Probe the effort to sink Kavanaugh

By David B. Rivkin and Lee A. Casey

Sept. 29, 2019, in the Wall Street Journal

The effort to sink Justice Brett Kavanaugh’s confirmation cries out for investigation. The Senate Judiciary Committee has already made a criminal referral to the Justice Department regarding alleged material misstatements by lawyer Michael Avenatti and his client Julie Swetnick. And a new book by two New York Times reporters contains a potentially explosive revelation.

In “The Education of Brett Kavanaugh,” Robin Pogrebin and Kate Kelly report that Leland Keyser —who was unable to corroborate high-school friend Christine Blasey Ford’s allegation of youthful sexual misconduct—says she felt pressured by a group of common acquaintances to vouch for it anyway. The book quotes an unnamed male member of the group suggesting in a text message: “Perhaps it makes sense to let everyone in the public know what her condition is”—a remark the reporters describe as reading “like a veiled reference” to Ms. Keyser’s “addictive tendencies.” (The authors quote her as saying she told investigators “my whole history of using.”)

A concerted effort to mislead the Federal Bureau of Investigation and the Senate, especially if it involved threats to potential witnesses, could violate several federal criminal statutes, including 18 U.S.C. 1001 (lying to federal officials), 18 U.S.C. 1505 (obstruction of official proceedings) and 18 U.S.C. 1622 (subornation of perjury). Investigating and, if the evidence is sufficient, prosecuting such offenses would deter similar misconduct in the future.

It’s bad for the country when nominees are subjected to what Bill Clinton calls “the politics of personal destruction.” It intensifies political polarization and bitterness, traduces due process, dissuades good people from government service, and injures the reputation of the judiciary and other institutions.

The Senate and FBI could also consider changing the background-check process for nominees. Justice Kavanaugh’s opponents seem to have expected a full-fledged criminal-style inquiry into Ms. Ford’s allegations, although Senate Democrats had sat on them for months. But that’s not how background investigations work. They’re carried out by a special unit whose job is to verify information the nominee has provided and gather additional information that may reflect on his character and reputation. This process does not involve the same sort of searching questions that are characteristic of a criminal investigation. Nor do FBI background investigators routinely assess individual witness credibility. They reach no conclusions but collect information and then forward it to the White House and Senate. It is then up to the elected officials to decide who and what to believe. It is a political, not a criminal, process.

This is a matter of practice and tradition, not law. The FBI could be asked to conduct background investigations in a manner more comparable to its criminal and intelligence work, where agents will assess witness credibility and use those assessments to guide the focus and course of the inquiry. It should be especially vigilant to the possibilities of collusion and witness tampering, which are uniquely troubling in high profile confirmation battles.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/probe-the-effort-to-sink-kavanaugh-11569786380

End the Media’s Campaign Privilege

The Trump era has seen an erosion of the distinction between journalism and partisan politics, with much of the mainstream media in open opposition to the president. “Balance has been on vacation since Mr. Trump stepped onto his golden Trump Tower escalator . . . to announce his candidacy,” New York Times columnist Jim Rutenberg wrote in August 2016.

Three years later, the holiday continues. Slate last month published a leaked transcript of a staff “town hall” at the Times. “We built our newsroom to cover one story,” executive editor Dean Baquet told employees, explaining that the paper’s narrative “went from being a story about whether the Trump campaign had colluded with Russia and obstruction of justice to being a more head-on story about the president’s character.” The new story, he said, “requires deep investigation into people who peddle hatred.”

Mr. Baquet makes the Times sound like an advocacy organization working against Mr. Trump’s re-election. Such organizations are regulated by campaign-finance statutes. So are other corporations, for-profit or nonprofit, that engage in electioneering speech. But those laws exempt media organizations, provided they are not owned by a political party, committee or candidate.

The justification for this favored treatment is the media’s “unique” role in public discourse and debate. But that has changed—and not only because the media have become more partisan. “With the advent of the Internet and the decline of print and broadcast media,” the Supreme Court observed in Citizens United v. Federal Election Commission (2010), “the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

Read more »

An originalist libel defense

By David B. Rivking Jr. and Andrew M. Grossman

31 July 2019 in the Wall Street Journal

A federal judge in Kentucky dismissed high-school student Nicholas Sandmann’s libel suit against the Washington Post last week. That’s no vindication of the newspaper’s skewed reporting on the teen’s run-in with American Indian activist Nathan Phillips on the National Mall in January. But it’s a vindication of the First Amendment’s limitations on state libel law, which have come under scrutiny of late, including from President Trump and Justice Clarence Thomas.

Mr. Sandmann and his peers were targeted by a Twitter mob, and the Post joined in portraying him as the villain in a “white privilege” morality play. Mr. Sandmann claimed the Post had defamed him by repeating Mr. Phillips’s claim that Mr. Sandmann had physically “blocked” him. That judge held that was an opinion, not a factual claim, and therefore shielded by the First Amendment.

That conclusion may be debatable, but the First Amendment’s protection of opinion shouldn’t be. It is the legal expression of America’s “national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” as Justice William Brennan put it in New York Times Co. v. Sullivan (1964), which established that the Constitution imposes limits on state libel law.

Mr. Trump said in 2016 that he wanted to “open up” libel laws, and in February Justice Thomas wrote a solo opinion arguing that Sullivan departs from the Constitution’s original meaning. He has a point: Brennan’s reasoning is all policy. For decades, originalists like Justice Antonin Scalia have criticized it as an exercise of raw judicial power. Yet there’s a good originalist case for limits on libel law.

Sullivan established that government officials suing for defamation must demonstrate that the defendant either knew that the defamatory statements were false or acted with “reckless disregard” for their accuracy—a standard confusingly known as “actual malice.” Later decisions extended the requirement to all “public figures,” whether or not they hold office.

Read more »

How to put citizenship back in the census

By David B. Rivkin Jr. and Gilson B. Gray

5 July 2019 in the Wall Street Journal

The Trump administration said Wednesday it will attempt to add a citizenship question on the 2020 census while complying with the Supreme Court’s ruling in Department of Commerce v. New York. Five justices held that the Census Act allows the question, but a separate five-justice majority found the rulemaking that added the question was procedurally deficient. There is a way forward. The Constitution itself requires the collection of citizenship information.

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.

The 14th Amendment was adopted in 1868, and this provision meant to secure the voting rights of newly freed slaves. But it wasn’t limited to that purpose. An earlier version of Section 2, introduced in 1865, specifically referred to limits on suffrage based on “race or color,” but the Senate rejected that limitation. The amendment forbids state interference with the rights of all eligible voters (then limited to males over 21).

Section 2 also applies to every state, a point Rep. John Bingham, the amendment’s principal drafter, emphasized during the floor debate: “The second section . . . simply provides for the equalization of representation among all the States in the Union, North, South, East, and West. It makes no discrimination.”

Congress has dealt with suffrage-abridgement problems through other constitutional and statutory means, especially the Voting Rights Act. But that doesn’t change the constitutional obligation to obtain citizenship data. A future Congress could decide to rely on Section 2 to enforce voting rights, particularly as the VRA’s core provision, requiring Justice Department approval when certain states change voting procedures, becomes irrelevant because of changing attitudes and Supreme Court precedent.

Read more »

Alito Teases a Judicial Revolution

By David B. Rivkin Jr. and Lee A. Casey

23 June 2019 in the Wall Street Journal

The Supreme Court’s decision last week in Gundy v. U.S. was deceptively anticlimactic. The vote was 5-3, but there was no majority opinion and the decision made no new law. Justice Samuel Alito’s lone concurrence, however, suggested that a major break with precedent—and a return to the Constitution’s original meaning—will soon be in the offing.

The Constitution’s first clause after the Preamble states: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Since 1935 the justices have ignored that provision and permitted lawmakers to delegate their authority to the executive branch. At issue in this case was a provision of the Sex Offender Registration and Notification Act of 2006, or Sorna, that directed the attorney general to “specify the applicability” of the law’s registration requirements to offenders, like Herman Gundy, whose crimes predated the act. Mr. Gundy, who was sentenced to 10 years in prison for failing to register, claimed this delegation was illegitimate.

The case was heard four days before Justice Brett Kavanaugh’s confirmation. Had Justice Alito dissented, the resulting 4-4 split would have upheld the lower court’s ruling against Mr. Gundy without any opinion being issued. Instead, Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he was prepared to switch sides: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” A dissent from Justice Neil Gorsuch, meanwhile, set forth the case for nondelegation.

In their quest to control governmental power and protect individual liberty, the Framers separated federal power among three branches of government. As Justice Gorsuch notes, they also “went to great lengths to make lawmaking difficult,” requiring consent of both houses of Congress and the president, or legislative supermajorities. The veto was the executive branch’s only role in the legislative process.

That was deliberate. Justice Gorsuch quotes Montesquieu, who was quoted by James Madison in Federalist No. 47: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

Read more »

Congress Can’t Outsource Impeachment

By David B. Rivkin Jr. and Elizabeth Price Foley

31 May 2019 in the Wall Street Journal

It’s as if nothing happened. Special counsel Robert Mueller and the Justice Department found no wrongdoing by President Trump, so House Democrats stepped up their calls for impeachment. Judiciary Committee Chairman Jerry Nadler issued a subpoena for millions of pages of evidence gathered by Mr. Mueller, including grand-jury material, which is secret under the law. When the department didn’t comply, Democrats said there was a “constitutional crisis,” and the committee voted to hold Attorney General William Barr in contempt.

Yet if there is a constitutional crisis, its source is the Democrats. They are abusing the powers of investigation and impeachment in an illegitimate effort to unseat a president they despise.

Congressional Democrats claim they have the power to investigate the president to conduct “oversight” and hold him “accountable.” That elides an important constitutional distinction. As the Supreme Court said in Watkins v. U.S. (1957), Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Executive departments and agencies are created by Congress and therefore accountable to it. The president, by contrast, is not a creature of lawmakers. He is Congress’s coequal, accountable to Congress only via impeachment.

To commence impeachment, the House has a constitutional obligation to articulate clear evidence of “high crimes and misdemeanors.” A two-year Justice Department investigation did not find that Mr. Trump had committed crimes. On the Russian collusion issue, Mr. Mueller reported that his investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Regarding obstruction of justice, Mr. Mueller “did not draw ultimate conclusions about the President’s conduct,” so the duty to do so fell on his boss, Mr. Barr—who, with senior Justice Department officials, concluded that the evidence was “not sufficient to establish that the President committed an obstruction-of-justice offense.” Read more »