Trump v. the Law: How Four Types of Lawsuits will do the Job Congress Should be Doing

“It’s good to be the king” as Mel Brooks once exclaimed, for kings are above the law.  But US

presidents are not kings because they are subject to the law.  Donald Trump is increasingly confronting this reality, with the fate of his presidency resting in four types of law suits that are gradually  grinding he and his administration to a halt.  The latest is a Maryland judge allowing for a suit against Trump alleging that foreign governments doing business with him violates the Constitution’s Emoluments  Clause.
Presidents are not kings, and they are not like Captain Picard from Star Trek declaring “Make it so” and it will happen.  The US Constitution and America’s laws–both civic and criminal–limit presidential power.  Presidents have no inherent power to do whatever they want–all of their authority must come from the Constitution or delegation from Congress.  Trump has never understood this.  He thinks he is the CEO of the federal government, beyond reproach and accountable to no one. 
Yet the defining trait of his first 15 months in office has been his and his administration’s woeful ineptness, driven in part but collective inability to act in accordance with the law, whether it be regulating conflict of interest, immigration, or criminal matters.  The Republican Congress has proven unwilling and able to check Trump, botching the Russian investigation and failing to use its checks to hold him accountable out of fear that they will alienate their base.  Yet there are four different legal nooses tightening around Trump’s neck, dictating the fate of the 2018 elections and the future of the Trump presidency.
The first and most famous is special prosecutor Bob Mueller’s investigation into Russian involvement in the 2016 election and what, if any collusive activity did Trump and his campaign have.  The investigation includes not just the question of whether there was collusion but also has the Trump administration obstructed justice, hindered prosecution, committed perjury, or engaged in any other activities to impede the Mueller investigation.  Already the special prosecutor  has netted several indictments and guilty pleas, and at any time many expect Jared Kushner, Donald Trump, Jr., Ivanka Trump, and maybe the president himself to be indicted for something.  The Justice Department along with much of the Trump Administration is self-destructing under the weight of this investigation and with future trials and indictments certain, this issue is not going away before the 2018 elections.
Second, one already saw multiple lawsuits in 2017 challenging Trump executive orders when it came to immigration and sanctuary cities.  With this administration ready to roll out a ton of new  administration regulations, look to see a range of environment and public interest groups as well as states challenge them in court.  Trump may eventually win, but look to see more injunctions, stays, and delays to these rules and orders.
Third, already there are three lawsuits surrounding sexual harassment and women claiming they were paid hush money about affairs.  Gloria Allred–perhaps the best sexual harassment lawyer in the nation–is already representing one alleged victim.  Expect more lawsuits this year.  Thanks to Bill Clinton and the Supreme Court decision that allowed Paula Jones to sue him as president, these cases will multiple and proceed against Trump.  One will see subpoenas and depositions that Trump cannot suppress, forcing Trump in some cases to give testimony under oath and penalty of perjury.
Finally there is the Emolument clause.  The Framers put it in the Constitution out of fear that foreign governments would try to give gifts or other valuables to our federal offices in order to influence them.  The suit that a federal judge just allowed to proceed alleges that the business that foreign governments with the Trump business empire constitute emoluments.  Whether an appeals  court will allow the suit to continue and if it does whether a court agrees that there is a constitutional violation are good questions.  If it proceeds, it may force Trump to release his tax records and open up his private business to legal and public scrutiny.
Taken together, these four sets of legal challenges are doing the work that Congress should be doing but cannot or will not.  With the exception of the Mueller criminal investigation, the other three cannot be derailed by presidential pardoning power, claims of executive privilege, or firing someone.  Should they succeed–even if politically to flip one or two houses of Congress–they will  determine the fate of the Trump presidency. A flipped House or Senate means impeachment or other hearings, or a halt to judicial nominations.  It will also enhance gridlock even beyond what it is now, and it may lead the Congressional Republicans abandoning him where to all surprise–they might actually find it in their interest to do their job and go after him.

Guilt, Truth, and Politics in the Age of Hyper-Democracy

Sexual harassment and assault are wrong.  But it is not so clear that the court of public opinion is

the best way to adjudicate the truthfulness of any allegations or statements about public figures and officials  in era where alternative facts seem to be facts of life.   The problem here is that there is a fundamental confusion among  the concepts of the marketplace of ideas, the court of public opinion, real courts, and how all of them operate in a hyper-democracy that the United States has become.
Determining what is truth or true is never easy.  But in law and democratic politics there are rival notions of finding the truth.
In US law the adversarial process and courts are the mechanisms at arriving at truth.  Questions of guilt or innocence in criminal law or culpable or not in civil law are determined in a structured setting where there are formal procedures that determine what is admissible evidence, factors to consider when determining the credibility or witnesses, and there are procedures put into place that seek to guard against bias.  The adversarial process is not perfect, but it does usually provide a structured reliable path that determines the truth of a matter.
Democracies are messy.  At their best truth is determined through the marketplace of ideas as described by philosopher John Stuart Mill where competing ideas challenge one another in a process that allows for truth to emerge.  The marketplace of ideas presupposes truth exits, that there are ways to find it, and that rules can guide its discovery.  Truth is not necessarily what 50% plus one of the population thinks. Yet the marketplace of ideas does not always work, instead degenerating to simply where majority rule decides what is true via the court of public opinion.
There is a long line of political thinkers, historians, and scholars ranging from James Madison, Alexis deTocqueville, James Bryce, and even to Elizabeth Noelle-Neumann who worried that in America the powers of public opinion would produce a tyranny of the majority.  Passions aflamed, majorities might rush to judgment and suppress the rights or others.  When it works well, public opinion and majority rule are great ways to determine who should be the next president of the United States, or for the public  to adjudicate rival claims made by candidates to decide which they prefer, but it is not clear that either are good mechanisms to decide guilt, culpability, or truth.
In most cases there is a big different between whether someone is legally guilty or liable for an act versus whether someone is fit to serve in office.  This is the difference between law and politics. Law is about real courts, politics is about the court of public opinion.  But when the two are merged–as in case of determining whether allegations against Senate candidate Roy Moore or Senator Al Franken are true and how they address their fitness to serve in office–then the rules are  unclear.  What standards of proof do we need to decide if the accusers are telling the truth and are credible and how do their stories overall fit into defining whether Moore or Franken should be senators is not clear.
And the problem is now exacerbated in our hyper-democracy.  Here accusations are flung  out immediately into the social media without any serious vetting in a world where it is all about being first to report, maximize hits or likes, or generate audience and profits..   Accusations, rumors, and innuendo can be shot immediately through Facebook and Twitter, distorted by partisan politics, confirmation biases, and cognitive dissonance.  Accusation is enough to render someone guilty, liable, and unfit for office.  Image the Salem witch hunts and the McCarthy communist accusations in a social media era and that is what has emerged.  It is tyranny of the majority, the pressures of uncontrolled public opinion operating through an unconstrained court of public opinion judging individuals in ways that make it impossible for them to prove their innocence.
The court of public opinion in a hyper-democracy is not suited either to determine legal or real truth as real courts or the marketplace of ideas can.  In the court of public opinion there are no rules, no definitions of truth, no standards of conduct that provide clarity.  What we are left with  are rival ideologies and pronouncements of opinion masking as truth.

Moore, Franken, and the New Politics of Sex

Sexual harassment, discrimination, and assault are wrong.  But there is a difference between accusations of the three and guilt.  Yet in a post-HarveyWeinstein world, we are dangerously close to treating accusations as guilt, pushing our culture into another Salem witch hunt or McCarthy era that will damage many individuals, permanently labeling them as modern day witches or communists who can do nothing to prove their innocence or redeem themselves.
Fear and prejudice has led America to do many ugly things.  It all started in Salem, Massachusetts in 1692.  Told brilliantly by Arthur in the Crucible, 20 individuals–14 of which were women–were accused of being witches, and hung or died as a result of the accusations.  Those accused were done so because they were unpopular, or scapegoats given up by those who wished to blame others for offenses they were accused of and were able to save themselves by implicating others.
Salem is the story of the ugly side of American society.  Overtime we have had many Salems.  The city and its witch hunts are the backdrops for Miller’s Crucible, written at the height of the McCarthy era in the 1950s, where congressional hearings and the question “are you now or have you ever been a member  of the community party?” denounced individuals as guilty simply by accusation or invocation of the right to remain silent.  Thousands lost their jobs, Hollywood decimated, often because they held views, joined organizations, or supported causes, sometimes many years earlier, which some deemed objectionable.
Some will claim false equivalence in  equivocating sexual harassment, discrimination, and assault with accusations of being a witch or communist.  Witches don’t exist and the McCarthy era  was about an attack on the First Amendment.  But Salem and witches are metaphors.  Many live in Salems–closed communities or bubbles of like-minded people who fear outsiders and condemn  them with nary a hint of real evidence of something heinous.  It is guilt unless improbably they prove their innocence.  It is judging someone as evil regardless of the gravity of the action simply because they did something objectionable somewhere or sometime in their life, regardless of the circumstances.
For nearly 20 years I have taught professional ethics.  Among the questions I ask is how to we judge the relationship between the personal and professional role of public officials?  Can one be an ethical Senator, for example, even if one is not so in his private life?  Or what if someone did something wrong years ago–perhaps at a time before they held office–should that action continue to define their character for the rest of their life or career?  At one point does something we did perhaps in our youth years ago define who we are today, rendering us unfit to serve?
None of us are angels.  We are all human and make mistakes. Yet to let one mistake condemn us to purgatory or hell may be wrong.  At some point what one did, when, why, how many times, and how matters.  How and whether it interconnects our personal and professional lives are matters of judgment and fine moral distinctions.  We also need to distinguish between bad acts and what the philosopher Aristotle labeled habits of character which define who we are.  Judge based not necessarily on one or several mistakes but on how they define a person’s overall character.
There is a moral or ethical difference between crude sexual jokes and sexual assault and treating them all as equally disqualifying for office does a disservice to how we judge culpability for bad behavior.  There needs also to be recognition of the changing standards of conduct that define the ethics of actions. There is a slippery slope here.  At one time being gay, divorced, having an affair, or even smoking a joint were considered damning grounds to exclude one from public office or declare one to be a witch.   Yes, sexual assault and discrimination should always have been wrong, and the same might be said of sexually offensive gestures or statements.    But in some cases it may be unfair to judge people by contemporary standards for actions that occurred along time ago when standards were different, or when individuals were young, immature, or simply different people from whom they are now.
Portia in William Shakespeare's The Merchant of Venice declares that “The quality of mercy is not strain'd,” Forgiveness is our better virtue in many cases.  Our society and prisons are jammed with many people whom we  refuse to forgive, condemning them for life for mistakes that they have  made at one time in their life, perhaps long ago.  Might as a society it be more just and fair we give some a second chance?  Might as a society we be more just and fair and not jump on the bandwagon and condemn equally all who said or did something we find offensive.  There are powerful differences among what Roy Moore, Al Franken, Donald Trump, and others did, or allegedly did, as well as what many in Hollywood are accused of.  Treating them all the same–as witches with equal culpability –is too crude of a way to address the problems of sexual harassment, discrimination, and assault in our society.

Unfit to Hold Office: Sexual Harassment and the Minnesota Legislature

Are Minnesota legislators who sexual harass colleagues or members of the public unfit to hold office? The answer should be yes, and both the Minnesota House and Senate should be prepared to reach this conclusion if Representative Cornish and  Senator  Schoen do not resign  and the two legislative bodies are required to judge the fitness of these two members to remain in office.
There appears to be a sea change afoot in politics when it comes to gender discrimination.  Inspired by the accounts of the like of Bill Cosby, Harvey Weinstein, Roy Moore (Senate candidate in Alabama), and Donald Trump, it is possible that there is a new political standard emerging in politics that make the creation of a sexually hostile environment by elected officials wrong.  If that  is the case, then the standard of conduct expected of public officials is only 30 years behind the times.
In 1986 in Meritor Savings Bank  v. Vinson,  477 US 57 (1986) the US Supreme Court ruled that sexual harassment in the workplace was actionable as sexual discrimination  under the 1964 Civil Rights Act.  Prior to that decision, short of actual unwanted  physical conduct, women (who are mostly the victims) had little recourse against their bosses or co-workers when they made unwanted sexual advances or engaged in unwanted sexual language.  Meritor Savings changed that.  It, along with rulings by the Equal Employment Opportunity Commission (EEOC) said that there were two forms of sexual harassment or discrimination.
The first is quid pro quo–conditioning employment upon the exchange of sexual favors (“Sleep with me if you want to keep your job”).  The second is hostile environment–creating a workplace where  unwelcome conduct based on sex or gender that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.  Such conduct need not br specifically directed at a particular person, but it can include offensive jokes, remarks, pictures, and general discussion by employers, managers, or coworkers.
Across the public, private, and non-profit sectors, most people get it, sexual harassment is wrong, and grounds for discipline and dismissal.   But some still do not, and among those who don’t, it appears some are elected officials.  It should not only be wrong to harass your staff, but also your legislative colleagues and even lobbyists and members of the public.  While the public may not always view legislators and lobbyists  favorably, they should not be sexually harassed.  For legislators, unwanted sexual advances are part of the good old boys club that pervaded for so long, and which appears to persist.  It sends a signal that women are second rate, and that they, their work, and the legislation they advance is  judged not on it merits but how they look in a dress.
Lobbyists advocate for their members and they should not be hit on when doing they job.  While not employees of the legislature, they nonetheless are in a power differential position when it comes to legislators, potentially feeling that  they must  acquiesce to sexual overtures as a condition of doing their job.   Such behavior  sends signals also to constituents and the general public that if they too are female they may to exercise their First Amendment rights in a sexually hostile environment..  The point here is that sexual harassment by legislators  undermines democracy by chilling half the population out of exercising their rights to free speech.
So what should be done?  Ultimately the conclusion should be that all forms of sexual harassment by Minnesota State Legislators is wrong and grounds for removal from office by the House and the Senate.  The Minnesota Constitution, Article IV, Section 6 declares that: “ Each  house shall be the judge of the election returns and eligibility of its own members.”  This clause gives each house the power to set and judge the ethical standards of its members, setting their own standards on evidence needed to prove violations.  It need not be a standard of beyond a reasonable doubt found in criminal law, but something less than that in the judgment of the House and Senate.  The level of proof demanded in many ways sets the standard of ethical conduct for its members.
Senate Rule 56 declares that it may discipline members who display behavior that “violates accepted norms of Senate behavior, that betrays the public trust, or that tends to bring the Senate into dishonor or disrepute.”  House Rule 6.1 says the same thing.  One would hope that the two chambers would conclude that sexual harassment of not just staff but other legislators, lobbyists, and the general public, would be something that violates these standards, rendering members who do this unfit to serve.

The Lesson of Norwood Teague: How Not to Respond to Sexual Harassment Allegations

Norwood Teague’s alleged sexual improprieties and the way the University of Minnesota responded are textbook examples in the wrong way to handle complaints of sexual harassment. Unfortunately, this method–sweeping it under carpet–the  seems to be the norm both in academia and in the business world.  In many ways, it is not much different than the way the Catholic Church has handled sext abuse complaints against priests.
What Teague apparently did most recently that led to his resignation was legally wrong. Sending unwanted sexual messages, pictures, or propositions to those with whom you work is wrong and it is actionable as sexual harassment under federal civil rights law.  Doing the same to people with whom you do not work is not a  civil rights issue but nonetheless actionable under general harassment or criminal law in some cases, but that is not is what is at issue here.  Instead the question at work is simple: What did the employer known and when, and how did it respond.
Under federal law, if an employee (it does not matter what level, be it co-worker, supervisor, or CEO) sexually harasses another employee, employers generally not legally liable for the behavior of the employee if they take appropriate action.  Upon receiving a complaint proper action could be  dismissal of the accused employee, but it could also be other appropriate remedial action to address the matter.  What is appropriate depends on the factual circumstances.  What is not appropriate action is doing nothing, ignoring it, or sweeping it under the carpet.  Take appropriate action and courts will not hold employers liable as a rule.
Employers are generally responsible for the actions of their employees, especially if they knew about their bad behavior, or were negligent in not knowing about it.  Often what happens when it comes to sexual harassment is that employers simply pay a victim to remain quiet.  Instead of going to court to face legal charges publicly, employers settle out of court, asking the victim to keep silent and not discuss the issue.  Legal settlements make sense, but they often do not solve the problem.   Too often victims are compensated and hushed but the employer does nothing to punish the harasser or correct the problem.  Instead, the employer simply throws money at the victim but nothing changes to alter the hostile environment, creating a ticking bomb that will eventually go off again in the future.  Or, what sometimes happens is that the employer and the accused employee reach a private settlement, agreeing not to say anything about the charges, freeing up the latter to move on to another workplace where the problem may repeat itself.
The private settlement of sexual harassment disputes may make a lot of sense in each case, but collectively it does little if anything to solve the problem of sexual harassment and hostile environments.  Yes, maybe enough private settlements and pay outs may convince employers they need to change their culture, but equally likely they may come to view paying for sexual harassment as a cost of doing business and move on.  Similarly, the employee private dismissed learns what at the end of the day?  It is okay to harass?
If the Star Tribune news accounts are correct, the University of Minnesota and Virginia Commonwealth University paid out $300,000 to settle past claims against Teague.  Minnesota was on notice of his behavior, but what did it choose to do–pay out, hush up victims, and little else.  This creates real problems for the U since it was cognizant of Teague’s behavior but hushed it up (of course it does not help that he was the athletic director, seemingly protecting him because of the special status sports and athletes enjoy in many colleges and across society).  In some ways, only a small step of difference between what it did and the St Paul-Minneapolis Archdioceses knowing about abusive priests and instead of doing something, simply transferred them elsewhere.
There needs to be a better process.   Privately paying off victims or dismissing aggressors does little to solve the basic problem of sexual harassment.  Instead it often condones the practice but doing little to change institutional or individual behavior.  This is the real lesson of Norwood Teague story, how the way we are responding to sexual harassment is failing to reform institutions or individual behavior.

Sheryl Sandberg and Marissa Mayer: Class and the New Anti-Feminism

Perhaps just as the glass ceiling is being broken, women are yet again being blamed for their failure to succeed.  Or so it seems according to Sheryl Sandberg and  Marissa Mayer.
    Facebook COO Sheryl Sandberg’s book Lean In  is a NY Times bestseller. In it she contends that women fail to succeed because they lean back.   Specifically, they refuse to make their voice heard in business or make men take on equal shares of domestic tasks at home.  She recommends instead leaning in, speaking up, and simply asking for what one wants.  If only it were so easy.
    Sandberg’s book has been hailed by many as the new voice of feminism, advice from a smart successful, and rich woman who became one of the very few women to make it to the upper ranks of corporate America.  Yet her story is not that of a typical American woman.  It is the story of the  power and privilege of being born white and to the right parents.
    Sandberg is the daughter of privileged background.  Her father was an ophthalmologist, and her mother had a Ph.D.   Ms. Sandberg went to Harvard, secured her connections, and was successful in taking advantage of them.  No one denies she is smart, hardworking, and deserves all that she has earned.  But she got off to a start in life that only a few women–little alone men–enjoy, and is now in a position that few individuals are in now.  By the time she writes Lean In Sandberg has already succeeded, a billionaire and the head of a company.  It is a wonderful story and when she offers advice on how other women can succeed she seems to ignore the structural forces that many women still face.
    Conversely, Yahoo’s Marissa Meyer has taken a tough it out strategy when it comes to women.  She axed the work-from-home policy at Yahoo.   In an effort to revitalize the company she demanded everyone come to work.  Work-at-home policies have clearly helped women navigate child rearing and work.  But Meyer seems clueless about the problems working women face.  After she gave birth she remarked: “ Having a baby Is easier than I thought.”  Of  course it was.  She had a nursery built at work for her newborn and she did not have to worry about paying for child care.
    There is a reason why corporate America loves Sandberg’s book and Meyer–they take the heat off of them.  It is not the fault of corporate America that women are trapped by the glass ceiling or do not succeed.  It is because they fail to lean in.  It is not the fault of men for refusing to do their fair share of domestic work.  It is the fault of women for not asking.
    Sandberg and Meyer live in a reality different from most women.   They are not single divorced  moms living on a shoestring.  They did not grow up poor, Black, or Hispanic. They were not (as far as we know) victims of domestic abuse and they did drop out of college because they lacked money.  Their biographies are very different from most women.
    White women on average still earn approximately 77 cents on the dollar compared to men.  African-American women earn 64 cents, Hispanic 56 cents. Studies suggest that up to one-half of all women have faced sexual harassment at work, with about 95%+ of all sexual harassment victims being women.  In 2009 the median family income for a male-headed household was $48,000, for women it was $32,000.  Women of color again fare worse. Women  are more likely to be in poverty than men.  Women are far more likely to be victims of domestic abuse than men.  They come out economically worse after divorce than men (who generally come out economically better).   In college sports, universities continue to drag their feet in providing equal funding for women’s sports.
    Overall, 50 years after passage of the Equal Pay Act, nearly 50 years since the 1964 Civil Rights Act, and slightly more than 40 years after Title IX Education Amendments, women still significant  discrimination at work, home, and school.  This is the reality of the world most women live in, not the one that Sandberg and Meyer occupy.  But to listen to them it is the fault of women that they have not individually succeeded, ignoring the collective discrimination and barriers to success females continue to face.
    The feminism of Sandberg and Meyer is that of rich white women.  It is a view of the world  that forgets the experiences of most women, but it is mostly a view that is cloaked in class biases.  However, this would not be the first time individuals–male or female–have climbed to the top and forgot those  at the bottom.  It would also not be the first time those who have succeeded think that if they can do it why cannot the rest.  While no one doubts the accomplishments of Sandberg and Meyer, one  really needs to ask if they provide a guidance for success that most women can emulate.
.The point here is that neither Sandberg nor Meyer are typical of the average woman in America.  Their story is one of power and privilege.  They are rich enough now to have overcome the problems that most women face in their daily lives.