A CULTURE THAT MARGINALIZES RAPE

Brock Turner is out of jail. Santa Clara, California County Judge Aaron Persky is fighting to keep his job. And Donald Trump is on the loose. All result from a culture that marginalizes rape.

The Stanford Rape Case

At the time of his crime, Turner was a Stanford student-athlete from Dayton, Ohio. The police report of January 18, 2015 describes in graphic detail the events resulting in his conviction.

At around one o’clock on Sunday morning, two graduate students were cycling on a path behind two houses on the Stanford University campus, when they noticed Turner and a woman on the ground having sex. But the woman appeared to be unconscious. As they got off their bikes and approached Turner, the first witness yelled, “Hey.”

Turner stood up and ran.

One of the cyclists chased, caught, and tackled Turner. Minutes later, the police arrived. As they interviewed one of the cyclists, he broke down and cried while describing the horrific incident he’d witnessed. The victim remained unconscious and curled in a fetal position. Paramedics took her to the hospital, where she was unresponsive for three hours. After regaining consciousness, she had no recollection of Turner or the assault.

The report notes that when the police questioned Turner, he said that he’d met the victim at a party that evening. He’d consumed seven cans of beer and two swigs of whiskey before kissing her. Then, he said, the two went outside, wound up on the ground, and he fondled her. He said he was having a good time with the victim, who seemed to be enjoying herself.

The Trial and Sentencing

When Turner took the witness stand at his March 2016 trial, he showed the opposite of remorse. He said the victim had consented to everything that happened. She was on the ground because she had fallen down. The bicyclists attacked him for unknown reasons.

A unanimous jury convicted him on all charges. In various statements included in the pre-sentencing probation report, Turner found plenty of culprits to blame.

Alcohol: “Being drunk, I just couldn’t make the best decisions and neither could she.”

Peer pressure: “One needs to recognize the influence that peer pressure and the attitude of having to fit in can have on someone.”

College culture: “I know I can impact and change people’s attitudes towards the culture surrounded by binge drinking and sexual promiscuity that protrudes through what people think is at the core of being a college student… I want to demolish the assumption that drinking and partying are what make up a college lifestyle.”

The defense’s pre-sentencing memorandum persisted in a bizarre variation of the consent theme that the jury had rejected: “[N]o one can pinpoint exactly when the victim went from being conscious to being unconscious.”

As he decided what to do, Judge Persky must have suffered through a period of intense cognitive dissonance. On the one hand, he had been captain of Stanford men’s lacrosse team. On the other hand, his campaign biography for election to the bench in 2002 boasted, “[I am] a criminal prosecutor for the Santa Clara County District Attorney’s Office, where I now prosecute sex crimes and hate crimes… In addition, I serve as an Executive Committee Member of the Support Network for Battered Women.”

Brock Turner’s victim sent an eloquent 12-page letter to the judge. She complained that probation would be “a soft timeout, a mockery of the seriousness of his assaults, and of the consequences of the pain I have been forced to endure.”

Turner could have received 14 years in prison. Judge Persky sentenced him to six months in the county jail. Public outrage followed. A petition to recall him has collected more than 1.3 million signatures. The Santa Clara County district attorney expressed publicly his lack of confidence in Persky and requested transfer of another sexual assault case to a different judge. A week before Turner’s release on September 2, Persky sought reassignment to the civil division.

Assessing the Damage

The economic modeling for this situation is straightforward. At a micro level, a criminal sentence is the price that the perpetrator pays for his or her wrongdoing — although the victim doesn’t receive anything of value in return.

The first step is the probability of detection and arrest. Two out of three sexual assaults go unreported. On college campuses, it’s worse: four out of five.

The next step is the likelihood of conviction. In Turner’s case, the victim’s letter describes in detail the hellish experience of pursuing a sexual assault charge through trial. That’s one reason only 13 out of 1,000 sexual assaults get referred to prosecutors, and only seven lead to a felony conviction.

The final step is the sentence. At a macro level, a prison sentence reflects the severity with which society views an offense.Time off for good behavior cut Turner’s jail time in half.

At Turner’s June 2 hearing, the victim read a condensed version of her 7,000-word letter to the judge. It included her feelings after a post-attack shower:

“I stood there examining my body beneath the stream of water and decided, I don’t want my body anymore. I was terrified of it. I didn’t know what had been in it, if it had been contaminated, who had touched it. I wanted to take off my body like a jacket and leave it at the hospital with everything else.”

Which Takes Us To Trump

Five days after Brock Turner’s September 2 release, Republican presidential candidate Donald Trump reaffirmed his 2013 tweet (the misspelling was Trump’s):

“26,000 unreported sexual assults in the military-only 238 convictions. What did these geniuses expect when they put men & women together?”

“It is a correct tweet,” he told NBC interviewer Matt Lauer. “There are many people who think that that’s absolutely correct.”

Trump rambled on — complete with factual misstatements — to avoid the obvious implications of his original tweet, namely, that merely putting men and women together sets the scene for inevitable sexual assault. Rather than challenge Trump on his offensive premise, Lauer allowed him to dissemble without interruption.

Another line in the letter from Turner’s victim to Judge Persky connects the cultural dots from the Stanford case to Donald Trump’s tweet:

“The seriousness of rape has to be communicated clearly,” she wrote, “and we should not create a culture that suggests we learn that rape is wrong through trial and error.”

Unfortunately, that culture already exists. Trump’s full-throated defense of a tweet for which he refuses to express remorse embodies and emboldens it.

BIG LAW RESISTS THE ASSAULT ON DEMOCRACY

Call them unsung heroes.

When attorneys in big law firms get things right, they deserve more attention than they receive. Recently, some of them have won important victories in the profession’s noblest pursuit: protecting our republic. And they’re not getting paid anything to do it.

Start with North Carolina. On July 29, a unanimous court of appeals threw out that state’s voter ID law. In an 83-page opinion, the court wrote that the law had targeted African Americans “with almost surgical precision.”

Behind that monumental win was an enormous investment of money and manpower — all of it pro bonoDaniel Donovan led a team of lawyers from Kirkland & Ellis LLP through two trials over a four-week period. More than fifty witnesses testified. After losing in the trial court — which issued a 479-page opinion denying relief — the plaintiffs appealed. On July 29, they won. Think of it as Kirkland & Ellis’s multi-million dollar contribution to democracy.

On, Wisconsin!

The same day that the court of appeals threw out North Carolina’s unconstitutional voter ID law, a federal judge in Madison invalidated Wisconsin’s effort to disenfranchise African Americans and Latinos. Big law firm partner Bobbie Wilson at Perkins Coie LLP was at the center of that effort. A nine-day trial and more than 45 witnesses (including six experts) culminated in Judge James B. Peterson’s 119-page ruling in favor of the plaintiffs.

On August 22, the seventh circuit court of appeals denied the request of Governor Scott Walker’s administration to stay Judge Peterson’s ruling.

North Dakota

Three days later, Richard de Bodo of Morgan, Lewis & Bockius LLP won a challenge to North Dakota’s voter ID laws. The targets of that legislation were Native Americans.

Like similar statutes enacted throughout the country since 2010, voter ID laws in North Carolina, Wisconsin, and North Dakota were products of a Republican-controlled legislature and governorship. The real motivation behind such restrictions on a fundamental right is as ugly as it is obvious.

Fighting Against the Demographic Tide of History

In 2014, the Brennan Justice Center noted that North Carolina and Wisconsin were in select company: “Of the 11 states with the highest African-American turnout in 2008, 7 have new restrictions in place: Mississippi (73.1 percent), South Carolina (72.5), Wisconsin (70.5), Ohio (70.0), Georgia (68.1), North Carolina (68.1), and Virginia (68.1).”

Of the 12 states with the largest Hispanic population growth between 2000 and 2010, North Carolina was one of nine that made it harder to vote. The others were South Carolina, Alabama, Tennessee, Arkansas, North Carolina, Mississippi, South Dakota, Georgia, and Virginia.

Rigged Elections? Yes, But in Whose Favor?

Now that the Republican nominee for President of the United States is pushing a dangerous and destructive new theme, the battle to vote has now assumed a great significance.

“I’m afraid the election is going to be rigged,” Donald Trump warned at a rally in Columbus, Ohio on August 1, right after the North Carolina federal appeals court ruled.

That evening he told an interviewer: “I’m telling you, November 8, we’d better be careful, because that election is going to be rigged. And I hope the Republicans are watching closely, or it’s going to be taken away from us.”

Dedicated attorneys — especially those in big firms willing to donate enormous resources to the cause — have worked hard to protect the right of every eligible person to vote. If they hadn’t, then the North Carolina legislature might, indeed, have rigged the election in a key swing state that President Obama had won. But that’s not what Trump meant, was it?

No, he sees a different enemy.

“[P]eople are going to walk in, they are going to vote 10 times maybe. Who knows?” he said in an August 2 interview.

He now has a website page: “Help Me Stop Crooked Hillary From Rigging This Election.” Such whining is actually much more than that. It’s a campaign tactic uniting two sinister and pervasive themes: racial division and attacks on the rule of law.

Facts Don’t Matter

Trump began stoking fear and division with a promise to build a wall to keep out Mexicans, whom he called rapists and drug dealers. He then coupled it with a “deportation force” to “round ’em up,” sending 11 million illegal immigrants “back where they came from.”

Then he professed ignorance about David Duke. (“I don’t know anything about David Duke… I know nothing about white supremacists.”) Before long, he unleashed hostility toward “Mexican” Judge Gonzalo Curiel. After scaring people, it was a short step for him to becoming their self-professed “law-and-order” savior.

Now he is wrapping his message in a long-discredited canard. Defenders of unconstitutional voter ID laws persist in fomenting “election fraud” paranoia, even though it lacks any factual basis. Professor Justin Levitt at Loyola Law School, Los Angeles tracked all claims of alleged voter ID fraud and found a grand total of 31 credible allegations – out of more than one billion ballots cast.

In the North Dakota case, Judge Daniel L. Hovland wrote, “There is a total lack of any evidence to show voter fraud has ever been a problem in North Dakota.”

Likewise, in the Wisconsin case, the judge ruled. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.”

And in the North Carolina case, a unanimous court of appeals concluded, “The record thus makes obvious that the ‘problem’ the majority in the General Assembly sought to remedy was emerging support for the minority party.”

Mob Mentality

The cry of phantom election fraud feeds Trump’s narratives, while taking them a perilous step farther: de-legitimizing an election that polls now show Trump is losing “hugely.” As his prospects sag, his vile rhetoric escalates.

Shortly after an August 10 poll showed Trump trailing in Pennsylvania by double digits, he went to that state and told an Altoona crowd, “Go down to certain areas and watch and study and make sure other people don’t come in and vote five times… The only way we can lose, in my opinion – I really mean this, Pennsylvania – is if cheating goes on… ”

Never mind that Pennsylvania hasn’t voted for a Republican Presidential nominee since 1988. Even an incumbent, George H.W. Bush, couldn’t carry it in 1992.

Trump then continued waving his red herring: “Without voter ID there’s no way you’re going to be able to check in properly.”

Scorched Earth

The real danger to democracy isn’t election rigging or cheating. It’s Donald J. Trump. De-legitimization – the ultimate ad hominem attack on a process to undermine its outcome – is a standard tactic from his deal-making playbook. When it appeared that he might not arrive at the Republican convention with enough delegates to secure the nomination, he warned about “riots,” if someone else won.

Never mind the rules; they’re for losers. Anyone fearing that Trump will win should fear more that he won’t.

Trump knows that facts don’t matter because – true or false – the branding sticks. For example, there was never any evidence to support Trump’s wild “birther” claims about President Obama in 2011. But five years later, 20 percent of Americans still believe — today — that he was born outside the United States.

Some people will always believe anything Trump says, even as he contradicts himself from one moment to the next. His infamous line was pretty accurate: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.”

Perhaps he is discovering that “any” was an overstatement. But his de-legitimization strategy worked against most Republican politicians, who folded like cheap suits rather than break from the man-baby who would be king. Now the stakes are higher. His targets are the rule of law, the essence of democracy, and the peaceful transfer of Presidential power that occurs every four years.

The Real Losers

The eventual victims of Trump’s scorched earth approach will be the American people. If, as with his false “birther” claims five years ago, 20 percent of voters – about half of his current supporters – believe that Trump’s defeat results from a “rigged” election that “cheaters” won, the collateral damage to the county will be profound.

Donald Trump lives in a simple binary world of winners and losers – and he’s all about winning at any cost. He measures success in dollars. His latest tactic makes democracy itself the loser. Try putting a price on that. And thank some big law firms and their attorneys who are willing to make the investment required to stand in his way.

TRUMP AND THE RULE OF LAW – MILITARY EDITION

This is the fourth in what has become an endless series on Donald Trump’s continuing attacks on the rule of law. Those attacks seem to work for him in one respect. Every new one displaces an old one. He’s now relying on “Trump fatigue” — a condition that causes voters to say, essentially, “What stupid thing did he say today?”

Then they discount his offensive, false, or incoherent remark du jour. But his comments over time create a more complete picture and — in the case of the military — a recipe for disaster.

Recipe: Start With An Obnoxious Comment That People Forgive…

A year ago, Senator John McCain learned that he wasn’t a war hero after all.

“I like people who weren’t captured,” Donald Trump said on July 18, 2015, when asked about McCain’s critical comments about him.

He probably thought he was being witty. But it was quite a statement coming from someone who had avoided military service in Vietnam because of a still ambiguous medical condition. Trump said it was minor bone spurs in a foot. Which one? He couldn’t recall. Maybe both.

But don’t worry. His physician assured us in December, “If elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency.”

Dr. Harold N. Bornstein didn’t describe how his physical examination of Trump compared with those he’d performed on Thomas Jefferson, Harry Truman, or Dwight Eisenhower.

Add Bigoted Cruelty That Troubled Some…

Having relegated McCain to the “loser” category in Trump’s binary world, he then revealed more completely his attitude about military sacrifice. U.S. Army Captain Humayun Khan received the Bronze Star and the Purple Heart for saving the lives of fellow soldiers in Iraq. At the Democratic convention, Khan’s father delivered a tribute to his fallen son. Trump lashed out, invoking stereotypes and generalizations to reinforce his anti-Muslim campaign theme.

“His wife,” Trump told ABC’s George Stephanopolous, “if you look at his wife, she was standing there. She had nothing to say. She probably, maybe she wasn’t allowed to have anything to say. You tell me, but plenty of people have written that. She was extremely quiet and it looked like she had nothing to say.”

Mix In Lawlessness That Has Been Lost In A Crowd Of Outrageous Comments…

Between those July 2015 and July 2016 bookends came a more disturbing episode. During the March 3, 2016 Republican debate, Fox News’ Bret Baier asked Trump about his advocacy of torture. If he made good on his threats, he would be ordering the military to commit illegal acts.

What if they refused?

“They won’t refuse. They’re not gonna refuse me. Believe me.”

“But they’re illegal,” Baier insisted.

“I’m a leader, I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it.”

Stir In Disrespect For The Military Generally… 

Soldiers such as retired four-star General John Allen won’t do it. He made that clear in his address to the Democratic convention, and Trump didn’t like it one bit. Within minutes, he tweeted, “General John Allen, who I never met but spoke against me last night, failed badly in his fight against ISIS. His record = BAD.”

Then Trump followed up personally at a rally in Denver.

“They had a general named John Allen. I never met him, and he got up and started talking about Trump, Trump, Trump… You know who he is? He’s a failed general. He was the general fighting ISIS. I would say he hasn’t done so well, right?”

Earlier, Trump had declared, “I know more about ISIS than the generals do. Believe me.”

Then he claimed that President Obama had “founded” ISIS. For the next two days, he and his media surrogates defended the falsehood as literally true. Then he said he was being sarcastic — “but not that sarcastic, to be honest with you.”

Whatever his intent, the impact has been clear. Within days, Hezbollah’s leader was using Trump’s absurd charge against America. Hassan Nasrallah is a Shiite backer of Syria’s brutal Assad regime, an ISIS foe, and a critic of the U.S. position calling for Assad to step down.

“This is not simple speech,” Nasrallah said in a speech to followers. “This is an American presidential candidate. This was spoken on behalf of the American Republican Party. He has data and documents.”

As Vice-President Biden observed, Trump’s comments caused the danger to military lives in the Middle East to go “up a couple clicks.”

Bake Until Someone Sees The Resulting Danger To The Country…

General Allen explained why he was speaking up when he did: “He’s talked about needing to torture. He’s talked about needing to murder the families of alleged terrorists. He’s talked about carpet-bombing ISIL. Who do you think is going to carpet-bombed when all that occurs? It’s going to be innocent families.”

Allen feared that if Trump actually followed through on his threats, he would be ordering illegal actions.

“I think we would be facing a civil military crisis, the likes of which we’ve not seen in this country before,” he said. “What we need to do is ensure that we don’t create an environment that puts us on a track conceivably where the United States military finds itself in a civil military crisis with a commander in chief who would have us do illegal things.”

Top With Callous Disregard for the Constitution…

Which takes us back to Khizr Khan. The most powerful 90 seconds of his convention remarks occurred when he looked directly into the camera and addressed Trump.

“Let me ask you: have you even read the constitution? I will gladly lend you my copy.”

It’s a serious question. Among legal scholars, Trump has achieved rare bipartisan consensus on his disregard for the rule of law and the limits of presidential power. From unfair “Mexican” judges (born in Indiana) to religion-based discrimination to brazen attacks on the press that include warnings of retribution to the owner of the Washington Post, Trump has been frighteningly consistent.

Everything around Trump exists to serve him and his whim of the moment, whatever it might be. The military is no exception. Fortunately, the men and women wearing the uniform answer to a higher calling.

As General Allen explained, “When we swear an oath to support and defend the Constitution, which is a document and a set of principles and it supports the rule of law, one of those is to ensure that we do not obey illegal orders.”

The Final Product: Digest It If You Can

Trump doesn’t care that his orders would be illegal. In that respect, his world is eerily similar to the bubble in which President Richard Nixon lived. As I noted in an earlier post, three years after precipitating a constitutional crisis that forced him to resign from office, Nixon finally admitted, “Well, when the President does it, that means it is not illegal.”

At least Trump isn’t President… yet.

THE ABA’S TERRIBLE, HORRIBLE, NO GOOD, VERY BAD DAY

It’s a mere formality. Every five years, the Department of Education renews the ABA’s power to accredit law schools. The June 2016 session before a DOE advisory committee (NACIQI) was supposed to be just another step in the rubber-stamping process. The NACIQI staff had recommended approval. The committee’s three-day session contemplated action on a dozen other accrediting bodies, ranging from the American Psychological Association to the American Theological Schools. Sandwiched between acupuncture and health education, the agenda contemplated an hour for the ABA.

What could go wrong?

For starters, committee members grilled the ABA’s representatives for an entire afternoon.

Questions About Law Student Debt?

First up for the ABA was the chair of the Section of Legal Education and Admissions to the Bar, Arizona Supreme Court Justice Rebecca White Berch. A committee member asked how the ABA assessed schools based on the interrelationship between student debt, bar passage rate, and graduate placement rates. Justice Berch said the ABA was looking “for a bar passing rate of 75 percent…. [W]as that part of your question?”

Actually, that was just a proposal set for an ABA Section hearing on August 6, but it wasn’t what the NACIQI had in mind.

NACIQI Member: “Sorry, no. I think my question also went to concern related to debt that students incurred while in law school and relationship of that to placement.”

ABA Managing Director Barry Currier tried to field that one:

“With respect to debt, we have been following a disclosure model for a number of years now and a lot of information is disclosed… [W]e collect information about student borrowing, but it is currently not part of the consumer information that schools are required to post with us… [T]here is no standard about how much debt is too much debt at this point in time.”

Let the squirming begin.

“So it may be,” Currier continued, “that as evidence mounts that students don’t shop very effectively and that as uncapped student loans are available, that we need to be more paternalistic, if you will, or more — we may need to make more information required and adopt standards around how much debt is too much debt.”

Placement Rates?

NACIQI: “What would be an appropriate placement rate for a law school?”

Currier: “Well our standards do not require any specific employment…[W]e don’t have a specific standard that a school must achieve in terms of placement.”

NACIQI: “But you are the ones who identified that legal education is very expensive… And if they can’t find a job it wrecks their lives.”

NACIQI: “[Y]ou can tell a lot from some of these low performing schools. And a school that sticks out to me is Whittier Law School in California… [T]he enrollment has dropped 51 percent since 2010, yet tuition has increased 31 percent since 2008.”

He wasn’t finished.

“Over 105 million dollars of Title IV funding has gone into this school. All the while, one in four graduates of this law school has obtained a full-time attorney job within nine months… Appalachian School of Law, University of LaVerne, Golden Gate, all have abysmal placement rates… [S]o I guess my question is specifically related to these low performing institutions: what are you guys doing?”

Then he answered his own question:

“[W]hen we look at these low performing schools, you guys are doing absolutely nothing.”

Can We Talk About Something Else?

Justice Berch’s attempt to change the subject was unavailing.

NACIQI: “We are talking about student debt, right, so — I guess you are not answering my question, and so I would like for us to stay on that… I just want to make sure we are talking about what is your responsibility and your response to these lower performing schools. I mean, have they been put on probation? That’s my first question.”

Justice Berch: You make a valid point. The answer is — has anyone yet been put on probation? No…”

NACIQI: “How many institutions have you denied accreditation to for low pass rates?

Justice Berch: For low pass rates alone, none.”

NACIQI: “Over the past five years how many institutions have you withdrawn your accreditation from?”

Currier: “Zero, zero.”

You Think The ABA Can’t Do The Job?

During the NACIQI’s discussion on the motion to recommend renewal of the ABA’s accreditation power, one member put the problem bluntly:

“I am troubled that the ABA just simply isn’t independent enough for this responsibility… I find it very difficult to think that they are going to be objective enough to continue to carry out this responsibility. And I reluctantly conclude that the ABA is not the appropriate accreditor for our law schools…[T]he crushing debt load on thousands and thousands of students is too serious for us… And I think the debt load is not going to get better if we say yes to this motion.”

Another member added: “I think that objectivity is important as you go through this process, so I would think an independent body that does not have the conflict of interest that the ABA has.”

It’s Worse Than They Thought

The NACIQI didn’t consider a recent illustration of the ABA’s independence problems. Former ABA President Dennis Archer is chairman of the national policy board of Infilaw — a consortium of three for-profit law schools. At those schools — Arizona Summit, Florida Coastal, and the Charlotte School of Law — students graduate with six-figure debt and dismal prospects for a meaningful job requiring bar passage. (Full-time long-term JD-required job placement rate ten months after 2015 graduation: Arizona Summit — 40 percent; Florida Coastal — 39 percent; Charlotte — 26 percent.)

On November 18, 2013, Archer and Infilaw’s chief executive officer co-signed a seven-page tour de force warning the DOE about the perils of applying the “Gainful Employment Rule” to “proprietary law schools and first professional degree schools in general.” The letter (on Infilaw stationery) argued, among other things, that the proposed rule was unnecessary because the ABA — as an accrediting body — ensures that InfiLaw “must offer an education that will help students achieve their goals.”

Six months later, Archer became chairman of the ABA’s Task Force on the Financing Legal Education. A year later — June 2015 — the Task Force acknowledged that 25 percent of law schools obtain at least 88 percent of their revenues from tuition. But it refused to recommend an obvious remedy: financial penalties for schools where students incur massive law school debt in exchange for dismal long-term JD-required job prospects.

The Task Force’s recommendations were embarrassingly inadequate, but the ABA House of Delegates accepted them.

One More Chance?

The ABA’s culture of self-interest and insularity has now created a bigger mess. Some NACIQI members favored the “nuclear” option: recommending denial of the ABA’s accrediting authority altogether. The committee opted to send a “clear message” through less draconian means.

The final recommendation was to give the ABA a 12-month period during which it would have no power to accredit new law schools. Thereafter, the ABA would report its progress in addressing the committee’s concerns, including the massive debt that students are incurring at law schools with poor JD-required placement rates.

As one member put it, “It is great to collect data, but they don’t have any standard on placement. What’s the point of collecting data if you can’t…use the data to help the students and protect the students…”

Another member summarized the committee’s view of the ABA: “This feels like an Agency that is out of step with a crisis in its profession, out of step with the changes in higher ed, and out of step with the plight of the students that are going through the law schools.”

The day of reckoning may not be at hand, but it’s getting closer.

TRUMP AND THE RULE OF LAW: ECHOES OF NIXON

Two months ago, I wrote an essay, “Trump and the Rule of Law.” I didn’t contemplate that it would evolve into a never-ending series on the subject. This is part three.

Perhaps history doesn’t repeat itself but sometimes it rhymes.

“We must maintain law and order at the highest level or we will cease to have a country, 100 percent. We will cease to have a country. I am the law and order candidate.” – Donald Trump, July 11, 2016

“Law and order is in the interest of all Americans. Let’s just make sure that our laws deserve respect; then, they will be respected by all Americans.” – Richard M. Nixon, 1968

To win the 1968 election, Richard Nixon exploited fear, racial unrest and an unpopular war to exacerbate division. His message resonated with alienated voters who yearned for a bygone time that looked better in hindsight than it had ever been. He offered himself as uniquely capable of fixing anything and everything that was broken.

Shared Disdain For The Rules

Although the differences between 1968 and 2016 are enormous, Trump’s campaign manager Paul Manafort boasts that his candidate will continue using Nixon’s “law and order” playbook. But the most startling similarity between Nixon and Trump is the divergence of that rhetoric from their common disdain for the rule of law.

Nixon confined his dangerous views to private conversations with confidants; Trump shouts them loudly for public consumption. Those who should be paying closest attention have lost themselves in cynical calculations of personal political self-interest.

“He’ll have a White House counsel,” says Senate Majority Leader Mitch McConnell in explaining why he continues to support Trump. “There will be others who point out that there’s certain things you can do and can’t do.”

Senator John McCain rationalizes his tolerance for Trump’s role as his personal abuser-in-chief: “I still believe we have the institutions of government that would restrain someone who seeks to exceed their constitutional obligations. We have a Congress. We have the Supreme Court. We’re not Romania.”

Senators McConnell, McCain and other Republicans refusing to disavow Trump could benefit by spending some time with President Richard Nixon’s former White House Counsel John Dean.

Magical Thinking Has A Cost

On March 21, 1973, Dean told the President:

“[T]here’s no doubt about the seriousness of the problem we’ve got. We have a cancer within – close to the presidency, that’s growing. It’s growing daily. It’s compounding. It grows geometrically now, because it compounds itself… And that is just – and there is no assurance – ”

Nixon: “That it won’t bust.”

Dean: “That, that won’t bust.”

Nixon: “True.”

A month later, Nixon fired him. It takes little imagination to envision Trump delivering that line with gusto: “You’re fired!” While Nixon fiddled with the levers of power for the next eighteen months, the country burned. The United States languished in its most severe recession since World War II and the business of governing slowed to a crawl.

Reticent Republicans

Then as now, prominent Republicans were slow in reacting to Nixon’s attack on the rule of law. Eventually, a unanimous Supreme Court ordered release of Nixon’s incriminating White House tapes and the House of Representatives passed articles of impeachment. Only then did key Republican leaders, including Senator Barry Goldwater, urge Nixon to step down because – at long last – there were enough Republican votes in the Senate to join Democrats in convicting him.

Nixon lost his fight with Congress and the courts. But the margin was thin and for a year-and-a-half the country suffered immeasurable collateral damage. A search for the origins of current public distrust in government could start with the events culminating in Nixon’s 1974 resignation.

Unabashed Lawlessness

Nixon thought he was above the law, but didn’t admit it publicly until three years after leaving office: “When the President does it, it means it’s not illegal.”

Trump’s similar revelations occur in real-time. Even conservative legal commentators express concern for his unwillingness to acknowledge the limits of presidential power. As University of Chicago/NYU Law Professor Richard A. Epstein puts it, “I think Trump doesn’t even think there’s an issue to worry about. He just simply says, whatever I want to do, I will do.”

The Complete Makeover That Never Will Happen

On April 21, 2016, Trump campaign chairman Paul Manafort assured Republican National Committee members that Trump’s antics during the primaries were an act.

“That’s what’s important for you to understand – that he gets it, and that the part he’s been playing is evolving now into the part you’ve been expecting… Fixing personality negatives is a lot easier than fixing character negatives. You can’t change somebody’s character, but you can change the way a person presents himself.”

Since then Manafort’s candidate has devolved in every way.

It Starts And Ends With The Patient

Who was to blame for all of those outbursts? Certainly not Trump himself. On June 20, campaign manager Corey Lewandowski took the fall.

“We’re going to go a little bit in a different route from this point forward,” Trump said. “A little different style.”

Since then Trump has:

  • Described Great Britain’s vote to leave the European Union as good for his Scottish golf course business;
  • Called Senator Elizabeth Warren a racist;
  • Described Jews as unduly sensitive about a campaign tweet slamming Hillary Clinton as corrupt – with dollar bills in the background and the Star of David in the foreground;
  • Invited Putin to hack the computers of Democratic rivals;
  • Smeared the Muslim religion with innuendo about a Gold Star mother of a veteran who’d died saving his fellow soldiers; and
  • Assured the world that Putin is “not going into Ukraine, OK, just so you understand. He’s not going to go into Ukraine, all right? You can mark it down. You can put it down. You can take it anywhere you want” — even though most of the world knows that Putin is already there.

At public events, his audiences cheer. Richard Nixon knew what that was about: “People react to fear, not love. They don’t teach that in Sunday school, but it’s true.”

Where’s The Bottom?

Trump’s apologists cling to the self-deceptive notion that he’s just rejecting political correctness. Here’s the truth: almost daily he says something that is simply wrong — factually, legally, and/or morally. Often he hits the trifecta with a single shot. It’s not a matter of political correctness. It’s a matter of correctness — period.

Manafort misdiagnosed his candidate’s underlying problem as something distinct from character. Trump’s personality is an extension of his character. At age 70, he remains what he has always been and always will be. But don’t take my word for it; take his.

As Trump told the press during his Memorial Day rampage against another frequent Nixon target – the media: “You think I’m going to change? I’m not changing.”

He means it. When it comes to character, decency and respect for the rule of law, Donald Trump is Richard Nixon on steroids with a megaphone and no internal filter. What we see is what we will continue to get until November when the worst reality show ever comes to an end.

THE NHL, BRAINS, AND LAWYERLY DENIAL

Back in 1988, the Surgeon General of the United States issued a report about the addictive qualities of tobacco. In summary form, its “Major Conclusions” were:

“1. Cigarettes and other forms of tobacco are addicting.

2.  Nicotine is the drug in tobacco that causes addiction.

3. The pharmacologic and behavioral processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine.” — The Health Consequences of Smoking: Nicotine Addiction: A Report of the Surgeon General.

All of that had been obvious to many smokers who’d tried unsuccessfully to quit — and to many others who had watched their efforts. But six years later, the presidents and CEOs of the seven major tobacco companies faced a continuing avalanche of tobacco-related lawsuits. Appearing jointly before a congressional committee on the health effects of tobacco, Congressman Ron Wyden posed a question that he asked each of them to go down the line and answer:

“Do you believe nicotine is not addictive?”

With only minor variations in word choice, one-by-one they replied, “I believe nicotine is not addictive.”

It became an iconic scene of corporate denial. Three years later, the companies did an abrupt about-face and settled the largest class action and government cases against them.

Not Quite Today’s “Tobacco Moment”

The tobacco episode came to mind as I read Senator Richard Blumenthal’s first two questions to Gary Bettman, commissioner of the National Hockey League. But there’s a critical difference: The tobacco executives stood together as one against the onslaught; Bettman and the NHL are all alone.

In a March 2016 congressional hearing, Representative Jan Schakowsky asked Jeff Miller, the NFL’s senior vice-president for health and safety, whether there was a link between football and degenerative brain disorders like chronic traumatic encephalopathy (CTE).

“The answer to that is certainly, yes,” Miller said.

It seemed reasonable to ask similar questions about hockey, and Blumenthal posed these two (among others) in a letter to Bettman:

  1. Do you believe there is a link between CTE and hockey? If you do not, please explain how head trauma in hockey differs from head trauma in football.
  2. Do you dispute that the documented CTE of former NHL players, like Derek Boogaard, is linked to injuries sustained while playing in the NHL?

Bettman reframed the first question and ignored the second one.

A Lawyerly Treatment

Bettman is a graduate of NYU Law School. The league’s litigation attorneys probably drafted his 24-page response to Blumenthal. But he signed what is essentially a legal brief outlining the NHL’s defenses to former players’ pending litigation against the NHL.

Bettman’s reframing of the first question is subtle: “The core of your letter goes to the question of why the NHL has not acknowledged a ‘link’ between playing hockey and developing CTE if an NFL executive may have done so with respect to football.”

Then he recites in great detail the scientific community’s failure to reach consensus on the causation between concussions in contact sports and CTE. Scientific consensus is the way experts approach research issues. But it has never been the standard by which ordinary, everyday people decide whether to engage in an activity. For example, it takes far less than a reasonable degree of medical and scientific certainty — the legal standard implicit in Bettman’s letter — for a parent to make a decision about what is best for a child.

For starters, a scientific study requires a sufficiently large sample size. For CTE, the sample is tiny and will be for a long time. Confirmation of CTE occurs only by examination of a deceased person’s brain. To date, only 200 brains with CTE have been analyzed. As athletes die, the sample size will increase, but it’s a slow process. Even in brains found to have CTE, isolating all variables to identify the specific contribution of contact sports is a daunting task that will take years, assuming it happens at all.

Here’s another way of reframing Bettman’s position on this issue: The NFL shouldn’t have acknowledged the link, either.

And Another Thing…

Bettman then suggests that the key difference between football and hockey is the frequency of hits to the head. That’s why for years boxers were the exclusive subjects of brain injury studies. Interestingly, footnote 37 of his letter defends fighting as an essential element of hockey:

“Outside the context of ‘staged fighting,’ we note also that players (not just Club General Managers) believe that some types of fighting — though penalized — play a useful and worthwhile role in protecting ‘skilled players’ from being targeted by more aggressive opponents because any such ‘targeting’ activity is capable of being appropriately ‘policed’ by a teammate… [S]pontaneous fights — which, of course, are also penalized — provide a ‘safety valve’ that enables players to confront opposing players in a less dangerous fashion than they might otherwise engage in through dangerous ‘stick work’ or cheap shots.”

But not to worry. Bettman notes that only two of the league’s video-analyzed concussions resulted from fights. And please, let’s not discuss NHL Deputy Director Bill Daly’s 2011 email: “Fighting raises the incidence of head injuries/concussions, which raises the incidence of depression onset, which raises the incidence of personal tragedies.”

And Another Thing…

Finally, Bettman says that the NHL has educated players on the dangers of concussions. But he says it’s premature to provide a formal warning about CTE. In fact, he suggests, it could even be dangerous to do so. Players might decide they have an irreversible brain disease when they have only depression or other treatable disorders that have similar symptoms.

He concludes with an example. Rather than respond to Blumenthal’s question about Derek Boogaard, Bettman turns to another former player, Todd Ewen. After Ewen committed suicide. his autopsy showed no CTE. Because his widow said that she and Todd “were sure Todd must have had CTE,” Bettman leaps to an absurd conclusion: “This, sadly, is the type of tragedy that can result when plaintiffs’ lawyers and their media consultants jump ahead of the medical community.”

The Real Troublemakers

For Bettman, the villain in “the current public dialogue about concussions in professional sports (as well as youth sports)” seems to be “media hype driven in part by plaintiffs’ counsel.”

In December 1994, another NYU Law School graduate, NFL Commissioner Paul Tagliabue said: “On concussions, I think this is one of those pack journalism issues, frankly…The problem is a journalist issue.”

Twenty years later, what Bettman describes as the absence of medical consensus about the causal relationship between concussions and CTE didn’t stop the NFL from agreeing to a $1 billion class action settlement with 5,000 former players claiming brain injury. On the sliding scale of monetary awards to those victims, former players who died “with CTE” are in the second highest dollar recovery category — with a maximum of $4 million.

The NHL is only two decades behind.

LAW AND DISORDER, GUNS, AND LEADERSHIP

Shortly after the Baton Rouge police shootings, Donald Trump tweeted: “How many law enforcement and people have to die because of lack of leadership in our country. We demand law and order.”

Baton Rouge is about a lot of things. But Trump’s latest branding initiative — “leadership on law and order” — isn’t among them.

Facts Should Matter

On July 17, Baton Rouge police officers responded to a call about a man carrying a gun. When they arrived, he used an AR-15 style semi-automatic weapon to kill three of them and injure three others. Earlier this month, a sniper killed five Dallas police officers and wounded seven more. In addition to his rifle, the shooter was armed with a pistol; he had a small arsenal in his home. Four weeks earlier, a lone killer used a semi-automatic rifle to end the lives of 49 people and wound another 53 as they partied in an Orlando nightclub.

One place to begin a meaningful discussion of these episodes — and an unfortunate number of others — might be the weapons of such mass destruction. Louisiana, Texas, and Florida permit the private ownership of assault weapons. When the NRA defends those firearms as essential to the sport of hunting, I’m reminded of my father’s line:

“If you want to call it a sport, make it a fair fight,” he would say. “Either arm the deer, or require the hunter to chase Bambi down and kill him with his bare hands.”

Lobbying Against Research To Find The Truth

Texas and Louisiana have open carry laws. Wear your gun with pride. Just hope that if you pull it out of the holster, you won’t hurt yourself or someone close to you. That’s no joke. The frequency of self-inflicted wounds and accidental shootings is one reason that the NRA has quietly blocked the Centers for Disease Control and Prevention from researching gun violence since 1996.

The last CDC-funded study on the subject appeared in the October 1993 issue of the New England Journal of Medicine. It concluded: “Rather than confer protection, guns kept in the home are associated with an increase in the risk of homicide by a family member of intimate acquaintance.”

The study noted: “Previous case-control research has demonstrated a strong associate between the ownership of firearms and suicide in the home. Also, unintentional shooting deaths can occur when children play with firearms they have found at home. In the light of these observations and our present findings, people should be strongly discouraged from keeping guns in their homes.”

Hello, NRA lobby; goodbye, CDC funds for research on gun violence — for 20 years! But facts are still facts. In 2010, almost 60 percent of all gun deaths were suicides. More than 600 deaths resulted from gun accidents. Eight percent of the lethal accidental shooters were under the age of six.

Shooting From The Hip

After the Orlando shootings, Trump told a radio interviewer, “It’s too bad that some of the young people that were killed over the weekend didn’t have guns attached to their hip, frankly, where bullets could have flown in the opposite direction…It would have been a much different deal… Had people been able to fire back it would have been a much different outcome.”

On Saturday, he reiterated the point at a rally in Las Vegas: “If there were a couple of folks — man, woman — had a gun strapped right here,” or a gun strapped very nicely to the ankle, this no good sick, sick, perverted, horrible terrorist — terrorist –was in there starting the shooting, one of those people would’ve had the bullets going the other way, folks, it would have been a whole different story.”

Even the NRA’s public face, Wayne LaPierre, was uncomfortable with that line of Trumpisms: “I don’t think you should have firearms where people are drinking,” he told a CBS “Face the Nation” interviewer the next day.

Less than 24 hours later, Trump reversed himself and lined up with LaPierre: “When I said that if, within the Orlando club, you had some people with guns, I was obviously talking about additional guards or employees.”

Obviously.

To appease the NRA, Trump also backed away from his “no fly-no buy” position that people on the terror watch list should not be able to buy guns.

The Police Get It

Trump uses Orlando, Dallas, and Baton Rouge to reinforce the NRA’s position on guns. But it’s an awkward fit. After the Sandy Hook shootings in 2012, the International Association of Chiefs of Police and the Major City Chiefs pushed for tougher gun control laws, including an assault weapons ban. In the wake of the Dallas and Baton Rouge shootings, the president of the Cleveland Police Partolmen’s Association asked Ohio Governor John Kasich to suspend open carry laws for the area near the Republican party’s nominating convention.

According to his website, Trump opposes anything that would interfere with the right to bear arms, including “semi-automatic rifles and standard magazines that are owned by tens of millions of Americans. Law-abiding people should be allowed to own the firearm of their choice. The government has no business dictating what types of firearms good, honest people are allowed to own.”

When Trump pontificates about the need for “leadership” to establish “law and order,” what does he mean? Whatever the NRA wants. True leadership would take him away from pandering to Wayne LaPierre and toward protecting the police officers about whom he claims to care so deeply.