a false statement, but Sessions turned that opportunity into a strong case of a deliberate false statement.

Here’s one more authority about whether this behavior counts as perjury or a criminal false statement: Sessions himself. In 1999, Sessions concluded that Bill Clinton’s statements, despite some roughly similar kinds of word-parsing and wiggling, constituted perjury, and Sessions voted to convict on both perjury and obstruction of justice. What’s good for the goose, Sessions?

Look, it’s always difficult to prove intent, and yet our legal system doesn’t say in countless criminal and civil cases, “Oh, it’s hard to prove intent, who could know what he intended? Let’s not prosecute.” No, our legal system convicts thousands and thousands of people for intentional crimes each year even though intent is never epistemologically knowable to an outsider. Our legal system uses context and common sense to reach our best conclusions about intent (beyond a reasonable doubt to convict). If you’re going to say that any doubt about Sessions’s intent is reason to excuse him, then you need to consider releasing thousands and thousands of people from prison. (Talk about massive criminal justice reform!)  The Attorney General does not get a special privilege or a free pass on “intent” when his Department prosecutes people every day for similar kinds of intent cases.
The bottom line: Sessions must resign. There is a strong case for perjury that a special counsel must investigate. Give that special counsel the discretion to decide to bring criminal charges. But it is absurd to give Sessions and his DOJ lawyers that discretion. The case for appointing a special counsel on the Russia contacts, with jurisdiction over Sessions’s contacts and perjury/false statement is overwhelming.
So what are the rules for appointing special counsel?  Back in January, I suggested that President Obama should appoint special counsel to investigate the Russia contacts and emoluments.  The same laws and regulations still apply and are more relevant now. If Sessions recuses, then formally a Deputy Attorney General takes over the case, but the next step should be appointing a special counsel/special prosecutor. I set out the statutes and rules in an earlier post here.

Sessions, Russia, and the rules for appointing special counsel

 The bottom line: Sessions must resign. There is a strong case for perjury that a special counsel must investigate. Give that special counsel the discretion to decide to bring criminal charges. But it is absurd to give Sessions and his DOJ lawyers that discretion. The case for appointing a special counsel on the Russia contacts, with jurisdiction over Sessions’s contacts and perjury/false statement is overwhelming.
So what are the rules for appointing special counsel?  Back in January, I suggested that President Obama should appoint special counsel to investigate the Russia contacts and emoluments.  The same laws and regulations still apply and are more relevant now. If Sessions recuses, then formally a Deputy Attorney General takes over the case, but the next step should be appointing a special counsel/special prosecutor. I will set out the statutes and rules below. First, did Sessions commit perj
The congressional statutes that set up the special prosecutor are found in the U.S. Code, 28 U.S.C.509 to 519.

The key statute is 28 U.S. Code § 515 – Authority for legal proceedings; commission, oath, and salary for special attorneys:

(a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.

(b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.

The statute then enables the Department of Justice to issue its own regulations (administrative rules) for special attorneys (e.g., special prosecutors), published in CFR:

600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

600.3 Qualifications of the Special Counsel. An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.

600.4 Jurisdiction.

(a)Original jurisdiction. The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.

(b)Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.

(c)Civil and administrative jurisdiction. If in the course of his or her investigation the Special Counsel determines that administrative remedies, civil sanctions or other governmental action outside the criminal justice system might be appropriate, he or she shall consult with the Attorney General with respect to the appropriate component to take any necessary action. A Special Counsel shall not have civil or administrative authority unless specifically granted such jurisdiction by the Attorney General.

The special counsel does not have a fixed term. Instead, the special counsel serves with a certain degree of job security. He or she does not serve at the pleasure of the President or the Attorney General. The Attorney General can fire the special prosecutor only for “good cause”:

600.10(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Leor on Sports: Celtics’ patience at the trade deadline

From Leor, Shugerblog sports editor:

Despite numerous rumors circulating days before the NBA trade deadline, the Boston Celtics shocked everyone by staying put, and not making a single deal. Here’s why general manager, Danny Ainge made the right decision by not pulling the trigger:

In 2013, Ainge made a brilliant move by dealing the aged out Paul Pierce and Kevin Garnett for multiple assets that have turned into extremely high draft picks. This move set the Celtics up perfectly to go in one of two directions: Either wait for the picks to turn into talented players, or to trade their picks away for already talented players. Four years later, the Celtics had to make that very decision on which way to lead the franchise in the week leading up to the 2017 NBA trade deadline. The Celtics came into the season with low expectations. But by February 17th, (one week before the deadline) the Celtics were in second place in their conference and only a few games behind the first place Cleveland Cavaliers. At this point Celtics fans had high hopes that Boston could compete for the championship with the help of a blockbuster trade. Even I got excited over the idea of the Celtics landing superstars such as Paul George, Jimmy Butler, and Blake Griffin. The Celtics could reach great heights in the near future with the lineup of Thomas, Bradley, Crowder, Horford, plus an elite all-star. We had the draft picks and young talent to pull off something big. But on further thought, I realized that Boston is in no rush to make a big move. The Celtics shouldn’t squander their bright future to become contenders in the next two or three years. We are not in a desperate position to throw away multiple high draft picks and young players to land one super-star. The Pacers’ final offer to the Celtics was Paul George for The Celtics’ 2017 first rounder and three out of four of the following players: Crowder, Bradley, Brown, and Smart. The Pacers would have snatched away our precious pick, while also digging deep into our line up, taking out very valuable and young players. However, if The Celtics were offered a more reasonable deal, then I would most likely be in favor of Ainge making a move. Earlier in the week, The Kings traded away one of the best big men in the league, Demarcus (Boogie) Cousins to the Pelicans for multiple mediocre and unpromising players and draft picks. If The Celtics would have been offered a deal like the Pelicans, then I would have been thrilled to make a trade. Although many fans were disappointed that Danny Ainge didn’t make the exciting move to chase after a superstar, Boston will end up in a much better position by remaining patient.

Trump responds to anti-Semitism with anti-Semitism of the “False Flag” trope

First, let me say that I am reluctant to throw around accusations of anti-Semitism. When Bannon referred to the “globalist media” recently or even when the White House statement on the Holocaust failed to mention Jews, I did not think the accusation of anti-Semitism was fair. (I think the media is generally globalist, mostly in good ways, and I prefer for the Holocsust to be universalized for a general “never forget” message, whereas right-wing Zionists prefer exclusive narrow ownership of the Holocaust). Second, let me say that I think the problem of anti-Semitism is not nearly as serious as the crisis over deportations and over racist, anti-Muslim, anti-Latino, anti-women, anti-social safety net policies right now.

But this afternoon demands an explanation, especially in the context of Trump’s selectiveness with Twitter excuses, blame, and silence. The context is Bannon’s white nationalist media and their frequent use of “false flag” blaming-the-victim, and it is also a personal story in my engagement with a pro-Trump acquaintance a few months ago that was eye-opening.

This afternoon, Trump told state attorneys general the following about the recent wave of anti-Semitic acts:

When asked on Tuesday about the recent wave of anti-Semitic threats and property destruction, President Donald Trump allegedly said that ‘sometimes it’s the reverse.’ The remark was made to a gathering of state attorneys general, according to Pennsylvania Attorney General Josh Shapiro. “He just said, ‘Sometimes it’s the reverse, to make people—or to make others—look bad,’ and he used the word ‘reverse’ I would say two or three times in his comments.”

This reply is certainly devoid of empathy. It may seem enigmatic or ambiguous, but to those who follow white nationalist websites, it is very familiar. Trump is suggesting that Jews are faking these attacks to make Trump supporters “look bad.”  It is called the “false flag” accusation, and it is a familiar trope in white nationalist circles. It is a win-win for white nationalists: they get to have their anti-Semitic act and they also get to blame a sneaky Jewish conspiracy for it. This false flag accusation is not limited to Jews. White nationalists have used it frequently about Obama and Muslims. See the conspiratorial nut Alex Jones for recent uses of the false flag accusation against Obama and the victims of the Quebec massacre of Muslims. Just Google “false flag” and you can go down a far-right-wing rabbit hole of racism and conspiracy theories.

The “false flag” comes from military terminology, a “ruse de guerre,” for when an army or navy used the other side’s flag to sneak past the lines, confuse, and sabotage the other side. Sometimes a “false flag” campaign was used as a pretext for war, to make it appear that another country had attacked, when in reality it was a covert operation to blame the other side. Some suggest that the burning of the Reichstag (the German parliament building) on Feb. 27, 1933 (exactly 84 years ago yesterday) was a false flag. The Nazis blamed a lone anarchist, but new historical evidence suggests it was a Nazi sabotage. Some have suggested that Mossad engaged in a false flag in Iraq around 1950 to blow up a synagogue, in order to get Iraqi Jews to move to Israel. There is no question that the “false flag” conspiracy does occur in history.

The problem is that white nationalists know some of this history, and they exploit it. I have spent time over the past year tracking Bannon’s Breitbart and Alex Jones’s Infowars, and following links down a rabbit hole into neo-Nazi websites. Keep in mind that Alex Jones is a racist nut who spread the Pizzeria/child trafficking conspiracy and who informally advises Trump. When two dozen kindergartners were shot and killed in Newtown, Connecticut, Alex Jones claimed it was a faked event to generate gun regulation. It seems whenever there is a racist or anti-Semitic vandalism, you probably can find a white nationalist site claiming it was a “false flag.”

I had one particularly disturbing exchange with a Trump supporter a few months ago, after a spike in swastika graffiti around the country, including my hometown of Bethesda, MD. I won’t name any names, and I am not suggesting that this acquaintance knowingly spread an anti-Semitic false story. This person probably spread it unwittingly after it was filtered through Trump sites. This acquaintance responded to my post by suggesting this same “false flag” conspiracy and linked to this story about the swastika vandalism at Northwestern by a prominent pro-Trump blogger:

“Fake Hate: Jewish students painted swastika.” Apparently the blog post’s title has been changed, but it stays the same in the original link:

http://www.thegatewaypundit.com/2016/11/fake-hate-jewish-students-painted-swastika-trump-campus-church/

I followed the links and dug into the background of this story. It turns out to be false. And it comes right out of neo-Nazi sites (“The Nationalist-Socialist Worldview,” “Stormfront” and other similar anti-Semitic sites). The posts claim that the two students, Matthew Kafker and Anthony Morales, were Jewish liberals. The comment section on the Gateway Pundit is a gateway into an anti-Semitic underworld of conspiracy theories and hate. As I kept digging, I saw how the “false flag” conspiracy was simultaneously a way to deny the existence of anti-Semitism while also engaging in anti-Semitism (the eternally conspiratorial Jew). I found similar themes in Breitbart comment sections.

Mike Huckabee read these right-wing sites and falsely made the same “false flag” claim, which he retracted later. It was also on MAGAfeed (a Trump site). It seems to start in the expressly neo-Nazi sites, it gets filtered through white nationalists sites, and then gets mainstreamed from Breitbart to the press. The same stories spread about Muslim false flags and other racist false flag conspiracies. It is no accident that Trump is spreading this filth, because his advisors feed it to him from the sewers of Stormfront/Breitbart/Infowars hate.

A seeming contradiction is how some Jews are comfortable in the Trump white nationalist coalition, and how white nationalists can co-exist with Zionism. But it’s quite simple: white nationalists believe every ethnicity should have its own nation, totally consistent with segregation. Blacks, back to Africa. Latinos, back to Latin America. Jews, back to Israel. For pro-Trump Jews (20-25% of Jewish voters?), the enemy of my enemy (Muslims) is my friend. Even if that “friend” is destroying my cemeteries and phoning in bomb threats at my JCC.