Once again, it looks like the Judicial Branch of our three part government is doing its job of holding the other two branches accountable for their actions under the Constitution. For the fourth time now, Trump’s Muslim and Refugee ban has been struck down as unconstitutional by a federal judge. https://www.nytimes.com/2017/03/15/us/politics/trump-travel-ban.html?_r=0.
This ruling is certainly cause for celebration — both because the ban was a constitutional travesty, but also because it confirms the independence of the Judicial Branch even in matters of national security and Executive Orders.
After publishing Wednesday’s post about the lack of potential prosecutors for the Russia-Trump claims, http://profgrose.com/hello-is-there-a-prosecutor-in-the-house/, I ran into my colleague and friend, Mehmet Konar-Steenberg, who teaches Administrative Law and Constitutional Law, among other things. So he knows about this stuff.
I asked what he thought about getting the Russia/Trump/Flynn etc. cases in front of a judge, given such an unwilling Justice Department. After a brief discussion about “taxpayer standing” and “generalized grievances,” he concluded that the “police power” for these claims will have to come from Congress, in the form of pressure on the Attorney General to appoint a Special Counsel to investigate and prosecute. http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/how_congress_can_pressure_trump_to_appoint_a_special_counsel.html.
“But, but, this Congress . . . ” I stammered. “Yeah.” He said. “We might have to wait two years.”
Two years? We need a judge to hear and rule on the Russia matters much sooner than that! If the Attorney General won’t appoint a U.S. attorney to pursue the matter, and Congress won’t pressure the White House to appoint a Special Counsel, can’t someone outside the government bring a claim against the Administration? Yes, but only if that person has been personally and specifically affected by the actions of Trump or Sessions or Flynn and their involvement with Russia. That is what is called “standing.” Citizens cannot sue to enforce a constitutional provision if their only claim is that they have suffered an injury that is shared by all of us. That is called a “generalized grievance.”
What about a state? Can’t a state take Trump et al to court? Isn’t that what Washington and Minnesota and Hawaii have done in response to the Muslim and Refugee Bans? Yes, but those states had to show that specific individuals were negatively affected by the bans, and therefore the state itself was harmed. That’s standing again.
Okay, so we need to find some individuals or a class of people who have been specifically harmed by the actions of Michael Flynn or Jeff Sessions or Trump himself. Who would those people be? What would be their specific (i.e. not generalized) grievance? Or what about a state? Has New York State, for example, been harmed by any of Trump’s dealings with the Russians? https://www.nytimes.com/2016/11/26/us/politics/donald-trump-international-business.html?_r=0
Or Florida? What about the real estate deal Trump made with the Russian oligarch who paid $50 million over what Trump had paid for the property at a time when land prices in the area were falling, not rising? Was the state of Florida harmed by that deal? Were other people in the area harmed by that deal? Is that enough for standing?http://miamiherald.typepad.com/nakedpolitics/2017/02/the-tale-of-trump-an-unwanted-mansion-and-a-russian-fertilizer-king.html
I asked Mehmet if he thought someone was working on these issues, looking for these potential plaintiffs with standing. Is David Cole sitting in his windowless office at the ACLU with his head in his hands trying to figure it all out? Does he need some help? Do we need to get some law students on this? http://www.npr.org/2017/03/13/519985688/aclu-lawyer-sits-at-heart-of-legal-resistance-to-trump-agenda
Or is it really a matter of waiting until Congress gets enough of a backbone to force the issue itself? And if so, what can we do to put pressure on individual members to move things along?
Here’s why it is so important: regardless of whether Trump et al are ever convicted or otherwise held accountable for their actions over the past year (and I fervently hope that they will be), he himself has shown contempt for the Judicial Branch in both his words and the actions of his Administration. When one branch of government (in this case, the Executive Branch) attempts to undermine and discredit another branch of government (in this case, the Judicial Branch), our Democracy is threatened. It’s as simple as that. Our Democracy depends on all three Branches operating independently and in good faith.
In Shakespeare’s Henry VI, Dick the Butcher famously suggests, ‘The first thing we do, let’s kill all the lawyers.” (Part II, act IV, Scene II, Line 73.) While this sounds like a classic lawyer joke, it was actually an acknowledgement by Shakespeare of the crucial role lawyers play in maintaining stability in government. Dick the Butcher was a henchman of Jack Cade, who led a popular revolt against the throne in 1450. Cade believed that if he could undermine law and order — by killing all the lawyers — he could become king.
Interesting, right? By avoiding the involvement of the Judicial Branch, do Trump and his inner circle believe they can undermine law and order without the pesky interference of lawyers? Well, if so, lawyers and lay-people alike, we have our work cut out for us. Because the reality is, we’re not waiting two years. Our Democracy won’t allow it.