Friday, August 24, 2018

Can a Sitting US President Be Indicted for a Crime? Why the Framers Intent is Irrelevant to Answering this Question

Was it the intent of the American constitutional framers to allow a sitting president to be indicted for a crime, or was impeachment the only recourse to remedy a chief executive who broke the law?  In light of the Michael Cohen plea and how it may have implicated Donald Trump, or even possible charges that might be filed against the president as a result of special prosecutor Robert Muller’s investigation,  these questions are getting significant scrutiny.  However, Framers’ intent is largely irrelevant to answering them, and originalism fails to provide an adequate solution.
Ascertaining the constitutional framers’ intent when seeking to determine what is an impeachable offense and whether it is the only remedy for presidential criminal misbehavior  is a near futile exercise, from a historical, epistemological,  and linguistic approach.  What would Trump have to do to constitute an impeachable offense?   Article II, section four lists three possibilities–treason, bribery, and high crimes and misdemeanors.
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, 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.  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 the president.  That is precisely the point here.
What is an impeachable offense from a historical and linguistic point of view?  Did the constitutional framers simply intend to carry over the meaning of high crimes and misdemeanors from England so that it would apply the same here?  There is no historical answer to this question.  Any archival documents are indeterminate to what they framers meant, let alone determining who the framers are.  Were they all the individuals who attended the 1787 Constitutional convention?  Only the drafters and debates of Article II?  Or more broadly, did it include all those in the states who voted on ratification of the Constitution? 
Conversely, as linguistics and language philosophers such as Ludwig Wittgenstein contend, words get their meaning from their use and context experts in textual hermeneutics such as Hans Georg Gadamer tell us that we can only understand the past through the lens of our current experiences.  We cannot reconstruct history and tell it like it was, as Leopold von Ranke thought–but must view history, including ascertaining the meaning of historical acts and texts–in light of our experiences and perspective.  Epistemologically, it is simply impossible to “tell it like it was or recreate the minds of the Framers.”  No credible historian these days is a realist thinking we can capture the past as it was.   It is similar to the problem philosophically that David Hume and Immanuel Kant hit upon–it is impossible to directly perceive or apprehend the world as it is–we cannot prove realism. Finally, philosopher Leon Goldstein and I have argued that words have meanings that are historically contingent and change  over time because their referants change over time.  What someone referred to as the British Parliament in 1775 is different than what one refers to today because the institution of the parliament is different today compared to then.
How all this applies to Trump is that whatever the Framers might have thought about whether sitting presidents could be charged with crimes, only impeached, or both, is impossible to resolve.  Pure originalism, whatever that is, is impossible.  That is why nearly from the beginning of its history the US Supreme Court has adopted functionalism as a dominant mode for interpreting the  Constitution.  In famous cases such as Marbury v. Madison and McCulloch v. Maryland Chief Justice John Marshall looked to structure of the US Constitution and sought a functional answer to what the document meant.  We need to understand the Constitution as a blueprint for the national government.  This blueprint outlines the core values of what our democracy is supposed to represent and then how our institutions perform to fulfill these values.
At its core the US Constitution stands for a small cluster of values that included limited government, rule of law, separation of powers, and checks and balances.   There is no inherent government authority–the Constitution defines the limits of federal authority American democracy is not a monarchy.  Our Declaration of Independence, especially the second half, is a bill of particulars against the abuses of kings.  The US president is not a king.  The King perhaps can do no wrong, but presidents can, and they are not above the law.  We should always think of federal power as subject to limits–no one person or branch has absolute authority. 
Even if one could ascertain the original intent of the constitutional framers regarding what is an impeachable offense and whether a president could be charged with a crime, functionally it makes no sense to ask this question today.  Impeachment is a political judgment and in an era of partisan polarization, relying upon it as the sole remedy for criminal behavior for a president makes no sense.  Remember, the framers did not write a constitution anticipating or intending political parties to exist, especially of the type that have emerged today.  Impeachment simply is not a viable  remedy to check allegations of presidential criminal behavior.
Forty-four years ago in a different political climate it might have made sense to declare a President Nixon an unindicted co-conspirator for his actions in Watergate and its cover up.  But President Ford’s pardon of Nixon de facto if not de jure suggested he doubted that acts of the president could not be criminal.  A federal court agreed.  Today, the political climate is very different, suggesting that impeachment as an option is not there and that functionally, if one is to treat seriously the idea that presidents have to be held accountable for their actions, they must be subject to criminal prosecution.

Wednesday, August 22, 2018

Cohen, Manafort, and Trump? What do we know and what happens next?

So where are we as a result of the Paul Manafort conviction and Michael Cohen plea? Here are some possible answers.

How bad for Trump was the Michael Cohen plea and the Paul Manafort conviction?

Legally Paul Manafort really had nothing to do with Trump in terms of his campaign and allegations of Russian interference with US elections and allegations that Trump, his campaign, or staff aided and abetted or obstructed the investigation.  This was a trial involving Manafort’s private business dealings. 

It needs to be made absolutely clear that this trial was not about any alleged Russian connections between Trump, his campaign, or associates.  The trial neither refutes nor confirms any of this and has nothing to do with those contentions.  However, the Manafort conviction is a victory for the special prosecutor who uncovered this illegal activity during his investigation.  It supports the idea that the special prosecutor has reason to believe that a criminal investigation is warranted.  It is possible, but we do not know, that Manafort might appeal or even agree to plea to the remaining charges, or negotiate to cooperate with a sentence reduction in return for cooperation with the special prosecutor.  As Trump’s former campaign manager his may have important and relevant information.  We do not know.

Is all this a witch hunt?

Manafort is about issues unrelated to the Russian probe.  Does this not prove a witch hunt?  No.  First prosecutors all the time begin investigations into one matter and turn up illegal behavior unrelated to the initial investigation.  They do not and are supposed to turn a blind eye to these new allegations of illegal behavior and instead often prosecute, as is the case here.

Second, think of a parallel.  Kenneth Starr was the special prosecutor originally appointed to investigate alleged illegal behavior involving President Clinton when he was still governor of Arkansas.  This was the investigation into land dealings called Whitewater.  His investigation revealed no improper behavior there but did find in the course of his investigation that Clinton lied under oath about sexual relations with Monica Lewinsky.  This became the basis of the impeachment against him.  Thus, the Manafort investigation/conviction is a similar outgrowth of Muller’s investigation in the way the Starr perjury claims were regarding Whitewater.

How serious is Cohen?

Cohen is a different legal matter.  Again this has nothing to do with the Russian investigation, per se.  However on a scale of 1-10 where 10 is Trump is impeached or convicted of a crime, and a 9 is Trump is indicted, this was an 8.  Cohen’s plea directly implicates the president in election-related charges which constitute a felony.  His plea also adds saliency and support to civil law suits brought by Stormy Daniels and Karen McDougal. But more importantly, Cohen as part of an agreement to reduce his sentence may provide other critical information that connects Trump to other possibly illegal activities.  We do not know what Cohen knows but it appears to be a lot.  The Judge who reviewed the attorney-client confidential information of Cohen’s involving the president is allowing a lot of it to be used, suggesting potentially a significant amount of incriminating information.

The Political Damage?

Collectively, the Cohen-Manafort plea and conviction takes enormous wind out of the claim by Trump that all this is a big witch hunt.  We now have proven assertions or illegal activity involving Trump and his associates, lending credence to claims that Trump or his associates had broken the law.  Politically, Tuesday was a major turning point in the sense that it makes it harder to say there is no merit to any illegal actions surrounding Trump or his associates.  Again, none of this touches the core issue of the Russian investigation; this is all periphery to it.

It is unlikely any of this changes the mind of core Trump supporters.  Its bigger impact is on swing voters, and also in terms of legitimizing the special prosecutor’s probe.

What can Trump do to shut down the legal problems?

Yes Trump can still fire Mueller but this close to an election I doubt even he risks that.  It would explode in his face.  The Muller investigation is probably within a month or so of concluding its fact-finding stage.  At that point a report will be released detailing what he knows and what steps will follow.   What it concludes about Trump no one knows and whether more indictments follow is a good question.

Can Trump be indicted?  Good question.  Watergate-era Justice Department memos suggest no but  a lot of law has changed since then to question that.  If he is indicted there is a major legal battle that goes to the Supreme Court.  I suspect Mueller, even if he concludes there is probable cause of presidential illegal behavior (direct primary liability or aiding and abetting), will opt not to indict and list the president as in Watergate as an unindicted co-conspirator.  This is a nightmare for Trump.  He cannot really clear his name here with a legal proceeding and if the Democrats take control of the House, this is the basis for impeachment.  Instead, I see Mueller potentially indicting many Trump associates, but I do not know since his report has not yet been finalized and released.

Trump can pardon Cohen, Manafort, and anyone else charged or convicted of federal crimes.  Trump cannot easily fire the US prosecutors in New York–they are careerists with a lot of legal protections on their side.

Trump cannot shut down the Daniels and McDougal law suits.  They are civil matters under state law and presidential pardons do not reach into state suits.  Plus, Clinton v. Jones established the legal ruling that sitting presidents can face civil law suits while in office.

Friday, August 17, 2018

The (Carlson)-Wellstone Rule: What if Keith Ellison Quits the Attorney General race?

Please note:  I made a few changes in this blog:  Specifically, state law does not allow Ellison to simply  abandon his candidacy.  Please read below.

The Minnesota DFL are worried about Keith Ellison.  In the Thursday, August 16, 2018 press conference DFL Party Chair Ken Martin said he supports Ellison "at this time," but also indicated that he is concerned about the domestic abuse allegations and is investigating.  What happens if Ellison’s candidacy is no longer viable and he needs to be replaced?  History and law take us to the Carlson-Wellstone Rule, formulated in 1990 and then 2002 to address the replacement of candidates who had party nominations.

In 1990 the Republican Party selected Jon Grunseth to be its gubernatorial nominee over  Arne Carlson both in the convention and primary.   However on October 14, 1990,stories emerged in the general election that he and several of his friends had a nude swimming pool party that included Grunseth’s daughter and friends.  Allegations also emerged that he had an extramarital affair.  Pressure mounted and he was eventually persuaded to leave the ticket.  The Republican Party sought to substitute Arnie Carlson on the ballot, Democrats went to court challenging it.

          Even though the law was unclear on what to do, Minnesota Supreme Court Justice Sandy Keith (who was appointed by then current DFL governor and gubernatorial candidate Rudy Perpich), allowed for the Republican Party to substitute Carlson for Grunseth, ruling that it would be the right thing to do to let the voters have a choice.  The Court also rejected efforts by Grunseth’s running mate Sharon Clark to force the party to make her the nominee, Clark v. Growe, 461 N.W.2d 385 (Minn. 1990).  Finally, in a side note, while the Grunseth problems were mounting then Senator Rudy Boschwitz  was worried about how these problems could explode and hurt him. He approached Grunseth and  promised to cover his expenses if he withdrew.  When Grunseth left the race, he asked Boschwitz to  pay up and when he did not Grunseth sued him in Court for breach of contract.  In Grunseth v. Boschwitz, a district court ruled the contract unenforceable because it violated Minnesota Statutes §211B. 10, making it illegal to “reward or promise to reward another in any manner to induce the person to be or refrain from or cease being a candidate.”

In 2002   Senator Paul Wellstone’s plane crashed, killing him on October 25, 2002, just eleven days before the election.  The DFL Central Committee met and replaced him with Walter Mondale who then lost to the Republican nominee Norm Coleman.  Among the legal battles” in this case was over the allocation of absentee ballots and votes already cast before Wellstone died.  In Erlandson v. Kiffmeyer, 659 N.W. 2d 724 (2003), the Minnesota Supreme Court ruled that those who had cast their absentee ballots and wanted to change their votes could request a new ballot and revote.

The importance of these two substitutions leads to what can be called the Carlson-Wellstone rule, codified in Minnesota Statutes §204B.13.  For a partisan office such as governor, a vacancy in a nomination occurs when a candidate dies or is declared ineligible to run for office by a court.  If that occurs,   §204B.13 allows for the party according to its rules to substitute a candidate.  In the case of a gubernatorial candidate it is replacing, the substitution includes also the lieutenant  governor.

So how does all this apply here to Keith Ellison?  Assume pressure continues to mount over allegations of domestic abuse involving Ellison.  He is the DFL’s nominee for attorney general.  State law does not allow the party simply to oust him and replace with someone else.  Ellison cannot simply give up his candidacy.   He could of course move out of state and be declared ineligible to run, but short of being declared ineligible  neither Ellison nor the DFL can do much to get him off the ballot.  If the DFL were to offer him something of value to try leave the race they and Ellison would be violating  §211B.10.

 If Ellison were to simply abandon his candidacy, another scenario emerges.  State law does not currently allow him to do this.  However, it is possible the DFL Central Committee or another designated group of party officials, according to their bylaws, could select a replacement.  There is no requirement that the DFL would have to pick Matt Pelikan, the convention-endorsed candidate, or any of those who had run for attorney general in the primary.  In effect, they could even select Lori Swanson to be their nominee.  The DFL could then try to argue that who the party nominee is, is a matter of internal party rules and therefore sue the state and challenge the law preventing an Ellison substitution.  There is mixed jurisprudence coming from the US Supreme Court regarding whether  such an "internal party matter" issue would prevail here, but this is a possible argument.  This suit would be part of an "error and omissions" suit under state law to correct the ballot.

Whether it comes to all this is anyone’s guess.  However, the Carlson-Wellstone rule outlines the way the DFL could try to replace Ellison.

Wednesday, August 15, 2018

Why Tim Pawlenty and the DFL Endorsement Process Lost (and other political musings)

To the victor may belong the spoils, but it is from losers we often learn.  While the August 14, Minnesota primary yielded winners, much of the story is about those who lost, why, and what it means for state politics.  And perhaps the biggest theme from the primary is a literary allusion, taken from either Thomas Wolfe’s You Can’t Go Home Again or Edwin O’Connor’s The Last Hurrah; Minnesota politics has changed and the way it was once done is not the way that will succeed now or in the near future.

Tim Pawlenty
It was always Pawlenty’s election to lose according to conventional wisdom and the establishment politicos.  And he did.  But there was always myth around Pawlenty that so many in the establishment bought into that they forgot that he never was really a good candidate during his career, simply lucky.

Remember the two times Pawlenty won the governorship he failed to receive more than 50% of the vote.  The first time he won he profited from misfortune.  Right before Paul Wellstone’s plane crashed back in 2002 he was locked in a tight three-way race with Roger Moe and Tim Penny.  Moe, the DFL establishment candidate, ran a horrible campaign. But when the plane crashed it realigned and polarized state politics, damaging Tim Penny  and helping Pawlenty win with 44% of the vote.  In 2006 with just days before the election Mike Hatch had a lead, but he melted down and Pawlenty won a close one-point victory over the former with only 46.7% of the vote.  Then of course Pawlenty’s 2012 presidential campaign fizzled before it even started.

But despite all this Pawlenty and the establishment Republican Party–and by that the big money, especially from Wall Street when he worked for the last few years, and for those out of state–thought he could return to the state and win again.  Yet you can’t go home again.  Pawlenty came back to a state Republican Party that was no longer his–it was the party of Donald Trump.  It was a state where he had not won state-wide office in 12 years and where many no longer knew who Pawlenty was, or where his name was associated with the state’s $6 billion deficit he left.

State Republicans resented the idea that Pawlenty could simply waltz back into Minnesota with his big money backers, snub the party convention and nomination, and buy the primary.  Pawlenty and fellow travelers, such as Brian McClung, bought into the myth and thought  old name recognition and an astroturf money and media-driven campaign would be enough to elect him.  But  without a serious ground game and a state infrastructure, he lost to Jeff Johnson who had all this.  Pawlenty and his supporters remind one of Frank Skeffington, the losing mayoral character in Edwin O’Connor’s The Last Hurrah.  Skeffington had won many elections and ran again for mayor, deploying the same old strategy he successfully used in the past. What he failed to realize is that times had changed and others had moved on while he had not.  This was Pawlenty.

While I had thought that Pawlenty would win this nomination, repeatedly I argued that the longshot bet of this primary would be a Johnson win, for essentially the reasons stated here.  Moreover, Pawlenty in 2018 reminded me of Walter Mondale in 2002.  When Wellstone died there were a host of good replacements for him such a Judy Dutcher and Alan Page.  But within minutes of the plane crash the Washington establishment thought of Walter Mondale.  He was a former senator, attorney general, vice-president, and presidential candidate, they all knew him in Washington and therefore he would surely win.  He too lost as a Skeffington candidate.

The DFL Endorsement Process
The DFL endorsement process for governor has been dead for nearly a half-century except the party has not figured it out yet.  The last time a DFL convention-endorsed candidate won the general election for governor when there was an open seat was 1970 with Wendell Anderson.  Yet again, the primary served as a check on flaws in the convention-process.

In general the DFL endorsement process took a major hit on August 14.  Yes Tina Smith and  Amy Klobuchar did win, but they were overwhelming favorites facing weak opposition.  But Erin Murphy and Matt Pelikan lost big.  With 32% of the vote, Murphy lost 2-1 as the endorsed candidate.  With not even 11%, Pelikan lost 9-1 (68% and 89% of the voters for the respective candidates voted for their opponents).   For both this might have been the worst drubbing ever for DFL-endorsed candidates, a major repudiation of the convention process.  For those who said one has to support DFL-endorsed candidates because they are endorsed, one needs to think again.  Loyalty and fidelity to the process are not enough, winability and actually being good candidates are important.
For both candidates, put on trial was a theory that one could win a state-wide part endorsement process merely with a Twin Cities or metro vote.  Maybe some day the demographics will produce that result, but that day has not arrived.  To win in Minnesota one still has to win statewide, not simply in the urban core.  Murphy and Pelikan supporters, and perhaps many at the DFL convention, live in a bubble and fail to realize that it is different outside of Minneapolis and St. Paul.  One cannot win outside of the cities with a strategy and campaign based on winning in the cites.  For Murphy, it was over as soon as she picked Erin Maye Quade as her running mate.  If voters judge you by the first decision you make–your selection as a running mate–Quade (an inexperienced metro candidate   from a district Democrats will probably lose)  was a disaster.  It sent a signal to greater Minnesota they did not matter.

Look at the numbers.  Murphy needed to win big in Hennepin and Ramsey Counties to have a chance winning statewide.  She only wins Ramsey with 42% of the vote and she lost Hennepin County.  She barely won the Fourth and Fifth Congressional Districts (Minneapolis and St. Paul Metro area), losing all the others, often with barely getting much more than 20% of the vote. She won only two counties out of 87 in Minnesota.  If one pours more deeply into the numbers, most of her support, and what little Pelikan received, came from  mostly inside Minneapolis and St. Paul.  Yet again, as Minneapolis and St. Paul goes, so does not go the rest of the state.  For te DFL to win statewide, one needs a strategy that is not urban centric.

Mike Hatch
The third big loser is Mike Hatch.  He did win as attorney general twice, but has lost as a gubernatorial candidate now three times.  In this election his candidates, Lori Swanson for governor and  Deb Hilstrom for attorney general, lost big.  Hatch’s time, like Pawlenty’s has passed.  This primary might have been a final rejection of his faction or hold on the DFL.

Ken Martin and the DFL Establishment
On the one hand we should feel sorry for Ken Martin.  It was not his fault the convention endorsed Murphy and Pelikan.  I doubt these were the candidates he would have thought as strongest or wanted to run a state-wide campaign..  Yet Martin’s track record as chair is mixed, depending on  your perspective.  In 2012  the party did well in taking back control of the legislature and in 2014 all the state-wide offices were won.    Yet the DFL lost the legislature two years and the party establishment backed Clinton in 2016, only to see her lose to Sanders and almost to Trump.   The prospects for winning back the Minnesota House and Senate are bleak, and it is possible that the DFL might lose at least one if not two US House seats.  Moreover, Omar’s victory over Kelliher is yet another sign that the old DFL guard’s grip on the party is weakening.  How much one can hold Martin personally responsible is a  matter for debate, but one can argue that if winning is the only things that matters (to paraphrase Vince Lombardi, the DFL Party has not delivered as well as it could .  In my election law seminar I asked the question "Who is the party?"  Is it the party chair, the candidates, caucus attendees, or  the voters?  Depending on the answer you provide you get different answers regarding who is repsonsible or given the credit for successes and failures.

There is a significant generational shift going on nationally and in Minnesota politics.  Both the GOP and DFL  are facing significant existential threats over the next decade as the old guard exit and a new generation arises.   One cannot live in the past, do what may have worked in the past,  or what works in Minneapolis and St. Paul, and expect it to work in the future or in the rest of the state.  One can’t go home again, and this primary was already past the last hurrah for a strategy and thinking that has passed.

Sunday, August 5, 2018

Replacing Keith Ellison–Who should be the next Fifth District Congressperson?

Curiously overlooked in the media coverage of the forthcoming Fifth congressional district DFL
primary have been two things–the issues and qualifications of the candidates running for the office.  Both the Star Tribune and Minnpost have contended that the candidates differ little on the issues–and that may or may not be the case–but generally coverage of this primary has been limited to the horse race of who is perceived to be ahead, the money race of who is raising money, and the perhaps now the get out of the vote race.  Given that the primary effectively will determine the next  member of Congress for the Fifth because it is one of  most Democratic seats in the country, media coverage has been remiss in its coverage in terms of the issues and qualifications.

But there is also another issue connected to both the issues and qualifications and that is the question of what it means to be an effective member of Congress.  This is always an important matter because given how the Fifth District is a safe seat for one party–as are approximately 90-95% of all seats in the House of Representatives–and thus the vote on August 14, could very well decide who represents the people of this district for the next 20 or more years. But given the polarized times and significant policy differences across the  state if not the country, the winner of this seat could well be part of a new majority Democratic Congress taking on Trump and defining the future for the party, or it could be part of a close opposition party doing the same.  The point here is that the Democratic Party and the country are at a critical crossroads nationally, and what happens in the Fifth District will be important.

So what does it mean to be an effective member of Congress?   As a society we do not discuss this issue enough and this should be a critical question for residents of the Fifth District.  However, there are some factors that do influence or determine effectiveness.

  First, qualifications do matter.  By that, one of the criticisms of Donald Trump is that he largely fails to understand government and  how it works.  Whatever skills he has as a businessperson, government and business are two different entities.  There is an ethic of public service that involves respect for the Constitution and Bill of Rights, there is an understanding of how government works that involves respect for things  such as checks and balances and checks and balances. There is appreciation for the fact that in government process matters.  Being effective in government, whether president or a member of Congress, means one needs experience or skills to do the job.  One should not hire just anyone to rewire your house, fix your car, or repair your plumbing.
The same is true for governing and legislating.  To be effective as a legislator or member of Congress means having some legislative  skills, or at least the kinds of skills necessary to legislating.  These include listening to constituents,  working with other legislators, grasping the details of how institutions work.    In short, experience matters.

A second qualification is about the very notion of what it means to be a representative.  The very word “represent” is an ambiguous term.  To represent can mean to be demographically representative of the people you serve.  It can also mean to represent in terms of reflecting their view or interests.  There is no definitive answer to which of these or perhaps others meanings of representation are correct.  It is probably a blend of them.  But there are also two other critical notions surrounding representation often ignored.  One is the idea that one should not simply represent those who voted for you for everyone in your district.  The second is that with a person in the Fifth district potentially being a representative for the next 20 years, that person should be capable of serving the interests of an area that is undergoing significant generational change into the future.  One should be a candidate not simply for your present voters in a primary who will perhaps only reflect a small percentage of all the voters in the Fifth District, but be someone capable of representing those who live in Minneapolis as well as its suburbs.  It should also be one who can perhaps look to the future, to be representative of a coming new generation of residents.  In the last few years Minneapolis, Saint Paul, and the surrounding areas have begun to experience this generational shift, and a good candidate in the Fifth has to be one who can project or reach into the future.

Finally, to be an effective member of Congress means connecting one’s experience to the people one represents, to the ability to work with other members in a legislative setting to be able to move legislation.  Too often in the era of social media the image seems to be that legislating is simply about espousing beliefs or ideas. The real skill is in transforming beliefs into real legislation.  It is in building political coalitions, connecting them policies, developing policy details and programs, and then understanding how to move them through a legislative chamber.
As one of my former students once said, there is a difference between show horses and work horses.   
We have had enough show horses in Congress and what we need instead are a few more work horses, those who have show the experiences to do the job, the ability to link people to policies, and the skills to navigate legislation.   Connect all of this do a person capable of reaching out to all the constituents of the Fifth along with the ability to appreciate the generational change going on in that district and one would have the ideal candidate for Congress.

Wednesday, August 1, 2018

Responding to Police Use of Force–What the Law Says and What are the Alternatives

Hennepin County Attorney Mike Freeman was correct in not indicting the officers who killed
Thurman Blevins.  The reason is simple–he could never have secured a conviction because the law is on the side of the police.  This point has largely been missed in the debates regarding policy use of force.  But having said that, also largely missing from the debate is a discussion on police alternatives to violence, how to de-escalate conflict, and where race fits into how law enforcement officials approach tense situations where personal or public safety issues are present.  If  Freeman and others want to take a leadership position on this issue, they should explore these questions.
Let’s start with the law.  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.
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.  Garner and Connor provide constitutional cover or an affirmative defense for police officers to use force.  Charge law enforcement officials with use of force–criminally or civilly–and these cases along with state law provide protection to use such tactics to enforce the law.
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. 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.  Given the law, there was little chance Freeman could have secured a conviction. 
Think about it–if the officer who killed Philando Castile could not be convicted by a racially diverse jury, what chance was there to secure a conviction here in a trial involving police use of force against Blevins.  Like it or not, this is the law.  Perhaps it should be changed, regardless of the race of the victim, and that is a reasonable debate that should occur.
But there is also another couple of debates that should take place.  Policing is not simply anymore about the direct use of brute force.  It is about conflict management and how to de-escalate tense situations. Policing now is supposed to be more about interpersonal relations than it is about ordering people about.  This is was community-orientated policy and problem-orientated policing is about.  Watching the Blevins video one should be struck by how bad the police managed the situation.  Yelling, swearing, and threatening someone is not the smartest route to de-escalating a tense situation and getting someone to surrender, especially at a time when people of color have a heightened fear in terms of their interaction with police.
Regardless of what the law empowers law enforcement officials to do, what training do they  have in Minneapolis to encourage them to seek and pursue alternative de-escalation strategies?  Moreover, and this is one place where race comes it, do the police use one set of strategies with Caucasians and another with people of color, or is one technique used in a racially arbitrary way?  These are important questions that need to be studied and examined in Minneapolis.
In the end, protests are fine and politicians’ speeches make good headlines. But a more constructive role or step for Mike Freeman, elected officials, community activists, and even the police if they really want to  address law enforcement  use of force involves understanding the current law and asking whether it should be changed and what are the alternatives to current policing practices that are not racially arbitrary.

Note: for nearly seven years I taught criminal justice courses, including a course on policy civil and criminal liability.  I also edited the Encyclopedia of American Law and Criminal Justice.