The Politics of Mean

By Eric Segall

The President of the United States is one of the few democratically elected leaders in the world who is both the administrative leader of the government and the symbolic head of the Country. In many nations, these roles are divided between a President and a Prime Minister or even a Prime Minister and royalty with no official governmental responsibilities. This dual capacity of our Chief Executive makes it imperative that the President carry out his duties with class and character because his behavior has a role-model quality that affects not just our youth but our entire national character. This is why I thought Bill Clinton should have resigned the Presidency after we found out that he lied under oath about having sexual relations with a White House intern. His basic defense, that having oral intimacy is not “having sex,” I believe, had negative consequences for a generation of young Americans, and his obvious lying and truth-cutting was not the kind of behavior we want from an American President.

The hallmark of President Trump’s Presidency, so far, is the politics of mean. Trump’s behavior strongly suggests that it is okay to respond to the professional with the personal. Over the last couple of days, Trump used Twitter to repeat his campaign nickname for the former Senator from New York, Secretary of State, and First Lady, “Crooked Hilary.” He also called congressman Adam Schiff “sleazy.” Of course, these insults are just the tip of the iceberg.

Note to President Trump: You Already Own It

by Michael Dorf
(cross-posted on Take Care with some minor updates here)

Last week, as the latest Senate GOP effort to repeal and replace the Affordable Care Act (ACA) failed, President Trump voiced support for simply repealing the ACA, with a replacement to come later. When that Plan B (which had originally been Sen. Mitch McConnell's choice for Plan A) failed a few hours later, the president quickly moved on to Plan C: "We'll just let Obamacare fail. We're not going to own it. I'm not going to own it. I can tell you the Republicans are not going to own it."

Although the very next day the mercurial president attempted to strong-arm GOP Senators into making another push for Plan A, that approach looks likely to fail, even if Plans A and B make it to a floor vote this week. Thus, for the near term it looks like Trump will be following his Trotskyite the-worse-the-better Plan C. While a clear violation of his oath to take care that the laws be faithfully executed, not to mention immoral, there is a question whether it will work as a political matter. Is Trump right that by "letting" (about which more below) Obamacare fail, the GOP won't own that failure?

As the president himself might say . . . WRONG! Announcing that you are going to let Obamacare fail means that you own it. Or at least it should.

Christopher Nolan, the Trump of Dunkirk, Misses the Boat

By Diane Klein

In "Dunkirk," Christopher Nolan (of "Interstellar" and "Dark Knight" fame) has given us a war movie only Donald Trump could love.  Full of bombast and spectacle, it is ignorant of history, devoid of nuance, frequently unintelligible, and ineloquent.  It is a movie by, for, about, and starring handsome Anglophone White men, and reflects a view of history in which only their lives matter.

The film's subject is the evacuation from Dunkirk in Northern France, of more than 300,000 Allied troops, mostly the British Expeditionary Force but also French, Belgians, and others.  The evacuation occurred between May 26 and June 4, 1940 - but the film takes place in what critic David Edelstein calls "Nolan time" - "cutting among several locations in several timelines." However effective this may have been in "Memento," here, it serves mostly to confuse and distract. Nolan's film doesn't tell us what year it is, much less what day - but perhaps that is because he can't.

The Prime Directive Is to Protect the Rule of Law

by Neil H. Buchanan

The transcript of Donald Trump's recent interview with the editors of The New York Times could simply be titled: "The Case for Dictatorship: A Child-Like Narcissist's Guide to Destroying America."  As soon as Trump started talking, he revealed for the umpteenth time that he is unwilling or unable to understand the limits on the president's power.

And now we learn that Trump has his minions investigating imaginary conflicts of interest that they can use as "leverage" against Special Counsel Robert Mueller and his team of investigators.  Trump even has his people talking about abusing the pardon power, including the possibility of pardoning himself.  He is, at long last, truly Nixonian: When the president does it, that means that it is not illegal.

Trump clearly believes that ethics rules are for suckers and non-presidents, and his claim that his toady of an attorney general, Jefferson Sessions, was "very unfair" for recusing himself from the Russia investigation tells us all we need to know about Trump's version of accountability.

Trump even attacked his own deputy attorney general, Rod Rosenstein -- who has probably done more than anyone else to destroy his reputation by working for Trump -- because Rosenstein is from Baltimore.  Why is that a problem, in Trump's addled mind?  "There are very few Republicans in Baltimore, if any."  As the kids say: WTF?!

2017: Now Officially The Summer My Professional Responsibility Exam Questions Wrote Themselves

By Diane Klein

On July 17, 2017, The Rachel Maddow Show on MSNBC featured a segment about the latest allegations of financial wrongdoing involving Paul Manafort, Donald Trump's second campaign manager and attendee at the now-notorious Trump Tower meeting with Russian lawyer Natalia Veselnitskaya.

As part of that story, Maddow mentioned that Manafort is represented by Reginald Brown, a partner at Washington, D.C.-based megafirm WilmerHale.  Manafort hired him back on March 24, 2017.

For those who don't know, the law firm with the name that sounds like hipster beer is the result of a 2004 merger between Wilmer, Cutler & Pickering, and Boston-based Hale and Dorr.  It employs more than 1000 lawyers, 400 of them in D.C., the others spread over eleven more offices.  And virtually every lawyer associated with the Trump-Russia scandal is connected to it.

What's Wrong With Shotgun Weddings?

by Sherry F. Colb

My column for this week discusses the current state of California law, under which there is no minimum age requirement for marriage. There is a bill under consideration that would modify the law somewhat, but it has been amended to remove the age of 18 requirement and thus only adds some oversight in family court to prevent coercion. As I discuss in my column, the California statutory rape law, which requires that a person be 18 to consent to sex, suggests that sex with minors is inherently coercive and therefore not properly subject to oversight rather than outright prohibition.

In this post, I want to discuss one of the reasons that people cite for permitting children to get married, with parental (and court) permission: an unplanned pregnancy.

Freedom Apparently Means Whatever Republicans Need It to Mean

by Neil H. Buchanan

The Republicans' ongoing effort to take away health care coverage from tens of millions of people is probably only on hold.  In any event, their attempt to pass the Trump-McConnell bill has just "collapsed," because Senators Jerry Moran and Mike Lee have joined Rand Paul and Susan Collins in publicly opposing the bill.

That is a very good thing, of course, and I should take a moment to applaud Senator Collins, whom I have bluntly criticized many times over the last few years.  On this bill, hers was a public position that actually mattered, not a "free vote" or a statement of "concern" that then was not backed up by action.  Because the bill was unconscionable, she took a public stand against it.  I hope that she stands up like this again in the future, on health care and other issues.

Unfortunately, the other three Republican opponents of the bill -- Paul, Moran, and Lee -- did so because the bill was not harsh enough.  Apparently, Senator Ted Cruz's add-on to the bill, which saw him explicitly choosing full public funding for some health care recipients in order to give insurers the "freedom" to offer junk insurance policies to others, was too government-y for Paul and the others.

All of which means that Republicans' efforts to take away health care from vulnerable people is currently in limbo only because one of them was appalled enough to say no while three said, "Can't we make this even worse?"  Who knows how many Senate Republicans will sign onto something that the hardliners could support?

But there is another aspect of the Trump-McConnell bill that is worth considering, which is the Republicans' strategy to replace the dreaded "mandate" to buy health insurance.  It turns out that people's freedom to contract is sacrosanct to Republicans, unless that freedom must be sacrificed in order to destroy Barack Obama's Affordable Care Act (ACA).

Justice Gorsuch and Foolish Formalism

By Eric Segall

Last week, Professor John McGinnis wrote an essay at the Law & Liberty Blog praising Justice Gorsuch for his commitment to a “formal conception of law.” While others have criticized Gorsuch for his aggressive questioning and decision-writing so early in his SCOTUS career, McGinnis defended Gorsuch, arguing that his confidence stems from Gorsuch’s view that a “lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.”  According to McGinnis, being a Supreme Court Justice for a formalist is "no different from being any other kind of judge.”  Because Gorsuch is an “experienced judge” who believes in formalism, he “was able to act forcefully from day one on the Supreme Court.”

Professor McGinnis is a respected scholar. His views on originalism, in a book he wrote with Professor Michael Rappaport, are interesting, provocative, and need to be taken seriously (which I do in my forthcoming book). But this praising of Justice Gorsuch, and his commitment to formalism, is both unpersuasive and dangerous.