President Trump Archives - The National Law Forum

Review of Chiafalo and Baca: The “Faithless Electors” Supreme Court Cases

The role the Electoral College plays in American life has confused and confounded many, especially since the U.S. Presidential election of 2016, when the winner of the national popular vote, Hillary Clinton, actually lost the election to President Donald Trump by vote of State-appointed electors in the Electoral College.

The Electoral College was intended by the Founding Fathers to be a buffer between the passions of the masses and the rule by edict of only an elite few, but how much of a buffer and how autonomous the electors within the Electoral College actually are was never fully addressed by the Supreme Court until its decisions late this term in Chiafalo v. Washington, 19-465, (Decided July 6, 2020) and Colorado Dept. of State v. Baca, 18-1173 (Decided July 6, 2020). (The Supreme Court issued its full opinion in Chiafalo).

As a country, we have grown accustomed to watching the national news on election night as states are called for each candidate, and electoral vote tallies are updated to show to us who is “winning” the election when, in reality, all of this is a mere projection, as none of those “electoral votes” are assured, or even cast, until the electors actually cast those votes at a time and place long after November 4.

So who are these “electors” who vote in the Electoral College? Are they “rubber stamps” bound to follow the popular vote of the State who appointed them? Can the State require the electors to sign a pledge to vote consistent with their state’s popular vote winner? If so, can the State punish that elector, including removal as an elector if they violate that pledge and vote for someone else? Or is an elector more of a “free agent” in the vein of those elected as State representatives in Congress? Congressional representatives, of course, are not bound by the State or its citizens’ desires when casting a vote in Congress (though they are held to account for their votes in the next congressional election). If electors are not to use their own judgment, then why does the Constitution call them an “elector” (which connotes some amount of discretion) instead of a delegate, or a proxy, or any number of other terms that would signify a lack of individual authority? Or, more simply, why have electors at all?

In Chiafalo and Baca, electors in Washington and Colorado were appointed by their respective States and were required to make, and did make a pledge when they were appointed as electors to vote consistent with the popular vote of their states. Yet, when the time came to cast their vote in the Electoral College, they didn’t vote consistent with the winner of the State’s popular vote as they had pledged. They voted for another candidate instead, forever earning the moniker of “faithless electors”. They weren’t the first electors ever to have done that. In fact, it has happened 180 times in our country’s history. The question presented to the Court then was – can they do that?

As it turns out the answer isn’t that simple. To understand how we got here, you need to go back to the Founding Fathers and the debates that forged the U.S. Constitution and the country itself. Let’s start with the misconception that the Constitution provides for a direct popular election of the President by the vote of its citizens. It doesn’t. At the birth of our country, there was fierce debate over who would elect our President. One group argued for a free and democratic vote, where the (white) (male) citizens directly chose their nation’s leader based upon a direct popular vote. Another group, more skeptical about the passions (and frankly, the ability) of the masses, called instead for a group of wise men to be tasked with choosing the President. This debate was resolved in an “eleventh hour” compromise at the close of the Constitutional Convention, which attempted to bridge the gap by expressly stating only:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States shall be appointed an Elector.

U.S. Constitution, Article II, §1, cl. 2. Originally, the Article continued on to describe the process for the vote, but that process was quickly found unworkable and the States scrapped it.

Instead, in 1804, the States replaced the process the electors were to follow with the Twelfth Amendment:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President…, they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and the number of votes for each, which lists they shall sign and certify, and transmit sealed to [Congress, where] the votes shall then be counted.

Yet even after this amendment, the Constitution remained silent as to what the electors’ role beyond merely casting their vote was to be.

In Chiafalo, the “faithless electors” argued that electors could vote for whomever they wished, based on three main arguments: (1) a textual argument that focused heavily on the word “elector”; (2) a historical argument based upon the fact that from early on there were electors who voted contrary to their state’s popular vote; and (3) the “federal function” argument, that once they had been appointed by the State as an elector, that the State no longer had the power to control their vote since they were now engaged a “federal function” of electing the President and Vice President. Central to their arguments was the concept that the right to vote inherently includes the discretion to choose whom they will vote for. And more, that an elector should not be subject to punishment by the State based upon how they cast their vote. While a State can set requirements for electors, i.e. that they be state residents, etc., the electors argued that those requirements end when it comes to the electors’ exercise of their appointed function – the vote. The faithless electors argued that electors were akin to legislators and that discretion by the voter was inherently part of the Electoral College process. Once the State appointed an elector, they argued, the State did not have the power to “stand over the shoulder” of the elector as they carried out their constitutional function of voting for President and Vice-President. Otherwise, why have electors? Why not have the States simply report who they had voted for?

The States countered that, consistent with Supreme Court precedent, along with the express power to appoint the electors, came with it the reciprocal and concurrent power to also remove the electors, and therefore States could set conditions of removal on its electors, including punishments for the way in which they vote, such as a pledge that they vote as the state’s voters had in the popular election or suffer a $1,000 fine. The States argued that this outcome was dictated by a plain textual reading that these powers had been delegated to the States, that the federal government has limited power and authority, and that any powers not expressly given to the federal government in the U.S. Constitution, remain forever within the States’ exclusive right to control.

The gravity of the question the Supreme Court faced in these cases was real. While the outcome of the 2016 election was not changed by these faithless electors’ actions, with our country so closely divided, it is quite possible that faithless electors could change the outcome of future elections. If the Court had decided that electors were “free agents” who, once appointed, could vote (or not vote) as they wish, then not only could an elector or group of electors “switch sides” and change the winner of the Presidential election, but also, if they instead chose not to vote, they could deny both candidates the 270 votes necessary to win the election, and the matter would be sent to the House of Representatives for a “contingent election.” In a contingent election, each State must cast a single vote, and the victor of that vote becomes President regardless of who won the national popular vote or won States with more than 270 electoral votes combined.

As many publications recognized in advance of the Court’s ruling, this case legally presented a close call. The Founding Fathers provided little help, as even they couldn’t agree on the best approach – hence the compromise – and essentially just “kicked the can down the road.” A dispositive purely textual analysis (which this Court in its current make-up is increasingly fond of) was unavailing. The sole clear point is the unconditional power given to the States by the Constitution to choose the electors.

In deciding Chiafalo and Baca, the Supreme Court struck a pragmatic approach. Listening to the oral arguments, once could sense the concern with potential for “chaos” – the “chaos question” Justice Breyer called it – about the “chaos” that could ensue if the Supreme Court suddenly declared all electors to be “free agents” untethered from the will of the States and their citizens, to be instead courted and lobbied by nefarious actors from both home and abroad to vote for candidates regardless of who won the actual popular vote of each State’s elections. A fear that once may have seemed far-fetched, seems much more real today, after 2016, when foreign actors clearly engaged in attempts to manipulate the Presidential election. Consider, as the Court did, the risk of a foreign power hacking the computers of electors and blackmailing them to change their votes. Or the risk of a rich and elite few enticing electors to switch their votes for personal gain. It was these practical rather than legal concerns that seemed a loud and constant undercurrent of the entire debate.

In the end, the Justices, even the most fervent originalists among them, appeared to look more at how electors and the Electoral College is understood today than how the Founding Fathers had actually potentially intended it to work at the beginning.

Writing for the majority, Justice Elena Kagan quoted James Madison’s maxim that “a regular course of practice” can “liquidate & settle the meaning of” disputed or indeterminate “terms & phrases.” She then reviewed that regardless of what may or may not have been envisioned as an elector’s role 200 years ago, the historical reality is that over time electors have evolved into merely a “rubber stamp” for the vote of the people within their States. (The faithless electors stressed that since the founding, electors have cast some 180 faithless votes for either President or Vice President without objection, but the Court shrugged off this inconvenient fact, concluding “that is 180 out of over 23,000” electoral votes cast).

For a Court that has tacked toward textualism and divining the original intent of the Founding Fathers, its decision as expressed in Chiafalo and Baca was instead a square and practical one. If a State holds an election for President, and the State declares “winner take all” for its electoral votes, then the State has the power to require the electors to vote as the States wants, including the power to condition their service and to mete out punishment on the electors if and when they do not comply. The country has evolved to a place where it is now assumed by the general public that their votes count, and that electors will simply carry out the proxy of the State who appoints them. To change that assumption now would not just upset the apple cart – but may well have destroyed it – disenfranchising millions of citizens and creating grave risks of political corruption that, in the Justices’ eyes, was too much to bear.

© The National Law Forum LLC

Article by David K. TeSelle Trial Lawyer at Burg Simpson and
The National Law Review’s Guest Contributor.

For more on the Electoral College see the National Law Review Election Law & Legislative News section.

Declaring National Emergency, President Trump Orders Restrictions on Electrical Equipment Supplied By “Foreign Adversaries”

In an Executive Order issued on May 1, 2020, President Trump declared that the unrestricted supply of electrical equipment from foreign countries represents an “unusual and extraordinary threat to the national security, foreign policy, and economy of the United States” because foreign adversaries may use such equipment to sabotage the nation’s electric power supply. While the scope of the order will not be clear until rules to carry it out are put in place, the order could prove disruptive to the supply chains for substations, transformers, and other equipment essential to operation of the nation’s electric power system, as well as to a new generation of “smart grid” devices that are transforming the electric grid, especially for devices that are manufactured in China.

The vulnerability of the electric system to malicious software and other threats embedded in equipment or components manufactured in the territory of hostile powers has long been recognized as a potential problem. In fact, the North American Electric Reliability Corporation, the entity responsible for promulgating and enforcing mandatory electric reliability standards, has developed a reliability standard (CIP-013-1) governing “Supply Chain Risk Management,” although the effective date for the standard was recently delayed by the Federal Energy Regulatory Commission due to the COVID-19 crisis.

In contrast to CIP-013-1, which requires each entity subject to the standard to develop its own plan for ensuring that relevant supply chains are free from cybersecurity risks, the new Executive Order contemplates a top-down approach, in which certain “foreign adversaries” would be identified and imports from those “adversaries” would be prohibited, although transactions with certain vendors would be allowed if they are on a “pre-approval” list. Notably, the Executive Order applies “notwithstanding any contract entered into or any license or permit granted prior to the date of this order” and authorizes the Secretary of Energy to act against “pending transactions” that might violate the order. Hence, the Executive Order could be applied retroactively, particularly to transactions that are now in process.

This aspect of the Executive Order is particularly troubling because it is likely to be at least several months before the exact reach of the Order is known. The Order directs the Secretary of Energy, in cooperation with other federal departments, to promulgate rules carrying out the Executive Order within 150 days. It is likely that the list of “foreign adversaries” will include China, which is an important link in the supply chain for many companies, as well as Russia, Iran, and North Korea. But that remains an unknown, as does the list of suppliers that might be included on the pre-approved list. The Executive Order is limited to the “bulk electric system”—high voltage transmission lines, substations, and related equipment – but contains a provision that could expand its reach to electric distribution systems, an area generally left to state regulation, based on recommendations from a security task force to be formed under the Executive Order.

The Executive Order creates new and potentially serious regulatory, contractual, and supply chain management issues for companies engaged in operation of the bulk electric system, in the manufacture of equipment necessary for operating the bulk electric system, and for emerging “smart grid” technologies that promise to improve the operation and efficiency of the bulk electric system.

ARTICLE BY Eric L. Christensen and Lauren A. Hopkins of Beveridge & Diamond PC.

For more on America’s electric infrastructure, see the National Law Review Environmental, Energy & Resource law section.

Medicare and the 2020 Election

Now that the campaign for President appears to be down to two candidates, we need to address the health care questions that both will face. In this blog, we will talk about Medicare and in a later blog, we will talk about the public option.

A question which has faced not just these two individuals, President Trump and Presidential Candidate Biden, but has faced the country for the last 10-15 years, is the projected deficit in the Medicare program as it is now configured. In an attempt to respond to and ameliorate this deficit, various steps have been taken in the past which have delayed the impact of the deficit but have not eliminated it. Past steps that have been taken include the elimination of the cap on W-2 earnings for purposes of calculating the Medicare tax, the application of the Medicare tax to non-W-2 earnings for individuals whose taxable income is above a certain level, calculation of Medicare Part B monthly premiums based upon income (the higher the income, the higher the premium that needs to be paid by the beneficiary), and the attempt to both explicitly and implicitly limit the payments being made by the Medicare program for services provided to Medicare beneficiaries. The explicit attempt was the development of the Sustainable Growth Rate (SGR), which was never effectively implemented and ultimately repealed. The implicit attempt is ongoing and has resulted in the necessity for beneficiaries with private insurance to subsidize the care being provided to the Medicare (that’s correct, not Medicaid, but Medicare) beneficiaries.

This “subsidy” by private insurance to health care providers to cover the costs of providing care to the Medicare beneficiaries is slowly having an impact on the care delivery system. It has resulted in a few prior Medicare providers now refusing to render care to Medicare patients in the non-hospital setting. It is also encouraging physicians only to take Medicare patients who have previously been their private patients when that individual had private insurance so that the continuity of care to those individuals is not being disrupted.

As this subsidy increases, it becomes more and more likely that fewer providers will be providing care to Medicare beneficiaries, to the extent that they can legally opt out.

The next issue raised in the campaign is the extension of the Medicare program proposed by Presidential Candidate Biden to individuals from the ages of 60-65. Unlike the Social Security program, which attempted to resolve its deficit problems by extending the retirement age from age 65 over a period of time to age 67, the proposal by Presidential Candidate Biden is the opposite and that is to reduce the eligibility age for Medicare from 65 to 60.

The questions that need to be answered are:

How much is it going to cost?
The proposal recognizes that the current Medicare program (currently facing a shortfall) cannot pay for the services provided to these new Medicare beneficiaries and proposes that the government pay the costs–which means the taxpayer. The question then is what changes will be made to the tax code and whose taxes will be increased–of course this raises the questions always associated with tax increases.
It appears that all aspects of the Medicare program – Parts A, B, C, and D – will be available to the age cohort 60 to 65. Will the copays, deductibles and premiums, as applied to current Medicare beneficiaries, be applicable to this cohort?
Will the same payments be made to the providers for care rendered to this cohort of new Medicare beneficiaries? Will this adversely impact the willingness of some providers to continue to participate in providing care to Medicare beneficiaries?

When answers to these questions become clear, to the extent that it does become clear, we will analyze these questions in a subsequent blog. Otherwise at this point in time, it is speculation as to the impact.

ARTICLE BY Frank R. Ciesla, Beth Christian, Anjali N. Baxi and Ari G. Burd of Giordano, Halleran & Ciesla, P.C.

For more on the election, follow the National Law Review Election Law & Legislative News section.

President Trump Expected to Sign Executive Order to “Temporarily Suspend Immigration to the United States”

Shortly after 10:00 p.m. last night, President Donald Trump announced—through Twitter—that he “will be signing an Executive Order to temporarily suspend immigration into the United States,” because of the “attack” from the COVID-19 pandemic on the United States and “to protect the jobs of our GREAT American Citizens.”

Other than President Trump’s Tweet, neither the White House, the Department of Homeland Security, State Department, nor any other federal agency provided any guidance or information as to what exactly the suspension of immigration into the United States actually means, how expansive such a suspension would be, or the number of individuals and countries that such an executive order could affect.

Global Travel Ban to the United States

On March 19, 2020, we wrote about the travel restrictions the White House imposed on the admission of foreign nationals into the United States, to limit the spread of COVID-19. Since then,

foreign nationals who were in any of the following countries in the 14-days before traveling to the United States (were and still) are barred from entering and will be turned away at U.S. airports, ports, border crossings, and other ports-of-entry: Austria, Belgium, China, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Iran, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

Moreover, all non-essential travel between the United States, Canada, and Mexico was initially restricted on March 18, 2020, for 30 days. Yesterday, however, President Trump extended the non-essential travel restriction between the three counties for an additional 30 days—through May 20, 2020.

Official Guidance to Suspend Immigration

As of today, there are no other restrictions on the entry to the United States related to the COVID-19 pandemic, other than those noted here. President Trump’s Tweet is still just a Tweet. No official guidance has been issued as to the halting of “all immigration” into the United States.

ARTICLE BY Raymond G. Lahoud of Norris McLaughlin P.A.

Who Must Protect the Ukraine-Trump Whistleblower?

Op-Ed From Stephen M. Kohn of the National Whistleblower Center

As the impeachment proceedings heat-up, and calls for the Ukraine whistleblower to be identified increase, there remains a fundamental question: Who has the legal responsibility to protect this whistleblower? The answer will surprise you!

There are very few laws mandating what the President, as part of his required and mandatory job duties, must perform. Guaranteeing that employees who make protected disclosures under the Intelligence Community Whistleblower Protection Act (“ICWPA”) are fully protected is one of them. The Ukraine whistleblower is a a federal employee covered under the ICWPA. He or she made a protected disclosure under the ICWPA. Thus, it is up to President Trump to fully and completely protect this individual. Here’s why: The ICWPA directs that “[t]he President shall provide for the enforcement of the [Act].” It is as clear and simple as that. The President “shall” “enforce” the whistleblower law that makes it illegal to retaliate against intelligence community whistleblowers.

Every intelligence community whistleblower, whether they be a Democrat, Republican or Independent, is entitled to the same protection from the President. In the case of the Ukraine whistleblower, the law does not permit the political implications of the whistleblower’s disclosure to have any impact on the mandatory duty of President Trump to fully “enforce” that whistleblower’s right to be free from any retaliation. The President is required to put his biases or self-interest aside and defend the right of intelligence community whistleblowers to report abuses of authority. This includes wherever those abuses are committed, including the Oval Office. Under the ICWPA the buck stops with President Trump, impeached or not.

Unlike other whistleblower laws which give the federal courts or independent agencies, like the Merit Systems Protection Board or the Department of Labor, the authority to protect whistleblowers, the ICWPA places that solemn duty directly on the shoulders of the President. It is the unique legal responsibility of the President. The President must ensure that the identity of the intelligence community whistleblowers who file complaints with the Inspector General pursuant to the Inspector General Act, are fully protected. It is the President who must ensure that every person within the executive branch of government protect the job security of ICWPA whistleblowers. It is the obligation of the President to punish those who fail to do so.

The ICWPA anti-retaliation law is not limited simply to preventing whistleblowers from being fired. The law defines the types of “adverse action” the President must shield whistleblowers from, including “any change in working conditions.” In the case of the Ukrainian “quid pro quo” whistleblower, the catastrophic impact on the whistleblower’s ability to perform his or her job duties that would be triggered by violating his right to confidentiality is obvious. This would include undermining his or her ability to work oversees, be promoted to a covert agent (if not one already), or effectively interact with employees in the White House.

Furthermore, breaching the confidentiality of whistleblowers is well established as an “adverse action” under whistleblower law. Federal courts and administrative agencies as divergent as the SEC and Department of Labor have ruled that revealing the name of a whistleblower is an adverse action. Anyone with experience working with whistleblowers knows that once their identity is revealed, their working conditions will never be the same, and they will have a target on their back for the rest of their careers.

The procedures applicable to the Ukraine whistleblower actually informed the whistleblower, in writing, that he or she could file a confidential complaint to the Inspector General. The actual form submitted guaranteed this right. Once the complaint was filed and accepted by the Inspector General, the whistleblower protections afforded under the ICWPA kicked in. As a matter of law, it became President Trump’s obligation to “enforce” the ICWPA and ensure that the Ukraine whistleblower suffer no retaliation. It became the President’s non-discretionary duty to ensure the whistleblower suffered no harm. This may be hard to believe, but the law is the law.

Given the highly public attacks on the whistleblower emanating from the White House it is now incumbent upon President Trump to instruct all employees within the federal government to comply with the ICWPA. He must take steps to have his Congressional supporters, “stand down” and stop their continued drum beat to “out” the whistleblower. Regardless of where you stand on impeachment, the President must enforce the requirements of the ICWPA and protect the whistleblower.

When Donald Trump signed onto the job of President, protecting intelligence community whistleblowers became one of his few mandatory job duties. Like other employees who work for the taxpayers, he many not like all of his required jobs. Like other employees he may find some parts of his job difficult or distasteful. But he has no discretion in this matter. It is a requirement. He must ensure that the whistleblower is not retaliated against, that the whistleblower’s identity remains confidential, and that the whistleblower can continue in his or her career, free from stigma. He must hold those who retaliate accountable. That is part of the job he wanted. That is the job he must perform.

ARTICLE BY Stephen M. Kohn of Kohn, Kohn & Colapinto.

See the National Law Review Criminal Law & Business Crimes for more information.

The Impeachment Process: Politics, Procedure and Next Steps

The US House of Representatives is set to vote this week on impeaching President Donald Trump, and the impeachment vote is expected to pass. This will set the stage for the next step in the impeachment process; the third-ever Senate impeachment trial.

We thought this would be a good time to recap the steps in the impeachment process to better understand, procedurally, how the impeachment case against President Trump reached this point, and what is expected next. Also, we wanted to dig into some of the issues which have been brought up as problematic by the Republican minority in the House related to the impeachment process and the structure of the House hearings.

Jeffrey S. Robbins, a litigation partner at the Boston offices of Saul Ewing Arnstein & Lehr LLP, served as Chief Counsel for the Minority (the Democrats) for the United States Senate Permanent Subcommittee on Investigations, and Deputy Chief Counsel for the Minority for the Senate Governmental Affairs Committee during its 1997 investigation into allegations of fundraising improprieties by the Clinton-Gore Administration during the 1996 presidential campaign. Mr. Robbins was kind enough to share his expertise on past congressional investigations to help sort through some of the procedural issues raised and help us understand if the process, so far, has proceeded in a usual manner.

NLR: Impeachment is a three-step process, beginning with an investigation in the house and then a vote on articles of impeachment, then a trial in the Senate. What kind of evidence is the House looking for during the investigation stage prior to voting on articles of impeachment?

Robbins: The House committees are looking for the strongest quantum of evidence possible that the President engaged in conduct which amounts to an identifiable “crime,” since a conservative reading of the Constitution holds that some form of crime, at least, is necessary for impeachment.

House Republicans have complained about the limited access to closed-door House impeachment investigation and depositions leading up to the House’s impeachment vote should all be public and the transcripts should be released. Access to the House’s investigative hearings has been limited to members of the three House committees involved– Foreign Affairs, Intelligence and Oversight, and Reform which have a majority of Democratic House Members but Republican committee members can participate in the investigation and question the parties being deposed. Intelligence Committee Chairman Adam Schiff, D-Calif., said private sessions are needed to prevent witnesses from hearing each other, the same protocol used by prosecutors in criminal investigations. House Minority Leader Kevin McCarthy, R-Calif., called Schiff a liar and a partisan leading a witch hunt and that the venerable Intelligence Committee has become the partisan Impeachment Committee.

NLR: How much of the House’s investigation needs to be in the form of public hearings?

Robbins: There is no Constitutional requirement that impeachment hearings be public or private, but as a practical and a political matter, it is obvious that impeachment hearings need to be conducted in public; after all, building public support for impeachment is a sine qua non (an essential condition) of a vote to impeach, let alone a vote to convict. On the other hand, there is nothing remotely nefarious about what the Minority refers to as “closed door” depositions; Congressional investigations routinely utilize depositions, by definition closed to the public, as a device to ascertain which witnesses have relevant evidence and what that relevant evidence is, in order to assess the strength of a “case” and to more effectively organize any public hearings associated with the investigation.

Intelligence Committee Chairman Adam Schiff said private sessions are needed to prevent witnesses from hearing each other. House and Minority Leader Kevin McCarthy said “I can’t even go down there and read the transcript,” alleging that Republicans have not been allowed to cross-examine the hearing witnesses, which is not accurate.

The reality is that Republicans have participated in each deposition, but their role is limited by the Democratic committee majority. Both Republicans and the Democrats get equal time to ask questions. Forty-seven Republicans from the Intelligence, Foreign Affairs, and Oversight Committees have been allowed to attend and participate in the depositions.

NLR: What actually goes on in Congressional hearings? What is the timeline between the hearings and the public testimony?

Robbins: From personal experience, I can tell you that the preparation to question witnesses in a Congressional investigation is an intense process, made all the more intense by the volume of material that has to be consumed in order to question effectively and by the shortage of time within which to consume it. Here, for example, there is a steady drumbeat of witnesses being called for deposition on only a few days’ notice to all concerned, and then only a week or so between the deposition and the public hearing. The process is made more intense by the fact that there are other staff lawyers, and Members, and communications experts, all of whom quite properly want to weigh in on the thrust of the questioning, the messaging of the questioning, and the like.

In the hearings, according to the Wall Street Journal, Adam Schiff opens with remarks and then invites a Republican counterpart to do the same. Each party receives a block of time to ask questions, and a timekeeper keeps track and moves the proceedings along. Rep. Mark Meadows (R., N.C.), told the Wall Street Journal that each party gets equal time. “There is a clock, with a timekeeper,” he said. Other Republicans, including Reps. Jim Jordan of Ohio and Scott Perry of Pennsylvania have been attending the hearings regularly. Besides Mr. Schiff, Reps. Jamie Raskin of Maryland, Sean Patrick Maloney of New York, Eric Swalwell of California and Gerry Connolly of Virginia have been attending for the Democrats. Eventually, the committee voted down party lines to advance the impeachment proceedings.

Complicating the evidence-gathering process is the lack of cooperation from the White House, including Trump administration officials defying subpoenas. Per Adam Schiff, the White House isn’t cooperating and is defying several subpoenas, which Schiff predicted would be considered obstruction and additional evidence “of the wrongfulness of the President’s underlying misconduct.” When the House Leadership unveiled the articles of impeachment on December 10, 2019, they first focused on the Trump’s pressuring of Ukraine to investigate Joe Biden before the 2020 election by delaying a White House meeting and $400 million in US Security Aid, but the second focused on the obstruction related to the investigation into his misconduct.

NLR: What are the consequences if a witness refuses to testify at a hearing, or otherwise ignores a subpoena?

Robbins: Under law, there are to be consequences to refusal to testify or disobedience of a subpoena to produce documents, in particular, contempt findings that are appropriately enforced by federal courts.

Mr. Schiff, accused by House minority Whip Steve Scalise of “…trying to impeach a president of the United States… behind closed doors,” pointed out that the president’s former attorney, Michael Cohen, pled guilty to lying to Congress out of loyalty to the president, and was recently sentenced to three years in prison as a result. Still, the White House has consistently refused to cooperate with the inquiry, citing executive privilege as justification to keep those subpoenaed from actually appearing under oath. Citing executive privilege is a not-uncommon tactic to prevent disclosure of goings-on at the top end of the executive branch, but it doesn’t always work well for those using it, and the privilege itself remains a cloudy legal concept.

NLR: What privileges, if any, can a witness assert?

Robbins: With respect to privileges, there are, of course, the “Big Three”: the attorney-client privilege, the Executive Privilege, and the Fifth Amendment. When those privileges are invoked, as a practical matter they are beyond being challenged, except in extreme circumstances, and for the purpose of this impeachment proceeding, where the time constraints are what they are, if they are invoked their invocation will effectively block disclosure of evidence.

There have been many examples of witnesses invoking their Fifth Amendment rights to avoid answering questions in Congressional hearings. One prominent example is the case of Lt. Colonel Oliver North in the hearings around the Iran-Contra affair during Ronald Reagan’s presidency.

NLR: If the House votes to ratify the articles of impeachment, the Senate will hold a trial. Who acts as a prosecutor in this instance, and who acts for the defense? How is that determined?

Robbins: Since the House is the indicting authority, it will choose who presents the case for removal to the Senate. It will in all likelihood be one or more members of the House.

By way of reference, for President Andrew Johnson’s impeachment trial in 1868, an impeachment committee was made up of seven members of Congress, led by Thaddeus Stevens. President Bill Clinton’s impeachment featured a team of thirteen House Republicans from the Judiciary Committee.

NLR: Why does the Supreme Court get involved in impeachment proceedings, and what is their role?

Robbins: As for the role of the Supreme Court, it is the Chief Justice who presides over the trial, per the Constitution, and it is he who will be involved in those proceedings, and not the full Court—at least this has not occurred in our limited experience with impeachment.

While it may seem plain that the Supreme Court would have a larger role in the impeachment proceedings, that’s not truly the case. The chief justice is, of course, given the power to preside of the Senate trial by the Constitution as a part of the doctrine of separation of powers – as Justice Joseph Story argued – removing the Vice President from Senate leadership to uphold the trial’s impartiality. Should there be a conviction in the Senate, and the convicted president were to try and engage the highest court, SCOTUS has already found that the Senate’s impeachment procedures are nonjusticiable, because of Article I’s designation of the Senate as the “sole power to try all impeachments” (Nixon v United States, 1993).

Many thanks to Mr. Robbins for his time and for helping break down these complex issues during a complicated time.

ARTICLE BY William C. P. Thieme and Jennifer Schaller of The National Law Review / The National Law Forum LLC.

More on the impeachment on the Election Law & Legislative News section of the National Law Review.

Executive Immunity and Impeachment: Any Precedent for President Trump’s Strategy?

With the fourth presidential impeachment hearings in our country’s history underway; the National Law Review thought it timely to look at some of the issues related to impeachment; specifically involving executive privilege and how the Trump administration’s invocation of executive privilege and how presidential immunity fits in historically with other impeachments in recent memory.

Sol Wisenberg, a Deputy Independent Counsel from the Starr Investigation, is a white-collar attorney who was written and spoken about the procedures surrounding impeachment and the constitutional law issues in play. He was generous with his time and spoke with the Lead Writer of the National Law Review, Eilene Spear, on executive privilege, recent litigation related to executive privilege, and the ever-present intersection of public opinion, constitutional law, and politics. Below are excerpts of the conversation, featuring Mr. Wisenberg’s analysis and opinion on the proceedings at hand. This is the second article in this series, the first focusing on comparing and contrasting the Clinton impeachment with the impeachment investigation into President Trump.

ES: Is it appropriate for Democrats to imply that if a witness in the impeachment investigation refuses to testify that they are trying to undermine the impeachment proceedings?

I mean, look, it’s their show, they are the majority in the House. Adam Schiff came out and said “if you do not appear, then we’ll infer that your testimony would have been favorable to our impeachment inquiry.” Those weren’t his exact words, but that was the essence. Is it appropriate? I would say that it depends on the circumstances. Charles M. Kupperman, President Trump’s former deputy national security adviser, was subpoenaed by House Democrats to testify, but the White House, prior to Mr. Kupperman’s House testimony, said that the President had invoked Presidential Immunity, leaving Mr. Kupperman uncertain about how to proceed. Kupperman went to the federal district court and basically said: ‘Hey, I’ve got Congress issuing a subpoena and telling me I’m going to be in contempt if I don’t answer. But I also went to the White House Counsel and he’s sent me this letter here saying I’m absolutely forbidden to appear. I want to follow the law. Tell me what to do court.’ I believe he did exactly what you’re supposed to do in that situation. Kupperman’s lawsuit also raised questions about John Bolton’s possible future testimony, as Kupperman’s lawyer, Charles Cooper, also represents Bolton, President Trump’s former national security advisor. According to CNN, while it remains to be seen if Kupperman or Bolton will ultimately end up testifying, their actions are widely viewed as intertwined, with one source telling CNN that the two men are “simpatico.”

As a purely legal proposition, Adam Schiff’s assertion about inferences to be drawn from refusing to testify or show up is preposterous in Kupperman’s case. The only time a trier of fact is allowed to make a negative inference from the invocation of a privilege is the Fifth Amendment privilege against self-incrimination, and even that is only in a civil proceeding. The Fifth Amendment gives a criminal defendant the right not to testify, and the judge and jurors are not permitted to take this refusal to testify into consideration when deciding whether he or she is guilty See Ohio v. Reiner 532 US 17 (2001). The people who aren’t testifying or showing up at the House are not, so far, taking the Fifth. These are people saying, “I’ve got a constitutional argument or the President does, and that’s why I shouldn’t appear.” But keep in mind that impeachment is a political remedy. If a majority of the House wants to construe a refusal to appear or testify, even on Constitutional grounds, against the President, they are going to do it.

A Bit of Background:

Executive privilege has been asserted frequently by past presidents, though it’s not explicitly written into the Constitution. George Mason University professor Mark Rozell explained in a 1999 law review article that executive privilege is “the right of the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” This power can be used in two circumstances, he continues: “(1) certain national security needs and (2) protecting the privacy of White House deliberations when it is in the public interest to do so.” It’s the second part that is especially valuable, as it allows presidential advisors to freely speak their minds without the threat of a subpoena. The problem is it’s not precisely clear who this privilege covers.

In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court addressed a subpoena duces tecum during the Nixon impeachment process to produce documents, including full copies of the Watergate tapes which contained meetings between President Nixon and others indicted in Watergate situation or had ties to the Nixon administration. President Nixon did turn over edited transcripts of some of the conversations included in the subpoena. Before the Supreme Court, Nixon claimed he had an absolute executive privilege to protect communications between “high government officials and those who advise and assist them in carrying out their duties.” The Supreme Court held presidential privilege as to materials subpoenaed for use in a criminal trial did not override the needs of the judicial process on the grounds of a generalized interest in confidentiality. The large difference is that the Nixon case involved the subpoena of documents, the Trump impeachment subpoenas addressed above involve subpoenas for live testimony only.

Also, in U.S. v. Nixon’s majority opinion, Chief Justice Burger stated, “[n]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” The immunity claimed by both President Trump and other presidents comes from the position of the executive branch as a co-equal branch alongside the judiciary and legislative branches.

ES: What do Executive Privilege and Absolute Presidential Immunity cover and do they apply to people other than the president?

Executive privilege is invoked in the name of the president, but it can cover any executive officer. It is a privilege recognized by the Supreme Court. Presidential immunity purports to cover anyone who works in the White House, or the Executive Office of the president. The theory is that Congress can no more summon a White House employee to appear than it could summon the president. One reason officials like Kupperman are seeking clarification is that executive privilege and presidential immunity in impeachment proceedings are not open and shut issues. Every president at least since Nixon has claimed immunity–for himself and his key White House aides–from even having to show up in the House or Senate to answer questions, claiming that White House employees are in the same position as the president and are immune from having to appear. This doctrine makes me shake my head a little, and, as noted, is far from settled law in the courts.

No court has ever accepted the absolute immunity argument, to my knowledge. Only one court has ruled directly on it, and that was in the George W. Bush administration. Committee on Judiciary v. Miers 575 F. Supp. 2d 201 (D.D.C. 2008) addressed a House Judiciary Committee’s subpoena to Harriet Miers, former Counsel to President Bush, seeking to compel her to produce documents and to appear and testify about the forced resignation of U.S Attorneys, and that court ruled against the White House. In the Harriet Miers case, federal district judge John Bates stated “there is no judicial support whatsoever” that a president’s advisers have absolute immunity from testimony, and that such a view “would eviscerate Congress’ historical oversight function.” But the case was settled and has no precedential value, except in Bates’ court. I think the opinion is of some significance, however, because Bates was a Bush appointee and in general a strong supporter of executive privilege.

ES: Is there any type of immunity from testimony that may apply if executive privilege isn’t applicable?

There are other forms of privilege that might come up. I suppose somebody could take the Fifth, you can take the Fifth right in front of the House committee. So that’s always available. There’s attorney-client privilege. To be precise; this idea that if you work at the White House–and are therefore in the same shoes as the president–you don’t even have to show up, that’s technically not executive privilege. That is a presidential immunity argument based upon the separation of powers. For example, you could put that to a judge and the judge could throw it out, say there is no such thing, and the court rejects that doctrine. Then the individual could go over to Congress and get asked a question, and he could claim executive privilege and he would be completely within his rights.

The Obama administration took the identical position with David Simas, an employee in the Obama White House, that President Trump did in the case of Kupperman and former White House Counsel Don McGahn. Simas was head of the Office of Political Strategy and Outreach and was subpoenaed in relation to Congressional oversight of Hatch Act compliance. White House Counsel W. Neil Eggleston asserted executive immunity, defying a subpoena from House Oversight and Government Reform Chairman Darrell Issa. His letter referenced the Office of Legal Counsel’s opinion, saying: “The Executive Branch’s longstanding position, reaffirmed by numerous Administrations of both political parties, is that the President’s immediate advisers are absolutely immune from the congressional testimonial process.” There are examples in every administration, and each party wants to find examples where the other party did the same or a more extreme version of what they are trying to do because people forget and people are partisan.

ES: That said, how do politics impact the perception of a President’s claim of executive privilege?

Once again, it depends on the circumstances. In the context of an impeachment inquiry with an unpopular President and an opposing party in charge of one or both branches, politics can affect absolutist doctrines fairly quickly. Look at Nixon again. In April 1973, before the Senate Watergate Committee hearings began, he vowed that his aides would not testify. Nixon’s Attorney General, Dick Kleindienst, told Senator Ed Muskie, “You do not have the power to compel me to come up here if the President directs me not to, and even if you would attempt to compel me, I would not come here.” If the Senate didn’t like it, Kleindienst smirked to Senator Sam Ervin, “you have a remedy, all kinds of remedies: cut off appropriations, impeach the President.” That was in April. By May 22, with public opinion starting to move against him, Nixon completely capitulated. Ervin called Nixon’s bluff, referring to his broad claims of Executive privilege as“executive poppycock.” Nixon didn’t have Trump’s political power. He had short coattails and both houses of Congress were in Democratic hands. Trump is stronger with his House and Senatorial base, and his party in control of the Senate, so he can pull off that attitude for now. But again, attitudes and public opinion can change quickly, and we’ve already seen the needle move a little bit in terms of public opinion in the last week alone.

You also have the issue of aides, former aides, and Executive Branch officials who simply ignore Presidential directives not to appear or testify. This happened to Nixon, as people like John Dean and Jeb Magruder finally started telling the truth to DOJ Prosecutor Earl Silbert, and ultimately to Ervin’s Watergate Committee. It is happening to Trump now with some State Department and DOD officials–and at least one mid-level OMB employee–talking to the House. I believe this is how Madison and some of the other Framers expected things to play out. It is checks and balances at work. It is one thing to have a nice little formalistic theory of executive privilege or presidential immunity. It is quite another to try to enforce it in the real rough-and-tumble world of politics.

Many thanks again to Mr. Wisenberg for his time, insights and perspective.

ARTICLE BY Eilene Spear and Jennifer Schaller of The National Law Review / The National Law Forum LLC.

For more on the topic, see the National Law Review Election Law & Legislative News page.

Clinton’s Impeachment Compared to the Trump Proceedings: Conversation with Sol Wisenberg, former Deputy Independent Counsel during the Starr Investigation

With the Trump impeachment proceedings getting ready to start this week in the House of Representatives, we thought it would be interesting to take a look back at the Clinton Impeachment. The catalyst for President Clinton’s impeachment was the Starr Report. Independent Counsel Ken Starr presented to the House of Representatives a case for impeaching President Bill Clinton on 11 grounds, including perjury, obstruction of justice, witness-tampering and abuse of power. The sexual relationship between the president and former White House intern Monica Lewinsky formed the basis of the lying under oath and obstruction of justice charges. The lying under oath charge stemmed from the Clinton v. Jones civil lawsuit, which included President Clinton’s inaccurate grand jury testimony about a sexual relationship with Monica Lewinsky.

Solomon L. Wisenberg played a pivotal role in the Clinton Impeachment as a Deputy Independent Counsel during the Starr investigation. Mr. Wisenberg’s grand jury questioning of President Bill Clinton was submitted by independent counsel Kenneth Starr with his report to the House of Representatives as part of the Clinton impeachment proceedings.

Mr. Wisenberg has more than two decades of experience with complex federal white-collar crime investigations and jury trials and is currently the co-chair of Nelson Mullins White Collar Defense and Government Investigations practice. He is a sought after analyst and routinely appears in a variety of media providing commentary and answering questions on federal white-collar investigations, impeachment, public corruption under the Hobbs Act, bribery and fraud, Foreign Corrupt Practice Act violations and other intricate legal issues.

Mr. Wisenberg was kind enough to take time out of his schedule to talk with the National Law Review on the upcoming Trump impeachment proceedings and how they are similar and different from the Clinton impeachment.

The Starr Report played a central role in the Clinton impeachment proceedings; producing the perjury and obstruction of justice charges stemming from the Clinton v. Jones civil action.

In the Clinton v. Jones sexual harassment lawsuit, Ms. Jones’ attorneys included questions about Monica Lewinsky and President Clinton’s behavior with other women to show a pattern of improper behavior with women by Clinton to bolster Ms. Jones’ sexual harassment claims.

Additionally, Ms. Jones’ attorneys sought to show a pattern concerning President Clinton’s actions in covering up various inappropriate interactions with women.

Do you think the impeachment prosecutors for President Trump will introduce elements from the Mueller report to show a pattern of behavior to bolster any criminal acts and any obstruction of justice case related to the withholding of aid to Ukraine?

Mr. Wisenberg: I think there’s no doubt that they will. I’ve heard some Democratic Congressmen talking about it and it’s very clear that they feel the obstruction portion of the Mueller report has not been given sufficient attention. So I’d be shocked if it does not constitute one of the articles of impeachment.

The Supreme Court in Clinton v. Jones held that a sitting president is subject to civil suits in federal court, this lead to President Clinton being deposed and perjuring himself and being impeached by the House of Representatives, on grounds of perjury to a grand jury and for obstruction of justice.

xxxx

If President Clinton was able to be deposed while in office, why are President Trump and other members of his administration, such as Mick Mulvaney, claiming immunity?

Mr. Wisenberg: Trump didn’t ever formally claim immunity, because Mueller never pressed the point. Keep in mind, Clinton vs Jones just said the president is not immune from suits while he is in office. Even President Clinton didn’t take the position that he could never be sued. President Clinton’s position was just that he didn’t have to answer lawsuits brought while he was the president, and the Supreme Court ended up saying yes you do, you don’t have that absolute immunity. But the Court also said that there needs to be respect and accommodations for the responsibilities of the office, for the president’s schedule, time, privacy, all of that kind of stuff.

However, in the Lewinsky criminal investigation where we sent President Clinton a grand jury subpoena after he ignored six of our requests to appear, we ended up withdrawing the subpoena. We did this because President Clinton’s attorney said if you withdraw the subpoena, he’ll sit for grand jury testimony. Clinton’s inquiry involved grand jury testimony, not just a deposition. So the constitutional issue involving the President’s right to defy a grand jury subpoena for testimony alone was never tested there. I think it would’ve been an interesting issue, because Clinton did not want to be in a position where the president is being subpoenaed or responding to a subpoena, and he certainly didn’t want to be in a position of going to federal court to block the Lewinsky Grand Jury’s subpoena.

So that’s how it was worked out, and we don’t know what would have happened if he would have challenged our subpoena in court. There’s actually a case that came out in 1997. It’s the controlling law in the DC Circuit. The Office of Independent Counsel that was investigating Agriculture Secretary Mike Espy wasn’t asking for testimony in that case. In the In Re Sealed Case, 121 F 3d 729 (1997). the issue was asking for documents and it’s actually a fairly high standard to be able to force the president to respond to a grand jury subpoena. I believe it’s quite possible that Mueller didn’t press the point because he might not have won under the test laid out for Mike Espy, even if he was just seeking testimony. Every case is dependent upon the particular facts. And because Mueller already had been given a tremendous amount of relevant information, he may have not wanted to push it, as it’s not at all certain that he would’ve won. So not only would it have been a lengthy process that would have delayed the Mueller investigation, but Mueller may not have won on the issue. It’s not that President Trump was behaving inconsistently with the ruling in Clinton vs Jones. It’s that Mueller never forced Trump to make a choice.

Special Counsel Mueller declined to subpoena President Trump, as Mueller told the House Intelligence Committee that it looked highly unlikely that they would obtain an in-person interview with Trump and because of the perceived need to wrap up the investigation into Russian interference in the 2016 United States elections.

xxxx

Do you think Mr. Mueller’s strategy of not forcing President Trump to either testify, fight the subpoena in the courts or defy the subpoena will weaken the prosecutor’s ability to use the Mueller report in the impeachment process?

Mr. Wisenberg: Oh God, no. I mean, not at all. The report is what it is. The obstruction portion of the report (I should say alleged obstruction, because even Mueller doesn’t say that Trump criminally obstructed justice) is what it is. The obstruction portion of the Mueller report is based on witness testimony. I don’t think there’s going to be much dispute about what happened. And apparently now the House of Representatives has the grand jury backup for the Mueller report’s witness testimony. President Trump has questioned some of Don McGahn’s factual statements, but McGahn was hardly alone in detailing the President’s efforts to stymie Mueller.

The dispute would be on the suggestion that the President criminally obstructed justice. I don’t think he did on the known facts, and the only episode that is even a close call on this was when President Trump allegedly asked Don McGahn to sign a document for the White House’s records denying he’d been told to fire Mueller. I think from the Democrats’ perspective they were waiting and waiting and waiting for the Mueller report and it was a dud. The Democrats blamed Bill Barr, I think, unfairly. The Democrats tried to hold testimony on the Mueller report and, it didn’t get anywhere, again, because of all of the claims of executive privilege and related doctrines. Now that they’ve got impeachment authority in Congress the Democrats are in a much stronger position. They can say now, any area of inquiry is allowed under our Constitutional power to conduct an impeachment inquiry.

xxxx

Based on President Clinton’s conflicting testimony, Mr. Starr presented a case that President Clinton had committed perjury. Do you think President Trump’s frequent public statements, though not under oath about the Russian interference in the 2016 election and the alleged quid pro quo in the withholding of aid to Ukraine will be used in the impeachment proceedings?

Mr. Wisenberg: The Democrats can use anything they want if they think it is valuable to them. The Democrats might say President Trump’s frequent commentaries can be construed as non-hearsay party admissions under the Federal Rules of Evidence in any proceeding brought against President Trump. Also, where somebody is accused of criminal wrongdoing and says something about the specific accusation that turns out to be false, this can be used against him as a false exculpatory statement. So, I see no reason why they can’t consider anything they want to consider.

To answer your specific questions about President Clinton, President Clinton lied under oath in the Paula Jones civil rights lawsuit deposition thereby obstructing justice. The federal district judge presiding held President Clinton in contempt of court. President Clinton is the only U.S president ever held in contempt by a federal judge. Additionally, President Clinton had his secretary retrieve and remove gifts Monika Lewinsky had in her possession, when the gifts were subpoenaed in the Jones civil suit. President Clinton used a White House employee, his secretary Betty Currie to obstruct justice in a civil rights lawsuit.

There are some people who say private conduct, even if it’s criminal, should never be impeachable and that we should not be concerned with private conduct. And there is some historical support for this position in writings by the framers and stuff like that. But President Clinton did more than that. He used a White House employee in order to hide items under subpoena. That’s textbook obstruction.

xxxx

If President Trump’s impeachment prosecutors are able to demonstrate that alleged withholding of aid to Ukraine is a criminal act, do you think it will be easier to prove intent in an obstruction of justice case?

Mr. Wisenberg: No, I don’t think so. I don’t think that helps them on obstruction of justice unless something new related to the Ukraine business comes out, but all he did was to say it’s a perfect call. Right? I think that if you were to somehow prove that this was a campaign finance violation or, or some kind of a crime, it might be a little bit easier to get a few more votes, but I don’t see anything yet that gets them the votes they need to convict President Trump in the Senate. I understand some people believe that putting the phone call transcript on a separate server was obstruction, but that sounds weak to me.

GOP Senators will point out that President Trump was elected, and we’re a representative democracy. We’re going to hold an election in one year. They will say it’s not right to remove him because of Ukraine. Even if they think, as Senators, that it was a mistake.

I think it is going to take something really dramatic for there to be a shift. Either a dramatic shift in public opinion based on the live testimony or just something new coming out, some new scandal to move the needle on that.

To answer your question, if somebody were to somehow to prove without question that President Trump knew he was violating the law when he made the call, that may be meaningful. And that revelation again moves the needle maybe, but you can’t ignore the politics.

Take a look at the situation with President Clinton. There was no real question in anybody’s mind that he perjured himself and that he obstructed justice, but that didn’t all of a sudden make the Democrats in the Senate vote for removal. I don’t think any of them did. The Democrats during the Clinton impeachment and removal proceedings acted very similarly to how the Republicans are acting now. You can’t ignore the politics.

Many thanks to Mr. Wisenberg for his time and answers to our questions.

ARTICLE BY Eilene Spear of The National Law Review / The National Law Forum LLC

President Trump Issues Proclamation Suspending Entry of Immigrants Who May Burden the U.S. Healthcare System

On Oct. 4, 2019, President Trump issued a Proclamation, that will be effective on Nov. 3, 2019, suspending the entry of immigrants who will financially burden the United States healthcare system. The reasoning behind the issuance of this Proclamation is to not burden American taxpayers with immigrants who utilize the U.S. healthcare system without payment and who allegedly contribute to overcrowding of emergency rooms and hospitals. The Proclamation includes a reference to data that shows lawful immigrants being three times more likely than U.S. citizens to lack health insurance, and while the United States will still continue to welcome immigrants, the country must protect its own citizens.

President Trump, through the Proclamation, declares the following:

1. – The immediate suspension of immigrants entering the United States who does not have approved health insurance, within 30 days of entry, or unless the alien possesses the financial resources to pay for medical costs. Approved health insurance is defined in the Proclamation, which can be found here.
2. – The Proclamation only applies to those who are seeking immigrant visas, as opposed to those seeking nonimmigrant visas.
  1. The Proclamation will not apply to those who hold a valid immigrant visa issued before the effective date of the proclamation; those who are seeking to enter the United States pursuant to a Special Immigrant Visa, who is a national of Afghanistan or Iraq, or any alien who is the child of a U.S. citizen seeking to enter the U.S. pursuant to the following categories: SB-1, IR-2, IR-3, IR-4, IH-3, IH-4, and IR-5 (with limitations).
  2. b. The Proclamation will also not apply to those aliens under 18, and any other aliens whose entry would be in the national interest.
  3. c. The Proclamation will not affect those who are lawful permanent residents (e.g., already received green cards), and will not affect eligibility regarding asylum, refugee status, etc.
3. – The Proclamation will be implemented and enforced immediately, and a report must be submitted within 180 days of the effective date.

ARTICLE BY Kristen W. Ng of Greenberg Traurig, LLP.

For more on the topic, see the National Law Review Immigration Law page.

New York Times v. Sullivan Supreme Court Decision and its Impact on Libel Law: the Case, the Context and the Consequences

Aimee Edmondson, Ph.D. and Associate Professor and Director for Graduate Studies at Ohio University, has recently published a new book, In Sullivan’s Shadow on the landmark libel US Supreme Court case New York Times v. Sullivan. In the current contentious climate where even the weather has become a political topic, and with President Trump courting a combative relationship with the news media, this case from the Civil Rights Era (1964) has a new resonance. It seems appropriate to re-examine the case, the historical context surrounding it, and why it still matters today.

The following are the facts of this case. In the early ’60s, the New York Times (NYT) published a full-page advertisement by the supporters of Martin Luther King, Jr, criticizing the Montgomery Alabama police, and specifically L.B. Sullivan, the Montgomery Police commissioner, for the department’s mistreatment of Civil Rights protesters. Sullivan sued the paper for defamation, and the trial court ruled in his favor. The NYT appealed to the Supreme Court in Alabama, which affirmed, and then the NYT appealed to the U.S Supreme Court. The U.S. Supreme Court heard the case and returned a unanimous decision 9-0, that the underlying decisions violated the First Amendment. This 1964 Supreme Court landmark decision is foundational in support of the First Amendment’s right of freedom of the press and ultimately demonstrates that the freedom of speech protections in the First Amendment restrict the ability of public officials to sue for defamation. This decision also created the “actual malice” standard, which required that the publication of false or erroneous information had to be done with actual intent to harm the public figure.

Libel litigation has really kicked up in recent years. While the “actual malice” standard is still firmly in place, a few high-profile libel actions have pressed forward. A few examples are the following: Sarah Palin suing the NYT; the Covington Catholic students, specifically Nicholas Sandmann and his ultimately dismissed lawsuit against the Washington Post (WP); and former Sheriff Joseph Arpaio’s lawsuit against the NYT and editorial writer Michelle Cottle which was also dismissed. Additionally, Trump frequently uses his Twitter feed to proclaim that libel suits “are out of reach” but continues to threaten libel action when unflattering press is published. To be clear, his threats have remained threats; to this date, he has not filed lawsuits regarding libel.

With this history and cultural context in mind, I am very grateful that Professor Edmondson took the time to speak with me regarding the state of libel litigation in the United States.

The NLR: The Sullivan case dates back to the ’60s and came out of the Civil Rights Movement when the NYT was sued by the Montgomery, Alabama police commissioner, L.B. Sullivan. Why is this precedent especially relevant now?

Sullivan is relevant for at least these three reasons.

First, journalism faces tough challenges. Local print journalism is withering. The president of the United States has launched an assault on news media. And manipulators, some of them foreign, are abusing technology with fakery and confusion. As the free press struggles, our Republic is well served by existing protection again libel abuse.

Second, we as a nation go to great lengths to protect free speech, even unpopular and hateful expression. The Supreme Court recently ruled that the government could not deny vulgar trademarks citing the First Amendment (Iancu v. Brunetti, decided June 24, 2019). Citizens who chant “send her back” at a Trump rally are protected. Journalists who cover controversy likewise should be protected from libel abuse.

When the nation’s Founders gathered to amend the Constitution through the Bill of Rights, they positioned freedom of speech and the free press side-by-side, as complementary. As we protect free speech, we also should protect the free press.

Third, the abuse of libel is an instinctive default position of authority facing criticism. When authority is irritated by the message, it can seek ways to injure or chill the messenger. America should guard against abuse of libel. Justice William Brennan wrote in the 1964 landmark Sullivan case that, left unchecked, abuse of libel can “threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials.”

In this era of divided citizenry, profound technological changes, and nervousness about the future, Sullivan is perhaps more relevant because it checks the misuse of libel.

The NLR: Based on your research of libel prior to Sullivan, what can you tell us about the use and abuse of libel before Sullivan?

In the Jim Crow South, libel was weaponized against the press and individuals who challenged the racial status quo. The Sullivan case was the culmination of an onslaught of libel claims designed to brake progress, silence criticism, and bankrupt agents of change as the civil rights movement was gaining momentum.

The intersection of libel, race, and journalism can be tracked to the early years of our nation. In 1830, abolitionist William Lloyd Garrison was indicted in Baltimore for publishing a newspaper report of 75 enslaved people shipped from Baltimore to New Orleans. He was locked up for 49 days in part for criticizing the institution of slavery. Garrison’s lawyer, Charles Mitchell of Baltimore, described libel abuse as an “engine of tyranny.”

My book primarily focuses on civil rights-era libel litigation, mainly, but not exclusively, in the South. Chapter One is set in Los Angeles. The local Klan sued the African American editor-publisher of the California Eagle in 1925 after the newspaper published a Klan strategy memo on how to manipulate black voters in Watts. The judge ruled in favor of the paper, concluding that the Klan document, which had been handed over to police and then to journalists, was privileged. (In court, the Klan said the paper was fake.)

The win-loss record of libel cases was mixed before Sullivan was taken up by the nation’s high court. Defendants settled some cases to avoid expense and exposure. Some judges ruled that truth was a defense against libel claims.

Regardless of the legal outcomes, the pile-on of libel lawsuits against the press and civil rights leaders was draining financially. For example, Reverend Fred Shuttlesworth was a named defendant in the Sullivan case, even though he didn’t know that his name appeared in the full-page ad in NYT that prompted Sullivan’s lawsuit. Alabama courts awarded Commissioner Sullivan $500,000, a record-high judgment at the time. While the case was on appeal, authorities seized Reverend Shuttlesworth’s Plymouth, which brought $400 at auction to help pay the judgment. Land owned by three other ministers who also were defendants was sold at auction for $4,350.

By the time the U.S. Supreme Court heard the Sullivan case, there was plenty of evidence in multiple jurisdictions showing that libel abuse was weighing on the First Amendment.

The NLR: After the Sullivan ruling in 1964, the press went on to break some fairly fantastic stories. I am thinking about Watergate, in the early ’70s, specifically. What were the implications of Sullivan regarding press coverage of civil rights, Vietnam, Watergate, and other contentious news?

Yes. My colleague Christopher B. Daly at Boston University (author of “Covering America”) makes the profound point that Americans need a free and robust press in wartime and peacetime. He cites coverage of the Pentagon Papers, the My Lai Massacre, and the Abu Ghraib torture scandal.

I close my book by pointing out that Sullivan freed the press to ramp up its watchdog reporting on a wide range of issues. The press’ scrutiny must continue as a cornerstone of our democratic tradition.

Balancing police authority/public safety with respect for individual freedoms and free expression was at the core of much of the libel litigation before and after Sullivan. The Sullivan case at its heart was about criticism of police brutality against civil rights protesters in Montgomery, Alabama, which was a cradle of the Confederacy during the Civil War. As a result of Sullivan, today’s public criticism of law enforcement, such as press coverage of “Hands up, don’t shoot,” and “I can’t breathe” are not actionable libel claims.

The NLR: Earlier this year, Justice Clarence Thomas suggested that the Supreme Court should take a look at Sullivan, after 55 years, to modify the standard on actual malice. The rest of the Court did not voice similar sentiments. What point is Justice Thomas making/what is on his mind, and do you think the Court will revisit libel anytime soon?

Justice Thomas often treads his own path in the area of First Amendment law. He is a noted defender of advertising (commercial speech), questioning why it should be more heavily regulated than other types of speech, even political speech. He has questioned laws that regulate political contributions, and strongly supported less government regulation of street and lawn signs. However, he has opposed free speech protections for high school students and prisoners.

I see Sullivan as a civil rights case as well as a libel case. How ironic that Justice Thomas, the only African-American on the Supreme Court, is calling for a retreat on civil rights-era protections in Sullivan. He made this remark in a concurring opinion released early this year when the court turned down an appeal from Kathrine McKee, who accused Bill Cosby of sexual assault. She sued Cosby for libel after his lawyers called her dishonest (McKee v. Cosby). As Justice Thomas says:

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” (quoting Gertz v. Welch and Sullivan). We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

As you noted in your question, Thomas’ colleagues on the Supreme Court have not publicly joined his push to roll back Sullivan. I do not expect that Court will revisit Sullivan immediately. But predicting what the Court will do is virtually impossible. Sometimes, the seeds planted by a single justice, like Thomas’ remarks about Sullivan, yield results later.

Generally, critics say Sullivan stacks the deck against the plaintiff, that actual malice is an impossible standard, and the press should not have license to run amuck.

The NLR: Sullivan set the standard pretty high for public officials seeking to win libel claims, they have to show “actual malice.” Does this, and other existing protections of the press, make it virtually impossible to win a libel claim?

Journalists are not totally protected from libel suits, nor should they be. Truth is the ultimate defense in a libel suit. If reporters get it wrong, certainly there can be ramifications.

If reporters get it wrong and the plaintiff is a public official or public figure, the reporters may lose a libel case if actual malice is proven in court. Actual malice is publishing content that is knowingly wrong, or journalists should have known it was incorrect.

After a 15-day trial, a jury in New York awarded $75,000 in damages to Barry Goldwater, the Republican nominee for president in 1964 (Goldwater v. Ginzburg). A federal appeals court affirmed the outcome in 1969, and the Supreme Court declined to review the case. Ralph Ginzburg, publisher of Fact magazine, ran an article that said Goldwater was paranoid, unfit for office, and troubled by “intense anxiety about his manhood.” This unflattering claim was based on a survey mailed to psychiatrists. Some of the respondents had warned that psychological evaluations must take place in clinical settings, but Ginzburg published anyway. He cited the Sullivan case when Goldwater took him to court, to no avail.

Rolling Stone settled multiple libel claims after retracting its 2014 story of gang rape at a University of Virginia fraternity. The flawed 9,000-word article portrayed an associate dean as “chief villain” of the incident. She won a $3 million verdict in court and then settled. Rolling Stone settled with the fraternity for $1.65 million, and also settled with members of the fraternity.

In June, a jury in Ohio awarded $44.4 million in punitive and compensatory damages to family-owned Gibson’s Bakery to be paid by Oberlin College (Gibson’s Bakery v. Oberlin College). Bakery owners said the college defamed and harmed their business after a shoplifting incident. “Even a college as influential as Oberlin,” noted conservative blogger Cornell Law Professor William Jacobson, “may be held accountable for its actions in a court of law.”

The NLR: What has candidate Donald Trump/President Trump said about libel?

In 2016 in Fort Worth, Texas, then-candidate Trump took aim at libel laws directly: “One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times and Washington Post . . . writes a hit piece, we can sue them and win money instead of having no chance of winning because they are totally protected.”

President Trump lamented in 2018 that “totally false” reports are out of reach of libel law:

Trump has threatened libel action against both the media and individuals. For example, candidate Trump threatened to sue NYT in 2016 after NYT’S publication containing claims by women of his alleged inappropriate touching. In response, a NYT attorney said if Trump thinks “the law of this land forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

Trump did not sue.

Threatening libel action is part of Trump’s broader effort, aimed at his voter base and the electorate, to de-legitimize the press.

The NLR: Defamation-libel litigation is very active lately. What are today’s courts saying about libel?

Legal outcomes vary because circumstances vary. There is significant activity on libel, in state and federal courts, showcasing the durability of the legal standard set more than a half-century ago in Sullivan.

The Sullivan standard resonates throughout the 11-page opinion dismissing former Sheriff Joseph Arpaio’s lawsuit against NYT and editorial writer Michelle Cottle. “Because plaintiff has failed to plead actual malice, his false light claim must fail as well,” wrote US District Court Judge Amit P. Mehta (District of Columbia) in a decision issued August 9, 2019. Arpaio was longtime sheriff of Maricopa County, Arizona, before running for Congress in 2018. After Arpaio lost in the primary, NYT published an opinion piece by Cottle criticizing the sheriff’s treatment of immigrants (“he was so much more than a run-of-the-mill immigrant basher”). Arpaio, a public figure, claimed the column harmed his reputation and his chances to run for the U.S. Senate in 2020. The judge said Arpaio’s complaint “comes nowhere close to pleading sufficient facts that plausible establish ‘actual malice.’” (Arpaio v Cottle, August 9, 2019). This case is remarkably similar to the multiple libel suits filed by legendary southern lawman Lawrence Rainey, a former Neshoba County, Mississippi sheriff who sued multiple journalists and even Orion Pictures for his depiction in the film, Mississippi Burning, in 1989.

Current libel claims highlight the inflation in the amount of damages sought by plaintiffs. In the early 1960s, Sullivan (as well as then Alabama Governor John Patterson) sued NYT for $500,000. In 1982, General William Westmoreland sued CBS for $120 million regarding a Vietnam documentary (Westmoreland settled during the trial, ending the case without payment, retraction, or apology from CBS).

This year, a high school student from Kentucky sued WP for $250 million, the purchase price of the newspaper when Amazon founder Jeff Bezos bought it in 2013. On July 26, U.S. District Court Judge William O. Bertelsman (Eastern District of Kentucky) dismissed the case (Nicholas Sandmann v. The Washington Post). Publication of opinion is not actionable libel, the judge concluded. This case involved coverage of Sandmann’s encounter with Native American activist Nathan Phillips on the National Mall on January 19, 2019.

“The Court accepts Sandmann’s statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and to not impede or block anyone”, the judge said. “However, Phillips did not see it that way. He concluded that he was being ‘blocked’ and not allowed to ‘retreat.’ He passed these conclusions on to The Post. They may have been erroneous, but . . . they are opinion protected by the First Amendment. The Post is not liable for publishing these opinions.”

Days after the Sandmann case was dismissed in federal court, eight of Sandmann’s classmates (“John Does 1 through 8”) from Covington Catholic High School in Park Hills, Kentucky, filed a defamation suit in state court against 12 individuals. Defendants include two members of Congress, comic Kathy Griffin, and a batch of commentators and journalists.

Also, in August, a federal appeals court reinstated Sarah Palin’s defamation suit against NYT. Therefore, a court will consider whether a NYT editorial on gun violence exhibited “actual malice” against Palin, a former vice presidential candidate.

The NLR: You’ve raised some excellent points. How does all of this fit together? What are we to make of this landscape in today’s contentious and media-saturated environment?

Truth-seeking is a primary mission of journalism. News reporting inspires debate. Reporting controversy does not constitute libel. Publication of malicious, reckless, falsehood is actionable libel.

Newsgathering is an ongoing process, as events evolve. Courts appear to understand this dynamic, with the media’s constant deadlines, and do not view updating as a story evolves as actual malice. It’s quite the opposite. We write what we know to be the truth as we know it.

It’s important to note that Justice Brennan’s majority opinion in Sullivan protected even false information, as long as that information was published by accident (without actual malice). Later libel cases built on Sullivan with the U.S. Supreme Court declaring that “pure opinion” is also constitutionally protected speech (Milkovich v. Lorain Journal Company). The First Amendment, then, ensures that free speech isn’t “chilled” and thus clears the way for journalists to write about fast-moving and-or controversial issues without fear of costly libel litigation.

As we ponder the big picture, let’s remember Justice Louis Brandeis’ time-honored advice: “the answer to bad speech is more speech, not ‘enforced silence.’”

The NLR: Many thanks to Dr. Edmondson for her insights and useful examples on this important and timely matter.

ARTICLE BY Eilene Spear of The National Law Review / The National Law Forum LLC.

For more freedom of speech issues, see the Constitutional Law page on the National Law Review.

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Global Travel Ban to the United States

Official Guidance to Suspend Immigration

Share this:

Like this:

Share this:

Like this:

NLR: Impeachment is a three-step process, beginning with an investigation in the house and then a vote on articles of impeachment, then a trial in the Senate. What kind of evidence is the House looking for during the investigation stage prior to voting on articles of impeachment?

NLR: How much of the House’s investigation needs to be in the form of public hearings?

NLR: What actually goes on in Congressional hearings? What is the timeline between the hearings and the public testimony?

NLR: What are the consequences if a witness refuses to testify at a hearing, or otherwise ignores a subpoena?

NLR: What privileges, if any, can a witness assert?

NLR: If the House votes to ratify the articles of impeachment, the Senate will hold a trial. Who acts as a prosecutor in this instance, and who acts for the defense? How is that determined?

NLR: Why does the Supreme Court get involved in impeachment proceedings, and what is their role?

Share this:

Like this:

ES: Is it appropriate for Democrats to imply that if a witness in the impeachment investigation refuses to testify that they are trying to undermine the impeachment proceedings?

A Bit of Background:

ES: What do Executive Privilege and Absolute Presidential Immunity cover and do they apply to people other than the president?

ES: Is there any type of immunity from testimony that may apply if executive privilege isn’t applicable?

ES: That said, how do politics impact the perception of a President’s claim of executive privilege?

Share this:

Like this:

Mr. Wisenberg was kind enough to take time out of his schedule to talk with the National Law Review on the upcoming Trump impeachment proceedings and how they are similar and different from the Clinton impeachment.

Do you think the impeachment prosecutors for President Trump will introduce elements from the Mueller report to show a pattern of behavior to bolster any criminal acts and any obstruction of justice case related to the withholding of aid to Ukraine?

If President Clinton was able to be deposed while in office, why are President Trump and other members of his administration, such as Mick Mulvaney, claiming immunity?

Do you think Mr. Mueller’s strategy of not forcing President Trump to either testify, fight the subpoena in the courts or defy the subpoena will weaken the prosecutor’s ability to use the Mueller report in the impeachment process?

If President Trump’s impeachment prosecutors are able to demonstrate that alleged withholding of aid to Ukraine is a criminal act, do you think it will be easier to prove intent in an obstruction of justice case?

Share this:

Like this:

Share this:

Like this:

The NLR: The Sullivan case dates back to the ’60s and came out of the Civil Rights Movement when the NYT was sued by the Montgomery, Alabama police commissioner, L.B. Sullivan. Why is this precedent especially relevant now?

The NLR: Based on your research of libel prior to Sullivan, what can you tell us about the use and abuse of libel before Sullivan?

The NLR: After the Sullivan ruling in 1964, the press went on to break some fairly fantastic stories. I am thinking about Watergate, in the early ’70s, specifically. What were the implications of Sullivan regarding press coverage of civil rights, Vietnam, Watergate, and other contentious news?

The NLR: Sullivan set the standard pretty high for public officials seeking to win libel claims, they have to show “actual malice.” Does this, and other existing protections of the press, make it virtually impossible to win a libel claim?

The NLR: What has candidate Donald Trump/President Trump said about libel?

The NLR: Defamation-libel litigation is very active lately. What are today’s courts saying about libel?

The NLR: You’ve raised some excellent points. How does all of this fit together? What are we to make of this landscape in today’s contentious and media-saturated environment?

Share this:

Like this: