Wednesday, July 19, 2017

No Surprise, Dayton Loses: The Legal and Political Implications


It should come as no surprise that a Ramsey County judge ruled that Governor Dayton’s line item veto of funding for the state legislature violated the Minnesota Constitution.    But with that decision, the respective powers of the three branches of government are reshuffled, leaving the governor in a far weaker position than it was before, both in the short and long term.
Dayton’s line-item veto was at best ill-advised, at worst a foolish political gambit with enormous political and legal implications.  Dayton’s use of the veto demonstrated how the legislature  had politically outmaneuvered him once again.  Not willing to take the chance of another government shutdown, Dayton refused to use his veto on several of the omnibus bills, thereby throwing away his most potent weapon to force the Republicans to do what he wanted.  Dayton blinked, signed the bills, and then used the line-item veto to try to force the legislature to do what he wanted, as evidenced by the memo he sent to them describing why he did what he did.  This memo would come to haunt him in the final court decision.
During oral arguments it was clear that the governor’s attorney was on weak ground.  As I tell  my law students, never make a legal argument asserting that you have unlimited discretion to act.  That was essentially the governor’ position–there was no limit on the power of the governor to use the line-item veto.  Unbridled discretion is never a good argument.
No surprise then  in the ruling by the judge.  Minnesota case law was clear that one branch or part of the government could not take action that would impede or prevent another constitutionally created branch of the government from performing its constitutional functions.  Second, in the original court hearing and its preliminary decision a few weeks ago the judge strongly hinted that the governor would lose.  Thus, from a legal perspective this opinion is not a shock or surprise.
Longer term, the implications here are interesting.  Between this decision and the Brayton  v. Pawlenty decision from a few years ago when the Court ruled against the governor’s use of his unallotment authority to balance the budget and end the legislative session,  decision a few years ago, the power of the Minnesota governor vis-a-vis the legislature is now weaker.  In both cases the governor overplayed his hand and now the courts have placed limits on what the governor can do on his own.  In both cases governor’s acted impulsively, in both cases they were ruled against.  The  two cases limit the constitutional powers of the governor.
At the same time, both of the cases strengthen both the legislature and the courts.  In the case of the legislature, it is stronger s a result of the governor’s constitutional wings being clipped and because it emboldens them to act and take more chances in the future.  The judiciary is stronger because it yet again became the final arbiter of who has power and how Minnesota government works.  Not only does this decision reinforce the notion that the Minnesota Courts get the final say on what the state constitution means, but with this decision they got to decide how to allocate political power in Minnesota.  This decision redrew the lines of separation of powers in Minnesota.
Short term, Dayton now is even weaker going into his last year than he was before, and Daudt even stronger, thereby enhancing his status as a gubernatorial candidate.   The decision has huge implications for the 2018 governor’s race.  Notice how Attorney General Swanson stayed out of this  case–she was smart politically not to defend the governor in a case she must have known he would lose.
Finally,  notice how the DFL Legislature sold out the governor.   Dayton’s use of the line-item veto was also a result of the Republicans’ flagrant violation of the single-subject clause in the State Constitution.  Dayton could not argue that point in his defense because he signed the bills he objected to.  However, if the Democrats had raised a single-subject objection to the bills in a separate case, it would have been possible for court to join the line-item and single-subject arguments together.  Historically, the two clauses have common histories in terms of their goal in policing legislative corruption and abuses.  Yet while John Marty tried to get support for this challenge, his DFL colleagues failed to support him, demonstrating how much the political and legal interests of  them and Dayton had departed.  What will be interesting to see is the political fallout of this failure to support the governor, both in the remainder of Dayton’s term and in how it plays out for the 2018 legislative and gubernatorial elections.

Saturday, July 15, 2017

Abandon Trump? The Republican Party Dilemma

No question more perplexes political pundits, the news media, and Democrats than “When will
Republicans abandon Trump?  The simple answer is that the odds of Republicans–both those in Congress and his base–abandoning Trump is like waiting for Godot.  In both cases, one can hope that Godot appears or the Republicans will flee from Trump and impeach him, team up with Democrats, or do something else, but the reality is that it just may not happen.
Now nearly six months into the Trump era the carnage of his presidency persists.  This week the Russian connection revelations continued to mount, depicting  patterns of illegal or unethical collusion between Trump campaign officials and family and Russian nationals if not the government.  Revelations of Trump family conflicts of interest intensify, Trump embarrasses himself and the USA across the world, his travel ban takes another court hit, and his policy agenda including efforts to repeal Obamacare look like one mistake after another.  Allegations  of obstruction of justice engulf the administration as the FBI probe continues, and to many, Trump tweets and alternative facts simply add to a narrative of a largely failed presidency unable to get anything done.  With the Republicans tasting policy victory last fall and only to see it slipping out of the fingers now and facing a potentially fatal 2018 election, why haven’t Republicans abandoned Trump?
Many look to the lessons of Watergate as hope that the GOP will reject Trump.  Back when Nixon was president his resignation was the product of not just political pressure by Democrats but also by notable Republicans in the House and Senate calling for his impeachment or resignation.  Public opinion support for Nixon also eroded, and he could not count on his base to support him in sufficient numbers to prop up his presidency.  Even his own Supreme Court abandoned him in U.S. v. Nixon and the mainstream media was nearly of one voice in going after Nixon. Surely, some assert, this should be Trump’s fate any day.  Not necessarily.
The 1970s is a different era from today.  Most significantly, the level and strength of partisanship today is far more powerful today than then.  Back in the 1970s about one-third of the members of Congress came from swing districts, those which were capable of flipping from one party to another.  The percentage of swing voters–those who split tickets voted or switched from one party to another when voting was about 15% of the electorate.  The Republican and Democratic parties were ideologically more mixed and straight party-line votes the exception and not the rule.
Today, there are fewer than 20 or so seats in the House of Representatives that are swing.  The number of seats  where Clinton won the presidency but a Republican in Congress is very small.  Party-line voting is the norm and not the exception in Congress and the Republicans and Democrats are so polarized such that the most liberal Republican in Congress still votes more conservatively than the most conservative Democrat in Congress.  The percentage of swing voters has dropped to about 5%, with swing meaning now swinging into votes or not voting, and not split ticket voting.  Partisan preferences have hardened, especially at the presidential or national level, and political scientists now note how individuals will change their policy preferences to conform with their party identification, and not vice versa.
Why is all this important?  Despite all of Trump’s problems, partisanship is more powerful than presidential performance.  Republicans have embraced Trump as their president, flaws and all.  This was no different from what the Democrats did with Clinton in 2016.  Despite all the clear warning signs that Clinton was a flawed candidate, Democrats stuck with her no matter what.  Democrats went down with Clinton as the captain of their ship, Republicans may do the same here.
Don’t count on Republicans abandoning Trump.  They still support many of his policy objectives and see a better chance of getting what they want if they are with as opposed to him. They still want to repeal Obamacare and may still succeed.  Consider some one such as Senator Susan Collins.  Depicted as a moderate, yet whenever push comes to shove, she votes the Republican line.  The same might be said of John McCain.  Right now they oppose the yet again revised version of the Senate health care bill and it looks doomed, but the same was said a few months ago about the House bill.
Moreover, don’t count on fear of what could happen in the 2018 elections as a motivating  factor for Republicans.   The latest public opinion polls (Gallup)  still show that 38% of the voters support Trump.  This percentage has not varied much in two months. His core base is still with him.   The Democrats are defending 25 Senate seats in 2018 (23 Democrats and two independents) than Republicans at eight, and there does not seem to be too many swing seats for Democrats to pick up in the House.  Trump’s core base is concentrated in enough congressional seats such that fleeing him there would invite Republican primary challenges from the right.  Finally, Democrats lack a narrative, plan, and strategy for 2018, they are still counting on Trump’s unpopularity to the springboard to victory.  This is Clinton’s 2016 mistake all over again.  Finally, the news media is not universal in  its condemnation of Trump; Fox national news provides alternative facts to the Trump base that reinforces partisan support.
It is possible that the Republicans will abandon Trump, but it is equally possible they will not.  Hoping it will happen is simply like waiting for Godot.

Friday, July 7, 2017

Trump at the G20: The End of the American Century

If  Donald Trump’s presidential goal was to “Make America Great Again,” he has a funny way
of going about doing that.  If anything, the G-20 Summit demonstrates how after barely six months as president the United States is a weaker country than it was before he took office.  The weakness resides in the decline of American soft power internationally.
Two elements were critical to the creation of what LIFE magazine editor Henry Luce declared in 1941 as the coming  American Century.  First, coming out of World War II the United States was militarily the strongest nation in the world.  That position was only enhanced by it being the first nuclear club member and persists today as the United States spends more on defense at $611 billion than the next eight countries combined spend at $595 billion.  US hard power is the greatest in the world.  The US simply has the fire power to muscle its hegemony across the globe.
But equally if not more important to creating the American century has been its soft power.  The term soft power was developed by Harvard scholar Joseph Nye in his 1990  Bound to Lead: The Changing Nature of American Power.  It is the power to influence world opinion by way of its culture, political values, and foreign policy. In many ways, soft power is the international equivalent of Richard Neustadt’s power to influence in Presidential Power–both describe the less coercive but equally important and effective ways that power is leveraged.  Paul Kennedy’s The Rise and Fall of the Great Powers credits the dominance of the United States as building a world in its image via both the strategic use of hard and soft power.  Soft and hard power work together much like carrots and sticks.
From World War II to the president there has been a Washington consensus on how to maintain American power.  Beyond significant military spending, supporting free trade, relatively liberal and democracy values, and exporting US culture have been instrumental.  So has been inviting foreign students to study in the US, allowing for business investment overseas, and pursing foreign policies and multilateral treaties.  While the US has not always been consistent in it values and goals, and the benefits and burdens of its policies have not always been equitably been distributed, there is no question from Truman to Obama there has been more consistency that disruptions in US foreign policy.
Trump’s presidency is challenging all of that, and not for the good. Pulling back on free trade and retreating from the world means less influence for the US.  To be the dominant player in the world the US has to be a player, and Trump does not want that.  At the G-20 summit the European Union and Japan have finalized a trade agreement that leaves the US out.  Trump has decimated the State Department making it difficult to engage in diplomacy.  He has pulled out of the Paris Accords, questioned NATO, bashed our allies, and alienated partners that we need to bring stability to the world.  North Korea’s recent missile launch show how with a decline in soft power the US options are narrow.  Even a military solution seems fraught because without soft power, hard power is vastly weaker too.
It would be easy to create a laundry list of all the things Trump has done to damage America’s reputation and soft power.  But the point is that entering G20, the meeting with Putin, the crises with North Korea, Syria, and maybe ISIS, Trump has undercut the very conditions that made it possible for the US to be great, powerful, and influential.  His presidency is proving less about making America great again and instead it relegating the US to a more marginal player in an international chess game that once placed the country at the center in terms of its influence.

Wednesday, July 5, 2017

Is Minneapolis Ungovernable?

Is Minneapolis ungovernable?  Increasingly critics, usually conservative,  point to a host of factors
suggesting that the city has become ungovernable.  The culprit in this indictment is party or partisanship.  While the ungovernability charge may be overblown, it does speak to an issue than no one is talking about in this year’s mayoral election–how the city is changing and why a rethinking of the structure of city government may be desirable and necessary to accommodate these changes.
The symptoms of ungovernability are many.  Look to the endless and overdue completion  of the construction on Nicollet Mall, or the increased traffic jams downtown caused by ill-planned or coordinated road construction.  There are racial disparities in educational outcomes, the persistent segregation, high taxes, the economic imbalance among races and across neighborhoods, and what some would allege are a police department out of control, or at least a police department where the mayor and the police chief seem out of sync.  And then some would point to a mayoral election four years ago producing 38 candidates, or on a policy level, adoption of a $15 per hour minimum wage.  For some, these and other examples point to a city out of control, one needing limits placed on its ability to legislate as was the aim by Republican state legislative bills this past session.
Many of these examples do point to problems within Minneapolis, but they may be symptoms of deeper issues.  For Republicans and conservative critics the problem is single-party DFL rule.  There is some truth to the concern that single-party dominance fails to provide sufficient checks on political excess and perhaps it might be good if the city elected one or two Republicans to the city council or even the state legislature.  If the latter, then perhaps Republicans might have more interest in the city because a member of their own party would be advocating for Minneapolis.  Yet Minneapolis is not completely single-party rule; the DFL is generationally divided between the old  Baby Boomer farmer labor party and the Millennial identity politics parties.  Yes, Minneapolis is a leaning left city, but simply to argue that it is ungovernable because of that is not accurate.
Many of the other problems that Minneapolis has are not unique to it.  Road repair and construction coordination is a regional issue in Minnesota and it demands better planning across jurisdictions.  The concerns about policing in Minneapolis are not new.  Lincoln Steffens’ 1904 The Shame of the Cities lists even back then Minneapolis and its police department to be corrupt or poorly managed.  Problems of segregation and the racial disparities across many benchmarks are metropolitan- if not state-wide; the suburbs and failed state policies are as much if not more to blame  than anything Minneapolis has done.  The symptoms of ungovernability some point to are not the fault of Minneapolis and may light in the need to rethink and expand regional governance or coordination as once was the dream of the Met Council.
Finally, one can also assert that the city is not ungovernable.  But most national accounts,  the city works and produces a quality of life that is outstanding for most residents.  It has a strong economy, great parks, a vibrant arts sector, and many decent neighborhoods.  Yes, many–especially the poor and people of color are being left behind–but that is not unique to Minneapolis.  This is the sad story of how race, class, and gender divide America and how neither the Democrats nor Republicans nationally over the last 30-40 years have done much to address these issues in a satisfactory way.  The failures of Minneapolis are the failures of the United States.
But if Minneapolis is ungovernable perhaps it is time to reconsider the structure of the city government.  More or less, the basic structure of the city government has not changed in a half of century of not more.  By charter, it is a city with a weak mayor and a strong city council.  The basic duties of the two have not changed over time, but the challenges facing the city have grown ever more complex in the last half century.  The complexities arising from changing demographics, economic conditions,and generations.  The population alone now is the largest it has been since the early 1970s, and there are more cars in the city and around it ever.  Minneapolis is now the economic hub of 16th largest metropolitan statistical area in the US, and the population surrounding the city is greater than it has ever been.  In many ways, Minneapolis faces pressures and challenges it has never  previously confronted, yet it is still trying to do that with a political structure that may be dated.
The solution is not clear but a serious charter revision may be in order.  Perhaps the city should consider creating a stronger mayor form of government, or even consider a city manager option.  There may be other options too.  But the simple answer is that Minneapolis may wish to rethink how it governs itself, assessing whether the structure it presently has is the one it needs to face the present and future needs of the city and its people.

Friday, June 30, 2017

Trump's America

The best thing one can say about Trump’s America as we approach the fourth of July is the
practice for free speech he exudes in his tweets!  He is willing to say whatever is on his mind, no matter how sexist, demeaning, juvenile, or small it may be.  Case in point, his latest attack on Mika Brezinski.  But that may be the extent of Trump’s knowledge or respect for the Constitution and Bill of Rights–rights for he but not for thee.
No one should be surprised by Trump’s crassness and sexism.  It was on display during the election. It is embarrassing enough to have a juvenile-in-chief as President of the United States, but it is even worse to think about the contempt or ignorance he has shown for the rest of the Constitution and Bill of Rights.  Abusing the press by blocking cameras from press conferences, spewing alternative facts, and Muslim travel bans, are only part of the vision of Trump’s America.  But it also how he is providing a role model for a culture that feels it is okay to be mean toward others with whom you disagree.  All this is bad enough.
But now pity the Republican and Democratic parties.  For the Republicans this should be their hour.  They control all the institutions of federal power, many of the state ones too, yet they look perfectly inept.  When given the institutions of power to govern they look worse than the gang that could not shoot strait.  Trump has no major legislative policy victory yet and it still may not happen with health care.  And even if it does, it will do little to benefit the very constituencies that elected him and so many Republicans.  Republican governors and members of Congress, confronting the reality of their policy rhetoric and proposals for the last few years, are blinking.  They can actually do what they want and either are scared to do it or realize they have no plan, no narrative, no clue to how to govern or rule.
I remember late last fall after the election when I was asked to give a talk about what the election meant and what the future would look like under Trump.  The other speaker was simply a  former Republican lieutenant governor candidate in Minnesota who described how “giddy” Republicans were in Washington at the prospect of doing what they wanted.  Not sure giddy is the word I would use now.  Trump has proved to be one of several impediments to the GOP getting anything done.  Trump is a diversion from Republican governance, preventing them from getting anything accomplished.  Throw in the Russian probe and it is intra-party gridlock through 2018.  And if the Democrats manage to get their act together and take back the Senate in 2018, gridlock  through 2020 and into 2021.
But the Democrats getting their act together is a big if.  They are the party without a narrative, a strategy, and a clue to how to win again except in the cities and communities where any Democrats can win.  While opposition to Obama was enough for Republicans to win, opposition to Trump is not enough.  The Democrats are a party on the run, lacking an alternative narrative to free markets and no government über alles and to the insufficiencies of the watered-down neo-liberal welfare state  policies they embraced for the last quarter century that failed to benefit the working class who fled them for the GOP.
Trump’s America is not just about Trump.  It is about a United States that is less than believing that all of us are created equal.  It is one that is about a divided country where the democratic institutions are still working, although barely, but certainly not in the way we hoped they would be.  It is about a failure of leaders, parties, and even people to act responsibly and work together.  Trump is not the cause, he is the symptom of something more deeply wrong in America  right now.  Making America great again should not be a slogan, it should be about addressing the racial and economic gaps in the country, about making it possible for people to afford to buy health insurance, eat, live in a decent neighborhood, raise children and send them off to an affordable college, and be able to drink clean water and inhale clean air.  It is about everyone having a place at democracy’s table.  This is what July 4, 1776 was about, not what it has become under Trump.

Wednesday, June 21, 2017

Trump, Congress, and Georgia: How the Democrats created their own political disaster

Democrat Jon Ossoff lost in a special congressional election in Georgia. It should have meant nothing but instead it meant everything for all the wrong reasons.  The Democrats transformed something that never should have mattered into yet another crisis for themselves.
The special congressional election in an affluent Atlanta suburb to fill the vacancy created by Republican Tom Price was foolishly blown out of proportion from the start by Democrats.  They made it into a referendum on Trump and created all the hysteria and expectations about victory. The media and other political pundits across the nation did the same.  Wrong.  As I have repeatedly argued, one special election should never be treated as a harbinger or referendum on anything beyond what happens within that district.  As former House Speaker Tip O’Neill once said, all politics is local.
Yes, national issues may intrude, but local races are ultimately decided by local issues.  Candidates and parties who think there are national, one-size-fits-all, cookie cutter strategies to winning across the country are doomed to lose.  Each race is unique, no special election is a proxy for the nation. To think otherwise ignores the reality of statistics and not generalizing from one election to the rest of the nation, and it simply ignores demographics and trends that define each district.
But yet again Democrats could not resist.  They made Georgia a do or die.  They saw a district that Trump won last year by 1.5% and thought they could win the congressional seat even though the then incumbent in 2016 won a blow-out victory.   They assumed Tuesday there would be a coat tails effect (Trump did not win by much and so perhaps they could win this congressional seat) even though there was no coat tails effect last fall. They declared probable victory, dumped money, time, and other resources into it.  But mostly they dumped hype into it.  What they did not dump into it was a narrative and strategy.  Instead, they yet again pinned hope on dislike for Trump, changing demographics, and believe that Democrats and other voters will come to their senses and vote for a Democrat would be enough of a strategy.  It wasn’t, and it should not have been a surprise.  After all, this was Clinton’s strategy and she lost.
Because Democrats made such a big deal of this race, creating expectations wildly beyond the probable, losing the special election is now devastation. It is seen as a victory for Trump, a loss for the Democratic Party, and the pundits will declare it as just that.  Democrats would have been smart not to have nationalized this race, instead treating it as a special local election and developing a candidate, narrative, and strategy suitable for the race. They should have said it was a long shot to win in the South, that the Republican was heavily favored, and then if they won or got close they could have declared a victory if they wanted.  At the end of the day, did anyone seriously think a Democrat was going to win in Georgia?
So a race that should have meant nothing now means everything.  It shows Democrats learned nothing from the Clinton lose and Trump victory last year.  Democrats going into 2018 have no narrative to win except to say Trump is terrible.   They have no agenda or policy platform to appeal to working class voters who fled the Democrats for Trump.  They still think demographics is destiny, and that they will win simply by being a reasonable alternative.  The Georgia loss is meaningful because it reveals all these flaws in the Democratic Party game plan and now they will have to suffer through the Trump and Republican gloating and pundit pounding for creating their own hyped-up disaster.

Friday, June 16, 2017

A Tale of Two Cities: Reflections on the Minneapolis and St. Paul Mayoral Races

Minneapolis and St Paul are two cities.  No, not two separate cities, but two cities each within
themselves. Both are shining cities on the hill for those who are white, affluent, and live in the right neighborhood.  They are cities of concentrated poverty, racial disparities, and lack of opportunity for  people of color, the poor, and those who live in the wrong neighborhoods.  The defining issue for the 2017 Minneapolis and St Paul mayoral elections ought to be about rectifying the difference between the two cities–providing justice to all to prevent the conditions that led to the deaths of   Jamar Clark and Philando Castile, but so far that has not been the case.
Minneapolis and St. Paul are great cities with a wonderful quality of life, for some.  But both are  hugely segregated by race and income.  It was that way nearly 20 years ago when I worked for the University of Minnesota’s Institute on Race and Poverty and we documented that segregation.  Over a generation little progress has been made. They remain cities with  neighborhoods torn by concentrated poverty, race, crime, and disparate educational outcomes.  They are cities where wealth is concentrated in the urban core and in a few neighborhoods, leaving many others behind.  Mayor Hodges, and before her R.T. Rybek and before him Sharon Sayles Belton, all promised to put money into the neighborhoods, to delivery economic development for the least advantaged, and either failed or ensnared in the demands of downtown urban development.  The same is true for Chris Coleman and before him Randy Kelly and Norm Coleman.
This year, largely  the candidates are failing to talk about the other cities within Minneapolis and st Paul that have been left behind.  The candidates do not seem to run on the quality of city services such as making sure that the streets are safe,  plowed, and pot hole free, that the garbage is picked up, housing codes are enforced, or the police respond when called.   Instead they are running against Donald Trump, talking about bringing more events such as the Super Bowl or other sports events to their city, or being the greenest city in America.  All lofty goals but not what cities are about.  Or in the alternative, when they do discuss the core issues of poverty, homelessness, or city services, they fail to mention something simply–how to pay for it.  Minneapolis and St Paul have finite resources, property taxes are going up rapidly, and the traditional middle class feel squeezed that they cannot afford to stay in their homes anymore, or that they cannot buy or rent a place in the city.  Raising taxes is not the solution.
The issue for Minneapolis and St Paul is social and economic equity. Fundamentally, the defining issue for the two cities is creating economic opportunity for all.  It is making it possible for individuals, regardless of race or neighborhood, to have a decent job, a choice of where to live, a voice in where to send their children to school.  The role of the mayor is steering investment, encouraging economic development, making it possible for people to create their own businesses.  Expand the economic base for all, especially those who are left out already, and that is they way to generate the resources both to finance the city and help those who have been left behind.
Such a vision for the two cities requires several things.  Neighborhoods need to be diversified.  Concentrated poverty neighborhoods are no good for anyone.  There needs to be a mix of people, incomes, and structures in every neighborhood.  Rethinking the two cities’ comprehensive plans is one step.  Allowing in some places for more intensified or mixed development, to allow some people to  invest in their own neighborhoods will help.  Yet private investors and banks will not act on their own to finance this.  Both cities need to think of their own investments in terms of streets, sidewalks, and  other services such as code enforcement.  The cities can help foster the conditions for economic development in their various neighborhoods, but they can also do things such as provide micro-financing to help some communities and guarantee loans in some situations.  Make neighborhoods attractive for all to live and invest it.  Deconcentrating poverty is one step in making neighborhoods more opportunity-based.  Thus, both place-based and mobility strategies are needed.
But that is not enough.  Businesses or people invest where there are skilled workers.  Strategies to attract and remain college graduates and provide real training for those lacking skills too are important.  Better partnerships among the local colleges, employers, and workers to train and connect businesses to people should be on any mayoral candidate’s agenda.    Quality services, the amenities of parks, libraries, and the arts are too what candidates should be discussing.  So too should they be talking about schools.  No, mayors cannot improve schools themselves, that is not their job.  But they can provide the conditions that make it possible for children safely to go to schools, or to live in neighborhoods that support learning though the maintenance of libraries and communities centers, for example.
Finally, both cities must directly confront the discrimination that exists within their borders.  More aggressive human rights enforcement is one answer.  The tragedy of the deaths Minneapolis  and St. Paul residents Jamar Clark and Philando Castile is a story of both racism and failed economic opportunity.
I certainly do not pretend to have all the answers. Yes, I have worked as a city director of code enforcement, zoning, and planning, been housing and economic planner, consulted and trained many local governments, and taught and researched planning and urban politics and local economic development for years.  None of that means I have all the answers.  But what I do know is that a city is its people, that all neighborhoods should have opportunity, and that what the mayoral candidates in both Minneapolis and St. Paul should be talking about is how to grow the economic opportunity  for all and how they plan to pay for the visions they have.

Saturday, June 10, 2017

Trump and Obstruction of Justice: What did the President do and why?

The penultimate question of the 1973-74 Senate Judiciary Committee investigation of Richard Nixon and Watergate was Republican Senator Howard Baker’s “What did the President know and when did he know it?”  Now the question to be asked is “What did the President do and why?”
Former FBI director James Comey’s testimony on June 8, was significant in many ways.  The first was that it represented a major transformation in the debate surrounding Donald Trump and his presidency.    If before Thursday the main line of questioning was Russian involvement in US elections along with Trump or his surrogates collaboration with them (and that is still a major and important focus of the congressional and special prosecutor investigations), the Comey testimony shifted the debate to questions of whether the president engaged in obstruction of justice when he took certain actions against him or others.  Second, the testimony places Trump and his defenders on the defensive, further damaging the policy agenda of a presidency that is already dead.
Prior to Thursday partisan Democrats fantasized about a Trump indictment and impeachment.  But that was the talk of MSNBC ratings mongering and hyperventilated blog sites.  Republicans largely could ignore this talk, dismissing it as partisan chatter.  Yes the NY Times, CNN, and the Washington Post speculated on this too, but again more to sell papers than anything else.  Comey’s testimony changed that, putting Republicans, conservatives, and Trump supporters on the defense.  The focus of the public discourse , even on Fox national news, now is on whether Trump broke the law, specifically engaging in criminal obstruction of justice.  The former now are debating on the latter’s terms, and this is not good for Trump.
Too much of the debate since Thursday has been predictably partisan, breaking along Republicans acquitting Trump and Democrats convicting him.  But there is no question that the debate now centers on the two questions of what did the president do and why?  The reason for this gets down to basic criminal law–proving actus reus and mens rea.
For anyone who has every taken a criminal justice law  course they know that there are two elements to proving someone is guilty of a crime.  First one must prove that one did a specific deed in question that is prohibited by law–actus reus–and second, that the person acted with the requisite mental intent–mens rea.  Criminal liability is not strict liability–the government must also prove some level of intentionality, and do so beyond a reasonable doubt.  In a free society such as the United States, the government carries the burden to prove guilt, and a jury trial is the classic mechanism of determining that, assigning to 12 reasonable people the task of ascertaining whether the burden has been met.
Obstruction of justice is defined in various places in federal law.  18 U.S. Code § 1505 declares as obstruction of justice:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—


Section 1505 has two important requisites.  One refers to actions that seek to obstruct, impede, or influence some proceeding by any federal agency or Congress (actus reus), and the other to the corrupt purpose (mens rea).  To show that Trump engaged in both one needs to prove both elements and that there is a nexus or connection between the two.
Much of the Comey testimony centered around actus reus–what did Trump actually do.  There were accusations about whether Trump said certain things to Comey such as call him to encourage him to stop the Flynn investigation.  While Trump has called Comey a liar and vice-versa, it would be hard to impeach Comey.  Yes, he may be a disgruntled former employee with reasons to get even, but given his long track record in government there is no reason to question Comey’s veracity under oath  where lying to Congress would bring with it both a major blow to his reputation and a possible felony charge for lying to Congress.  Some of the Trump defenders are factually challenging the Comey testimony, but instead the real battle has shifted from what the president did to what he intended.
Trump’s defenders are arguing that the president did not fire Comey to impede any investigation.  They offer some alternative reasons for his dismissal.  But increasingly they seem to be arguing a case of ignorance–that Trump simply did not understand how government works and the protocols about contacts between the president and his staff, especially those who do investigations.  Such a defense is damning the president with faint praise.
Such a defense first effectively  concedes the president is clueless about how government works and what a president can do. “Trump is not a crook because he had no idea what he could do as president.”  For someone who argued his fitness to be president, this is not a ringing endorsement of the president by his defenders.   Moreover, such a defense holds Trump to a lower standard of conduct than his predecessors.  I do not recall anyone giving Obama or previous presidents grace periods to learn their job or get up to snuff in terms of understanding their legal and constitutional duties.  One is president from January 20, upon taking the oath of office.  In addition, even if the president did nothing illegal, I see no one discussing the ethics of this issue.  By that, under any code of conduct that would should hold any public servant to, Trump’s behavior with Comey (and perhaps more broadly as president) is hardly the model of ethical conduct and decorum.  It should not just be enough to hold someone up to a minimum legal standard of conduct; the ethics of public service sets a higher bar and none of Trump’s defenders seem nowhere near defending the ethical propriety of their man.
Second, how many times have we all heard the phrase “ignorance of the law is no excuse.”  I cannot commit a crime and then say I am innocent because I did not realize I am not supposed to rob, kill, etc.”  Intentionally is generally about wishing to do something prohibited by the law, not necessarily intention to break a law I know that exists.  If I intend to kill someone I am guilty of murder even if I did not know the murder statute exists.  To say that Trump may have intended to fire Comey to impede an investigation but that the president did not violate a law because he did not understand how government operates is simply besides the point.
Third, even if Trump did not understand what he could do as president, the Justice Department is full of attorneys who could have advised him.  Other presidents turn to counsel to get advice, there is no reason for Trump not to have done so.  Fourth, some argue that there is no smoking gun to prove intent, such as an actual memo or tape recording, and therefore any speculation about mens rea is merely circumstantial.  In reality, determinations of intentionality are often if not usually circumstantial; intent or what is in our hearts is often proved by what we do under specific circumstances.  Thus, to show Trump acted with requisite intentionality to violate federal law, the standard would be whether 12 reasonable jurors with open minds would come to believe beyond a reasonable doubt that Trump intended to corruptly impede, obstruct, or influence a federal investigation.  The simply answer is right now we do not know, the investigations are only beginning and they will take time.  We should neither rush to judgement nor dismiss the accusations at this point, the fact finding has only just begun.
These investigations are a problem for Trump.  Once Nixon, Reagan, and Clinton were facing investigations, their presidencies effectively ended.  But for all three in occurred in their second terms after each has achieved significant policy victories.  Trump has no legislative policy or other real victories to count, and his presidency is now hobbled from its inception.  The irony  here is that if one loved the gridlock of the Obama years, we now will face that at least as long as the Mueller and Congressional investigations continue, which certainly will be well into 2018.

Saturday, June 3, 2017

Minnesota's Constitutional Crisis

Minnesota is in the middle of a constitutional crisis.  As is true with most constitutional crises, it is a crisis precipitated by a political crisis. The political crisis is battle between the legislature and the governor, rooted in political disagreement and polarization, and where it is about ready to engulf the Minnesota Supreme Court.
            The constitutional crisis has been long coming.  It is rooted in the change in Minnesota politics that began 20 years ago—perhaps marked when Jesse Ventura won the governorship and the Republicans the House.  That point represented the point when DFL domination in the state since the 1960s ended, and the emergence of Minnesota as a state increasingly torn by the political cultures of urban liberals and rural conservatives.  The DFL has lost its farmer leg, and it is becoming clear that as Trump Democrats have fled the party, it is also losing labor.  
             Since 1998 special sessions have become the norm—three for every four years—and there were partial or near shutdowns in 2001, 2005, and 2011.  In 2009 Pawlenty used his unallotment power to balance a budget and end a legislative session.  In all these instances, the Minnesota Courts had to step in to resolve political disputes.  All these instances point both not only to the political forces dividing Minnesota, but all were examples of constitutional crises; specifically, what to do when the political process breaks down and fails to perform according to the procedures outlined in the State Constitution.
            Now we have another and more glaring constitutional crisis. It appears to have started on Tuesday, May 30, the when governor announced that he was signing all the budget bills after yet another special session.  Yet, the state constitution gives the governor the right to line-item veto specific budget items. The governor chose to line-item veto the money that would fund the state legislature for the next two years.  The governor said he was doing this for two reasons.  First, he did not like what he called a “poison pill” provision in the tax bill that would defund the Minnesota Department of Revenue if he vetoed that bill.  Second, in a letter to the legislature he said that he would only authorize funding for the legislature’s operation if they agreed to specific changes in the budget bills he signed.  This would necessitate yet another special session.
            This battle has triggered a major political and constitutional battle in Minnesota politics.  One constitutional question is whether the legislature can defund a state agency many deem essential without violating the State’s separation of powers or single subject clauses in the constitution.  Conversely, can the governor use his veto to defund the legislature, also without violating this clause?  These constitutional questions form the context for perhaps a major political battle and negotiations, but it is also certain that the Minnesota Supreme Court may be asked to settle these questions, as it looks as if the state legislature is going to the court to sue the governor. 
In addition to the legal battles between the governor and the legislature, this week the Minnesota court of Appeals upheld a law passed by the state legislature two years ago that stripped away some of the powers of the State Auditor by giving counties the discretion to hire private auditors.  This legal battle raises separation of powers issues, but also questions regarding the State Constitution’s single-subject rule which mandates that legislation may only incorporate a single-subject.  The law removing some of the Auditor’s powers was included in another larger bill.
While Dayton’s line-item veto is the immediate cause of the constitutional crisis, flagrant violation of the single subject rule by the legislature is the real culprit.  Historically, the single-subject clause and the line-item veto are connected and rooted in fear of legislative mischief that corrupted state legislatures across the country.  Back then state legislatures were hotbeds of graft, corruption, and political shenanigans.  The single-subject rule was adopted in many states, including Minnesota, to prevent voter confusion, log-rolling, and the slipping into major bills extraneous provisions under the cover of darkness.  If the single-subject provision was unable to police the legislature, giving governors a line-item veto would allow them to extract improper appropriation provisions from bills.
The stripping away of the State Auditor’s powers was attached to a larger unrelated bill under the cloak of darkness.  The same can be said about the legislature’s poison pill in the tax bill.  But even if they were not hidden as the Republican legislative leaders contend, they still violated the letter if not the spirit of the single-subject rule.  They also point to how leadership has failed to enforce germaneness rules that would keep policy and appropriation bills separate.  Viewed in this context, the governor’s line-item veto was constitutionally under-minded.  Yes, Dayton could have vetoed entire omnibus budget bills, but that would have triggered another political and constitutional crisis in terms of another governmental shutdown.  No matter the choice Dayton faced, there was a constitutional problem.
Viewed in isolation Dayton’s line-item vetoing of the legislature’s funding is constitutionally wrong.  He cannot use that veto to negate or undermine the authority of another constitutionally-explicit branch of the government—this is a major separation of powers issue.  Yet if the only lawsuit filed is one by the legislature then that may be the decision the Minnesota Supreme Court is forced to bring.  However, there needs also to be a lawsuit brought by legislators—and Senator John Marty is contemplating one—raising the single-subject rule to many of the omnibus bills passed this term.  They should also join the State Auditor in her appeal to the Supreme Court.  Why?  If the Court is given the opportunity to rule on both the line-item veto and the single-subject rule then it would perhaps be able either to join the cases or resolve them in a way that defines the proper limits on what the legislature can do, thereby also drawing lines regarding what the governor can do.  Defining the limits of the single-subject rule and the line-item veto would then also clarify the separation of powers issue.

Of course, the Supreme Court could take another approach-refuse to grant jurisdiction to the Republican challenge to the governor, ruling the matter a political question for them to work out.  While at one time that would have been a viable solution, prior Minnesota court decisions to fund the state during a shutdown, over unallotment authority, and even over the single-subject rule make that option nearly impossible.  The constitutional crisis already has engulfed the state court system and it is not clear it can simply walk away.

Tuesday, May 30, 2017

Prosecuting Police Misconduct--Why it will be hard to get a conviction in the Castile case

Note:  For seven years I taught criminal justice classes, including a course that included examination of police  civil and criminal liability.  I also discuss police use of force in the second edition of my civil rights/liberties case book to be published by West Academic this summer.

On May 30, jury selection in the case of police officer Jeronimo Yanez begins.  He is charged with the shooting of Philando Castile.  Many think it will be a slam dunk to get a conviction–after all, there is a tape of the incident that appears to show an unwarranted excessive use of force.  Yet the odds are that it will be hard to win this case.

Why? Part of the cause is that laws on the use of force favor the police, making it difficult to win cases.

Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals or accused or criminal acts.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

The problem is, this is very hard to do – and therefore it’s tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.

And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen’s interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.

In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.

Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims.   Much of this may not apply in the  Castile case.  But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.

While the above framework applies to civil responsibility, it overshadows criminal liability for police conduct.  Effectively a prosecutor will need to demonstrate that a police officer–here Officer Yanez–acted outside the scope of his authority when he used force.  Then the prosecutor will need to prove the elements of the crime second-degree manslaughter and two felony-level counts of dangerous discharge of a firearm–beyond a reasonable doubt.  Taken together, this is a very high bar
for prosecutors to overcome.

Tuesday, May 23, 2017

The Entirely Predictable Minnesota Special Session

A special session for the Minnesota State Legislature was entirely predictable.  One practically could
guarantee after the 2016 elections that with a Democratic governor and a Republican legislature a special session was likely, and a partial governmental shutdown again a real possibility.  While the tentative budget deal brokered at 11:50 Monday night–just minutes before adjournment–could fall apart, it looks for now that the worst scenario has been averted.
Yet no one should take this deal as a sign of victory; instead it points yet again to many underlying failures in the budget process in Minnesota which has created what I have called for years the new normal.  The new normal refers to a process dating back 20 years where special sessions, government shutdowns, and failed legislative sessions are the rule and not the exception. So why yet again did the legislature miss its deadline?  Why the new normal?
Budgets reflect values.  They reflect priorities that different individuals or political parties have regarding what programs are to be fund and for how much, and what public policies they want to see for the state.  Budgets are political visions.  The new normal in Minnesota reflects a changing political climate in the state that started about 20 years ago.  This is no longer a solidly DFL state.  As the shifting partisan control of the governor’s office and legislature have shown over the last 20 years, Minnesota is a politically competitive and divided state.  Clinton’s relatively narrow presidential victory over Trump in the state in 2016 demonstrated that.  
Look at a map of Minnesota. It reveals from the presidency down to legislative and local races clear patterns of DFL and GOP control.  More importantly, the two major parties are polarized along a range of issues ranging from health care, mass transportation, taxes, guns, abortion, and preschool funding.  The two parties are relatively equally divided in strength and along their values, making  compromise difficult.
Secondly there is a collective action problem.  There is a collective interest in compromising and reaching political agreement in a timely fashion, but there is little individual incentive to compromise. Among the 201 seats in the Minnesota legislature, no more than about 15-20 in the House and perhaps a maximum of 10 are from swing districts.  The remainder are strongly Democratic or Republican, representing districts where legislators are elected to stand firm on to their partisan views.  It is only those legislators who come from the s wing districts–those with a real chance to flip from one party to another–is there an incentive to compromise.  Strong partisanship in one of these districts is a political liability.   A paucity of swing seats means less pressure to compromise, and throw in strong party government in the state and even in those swing seats there is powerful pressure to vote straight party line.
Third, there is a leadership issue here.  While parties or party polarization may be strong, leadership is weak in the sense of being able to prevent individual members of the legislature from offering bills to appease interest groups or constituents.  Moreover, safe-seat legislators are less dependent on party leadership and can pursue or push special legislation, often without fear that leadership will punish them for it.
But finally, as I have argued or more than a decade, there is a structural problem with the budget process that reinforces the values and political polarization.  The budget process is antiquated.  This is the same budget process that has been in place for decades; it is a horse and buggy process trying to operate in the twenty-first century.  It was designed when state government did far less than it does now, when budgets were a tenth or less of what they are now.  It is a process premised upon the belief that part-time farmer legislators could show up for a few months, vote yea and nay, and then go back and plant their crops.  None of this reflects reality.  The budget process is complex, time consuming, and requires technical knowledge that is way beyond perhaps what we can expect of legislators, especially those first elected in November and then two months later asked to master state government and pass a budget.  Simply put, government may just be too complex to  legislate and budget within the 120 constitutional day limit drawn up for the state in a Norman Rockwell era.
Beyond the fact that legislators suffer from a typical human trait to procrastinate to the last minute, the budget process makes no sense. Legislators take office the beginning of January, wait a month for the governor’s budget, then wait another month for the fiscal forecast. Real budget work does not even start until March–half way through the session, and even then, until budget targets for the ten omnibus bills are decided, few details can worked.  Over the years, half of the budget session has been wasted on passing bills to legalize Texas Hold’em card games or Sunday liquor sales. Moreover, because the budget process is so decentralized, it is hard to control and discipline, and the collective disregard for the constitutional single subject rule simply means that policy gets mixed into budgets, and, in many ways, no one has control over the budget until such time as the parties have taken their predictable ideological votes to please their bases before they begin to think about compromising.
Budget process reform is imperative, including mandating automatic continuing resolutions to finance the government to advert shutdowns.  But even structural reform will not address the values divide in the state and the peculiar political incentives that the two sides have that encourages them to fight and not compromise.

Saturday, May 20, 2017

Trumpapalooza: It’s Worse than Watergate

With each passing day and news story about the Trump administration, the parallels to Nixon and
Watergate get stronger and stronger.  Yet while stories of coverups, obstruction of justice, and the hiring of a special investigator invite powerful comparisons, the reality is that with Trump it is  potentially far worse than Watergate, far worse than Clinton, Lewinsky, and Whitewater, and maybe even worse than Iran Contra.  Trumpapalooza–an all encompassing, 24/7, multi-media extravaganza, –could be the worst of all presidential scandals so far.
It is unfortunate that one of the defining themes of American politics in the last 50 years has been repeated stories of abuses of presidential power.  Once called the imperial presidency by historian Arthur Schlesinger, Jr., it was a product of granting too much power to the president to act in a range of domestic and international events, congressional acquiescence of its constitutional duties, and usurpation and abuse of authority of presidents for personal gain or revenge.
Watergate is the paradigm of that abuse.  Most narrowly defined, Watergate when the story first broke was about a break in at the Democratic Party national headquarters at the Watergate office building in Washington, D.C.  The story started at first without any allegations of presidential role of White House connection, but it soon expanded to be a much more comprehensive saga of the abuses of power of the Nixon presidency.
The Watergate break in occurs in June, 1972, in the middle of Nixon’s re-election bid for a second term.  Initially there is no indication of presidential involvement but there were rumors shortly after the break in Nixon was already hard at work ordering hush money to cover his tracks.  In addition, in the burglars’ possession when caught was Nixon’s campaign headquarters reelection number The Watergate story does not really take off until 1973 when several reporters and mounting political pressure forced Congress to begin hearings, and then in October 1973 after Nixon had named former Solicitor General Archibald Cox as a special investigator to look into the events, the former fired the later in the famous Saturday Night Massacre.
Through the remainder of 1973 and into 1974 the House and Senate Watergate hearings and the investigation of Leon Jaworski produced a tale of illegal activity that implicated the president of the United States along with his attorney general and other major officials in his administration.  Tied directly to Watergate were Nixon’s ordering of the break in, the cover up, efforts to impede the criminal investigation, and in the end a constitutional battle over the possession of White House tapes of conversations that Nixon had made.  All of this culminated in the Supreme Court decision United States v. Nixon where the Court ordered Nixon to turn over his tapes to a special prosecutor, ruling that the imperatives of a criminal investigation outweigh any executive privilege g rounded in the Constitution  that the president may have in withholding them.  In effect, the president was not above the law.  That decision, along with a House Judiciary vote along bipartisan lines to impeach the president and a grand jury naming the president as an”unindicted co-conspirator,” forced Nixon to resign on August 8, 1974.
Watergate started with a pretty break in of the opposition’s headquarters.  But the entire story of Nixon’s abuse of power also encompassed illegal fundraising, payments of hush money, maintaining an enemies list, attacks on the media, and engaging in an illegal war in Cambodia.  Watergate engulfed, dominated, and ended early Nixon’s second term as president, after serving an initial four years that did produce a score of major legitimate legislative victories including the passage of the Clean Air Act, Clean Water Act, and the creation of the Environmental Protection Agency.  For all the criticism of Nixon, he was a career politician with a congressional and vice-presidential resume, and he had an ability to work with Congress.
It’s potentially far worse than Trump for him, his presidency, the Republican party, and maybe the United States. Trump has no experience in government or the military, and therefore no real understanding or apparent interest in how Washington works.  In many cases he has also appointed individuals with no government experience, and he has failed to fill many critical positions in government.  Trump ran on draining the swamp in Washington and he seems to think that this means crippling the machinery of governance, yet to secure his policy agenda he needs to take control of what Steve Bannon labels the deep administrative state.  So long as Trump continues to show contempt for the Constitution and government he will be unable to get anything done.  The first 120 days portend a pattern of policy inaction, preventing him and the Republicans from securing  their policy agenda.  Trump has created something unique for Washington–intra-party gridlock.  One expected Obama and the Republican Congress to be at odds–but not this kind of stalemate.
But if an aborted or arrested policy agenda were the total of what the problems facing Trump that might not be so bad. Yet it is coming at the beginning of his presidency, not in a second term as was the case with Nixon, Reagan, and Clinton.   But more importantly, the bigger problem are the legal, constitutional, and political issues.  Nixon and Watergate began with allegations of presidential involvement in a petty burglary, the story here involves Trump, his campaign, and his administration’s complicity and conspiracy to work with Russia to interfere and influence American elections and policy.  
Allegations that Trump personally, his family and business dealings, and many of his advisors or staff that include Michael Flynn, Jeff Sessions, and Paul Manafort worked with the Russians, were being paid by them, or in some way coordinated with or cheered on their activities to affect US elections and policy is  far worse than Watergate.  It is far worse than the arms for hostages diversion that Reagan ordered in Irancontra, and it is clearly far worse than Clinton lying about his sexual behavior or losing money in a land deal called Whitewater.
And we can draw this comparison with the benefit of 20/20 hindsight, having all or most of the facts about these previous abuses of power in hand.  Right now few of the facts of  Trumpapalooza are known and investigations have hardly started.  It potentially will reveal far worse.  Who knows how far-flung the story will be, and where it takes one into ow Trump’s private business dealings connect to Russia and other foreign governments or what conflicts of interests it will produce.  Who knows the real reasons for the Comey firings and whether they amounted to obstruction of justice.  Who knows whether the war on the media has produced an enemies list or what other unconstitutional activities (beyond two botched executive orders on immigration and one on sanctuary cites) there are or have been.
The appointment of Robert Mueller as special investigator is only the beginning.  For any who think this is going to be a quick investigation, think again.  The more Trump fights it and sees it as a witch hunt the more likely it seems that he will be uncooperative and force the investigation  well into 2018, thereby nearly guaranteeing that it impedes the Trump-Republican policy agenda, and impacts the elections.
The electoral connection is the last and perhaps most interesting parallel to Watergate.  Until in 1973 when efforts to investigate Nixon were bipartisan, so far the GOP has stood by Trump, tying their political fortunes to him.  They are resisting calls to investigate and criticize.  But if Trump becomes even more of a political liability to them, they may be forced to act otherwise in 2018 there could be a repeat of 1974 when Democrats won huge majorities in Congress, Minnesota, and across the nation.  It is the fear or possibility of that political reality that dictates how the Republicans respond to Trump in the next few months.

Saturday, May 13, 2017

The Constitution and Coming Impeachment of Donald Trump


Please note: This is a preview of a talk I will give on Tuesday, May 16, 2017 for Stand Up Minnesota.  Click here for more information.


If in fact President Trump removed FBI director James Comey to impede his ability to investigate
 possible Russian interference in US elections, then Donald Trump should be impeached.  He should be impeached because this is obstruction of justice, a crime meriting presidential removal from office according to the Constitution.  But even beyond the Comey dismissal, there are many reasons that could justify impeaching Trump.  The issue is not if he should be impeached but when, and the when depends on the point when Congressional Republicans think Trump is such an anchor for their party that he impedes their political agenda, party, and electoral prospects in 2018.

From day one of his presidency, Democrats have contended for Trump’s impeachment, yet it was no clear whether he did anything meriting impeachment.  Mostly the calls were political sour grapes.  But with the Comey firing we are in a new realm–commission of a felony–something at least as serious as the grounds for the impeachment of Bill Clinton who lied about his sexual behavior.  So what grounds are there to impeach Trump?  The Constitution provides a starting but partial answer.

Article II, section four outlines the process for impeaching and removing a president from office.  It declares that the president, vice-president, and other civil officers of the United States can be removed from office by “impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  Removal of the president is a two-stage process.  First a major of the House of Representatives must agree on one or more articles of impeachment.  If that happens, the House then appoints a committee to lead the prosecution of the articles.  The Senate then must hear the articles of impeachment in a trial-like proceeding over which the Chief Justice of the Supreme Court presides.  It takes a two-thirds vote of the Senate to convict and if that happens, the president is removed from office.  Think of House impeachment as similar to indicting one for a crime of which then the Senate  is a trial to determine guilt.

 What would Trump have to do to constitute an impeachable offense?   Article II, section four lists three possibilities.  Treason is the first, and the Constitution defines that to be engaging war against the United States or giving our enemies Aid and Comfort.  Treason is a high bar to meet, really historically requiring  something where it involves military action or issues that directly address national security.  It is possible that his campaign’s or staff’s collusion with the Russian government is treason but we do not know that yet.  That is why there was the FBI investigation and therefore efforts to impede it might be efforts to obstruct justice.

 The second possibility is bribery.  Bribery would be accepting payments in return for the performance or conveyance of government services or favors.  Given Trump’s extensive business holdings and refusal to divest himself of them, there is a possibility that the conflicts of interest that he personally has could rise to a constitutional level problem that would merit an impeachable offense.  For example, allegations of Russian business connections and how they might be impacting  Trump’s foreign policy decisions might be a form of bribery.

 Finally, there is the phrase high crimes and misdemeanors?  What does that mean?  In adopting this phrase the constitutional framers employed language that had existed in England since  1386 when the Parliament used the term to refer to a variety of actions including the misappropriation of funds or dereliction in the performance of official duties.  Mal-administration comes to mind as a close meaning, although when that word was proposed at the Constitutional Convention by George Mason, James Madison objected to it and substituted high crimes and misdemeanors in its place.  Mal-administration is not simple policy disagreement or even sloppy administration, it needs to rise to perhaps a constitutional level, perhaps even including something approaching gross negligence and dereliction of duty.

 An alternative meaning for the phrase was offered in 1970 when the House of Representatives tried to impeach Supreme Court Justice William Douglas.  The Congressman Gerald Ford said an impeachable offense was “whatever a majority of the House of Representatives considers it to be at a given moment in history.”  In truth, Ford is correct–impeachment is a matter of political judgment where Congress ultimately decides the fitness of a person to serve in office, such as president.

The House could reasonably conclude that the Comey firing was obstruction of justice as a grounds for impeachment.  They could also conclude that if Trump tries to hinder a congressional investigation of his Russian connects, that it too is an impeachable offense in that in interferes with the constitutional powers of Congress.  But there are other grounds for impeachment.

Article I, Section 9, Clause 8 of the United States Constitution states that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”  The emolument clause was added to the Constitution out of fears of foreign interference with the US government.  If Trump is receiving directly or through his business holdings money or other benefits from another government, such as a state-owned enterprise, that could be an emolument violation, constituting either bribery or another constitutional violation that could be seen as a high crime or misdemeanor.  Whether all this is factually accurate we do not know and the FBI investigation in part was aimed at answering these questions, thereby making his firing an effort to obstruct justice.

Finally, so far the Trump presidency has been marked by either non- or  mal-administration.  It has largely been ineffective in getting much done, and it is mired in a host of controversies that have rendered his administration unfit to govern.  He is putting US governance in danger, suggesting that it would not be wrong for Congress to decide that his very impotence and incompetence merits impeachment.

Of course whether impeachment will happen is up to the Republicans.  Unlike with Nixon in an era where bipartisanship still existed, so far Republicans are largely behind Trump.  It will not be until he is so politically embarrassing and damaging to the party that he needs to go.  Trump has already done worse than what Clinton did to merit impeachment, and what he has done is potentially rising to the level of what Nixon did. The issue then seems to be not whether he should be impeached, but when.

Wednesday, May 3, 2017

Di Thao, Politics, and the Problem of Political Corruption

A thin line distinguishes legitimate political contributions and solicitations from bribery and
extortion.  Assuming all the allegations are true, St Paul Council member Dai Thao and his campaign manager crossed that line when they tended votes for money.  Yet even if they did nothing illegal,  this incident should not blind us to the bigger problem of how money corrupts politics and how political influence is leveraged, and, how contrary to what the Republicans are currently doing in the State Legislature, why we need more restrictions on the use of money for political purposes.
The Dai Thao example is what is called quid pro quo corruption–the offer or exchange of money for the performance of an official governmental act such as a vote on legislation.  This is what most people think of as political bribery or extortion and it is illegal under the federal bribery and gratuity statute, 18 U.S.C. § 201, or Minnesota Statutes § 609.42.    Some will contend that the offer or exchange of money for political influence is really what all political fund raising is about, so why should not all that be illegal?  The answer is yes...and no.
First, the critical legal line possibly crossed in the Thao incident is the explicit or implied exchange of money for the performance of an official act.  Bribery laws require a showing of criminal intent, and thanks to a recent Supreme Court decision, it must be an exchange of money for an official government act.  Smart politicians correctly and legally avoid bribery by never promising to alter a vote or perform an official act conditioned upon the payment or receipt of money.  They may tell supporters that they need their money so that they can continue to do their job or protect their interests but there is not an explicit promise to change a vote.  Moreover, elected officials generally also build fire walls that separate campaign from government staff to further make sure lines are not crossed.  All these are subtle but important distinctions that at least in theory contrast bribery or extortion from legitimate fund raising.
Yet quid pro quo corruption is the thinnest and perhaps most rare example of political corruption.  Many believe that corruption is more than bribery; it also has a more structural  aspect.  The issue is not just the explicit exchange of money for an official government act, it is how money is used to by not just access but repeated access.  In theory elected officials should return all phone calls or meet with all their constituents.  However, the names of big donors are recognized and are called back first or seen  more readily.
Corruption is when some interest groups can spend large sums of money in order to lobby and gain access to decision makers.  It is when lobbyists or big donors also serve as fund raisers to help solicit money for incumbents and candidates and then are rewarded for their efforts.  It is when, as in Minnesota, the legislative caucuses and political parties and their subunits are allowed to solicit and accept in the aggregate  unlimited amounts of money from individuals, political action committees, and lobbyists.  This is a problem because the parties set the political platforms and the caucuses the legislative agenda.  Money thus influences what parties believe and what legislation is heard.
The real issue is that money should not be the mechanism that determines how political power and influence are allocated.  Money might be a great way to allocate sailboats but it should not be the medium for handing out political influence and making political decisions.  Years ago Justice Rehnquist declared in  First National Bank of Boston v. Bellotti, “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.”  Similarly, in  Federal Election Commission v. National Right to Work Committee the Court declared that it was legitimate to worry that “substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests.’” At one time the Court aligned with public opinion, recognizing a broader sense of corruption tht extended far beyond what one sees in the Thao situation, suggesting that even if what he and is campaign manager did was not actually illegal, it was still inappropriate political behavior.
Yet under Chief Justice Roberts, the Supreme Court has all but gutted political corruption laws.  In McDonnell v. United States the Court overturned the former Virginia’s bribery conviction, ruling that official acts did not extend to an exchange of gifts and money in return for arranging meetings and calling other public officials to discuss a donor’s business.  And in  McCutcheon v. Federal Election Commission, Roberts seemed to endorse the idea that purchasing influence is permissible when he declared:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.

Contrary to Roberts, many of us do think that seeking access or influence is political corruption, and the current ways that we finance our campaigns and elections is a legal form of bribery and corruption.  The solution in part is to make candidates and parties less dependent on large donations, and to encourage more disclosure.  Unfortunately, the Republican majorities in the Minnesota legislature are eliminating the system for public financing of elections in the state, and are trying to restrict the power of the state to regulate money in politics.  Such an effort if successful, will only  fuel more behavior such as what we see with Dai Thao.

Monday, May 1, 2017

Who Killed Political Reform and Ethics?

“My fellow Americans, ask not what your country can do for you, ask what you can do for your country.”
–John J. Kennedy, Inaugural speech, January 20 ,1961

“It’s very possible that I could be the first presidential candidate to run and make money on it.” –Donald Trump, (Fortune, April 3, 2000)


The political reforms of the Watergate era are over. And it was not Trump alone who killed over the reforms.  Obama did his fair share, as well as Democrats and Republicans across Minnesota and the country who have done it over at least a decade if not longer. It is less of a surprise that this has occurred than it is that no one–neither the public nor the media–seems to notice or care.
Watergate political reforms is a shorthand to refer to a collection of laws and policy initiatives at the federal, state, and local levels meant to combat political corruption and open up the  political and governing process to more transparency, fairness, and political accountability.  These reforms includes the Ethics in Government Act that addressed problems such as conflicts of interest.  It also included sunshine, open meeting, and freedom of information laws meant to ensure government decisions and data are open to public inspection.
Additionally, there were a host of campaign finance laws such as the Federal Election Campaign Act, McCain-Feingold, and at the Minnesota level, the 1994 Marty reforms that build on 1970s laws that banned lobbyist gift giving,  provided for public funding for campaigns, and otherwise created a scheme for disclosing the solicitation and expending of money for political purposes.  Collectively these laws, along with other mandatory and voluntary acts by candidates, such as statements of economic disclosure and release of candidate tax returns, went a long way to opening up the political process to more scrutiny.
Certainly there were problems with many of these reforms, but the biggest criticisms were two.  First, they may not have even gone far enough in terms of rooting out the impact that money has on the political process or in terms of extending disclosure and transparency as far as it needed to go.  In effect, the laws felt short of the reforms truly needed to be effective, or even if once effective, they failed to keep pace with efforts to do end-runs around them.
Second, many insiders–especially many  elected officials, the political parties, and lobbyists  simply did not like the reforms.   They saw them as costs of doing business, simply distasteful laws  that limited or restricted the quiet, comfortable relationships they had developed overtime.  They voted for these reforms because they had to, in part because of strong public support for these regulations in light of the Watergate abuses.  In many cases these reforms were internalized by elected officials at the time, but with the passage of time, the lessons for why these reforms were adopted has faded.
Yes the Supreme Court has not helped.  It has struck down many campaign finance reforms as violations of the First Amendment, equating money with speech.  The Court has narrowed the scope of what is considered legitimate forms of corruption regulation, limiting it to only classic forms of quid pro quo bribery in exchange for an official act (money give to buy a vote), while also ignoring the broader ways that money and power create a structural bias in the political system that political scientists repeatedly describe as one that favors the rich.
But even without the Court stepping in , both Republicans and Democrats at all levels of government has demonstrated indifference if not cynicism toward political reform.  Obama talked a great game about money in politics but he was the first major presidential candidate to reject public funding when he ran for president.  He complained about Citizens United but never took executive  actions that he could have that would addressed some aspects of it.  Now he has sold out completely,  giving $400,000 speeches to Wall Street that follow Hillary Clinton’s $500,000 speeches.
Trump flouts ethics in ways too numerous to count.  His conflicts of interest between his government role as president and his private business dealings are too numerous to count.  The same extends to his family and many of his billionaire appointments.  He has broken a presidential traditional of releasing tax returns, and in general, despite “draining the swamp,” he seems to be expanding its scope.
At the state level, Minnesota has not enacted a significant political reform since 1994.  While once a national leader, the Center of Public Integrity assigns Minnesota Ds and Fs for ethics and openness in government.  Bipartisan support eroded some parts of the gift ban law, supported increases in the amount of money that can be contributed to political campaigns, and now, as John Marty has pointed out, the legislature is poised to eliminate public funding for campaigns.   As the recent story about Dai Thao demonstrates, local officials and their surrogates are embolden in pushing the boundaries of acceptable political behavior.
And why all this happens the public seems indifferent.  Democrats dismiss the improprieties  against Obama and Republicans the same with Trump.  Corruption seems accepted, and few now seem upset by the idea that American government is up for sale.
So who  killed political reform and ethics?  Maybe it was the elected officials who walked away from reform as inconvenient, except when used as a cudgel to further partisan gains and fuel polarization.   Or maybe it was the media, much of which no longer saw promoting good government  as an issue.  Or maybe it was public who came to accept the status quo as acceptable and which no longer seemed to expect government officials to act with honesty and integrity.