GOP’s Dangerous Attacks On Precedent

One of the greatest failings in the immediate aftermath of the collapse of the Soviet Union was the desire to create a capitalist economy as quickly as possible at the expense of creating a robust and empowered judicial system. The fallacy of that approach was that Putin was able to use his largely unrestrained executive powers to create the capitalist kleptocracy that he rules to this day.

In this country, Republicans seem to be taking the same approach as Putin but from the opposite end of the spectrum by eroding the power of our judicial system. Increasingly, and with help from sycophants they have put on the bench, the GOP is declaring the law is whatever they decide it should be.

Take, for example, William Barr’s unique legal theory that the president can not be obstructing justice if he exercises his executive powers to shut down an investigation because he believes it is unfair and unfounded. The obvious flaw in this legal logic is that it will be impossible to determine whether the investigation was unfounded without completing the investigation.

In addition, Barr adds to this view by also stating that even if the president is acting with corrupt intent when he obstructs an investigation by using his executive powers, then it, by definition, can not be obstruction of justice unless there is a provable underlying crime that he is knowingly obstructing. The obvious flaw in this legal logic is that the president may very well know there is an underlying crime but his obstruction makes that impossible to prove. In fact, that appears to be the case with Trump, although Barr either does not know that or, more likely, simply ignores that inconvenience when he exonerates Trump on obstruction. The two instances that blow this part of Barr’s theory out of the water is that Mueller actually cited two underlying crimes in his report. First, Trump tried to influence Michael Cohen’s testimony about the criminal campaign violations involving hush payments to the two porn stars with whom Trump had affairs. Trump is an unnamed co-conspirator in that crime. Second, Mueller’s prosecutors specifically noted that Manafort lied about his passing polling data to the Russians because of the possibility of a pardon floated by Trump.

Finally, as Rachel Maddow pointed out last night, Barr has created a catch-22 for Mueller. The DOJ’s OLC memo states that a sitting president can not be indicted. Yet Barr, in his Senate testimony, states that once Mueller decided he would not prosecute Trump, then his investigation must cease. This circular logic essentially prevents any investigation of a president ever and may have been used by Barr to shut the Mueller investigation down prematurely. I suppose the only way around Barr’s logic would have been for Mueller to indict the President under seal until he leaves office. But, as Maddow pointed out, if Barr has now established the new DOJ legal position about indicting the President, then Mueller should be forced to answer whether he would have indicted the President for obstruction. Based on his report, the clear answer appears to be in the affirmative.

Put it all together and Barr is basically arguing the president is above the law, which is certainly a view that is outside the legal mainstream and has never been tested in court. But, until any court actually rules on Barr’s theories, they are apparently the law of the land as far as the Department of Justice is concerned.

Barr’s DOJ has also taken an unusual legal position in its support of the legal case to destroy the ACA and strip tens of millions of health insurance. The DOJ, in a radical break with policy, is supporting an absurd challenge to the constitutionality of the ACA in the Fifth Circuit, the place where conservatives go to produce their own version of the law. The challenge, supported by red-state Attorneys General argues that the, because Congress reduced the individual mandate tax to zero as part of the Trump’s tax cut, the Supreme Court ruling that the mandate was a constitutional tax no longer applies and therefore the entire law enabling the ACA is no longer constitutional. I know that makes no sense but that is what the DOJ is currently arguing.

There are two overwhelming problems with this absurd case. First, someone must have standing to actually sue, meaning that someone must be injured by the unconstitutional provisions of a legislative act. Since the so-called “tax” is now zero, there is literally no one who is being harmed and no one who has standing to sue. The DOJ argues that the two plaintiffs in the case have been harmed by the “legal command” that they purchase health insurance, despite there being no actual penalty for not doing so and the fact that the Supreme Court has already ruled that an actual penalty for not doing so is constitutional. This legal argument is so pathetic it defies belief.

But it gets worse. The DOJ is currently prosecuting individuals and companies based on provisions of the ACA that criminalized health insurance fraud. If the entire ACA is unconstitutional, then those prosecutions are invalid. So the DOJ has decided that the provisions for which the plaintiffs have no standing for their suit are the ones relating to the criminalization of health care fraud. It is hard to fathom how the plaintiffs are injured by the requirement for health insurance companies to insure those with pre-existing conditions but are not harmed by the provisions to criminalize health care fraud. The DOJ brief makes no attempt to resolve that issue.

In addition, the plaintiffs must overcome the legal doctrine of “severability” which was recently reaffirmed in a case from 2018 where the Supreme Court stated, “in order for other . . . provisions to fall it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not’”. In other words, if Congress would have know that one part of a law was unconstitutional, would they still have enacted the other constitutional provisions in the law. While this often requires some divination from courts, in this case the evidence is clear. Congress debated for months before voting not to repeal the ACA in its entirety. In addition, Congress only voted to reduce the individual mandate to zero. The intent of Congress could not be clearer.

The DOJ, in its brief supporting the legal challenge to the ACA, cites the landmark case of NFIB v. Sibelius from 2012 that ruled the ACA as constitutional but severed the forced Medicaid expansion from the law, while leaving the rest intact. Citing the Supreme Court decision that upheld the constitutionality of the ACA as well as the constitutionality of the individual mandate would seem to run counter to the very arguments the DOJ is making. But the DOJ ignores the actual result of the 2012 decision and instead cites the dissenting opinion of four conservative justices that believed the individual mandate was unconstitutional and therefore the entire law must fall. It is basically trying to convince the Fifth Circuit that the dissenting opinion of four conservative justices is the existing law, rather than the actual 5–4 decision of the Supreme Court. But even as the DOJ cites the dissenters claims that the unconstitutionality of the individual mandate invalidates the entire law, they are simultaneously telling the court that, by reducing the individual mandate to zero, it is no long a tax. If that is so, then the dissent of the four conservative justices no longer even applies. As Mark Joseph Stern summarizes, William Barr’s DOJ has filed “perhaps the most embarrassing, illogical, and nakedly political brief in the history of the agency”.

White House Counsel Emmet Flood is also taking an unusual legal position with regard to potential congressional testimony from witnesses interviewed by Mueller. According to Flood, although Trump did allow his aides to testify to Mueller, he did not specifically waive executive privilege and, since he did not specifically waive executive privilege, he is free to invoke it if witnesses are called to testify to Congress. Rationally, this makes no sense in that executive privilege has usually had a blanket application. If you waive it once, it is waived for all. But trying to claim executive privilege has the potential to prevent witnesses from testifying while the courts make such a determination.

Finally, in an illustration of just how far away from the rule of law we have strayed and how deeply this is now embedded in our government, Lily Axelrod highlights a ruling from the Board of Immigration Appeals (BIA) that directly and willfully ignores the current rulings of the Supreme Court. Under current law, a non-citizen in a deportation proceeding can attempt to avoid removal by applying for a green card if they have lived in the country for ten years and have no criminal history. However, that ten year period ends when the non-citizen receives a notice to appear for a deportation hearing, commonly known as the “stop-time” rule. The Supreme Court has clearly ruled that a notice to appear must include a specific time and location for that hearing. Last year’s decision in the case of Pereira v. Sessions specifically states that a “putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section [239(a)],’ and so does not trigger the ‘stop-time’ rule”.

Over the course of decades, DHS has issued notices to appear that designated the time and place for the removal hearing as “TBD”. Based on the Supreme Court’s ruling, it is clear that such notices do not fulfill the necessary requirement to end the stop-time rule. As Trump unleashed his deportation forces on non-citizens in this country, thousands of people filed for green cards in the hope of avoiding deportation despite having received notices to appear years earlier that never designated a specific time and place for that hearing.

In a 9–6 decision, the BIA brazenly ignored the Supreme Court’s decision and ruled that the government could “cure” a defective notice to appear by issuing an updated notice with a specific time and date. This two-step process meant that the government could activate decades old notices to appear that did not include a specific time and date with an updated notice, effectively ending the stop-time rule at the time of the original defective notice. This decision potentially invalidates the claims of thousands of non-citizens who may have led valuable and productive lives in this country for 25 years simply because they received a defective notice to appear 20 years ago. And the ruling simply ignores the clear wording of the Supreme Court by inventing this two-step method to cure defective notices to appeal.

The foundation of a functional legal and judicial system is adherence to precedent. This does not mean that no judicial ruling can ever be challenged. But to do so, significant new evidence and legal constructs grounded in existing law must be introduced. The rule of law breaks down when the courts and those charged with enforcing and upholding the law begin to craft their own versions of what is legal and what is not, solely on their own political whims or to their own personal advantage. The issues discussed above, all occurring in the last few day, shows just how common this is actually becoming and how disastrous it will be for the rule of law in this country.

Originally published at on May 3, 2019.

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