Friday, December 13, 2019

What If the Democrats Had Not Pursued Impeachment?

by Neil H. Buchanan

Both The New York Times and The Washington Post, as of this writing, are running front-page articles that claim that the impeachment process will be good for Donald Trump in next year's election.  Both stories, however, are notably weak when trying to back up that point (and do not even really try).

The Times's article merely says that Trump himself "thinks that it will help him on the campaign trail" (and the embedded link takes readers to an earlier Times article that says that Trump thinks impeachment will help him).  More interestingly, the story ends with a prediction, noting that "Mr. Trump’s advisers worry about ... the snapback of his anger once the impeachment process is over. They predict he will be furious, and looking for payback."  The invertebrate Lindsey Graham reportedly told Trump not to do that, apparently because it would be bad for his election, so even the most craven Republicans do not think this is necessarily good for Trump.

The Post's article, meanwhile, merely reports that the Trump reelection campaign is pushing the line that impeachment will be good for him.  But what else are they going to say -- both because they dare not disagree with Trump and, more importantly, because their job is to say things like that?  Trump's campaign manager is quoted as follows: "This lit up our base, lit up the people that are supporters of the president. They’re frustrated, they’re upset, and that motivates voters.  They [presumably he means the Democrats] have ignited a flame underneath them [presumably he means Trump's supporters].  ... That has put money in our bank [campaign donations]. It has added volunteers to our field program.  It’s filled up the rallies easier."

To which one can only respond: I call BS.  That is absolutely a nonsensical argument, as I will explain.  More to the point, even if it were true, there is no way that the Democrats could have done anything differently.  This is therefore, at worst, major papers amplifying Trump's spin.  At best, it is evidence-free Monday-morning quarterbacking.

Thursday, December 12, 2019

How to Prevent Recruit-to-Deny and Reject-to-Preempt Admissions Strategies

by Michael C. Dorf

A recent NY Times article highlights one of the more despicable practices one sees in the college admissions game -- what has come to be known as "recruit to deny." Here's how it works: US News and other purveyors of college ratings and rankings include "selectivity" among the factors on which they evaluate colleges. The harder it is to get into a college, the more selective that college is. Selectivity is expressed as a ratio of applicants who are admitted to applicants who apply: The lower the ratio, the more selective the college. A college can improve (i.e., decrease) its selectivity ratio by increasing the denominator, i.e., by encouraging applications from more students it expects to reject. (Encouraging applications from students a college expects to accept will decrease selectivity, because it will increase the numerator as well as the denominator, and thus in general increase the ratio.) Accordingly, as the Times article notes, many colleges reach out to prospective applicants with recruiting material, creating false hope that they will be admitted, when the college only values them as filler for the denominator. Such colleges "recruit to deny."

The practice is despicable for various obvious reasons. Sometimes colleges waive application fees for students they recruit to deny, but not always. When they don't, they waste those applicants' fees. Even if a college waives its application fee, there are fees associated with sending standardized test scores. There is also a cost in time. Although most colleges accept the so-called "common application," submitting additional applications can nonetheless be time-consuming, because many colleges have specialized additional questions they ask. Applicants who are recruited so the college can deny their applications might also waste their (and their parents') time and money by visiting the campus. They might make costly decisions to forgo certain other applications to colleges that would actually have admitted them. At the end of the process, there is both the sting of rejection and the sense of betrayal. I imagine a great many applicants who were victims of recruit-to-deny efforts feeling more than a little miffed that a college that went out of its way to tell them how great they were then rejected them.

Below, I'll offer a simple suggestion for eliminating the incentive for recruit-to-deny. But first I want to make a couple of observations about how it fits with other admissions practices.

Wednesday, December 11, 2019

The Articles of Impeachment, the Burden of Proof, and Propensity Evidence

by Michael C. Dorf

In the run-up to yesterday's release of proposed articles of impeachment against Donald Trump, commentators speculated about whether the House would issue articles focused entirely on Trump's corrupt actions regarding Ukraine or also include other matters, especially those relating to events described in the Mueller Report. At least three rationales were offered for articles of impeachment going beyond the Ukraine affair.

First, some commentators thought it might be helpful to moderate/freshmen Democrats in swing districts who won their seats by focusing on such pocketbook issues as health insurance to have multiple articles so that they could vote for some and against others. Doing so would ostensibly show to their fence-sitting constituents that they were going along with impeachment reluctantly and out of a sense of duty but were still moderates; that's why they only voted for two of the articles, these Democrats could say. I'm not sure who originated this idea, but it never made much sense to me. Swing voters tend to be relatively low-information voters. It is hard to see that any such voters would oppose impeachment (even if they generally dislike Trump) but be  assuaged that their representative voted for only two out of three (or four or more) articles of impeachment.

Second, other commentators suggested that it was important to include obstruction of justice based on Volume II of the Mueller Report, because obstruction of justice is a crime, whereas the two articles that the House Judiciary Committee produced yesterday--"abuse of power" and "obstruction of Congress"--are not crimes. These commentators acknowledge that an act can amount to treason, bribery, or some other high crime or misdemeanor within the meaning of the Constitution even if it is not a crime as defined by statute. Indeed, all of the law professors who testified last week, including Jonathan Turley, acknowledged that. Nonetheless, I have heard it said that Republicans have argued and will continue to argue to the uninformed public that only statutory criminal acts warrant impeachment, so that including a criminal charge would head off this argument.

This line of reasoning was naive. If anything is clear by now, it's that Republican apologists for Trump will say whatever is convenient, regardless of its consistency with other things they have said just a few seconds earlier. A charge based on the Mueller Report's well-documented catalogue of obstructive acts would be met with the claim that the Report exonerated Trump. That would be untrue, of course, but Republicans who are willing to say that the Constitution only allows impeachment for statutory offenses are also willing to say that Mueller exonerated Trump, climate change is a hoax, the Earth is flat, or whatever it takes. Articles of impeachment oughtn't to be based on taking away Republican talking points with facts. That's impossible.

Third, some people argued for including charges involving Russian interference with the 2016 election and obstruction of the investigation thereof because the Ukraine Affair is a continuation of that same scheme. This, to my mind, was a fair point. Putin's agents created the conspiracy theory that Ukraine, rather than Russia, interfered with the 2016 election, and the military aid for Ukraine that Trump delayed sending to Ukraine until his scheme was exposed was aimed at combating Russian aggression. Accordingly, including Russia-related charges would have made sense on relevance grounds.

Nonetheless, I trust the political judgment of the Democratic House leadership in proposing two relatively narrow articles of impeachment. And besides, the proposed articles are not all that narrow. In particular, they invoke the Russian connection repeatedly.

Tuesday, December 10, 2019

The Not-All-That-Blurry Lines of Public Intellectualism

by Neil H. Buchanan

In my most recent Dorf on Law column, I wrote that my former George Washington Law School colleague Jonathan Turley "is a media hound, second only perhaps to Alan Dershowitz in his apparent willingness to go onto any show and say anything, no matter how ill-conceived, if it means being on TV."  I admit that this was rather rough treatment, and it became even more so when I ended the column by saying that although Turley is not apparently in favor of the evils of Trumpism, he is willing to do things that further those evils because Turley elevates his own vanity above other values.

This kind of bare-knuckled assessment should, of course, at least cause the accuser (me) to pause and ask whether pointing the finger at an egomaniac is the classic case of having three fingers pointed back at himself.  (Aside: Is that a mixed metaphor, even though it is all about fingers?  Never mind.)  Yesterday's Dorf on Law column by Professor Eric Segall was much more kind than that, but Professor Dorf's comment on that column raised this broader question not only about me but about himself.  After all, this blog is its own form of showing off what the writers believe to be their worthy insights, and
"[e]ach of us wrestles with how far to venture beyond our respective core expertises and reciting 'just the law' in speaking to the public. Those of us who write for this blog have a more restrictive view of our role than Prof Turley has of his role, but there are many others in our profession who have a still more restrictive view than we do and would thus regard us as media hounds (or worse)."
To be very clear, I do not feel that either Professor Segall or Professor Dorf "called me out" in any way.  Instead, I took their comments as an opportunity to call myself on the carpet and ask what exactly I think that I am doing via the public intellectual activities that take up significant amounts of my time.

So as not to bury the lead, I will state up front that although I agree that the lines between acceptable and unacceptable behavior are not always clear, there is much more than a you-know-it-when-you-see-it inquiry when thinking about public intellectualism.

Monday, December 09, 2019

What are Law Professors for Anyway?

By Eric Segall

As I watched three of my favorite colleagues and Jonathan Turley testify in front of Congress last week, I couldn't help wondering what should be the appropriate role for law professors in current political and legal disputes. Obviously the impeachment hearings raise this issue but so do amicus briefs, letters signed by law professors taking positions on major policy questions, and even media appearances and professorial use of social media platforms. In this post, I raise a few questions and suggest a few tentative thoughts, but, with one exception, do not provide strong opinions.

Friday, December 06, 2019

Professors, Impeachment, and Vanity

by Neil H. Buchanan

Earlier this year, I ended a 12-year stint on the faculty of The George Washington University Law School.  As such, I have been asked (off-list) whether I have any comments about my former colleague Jonathan Turley's testimony at the House Judiciary Committee's hearing earlier this week.  I have plenty of thoughts, but I will warn readers in advance that I have no juicy "insider goss" to share.

Turley was the legal witness called by the House Republicans at the hearing to make their case against impeaching Donald Trump.  Turley's testimony and comments have already received a great deal of attention (much of it extremely negative, and deservedly so), including in part of Professor Dorf's excellent column yesterday.  Turley's performance gave me even more reason to feel happy about my recent change in academic affiliation.

Below, I will discuss the substance, such as it is, of Turley's testimony.  But because so much commentary has already poured forth from smart people, all asking in one way or another, "What the hell is Turley thinking?!" it makes sense to think about the testifier in addition to his testimony.

Thursday, December 05, 2019

House Judiciary Committee Meets the Law Professoriate

by Michael C. Dorf

I did not watch all or even most of yesterday's hearing before the House Judiciary Committee, due to the press of teaching and other obligations. Accordingly, I do not purport to offer anything like a comprehensive assessment. Instead, I'll make brief remarks about the testimony of each of the four panelists.

Wednesday, December 04, 2019

Impeachability, Mootness, and Legal Realism

by Michael C. Dorf

Today the House Judiciary Committee will hear from four legal scholars. (The hearing livestreams here, beginning at 10 am). Three, called by Democrats, will surely say that President Trump's various misdeeds--using the prospect of a White House meeting and Congressionally appropriated money for a besieged Ukraine as leverage to pressure the Ukrainian President to announce (but not necessarily conduct) an investigation of Hunter and Joe Biden, as well as obstructing the Congressional investigation of those acts--readily satisfy the constitutional standard for impeachment. The fourth, called by Republicans, will say that the public record does not disclose sufficient grounds for impeachment.

Lest there be any doubt, I agree with the former view. Donald Trump is manifestly unfit for office. His behavior with respect to Ukraine is a particularly good fit for the text of the impeachment clause, because whether or not he technically committed an act of attempted bribery, by abusing public resources for private gain--and at the expense of national security to boot--he clearly committed acts in the same ballpark as bribery, which counts as "other high Crimes and Misdemeanors."

Yet while I have loaded the prior paragraph with words connoting certainty (such as "manifestly" and "clearly"), there is nothing resembling bipartisan agreement in the House or Senate regarding Trump. Why not? From my perspective, that's because some number of Republican Representatives and Senators are all-in for Trump, while some other number privately know him to be an amoral venal scoundrel but fear the wrath of GOP primary voters. So I'm right and they're wrong, right?

Well, yes, but that's not my point today. Instead, I want to focus on the malleability of legal reasoning by stepping back and comparing and contrasting the Trump impeachment with the last one, involving President Bill Clinton.

Tuesday, December 03, 2019

Democratic Nomination Uncertainty and the Buttigieg Problem

by Neil H. Buchanan

In what I consider to be good news, two political scientists published a piece yesterday in The Washington Post showing that the supposed "war" within the Democratic Party is a figment of pundits' imaginations. As the author/pollsters summarize their findings: "[W]e find a surprising amount of agreement among Democrats on major policy issues. Contradicting the conventional wisdom, clearly defined ideological 'lanes' don’t seem to exist in the minds of most voters."

Why is that good news?  Because for someone like me, who is constantly amazed by how many commentators talk about the Democratic Party as if it were still the unfocused group of infighters that we grew up with, it is nice to see evidence that the Democrats truly are unified on policy issues -- and, by the way, taking positions on all of those issues that are very, very popular.

The polls show that voters do not identify themselves in specific camps within the party; and much more to the point, their voting preferences do not show them buying into the hype from an ideologue like, say, The Post's Jennifer Rubin -- whom I respect but who is Suspect #1 in the poorly hidden pundits' conspiracy to make the Democratic primaries an ideological war between centrist and center-left candidates.  (Sorry, the U.S. still does not have any leftist Democrat leaders in terms of policy, and that includes not-actually-Democrats like Bernie Sanders.)

Indeed, the polls show that voters who identify centrists as their first choice choose non-centrists as their second and third choices, and vice versa. Here is a great nugget: "More specifically, in surveys from Oct. 17 to Nov. 13, 35 percent of Biden supporters list Sanders as their No. 2 choice, and 29 percent list Warren. Only 9 percent list Buttigieg. Meanwhile, Sanders supporters are nearly evenly divided in their second-choice candidate: 36 percent say Warren, while 32 percent say Biden."

So it is difficult if not impossible to see actual Democratic voters saying: "I'm a centrist and I hate those lefties who are going to ruin us by making us seem like socialists, so I'm going with Buttigieg if Biden fades, or maybe Klobuchar."  These pollsters appropriately caveat their findings, but this is interesting work that is contrary to the conventional wisdom, to say the least.

Because these are scary times, however, I am unable to take good news as good news.  Where is the bad news?  Mostly, it is embodied in the squeaky-clean supposed "dream candidate" known as Pete Buttigieg.

Monday, December 02, 2019

The Problem With Litigating Executive Privilege in Congressional Testimony

by Michael C. Dorf

Last week was a mixed bag in litigation over the conflict between the Democratic-led House of Representatives and the Trump White House. In the course of ordering former White House Counsel Don McGahn that he must testify before Congress about remaining questions involving Russian interference in the 2016 election and the firing of James Comey, Judge Ketanji Brown Jackson stirringly rejected Trump's claim of blanket immunity for his aides. Surveying key statements and events from the Founding through the present in a scholarly 118-page opinion, she concluded that "the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings."

And yet, in a reminder of an all-too-familiar pattern over the last three years, Trump's loss in a lower federal court was overshadowed by his victory in the Supreme Court. The very same day that Judge Jackson ruled against Trump's assertion of royal prerogative in the McGahn case, the justices granted a stay of the mandate in the DC Circuit case that ordered Trump's accounting firm to deliver his financial records to the House Committee on Oversight and Reform.