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Partisan Taint in the Trump-Russia Investigation

It’s been four years since the FBI began its national security investigation of the Trump campaign, and Americans remain deeply divided over the probe. Democrats think the investigation was more than warranted by the number of suspicious contacts between Team Trump and the Russian government. Republicans think the investigation was a partisan hit job on an anti-establishment candidate.

They’re both right.

It would have been national security malpractice not to investigate possible Russian influence over the Trump campaign. Hostile foreign governments will always be tempted to use the openness of American presidential contests to boost their favored candidates or sabotage others. More such investigations will be needed in the future. After spending four years advertising the success of Russia’s interference campaign, the U.S. should not be surprised if other countries get the message and launch their own. Given the risks, national security agencies can’t be gun-shy about probing foreign government efforts to infiltrate the U.S. political system.

At the same time, there is a lot more evidence than many people realize that the 2016 investigation was pervasively tainted by hostility to Donald Trump. In part, that comes with the territory. Any time government officials order national security surveillance of people who want to kick them out of office, they will be suspected of partisan motives. Put charitably, the Obama administration bungled this dimension; it failed to recognize just how partisan its investigation of a political rival would look, and it did far too little to avoid the appearance of partisanship. Less charitably, there is reason to believe that the Obama administration milked the investigation for partisan advantage.

That less charitable view deserves respect. First because it’s backed by considerable evidence. And second because it’s unpersuasive to tell half the country that their suspicions are mere conspiracy theories that they should just get over. The U.S. needs a national security system that the whole country has confidence in.

Especially now. The United States has spent nearly 50 years guarding against one kind of intelligence abuse—the government turning its intelligence machinery against individual rights and unpopular minorities. It hasn’t had to worry much about a different kind of abuse—employing national security surveillance to achieve partisan political ends.

It’s not that it can’t happen here, as anyone would know who studied J. Edgar Hoover’s collection of dirt on politicians—or his willingness to share that dirt with presidents when they felt the need. The United States has been lucky in recent decades. Divided government and a narrow range of political differences discouraged incumbents from using intelligence capabilities against the opposition.

Now, not so much. If it sees members of the other party not just as wrong but as borderline treasonous, why wouldn’t the party in power use national security authorities against them? As that temptation grows, institutional reforms are needed to keep officials from yielding to it and, just as important, to show skeptics that the reforms actually worked.

The Obama administration clearly flunked the second requirement. They quite possibly flunked the first one too. Here are the most salient facts in support of that view—a much more detailed accounting of which is available, complete with footnotes, in my forthcoming testimony to the Privacy and Civil Liberties Oversight Board.

The DNC and the Steele “Dossier”

A major part of the Crossfire Hurricane investigation and the public disclosures it produced was the “dossier” created by Christopher Steele. We all now know that it was a salacious and unverifiable hit job assembled not by a network of intelligence sources but by a mix of Steele’s friends, their drinking buddies, and probably a few disinformation specialists from GRU (Russia’s military intelligence agency). Worse, Steele assembled that hit piece as a subcontractor to the Democratic National Committee, and judging by his conduct, he thought his role was to lobby the FBI to use its formidable national security powers against the Republican campaign—and to leak both the investigation and the now “FBI-validated” dossier in hopes of ruining Trump’s candidacy.

There are reasons to suspect that, despite its denials, the DNC intended that outcome: It hid its ties to Steele behind multiple cutouts and a dubious claim of attorney-client privilege, then falsely denied its connection to Steele for months after the story broke. In the end, Steele’s work didn’t pay off for Democrats until after the election. But during the transition it stoked the Russia collusion narrative that put a cloud of illegitimacy over the first two years of the Trump administration. That is a remarkable, if unseemly, achievement for a partisan hit job. Other political actors will learn the lesson and can be expected to use cutouts in the future to lobby the national security agencies against their domestic enemies.

Partisan Bias and the Carter Page FISA Application

The one really detailed examination of how the Crossfire Hurricane investigators treated the evidence against the Trump campaign is the inspector general’s dissection of the Carter Page wiretap application. That story does not exactly rebut the suspicion that partisanship tainted the probe. The application was full of errors and omissions, and all of them cut against Page and the Trump administration. Almost no one in the Justice Department or FBI stopped to ask if it was wise to pursue a surveillance order against a prominent member of the opposing party without taking a hard look at the evidence. As a result, the investigators left out—or even lied about—a raft of information that would have raised doubts about whether Page was a legitimate surveillance target.

For a while, it was possible to put these errors down to a different cause—not partisanship but a complete collapse in the Foreign Intelligence Surveillance Act (FISA) fact-gathering process. That comforting line of thinking rested on two findings by Inspector General Michael Horowitz—first that he found no evidence of bias and second that he found pervasive errors in 29 unrelated FISA applications. On closer examination, neither of those findings offers much support to the “FISA is broken” hypothesis.

First, on partisan motivation in Crossfire Hurricane, what the inspector general actually found was that no one at the FBI was foolish enough to say in writing or in testimony that they or others at the FBI were operating with a partisan bias. As the inspector general acknowledged in his Senate testimony, the absence of bias evidence didn’t prove an absence of bias. In fact, the inspector general did find written evidence of bias—in the texts of Peter Strzok, which are full of animus toward Trump. Strzok had great influence over the Crossfire Hurricane investigation, but the inspector general decided that Strzok’s bias didn’t count because Strzok never acted completely alone in the investigation. Really, that’s it. If I’m ever accused of a crime, I want Michael Horowitz on my jury.

Second, the errors he found in 29 other FISA applications evaporated on a closer look. They were, it turns out, almost all failures to properly footnote the FBI’s sources. When the FISA court ordered a review of all 29, the Justice Department found only two material errors, and neither of them cast doubt on the issuance of the wiretap order. That contrasts starkly with the Carter Page application, where the department has admitted that the errors were so serious that at least two and perhaps all four FISA orders should never have been issued.

In short, the only FISA application that targeted a partisan opponent of the administration was corrupted by numerous material omissions and errors and at least one false statement, one of the most influential investigators was a voluble Trump hater, and others may have harbored a bias against Trump that they were too prudent to articulate. Since the FISA process in general now seems to be careful and accurate, if not perfect, the deviation from norm in the case of Carter Page strongly supports the view that anti-Trump bias was at work.

A Conveyor Belt from Press Reports to Surveillance

Actually, there’s more. The inspector general passed over in silence the remarkable reliance of the Page application on media reporting. Fully a third of the core FISA case against Page consists of summaries of news stories. By itself, relying on media reports was a likely source of bias against anyone associated with Trump. (If you want to argue about that, all I can say is that I want you on my jury too.) But we don’t have to argue about media bias in the abstract. It can be found in the Page application itself, which relies on a Washington Post opinion piece, without disclosing to the court either the source or the fact that it isn’t, strictly speaking, a news report at all. Almost as bad, the opinion piece claims that the Trump campaign diluted the GOP platform on Ukraine in ways that favored Russia. (In fact, the campaign accepted a mildly diluted version of an amendment offered by a Ted Cruz delegate, which is a lot more accommodation than delegates for defeated candidates usually get at conventions.) The claim has been investigated extensively, including by Robert Mueller and the Senate Intelligence Committee, without finding any wrongdoing. The nicest thing you can say about the article in retrospect is that it was slanted to take the worst view of the Trump operation. An equally fair summary would be that the story became part of an FBI conveyor belt for turning media bias into a wiretap order. If that doesn’t worry you, imagine today’s Justice Department obtaining a FISA order against Biden campaign advisers by relying on an article from Breitbart, and simply telling the court, as the Page application does, that the information comes from “an identified news source.”

Targeting Michael Flynn

That’s not the worst of it. Viewed from the standpoint of partisan abuse, the Michael Flynn story is especially troubling. He had been investigated and cleared by the FBI on Jan. 3, 2017. But two days later, on Jan. 5, the White House obtained a wiretap of Flynn talking to Russian Ambassador Sergey Kislyak about Russia’s response to the Obama administration’s recent sanctions. The wiretap of Flynn’s remarks was legal, because the “target” of the tap was Kislyak not Flynn. But the legality of the collection does not fully resolve what you might call an analytical reverse-targeting after the fact. That’s because the White House was only really interested in Flynn’s side of the call.

After an Oval Office meeting about Flynn’s remarks, Obama administration officials began a concerted campaign to use those remarks against him. Within three weeks, he’d face leaks accusing him of violating the criminal Logan Act, he’d be reinvestigated under an implausible counterintelligence theory, and he’d find himself ambushed by the FBI in a perjury-trap interview. He’d also become the first American to have a FISA-tapped conversation leaked to the press by political rivals. Within four weeks, he’d be gone from government, disgraced and facing criminal prosecution.

By any measure, this was a political use of a FISA wiretap that targeted an American. It may have been a lawful political use of a FISA tap, but that’s not something people should be comfortable with. The Obama administration, however, had gotten comfortable with it a few years earlier. When Israel was fighting Obama’s Iran nuclear deal in Washington, it worked closely with Hill Republicans. The U.S. apparently tapped the Israelis, again legally, since they were foreign government officials. And the taps may have offered some national security insights; any time a government, however friendly, lobbies Congress against the American president, we ought to know what it’s up to. But the foreign intelligence value of understanding what the Israelis were saying paled next to the political value of getting real-time intelligence on the GOP’s Hill strategy for stopping the Iran deal. The unfortunate lesson the Obama administration learned in that battle was that the president can use FISA taps against his political enemies as long as he checks the right legal boxes. If it worked against the congressional Republicans, why wouldn’t it work against Team Trump?

But turning FISA into just another partisan weapon means it’s going to be used like one. If it hurts the other side, it’s going to be leaked. Which is what happened with Flynn’s conversation. The leak was unprecedented in national security circles, but in Washington politics, it was just another Thursday. More than 40 years had elapsed before the first FISA tap of an American was leaked to the press. I doubt it’ll be that long before the second.

The Need for Reform

To be clear, apart from the Flynn leak, none of this was plainly illegal, and no one should want the government to ignore indications that a prominent political figure is working with a hostile government. But the Republicans who were on the receiving end of these intelligence operations have every reason to doubt the good faith of the administration that carried them out. And that in itself will prove fatal to the bipartisan support the intelligence community needs as it responds to foreign influence operations. What’s needed are reforms that will prevent future administrations from using the intelligence community against the opposition in this way.

Unfortunately, most of the reform proposals are warmed-up leftovers beloved of individual rights advocates—more paperwork and audits and amici curiae for all FISA applications, not just the ones that pose partisan risk. Others could make things worse, such as the measures to require that the attorney general be briefed on FISA taps with partisan risk. Is there anyone on the GOP side who would be relieved to hear that the Flynn matter was overseen by Sally Yates, who chose partisanship over Justice Department tradition in refusing to defend the new administration’s immigration policy in court? Is there anyone on Team Biden who’ll be comforted to hear that William Barr will decide whether to investigate the former vice president for ties to Ukraine or China? It’s fine for the case to get high-level review; top officials often have better instincts than those in the ranks. But it’s not enough. We need to create a career position for a nonpartisan FBI agent or lawyer to challenge the FISA application and every other stage of the investigation. (The attorney general’s supplemental reforms memo of Aug. 31, 2020, takes a good step in this direction by requiring that politically sensitive surveillance and search applications be reviewed by a special agent from a field office not involved in the investigation.) The career official should also take the lead in reporting on the investigation to majority and minority congressional leadership, not after the fact but as it proceeds.

And when an operation has both political and national security value, the intelligence it produces needs special and far more limited handling, especially when it goes to political appointees. Every one of them should be required to sign a receipt explaining why he or she needs to read it, and the intelligence community should routinely include tags on some reports that will disclose which one was leaked.

Other measures are simple. The FBI should offer media reports to the FISA court only rarely, and it should disclose their source and any credible claims of bias that have been leveled against the news outlet. Anyone who pays a third party—directly or indirectly—to try to influence the FBI or other national security agency should disclose that fact, just as lobbyists trying to influence Congress or political appointees must.

There’s plenty of room to argue about which safeguards will best limit the partisan misuse of the United States’s security machinery. I hope that this piece—and my longer testimony to the Privacy and Civil Liberties Oversight Board—are at least sufficient to establish that, without new safeguards, the United States will slowly lose its ability to respond as it must to foreign influence operations.

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NCLA Challenges CDC’s Eviction Moratorium

Last week, Ilya Somin and I blogged about the Trump Administration’s new eviction moratorium. The New Civil Liberties Alliance has challenged the policy, and sought a temporary restraining order in the Northern District of Georgia. The Plaintiff is from Virginia, but the CDC is based in Atlanta.

From the introduction:

Mr. Brown upheld his end of the bargain. He provided a habitable home to his tenant and continues to pay for maintenance, utilities and other expenses. When Mr. Brown’s tenant breached her agreement, he should have been able to follow the lawful process laid down by the Virginia General Assembly for retaking possession of his home.

Mr. Brown failed to anticipate, however that the U.S. Centers for Disease Control, a federal agency, would issue a sweeping unilateral order suspending state law under the flimsy premise that doing so was “necessary” to control the COVID- 19 pandemic. CDC’s actions are not authorized by statute or regulation. But even if they were, they are unprecedented in our history and are an affront to core constitutional limits on federal power. If allowed, the order would abrogate the right to access the courts, violate limits on the Supremacy Clause, implicate the nondelegation doctrine, and traduce anti-commandeering principles. CDC’s effort to seize control of state law on such an insupportable basis must be rejected.

This case presents a kitchen sink of constitutional claims. Count I alleges a violation of the APA. Count II alleges a violation of the right to access courts. Count III alleges a violation of the Supremacy Clause–the moratorium is not a law. Count IV raise a Contracts Clause claim. Count IV raises commandeering arguments with respect to the state courts. (The brief argues that the CDC cannot “Strip state courts of jurisdiction to process eviction cases”; I wrote about this issue here.) Count VI raises the non-delegation doctrine. Count VII argues that the order suspends state law (this argument is connected to the Suspension Clause).

It’s got everything.

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Partisan Taint in the Trump-Russia Investigation

It’s been four years since the FBI began its national security investigation of the Trump campaign, and Americans remain deeply divided over the probe. Democrats think the investigation was more than warranted by the number of suspicious contacts between Team Trump and the Russian government. Republicans think the investigation was a partisan hit job on an anti-establishment candidate.

They’re both right.

It would have been national security malpractice not to investigate possible Russian influence over the Trump campaign. Hostile foreign governments will always be tempted to use the openness of American presidential contests to boost their favored candidates or sabotage others. More such investigations will be needed in the future. After spending four years advertising the success of Russia’s interference campaign, the U.S. should not be surprised if other countries get the message and launch their own. Given the risks, national security agencies can’t be gun-shy about probing foreign government efforts to infiltrate the U.S. political system.

At the same time, there is a lot more evidence than many people realize that the 2016 investigation was pervasively tainted by hostility to Donald Trump. In part, that comes with the territory. Any time government officials order national security surveillance of people who want to kick them out of office, they will be suspected of partisan motives. Put charitably, the Obama administration bungled this dimension; it failed to recognize just how partisan its investigation of a political rival would look, and it did far too little to avoid the appearance of partisanship. Less charitably, there is reason to believe that the Obama administration milked the investigation for partisan advantage.

That less charitable view deserves respect. First because it’s backed by considerable evidence. And second because it’s unpersuasive to tell half the country that their suspicions are mere conspiracy theories that they should just get over. The U.S. needs a national security system that the whole country has confidence in.

Especially now. The United States has spent nearly 50 years guarding against one kind of intelligence abuse—the government turning its intelligence machinery against individual rights and unpopular minorities. It hasn’t had to worry much about a different kind of abuse—employing national security surveillance to achieve partisan political ends.

It’s not that it can’t happen here, as anyone would know who studied J. Edgar Hoover’s collection of dirt on politicians—or his willingness to share that dirt with presidents when they felt the need. The United States has been lucky in recent decades. Divided government and a narrow range of political differences discouraged incumbents from using intelligence capabilities against the opposition.

Now, not so much. If it sees members of the other party not just as wrong but as borderline treasonous, why wouldn’t the party in power use national security authorities against them? As that temptation grows, institutional reforms are needed to keep officials from yielding to it and, just as important, to show skeptics that the reforms actually worked.

The Obama administration clearly flunked the second requirement. They quite possibly flunked the first one too. Here are the most salient facts in support of that view—a much more detailed accounting of which is available, complete with footnotes, in my forthcoming testimony to the Privacy and Civil Liberties Oversight Board.

The DNC and the Steele “Dossier”

A major part of the Crossfire Hurricane investigation and the public disclosures it produced was the “dossier” created by Christopher Steele. We all now know that it was a salacious and unverifiable hit job assembled not by a network of intelligence sources but by a mix of Steele’s friends, their drinking buddies, and probably a few disinformation specialists from GRU (Russia’s military intelligence agency). Worse, Steele assembled that hit piece as a subcontractor to the Democratic National Committee, and judging by his conduct, he thought his role was to lobby the FBI to use its formidable national security powers against the Republican campaign—and to leak both the investigation and the now “FBI-validated” dossier in hopes of ruining Trump’s candidacy.

There are reasons to suspect that, despite its denials, the DNC intended that outcome: It hid its ties to Steele behind multiple cutouts and a dubious claim of attorney-client privilege, then falsely denied its connection to Steele for months after the story broke. In the end, Steele’s work didn’t pay off for Democrats until after the election. But during the transition it stoked the Russia collusion narrative that put a cloud of illegitimacy over the first two years of the Trump administration. That is a remarkable, if unseemly, achievement for a partisan hit job. Other political actors will learn the lesson and can be expected to use cutouts in the future to lobby the national security agencies against their domestic enemies.

Partisan Bias and the Carter Page FISA Application

The one really detailed examination of how the Crossfire Hurricane investigators treated the evidence against the Trump campaign is the inspector general’s dissection of the Carter Page wiretap application. That story does not exactly rebut the suspicion that partisanship tainted the probe. The application was full of errors and omissions, and all of them cut against Page and the Trump administration. Almost no one in the Justice Department or FBI stopped to ask if it was wise to pursue a surveillance order against a prominent member of the opposing party without taking a hard look at the evidence. As a result, the investigators left out—or even lied about—a raft of information that would have raised doubts about whether Page was a legitimate surveillance target.

For a while, it was possible to put these errors down to a different cause—not partisanship but a complete collapse in the Foreign Intelligence Surveillance Act (FISA) fact-gathering process. That comforting line of thinking rested on two findings by Inspector General Michael Horowitz—first that he found no evidence of bias and second that he found pervasive errors in 29 unrelated FISA applications. On closer examination, neither of those findings offers much support to the “FISA is broken” hypothesis.

First, on partisan motivation in Crossfire Hurricane, what the inspector general actually found was that no one at the FBI was foolish enough to say in writing or in testimony that they or others at the FBI were operating with a partisan bias. As the inspector general acknowledged in his Senate testimony, the absence of bias evidence didn’t prove an absence of bias. In fact, the inspector general did find written evidence of bias—in the texts of Peter Strzok, which are full of animus toward Trump. Strzok had great influence over the Crossfire Hurricane investigation, but the inspector general decided that Strzok’s bias didn’t count because Strzok never acted completely alone in the investigation. Really, that’s it. If I’m ever accused of a crime, I want Michael Horowitz on my jury.

Second, the errors he found in 29 other FISA applications evaporated on a closer look. They were, it turns out, almost all failures to properly footnote the FBI’s sources. When the FISA court ordered a review of all 29, the Justice Department found only two material errors, and neither of them cast doubt on the issuance of the wiretap order. That contrasts starkly with the Carter Page application, where the department has admitted that the errors were so serious that at least two and perhaps all four FISA orders should never have been issued.

In short, the only FISA application that targeted a partisan opponent of the administration was corrupted by numerous material omissions and errors and at least one false statement, one of the most influential investigators was a voluble Trump hater, and others may have harbored a bias against Trump that they were too prudent to articulate. Since the FISA process in general now seems to be careful and accurate, if not perfect, the deviation from norm in the case of Carter Page strongly supports the view that anti-Trump bias was at work.

A Conveyor Belt from Press Reports to Surveillance

Actually, there’s more. The inspector general passed over in silence the remarkable reliance of the Page application on media reporting. Fully a third of the core FISA case against Page consists of summaries of news stories. By itself, relying on media reports was a likely source of bias against anyone associated with Trump. (If you want to argue about that, all I can say is that I want you on my jury too.) But we don’t have to argue about media bias in the abstract. It can be found in the Page application itself, which relies on a Washington Post opinion piece, without disclosing to the court either the source or the fact that it isn’t, strictly speaking, a news report at all. Almost as bad, the opinion piece claims that the Trump campaign diluted the GOP platform on Ukraine in ways that favored Russia. (In fact, the campaign accepted a mildly diluted version of an amendment offered by a Ted Cruz delegate, which is a lot more accommodation than delegates for defeated candidates usually get at conventions.) The claim has been investigated extensively, including by Robert Mueller and the Senate Intelligence Committee, without finding any wrongdoing. The nicest thing you can say about the article in retrospect is that it was slanted to take the worst view of the Trump operation. An equally fair summary would be that the story became part of an FBI conveyor belt for turning media bias into a wiretap order. If that doesn’t worry you, imagine today’s Justice Department obtaining a FISA order against Biden campaign advisers by relying on an article from Breitbart, and simply telling the court, as the Page application does, that the information comes from “an identified news source.”

Targeting Michael Flynn

That’s not the worst of it. Viewed from the standpoint of partisan abuse, the Michael Flynn story is especially troubling. He had been investigated and cleared by the FBI on Jan. 3, 2017. But two days later, on Jan. 5, the White House obtained a wiretap of Flynn talking to Russian Ambassador Sergey Kislyak about Russia’s response to the Obama administration’s recent sanctions. The wiretap of Flynn’s remarks was legal, because the “target” of the tap was Kislyak not Flynn. But the legality of the collection does not fully resolve what you might call an analytical reverse-targeting after the fact. That’s because the White House was only really interested in Flynn’s side of the call.

After an Oval Office meeting about Flynn’s remarks, Obama administration officials began a concerted campaign to use those remarks against him. Within three weeks, he’d face leaks accusing him of violating the criminal Logan Act, he’d be reinvestigated under an implausible counterintelligence theory, and he’d find himself ambushed by the FBI in a perjury-trap interview. He’d also become the first American to have a FISA-tapped conversation leaked to the press by political rivals. Within four weeks, he’d be gone from government, disgraced and facing criminal prosecution.

By any measure, this was a political use of a FISA wiretap that targeted an American. It may have been a lawful political use of a FISA tap, but that’s not something people should be comfortable with. The Obama administration, however, had gotten comfortable with it a few years earlier. When Israel was fighting Obama’s Iran nuclear deal in Washington, it worked closely with Hill Republicans. The U.S. apparently tapped the Israelis, again legally, since they were foreign government officials. And the taps may have offered some national security insights; any time a government, however friendly, lobbies Congress against the American president, we ought to know what it’s up to. But the foreign intelligence value of understanding what the Israelis were saying paled next to the political value of getting real-time intelligence on the GOP’s Hill strategy for stopping the Iran deal. The unfortunate lesson the Obama administration learned in that battle was that the president can use FISA taps against his political enemies as long as he checks the right legal boxes. If it worked against the congressional Republicans, why wouldn’t it work against Team Trump?

But turning FISA into just another partisan weapon means it’s going to be used like one. If it hurts the other side, it’s going to be leaked. Which is what happened with Flynn’s conversation. The leak was unprecedented in national security circles, but in Washington politics, it was just another Thursday. More than 40 years had elapsed before the first FISA tap of an American was leaked to the press. I doubt it’ll be that long before the second.

The Need for Reform

To be clear, apart from the Flynn leak, none of this was plainly illegal, and no one should want the government to ignore indications that a prominent political figure is working with a hostile government. But the Republicans who were on the receiving end of these intelligence operations have every reason to doubt the good faith of the administration that carried them out. And that in itself will prove fatal to the bipartisan support the intelligence community needs as it responds to foreign influence operations. What’s needed are reforms that will prevent future administrations from using the intelligence community against the opposition in this way.

Unfortunately, most of the reform proposals are warmed-up leftovers beloved of individual rights advocates—more paperwork and audits and amici curiae for all FISA applications, not just the ones that pose partisan risk. Others could make things worse, such as the measures to require that the attorney general be briefed on FISA taps with partisan risk. Is there anyone on the GOP side who would be relieved to hear that the Flynn matter was overseen by Sally Yates, who chose partisanship over Justice Department tradition in refusing to defend the new administration’s immigration policy in court? Is there anyone on Team Biden who’ll be comforted to hear that William Barr will decide whether to investigate the former vice president for ties to Ukraine or China? It’s fine for the case to get high-level review; top officials often have better instincts than those in the ranks. But it’s not enough. We need to create a career position for a nonpartisan FBI agent or lawyer to challenge the FISA application and every other stage of the investigation. (The attorney general’s supplemental reforms memo of Aug. 31, 2020, takes a good step in this direction by requiring that politically sensitive surveillance and search applications be reviewed by a special agent from a field office not involved in the investigation.) The career official should also take the lead in reporting on the investigation to majority and minority congressional leadership, not after the fact but as it proceeds.

And when an operation has both political and national security value, the intelligence it produces needs special and far more limited handling, especially when it goes to political appointees. Every one of them should be required to sign a receipt explaining why he or she needs to read it, and the intelligence community should routinely include tags on some reports that will disclose which one was leaked.

Other measures are simple. The FBI should offer media reports to the FISA court only rarely, and it should disclose their source and any credible claims of bias that have been leveled against the news outlet. Anyone who pays a third party—directly or indirectly—to try to influence the FBI or other national security agency should disclose that fact, just as lobbyists trying to influence Congress or political appointees must.

There’s plenty of room to argue about which safeguards will best limit the partisan misuse of the United States’s security machinery. I hope that this piece—and my longer testimony to the Privacy and Civil Liberties Oversight Board—are at least sufficient to establish that, without new safeguards, the United States will slowly lose its ability to respond as it must to foreign influence operations.

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Trump’s Struggle To Win the Gary Johnson Vote

RandTrump2

President Donald Trump has been making some libertarian noises lately, and also some noises about libertarians. In the latter category, POTUS declared himself in an interview last week to be “somewhat libertarian,” and a likely recipient of ex-Libertarian votes.

“Jill Stein took, what? Half a percent?” Trumped mused innumerately to Fox News Channel’s Laura Ingraham. “Well, I have a Libertarian—I’m somewhat libertarian; I have to be honest with you; Rand Paul will tell you that—I have a Libertarian candidate on last time that got, what? Four and a half or so percent? Those are all Republican voters. They’re wasting their vote, because—they have to vote for us.”

Well, no, but that doesn’t mean we can’t talk about some of Trump’s most libertarian noises, such as calling out military brass and their enablers for backing “endless wars.” On today’s Reason Roundtable podcast, Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward discuss the president’s actual record on policies dear to libertarian hearts; critique Joe Biden on same, and also spend time on school reopening, teachers unions, Christopher Nolan’s filmography, and the true meaning of Labor Day.

Audio production by Ian Keyser and Regan Taylor.

Music: “Noisey” by ELPHNT.

Relevant links from the show:

“Bridget Phetasy is Politically Homeless. You Probably Are Too.” By Nick Gillespie

“Will-to-Power Conservatism and the Great Liberalism Schism,” by Stephanie Slade

“You Have Libertarian Alternatives to Biden and Trump This November,” by John Stossel

“This Labor Day, Police and Teachers Unions Are Making a Bad Year Worse,” by J.D. Tuccille

“Teachers Unions Push Families Out of Public Schools,” by J.D. Tuccille

“Hispanic Parents Want More Choices for School,” by Daniel Raisbeck

“California’s Job-Killing A.B. 5 Scaled Back, but Only for Some Professions,” by Scott Shackford

“California Police Unions Once Again Side With Bad Cops To Kill a Good Bill,” by Scott Shackford

“School Calls Cops on 12-Year-Old Boy Who Held Toy Gun During Zoom Class,” by Robby Soave

“Be Skeptical of Stories About TikTok ‘Benadryl Challenge’ Overdoses,” by Scott Shackford

“Disney Thanks Chinese Labor Camp Authorities in Mulan Credits,” by Elizabeth Nolan Brown

“Time May Not Exist Anymore, but Tenet Does, and It’s in Theaters Now,” by Peter Suderman

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Trump’s Struggle To Win the Gary Johnson Vote

RandTrump2

President Donald Trump has been making some libertarian noises lately, and also some noises about libertarians. In the latter category, POTUS declared himself in an interview last week to be “somewhat libertarian,” and a likely recipient of ex-Libertarian votes.

“Jill Stein took, what? Half a percent?” Trumped mused innumerately to Fox News Channel’s Laura Ingraham. “Well, I have a Libertarian—I’m somewhat libertarian; I have to be honest with you; Rand Paul will tell you that—I have a Libertarian candidate on last time that got, what? Four and a half or so percent? Those are all Republican voters. They’re wasting their vote, because—they have to vote for us.”

Well, no, but that doesn’t mean we can’t talk about some of Trump’s most libertarian noises, such as calling out military brass and their enablers for backing “endless wars.” On today’s Reason Roundtable podcast, Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward discuss the president’s actual record on policies dear to libertarian hearts; critique Joe Biden on same, and also spend time on school reopening, teachers unions, Christopher Nolan’s filmography, and the true meaning of Labor Day.

Audio production by Ian Keyser and Regan Taylor.

Music: “Noisey” by ELPHNT.

Relevant links from the show:

“Bridget Phetasy is Politically Homeless. You Probably Are Too.” By Nick Gillespie

“Will-to-Power Conservatism and the Great Liberalism Schism,” by Stephanie Slade

“You Have Libertarian Alternatives to Biden and Trump This November,” by John Stossel

“This Labor Day, Police and Teachers Unions Are Making a Bad Year Worse,” by J.D. Tuccille

“Teachers Unions Push Families Out of Public Schools,” by J.D. Tuccille

“Hispanic Parents Want More Choices for School,” by Daniel Raisbeck

“California’s Job-Killing A.B. 5 Scaled Back, but Only for Some Professions,” by Scott Shackford

“California Police Unions Once Again Side With Bad Cops To Kill a Good Bill,” by Scott Shackford

“School Calls Cops on 12-Year-Old Boy Who Held Toy Gun During Zoom Class,” by Robby Soave

“Be Skeptical of Stories About TikTok ‘Benadryl Challenge’ Overdoses,” by Scott Shackford

“Disney Thanks Chinese Labor Camp Authorities in Mulan Credits,” by Elizabeth Nolan Brown

“Time May Not Exist Anymore, but Tenet Does, and It’s in Theaters Now,” by Peter Suderman

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Seattle and Washington State Are Being Sued Over Their Eviction Moratoriums

reason-apartment6

The Trump administration’s eviction moratorium goes into effect Friday, criminalizing rental property owners across the country from evicting tenants for the non-payment of rent. At the same time, legal controversies about similar state and local policies continue to flare up.

Last week, several landlords in Seattle, Washington filed suit against their city and state governments for imposing eviction bans, which the plaintiffs argue are an unconstitutional violation of their property rights.

Washington Gov. Jay Inslee (D) issued one of the country’s first, and most comprehensive, eviction moratoriums in late February in response to the early outbreak of coronavirus in that state, banning landlords from filing for eviction unless a tenant is creating a significant health and safety risk, or if the owner is planning on selling or moving into the property. That moratorium was extended in July and is currently set to expire in mid-October.

Seattle Mayor Jenny Durkan issued her own eviction moratorium in March, which sunsets either at the end of the year or when the mayor calls an end to the city’s state of emergency.

This was followed by the Seattle City Council passing an ordinance that prevents evictions within six months of Durkan’s moratorium expiring. The council also passed an ordinance giving tenants a set amount of time to pay back rent that they owe. Like the state moratorium, Seattle’s eviction ban prevents all evictions save for cases where a tenant poses an imminent health or safety risk to other tenants.

The plaintiffs in last week’s lawsuit include two small rental property companies and one individual landlord.

One plaintiff, El Papel, LLC, alleges that two of its two tenants have refused to pay rent since April and that one of them has tried to get other renters in the building to engage in a rent strike. Another plaintiff, Karvell Li, has a tenant that has not paid rent consistently since June of last year, and who has refused to negotiate payment plans with Li.

A third plaintiff, Berman 2, LLC, owned by Osho Berman, has historically provided housing to lower-income and formerly homeless renters at below-market rates, according to the complaint. Berman has six tenants who are not paying rent and who have refused to negotiate any sort of payment plan.

“The blanket eviction ban puts landlords at the mercy of tenants who do not to pay rent, whether they face financial hardship or not,” reads the lawsuit, which has been filed by the Pacific Legal Foundation. “The eviction bans have upended lease obligations and stripped landlords of one of their most basic of property rights—the right of possession—leaving them with no bargaining power and no remedy against non-paying tenants.”

The lawsuit makes two constitutional claims against the state and city eviction bans, says Ethan Blevins, an attorney with the Pacific Legal Foundation. The first is that these policies violate the U.S. Constitution’s prohibition on states passing laws “impairing the obligation of contracts.”

“Eviction is the primary enforcement mechanism” for rental contracts, says Blevins. “When you remove the enforcement mechanism for a violation of the contract, as is the case here, you’ve impaired the contract.”

Preventing landlords from repossessing their property from non-paying tenants, argues Blevins, also amounts to a taking of property without just compensation in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution.

“When the government forces you to allow that person to continue to reside there and you can’t repossess it, that’s taking a valuable property right,” says Blevins.

In comments to The Seattle Times, spokespeople for both Durkan and Inslee defended their respective eviction moratoriums as legal emergency measures to prevent the pandemic from spawning an eviction and homelessness crisis.

So far during the pandemic, the number of people paying at least part of their rent has stayed pretty steady at around 90 percent at higher-end properties, which is only slightly less than where payment rates were last year. The percentage of people paying rent at is worse at lower-end buildings.

The lack of a huge surge in non-payment weakens the legal case against eviction moratoriums, Edmund Witter, managing attorney for the Housing Justice Project at the King County Bar Association in Washington, told The Seattle Times.

“Delinquency rates have not been horrible,” he said to the Times. “The reality is I don’t think [landlords] have too much to complain about right now.”

Blevins counters that there’s been no surge in evictions in places where moratoriums have expired. Data from Princeton University’s Eviction Lab shows eviction filings are below historic averages in almost every city.

In late June, a U.S. District Court in New York upheld that state’s eviction moratorium in the face of a legal challenge from landlords, ruling that the emergency created by the COVID-19 pandemic justified the moratorium and that limitations on when property owners could file for eviction don’t count as a taking.

The Pacific Legal Foundation had sued the California Judicial Council—the rule-making body for that state’s court system—over the council’s eviction moratorium on separation-of-powers grounds in June. The Judicial Council announced in mid-August that they’d let their ban to expire. The California legislature has since passed a statewide extension of that moratorium.

The fact that Seattle’s eviction moratorium expires six months after the emergency, and that both Washington and Seattle’s eviction moratoriums protect tenants who haven’t suffered pandemic-related financial hardship, makes them more vulnerable to lawsuits.

“It’s extending beyond what’s necessary to deal with the public health crisis or to deal with the economic fallout from the pandemic,” Blevins says. “If a law isn’t reasonably related or proportional to an emergency, then I think it’s more susceptible to legal challenge.”

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Seattle and Washington State Are Being Sued Over Their Eviction Moratoriums

reason-apartment6

The Trump administration’s eviction moratorium goes into effect Friday, criminalizing rental property owners across the country from evicting tenants for the non-payment of rent. At the same time, legal controversies about similar state and local policies continue to flare up.

Last week, several landlords in Seattle, Washington filed suit against their city and state governments for imposing eviction bans, which the plaintiffs argue are an unconstitutional violation of their property rights.

Washington Gov. Jay Inslee (D) issued one of the country’s first, and most comprehensive, eviction moratoriums in late February in response to the early outbreak of coronavirus in that state, banning landlords from filing for eviction unless a tenant is creating a significant health and safety risk, or if the owner is planning on selling or moving into the property. That moratorium was extended in July and is currently set to expire in mid-October.

Seattle Mayor Jenny Durkan issued her own eviction moratorium in March, which sunsets either at the end of the year or when the mayor calls an end to the city’s state of emergency.

This was followed by the Seattle City Council passing an ordinance that prevents evictions within six months of Durkan’s moratorium expiring. The council also passed an ordinance giving tenants a set amount of time to pay back rent that they owe. Like the state moratorium, Seattle’s eviction ban prevents all evictions save for cases where a tenant poses an imminent health or safety risk to other tenants.

The plaintiffs in last week’s lawsuit include two small rental property companies and one individual landlord.

One plaintiff, El Papel, LLC, alleges that two of its two tenants have refused to pay rent since April and that one of them has tried to get other renters in the building to engage in a rent strike. Another plaintiff, Karvell Li, has a tenant that has not paid rent consistently since June of last year, and who has refused to negotiate payment plans with Li.

A third plaintiff, Berman 2, LLC, owned by Osho Berman, has historically provided housing to lower-income and formerly homeless renters at below-market rates, according to the complaint. Berman has six tenants who are not paying rent and who have refused to negotiate any sort of payment plan.

“The blanket eviction ban puts landlords at the mercy of tenants who do not to pay rent, whether they face financial hardship or not,” reads the lawsuit, which has been filed by the Pacific Legal Foundation. “The eviction bans have upended lease obligations and stripped landlords of one of their most basic of property rights—the right of possession—leaving them with no bargaining power and no remedy against non-paying tenants.”

The lawsuit makes two constitutional claims against the state and city eviction bans, says Ethan Blevins, an attorney with the Pacific Legal Foundation. The first is that these policies violate the U.S. Constitution’s prohibition on states passing laws “impairing the obligation of contracts.”

“Eviction is the primary enforcement mechanism” for rental contracts, says Blevins. “When you remove the enforcement mechanism for a violation of the contract, as is the case here, you’ve impaired the contract.”

Preventing landlords from repossessing their property from non-paying tenants, argues Blevins, also amounts to a taking of property without just compensation in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution.

“When the government forces you to allow that person to continue to reside there and you can’t repossess it, that’s taking a valuable property right,” says Blevins.

In comments to The Seattle Times, spokespeople for both Durkan and Inslee defended their respective eviction moratoriums as legal emergency measures to prevent the pandemic from spawning an eviction and homelessness crisis.

So far during the pandemic, the number of people paying at least part of their rent has stayed pretty steady at around 90 percent at higher-end properties, which is only slightly less than where payment rates were last year. The percentage of people paying rent at is worse at lower-end buildings.

The lack of a huge surge in non-payment weakens the legal case against eviction moratoriums, Edmund Witter, managing attorney for the Housing Justice Project at the King County Bar Association in Washington, told The Seattle Times.

“Delinquency rates have not been horrible,” he said to the Times. “The reality is I don’t think [landlords] have too much to complain about right now.”

Blevins counters that there’s been no surge in evictions in places where moratoriums have expired. Data from Princeton University’s Eviction Lab shows eviction filings are below historic averages in almost every city.

In late June, a U.S. District Court in New York upheld that state’s eviction moratorium in the face of a legal challenge from landlords, ruling that the emergency created by the COVID-19 pandemic justified the moratorium and that limitations on when property owners could file for eviction don’t count as a taking.

The Pacific Legal Foundation had sued the California Judicial Council—the rule-making body for that state’s court system—over the council’s eviction moratorium on separation-of-powers grounds in June. The Judicial Council announced in mid-August that they’d let their ban to expire. The California legislature has since passed a statewide extension of that moratorium.

The fact that Seattle’s eviction moratorium expires six months after the emergency, and that both Washington and Seattle’s eviction moratoriums protect tenants who haven’t suffered pandemic-related financial hardship, makes them more vulnerable to lawsuits.

“It’s extending beyond what’s necessary to deal with the public health crisis or to deal with the economic fallout from the pandemic,” Blevins says. “If a law isn’t reasonably related or proportional to an emergency, then I think it’s more susceptible to legal challenge.”

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More Ideas that Can Help Repair and Extend the Rule of Law

Rule of Law 2

Like co-blogger Jonathan Adler, I was greatly impressed by Paul Rosenzweig and Vishnu Kannan’s recent article on “Repairing the Rule of Law: A Post-Trump Agenda.”I agree with nearly all of their proposals, with the possible exception of DC statehood. On the latter, I don’t have strong views either way, though I agree with Jonathan’s comment that it doesn’t really qualify as a rule of law issue. Jonathan is also right to emphasize that these reforms (and those Jonathan himself adds to the list) are worth pursuing regardless of who wins the November election. Most of them address issues that are not unique to Trump, even if his tenure in office has highlighted their importance.

I would add two other items to those proposed by Rosenzweig, Kannan, and Adler. Both are also issues that predate Trump and are likely to outlast him, even though his abuses of power have highlighted their importance:

  1. Eliminate virtually limitless delegations of power to the executive over trade and immigration—and possibly other areas.

As currently interpreted by the Supreme Court, the law gives the president the authority to impose almost any immigration or trade restrictions he wishes, for virtually any reason. That is both bad policy and deeply inimical to the rule of law. I discussed these issues in  greater detail with respect to immigration here, here, and here, and trade here.

Most recently, a similar problem has emerged from the Trump administration’s claim that the Center for Disease Control has virtually limitless authority to enact any regulation that might in some way reduce the spread of contagious disease (which effectively means the power to suppress or restrict almost any activity of any kind).

As discussed in various pieces linked above, this can be accomplished by stronger judicial enforcement of the nondelegation doctrine. But it can also be achieved by Congress passing laws paring back or eliminating the relevant statutes. I suspect we will ultimately need some combination of both. If claims of limitless

2. Subject immigration restrictions to the same constitutional constraints as those that apply to other federal laws.

As described in greater detail in my October 2019 Atlantic article on this subject, current Supreme Court precedent largely exempts immigration restrictions from most of the constitutional constraints that apply to virtually all exercises of federal power. This enables the President and Congress to engage in otherwise unconstitutional discrimination on the basis of religion, ethnicity, and political speech, and to exempt immigration detention and deportation from due process constraints that regulate other serious deprivations of liberty. The effect of this double standard is both a menace to the rule of law that lacks any basis in the text or original meaning of the Constitution, and a whole host of injustices (including many that impact US citizens as well as potential immigrants).

Eliminating this double standard, would not result in the end of all immigration restrictions. Far from it, in fact. But it would eliminate the use of unconstitutional discrimination, and subject enforcement measures to the same types of due process constraints that we take for granted in other areas of law.

As with nondelegation, the elimination of constitutional double standards on immigration law can be accomplished by some combination of court decisions reversing or limiting the relevant precedents, and congressional action. The No Ban Act proposed by congressional Democrats would be a great start on the latter front. It would impose important new constraints on both discrimination and delegation in the immigration context.

Much more can be said both on these two topics and on the more general issue of strengthening the rule of law. I am grateful to Paul Rosenzweig, Vishnu Kannan, and Jonathan Adler for jump-starting this much-needed discussion, which I hope will continue over the next few months and beyond.

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More Ideas that Can Help Repair and Extend the Rule of Law

Rule of Law 2

Like co-blogger Jonathan Adler, I was greatly impressed by Paul Rosenzweig and Vishnu Kannan’s recent article on “Repairing the Rule of Law: A Post-Trump Agenda.”I agree with nearly all of their proposals, with the possible exception of DC statehood. On the latter, I don’t have strong views either way, though I agree with Jonathan’s comment that it doesn’t really qualify as a rule of law issue. Jonathan is also right to emphasize that these reforms (and those Jonathan himself adds to the list) are worth pursuing regardless of who wins the November election. Most of them address issues that are not unique to Trump, even if his tenure in office has highlighted their importance.

I would add two other items to those proposed by Rosenzweig, Kannan, and Adler. Both are also issues that predate Trump and are likely to outlast him, even though his abuses of power have highlighted their importance:

  1. Eliminate virtually limitless delegations of power to the executive over trade and immigration—and possibly other areas.

As currently interpreted by the Supreme Court, the law gives the president the authority to impose almost any immigration or trade restrictions he wishes, for virtually any reason. That is both bad policy and deeply inimical to the rule of law. I discussed these issues in  greater detail with respect to immigration here, here, and here, and trade here.

Most recently, a similar problem has emerged from the Trump administration’s claim that the Center for Disease Control has virtually limitless authority to enact any regulation that might in some way reduce the spread of contagious disease (which effectively means the power to suppress or restrict almost any activity of any kind).

As discussed in various pieces linked above, this can be accomplished by stronger judicial enforcement of the nondelegation doctrine. But it can also be achieved by Congress passing laws paring back or eliminating the relevant statutes. I suspect we will ultimately need some combination of both. If claims of limitless

2. Subject immigration restrictions to the same constitutional constraints as those that apply to other federal laws.

As described in greater detail in my October 2019 Atlantic article on this subject, current Supreme Court precedent largely exempts immigration restrictions from most of the constitutional constraints that apply to virtually all exercises of federal power. This enables the President and Congress to engage in otherwise unconstitutional discrimination on the basis of religion, ethnicity, and political speech, and to exempt immigration detention and deportation from due process constraints that regulate other serious deprivations of liberty. The effect of this double standard is both a menace to the rule of law that lacks any basis in the text or original meaning of the Constitution, and a whole host of injustices (including many that impact US citizens as well as potential immigrants).

Eliminating this double standard, would not result in the end of all immigration restrictions. Far from it, in fact. But it would eliminate the use of unconstitutional discrimination, and subject enforcement measures to the same types of due process constraints that we take for granted in other areas of law.

As with nondelegation, the elimination of constitutional double standards on immigration law can be accomplished by some combination of court decisions reversing or limiting the relevant precedents, and congressional action. The No Ban Act proposed by congressional Democrats would be a great start on the latter front. It would impose important new constraints on both discrimination and delegation in the immigration context.

Much more can be said both on these two topics and on the more general issue of strengthening the rule of law. I am grateful to Paul Rosenzweig, Vishnu Kannan, and Jonathan Adler for jump-starting this much-needed discussion, which I hope will continue over the next few months and beyond.

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“A Forced, Public Confession of Sins … Is a Humiliation … Incompatible with the … Democratic Principles of the Dignity of Man”

U.S. labor law provides that, if the National Labor Relations Board finds that an employer has violated labor law rules, the employer can be required to announce that finding to employees. And in some situations (apparently quite rarely), the NLRB has the power to order that the employer’s president “personally read the NLRB’s remedial notice to an assemblage of the company’s employees.”

In 1983, then-Judge Ginsburg dissented, in a passage that (to my surprise) I hadn’t seen until a few days ago; I thought it would pass it along:

The Board’s order specifies that the Company’s “owner and president, Rizzuto, … shall … read the [NLRB’s notice ordering the employer to cease and desist from unfair labor practices] to current employees assembled for that purpose….” …. Here, the president’s personal involvement was … conspicuous. His voice behind the Board’s order might most authoritatively indicate to employees that Conair will comply with the directive.

Nonetheless, a reading order “directed at a specified individual” is a “startling innovation.” Such an order would occasion no surprise in a system in which those who offend against state regulation must confess and repent as a means of self-correction, or to educate others. But it is foreign to our system to force named individuals to speak prescribed words to attain rehabilitation or to enlighten an assembled audience. The Board, I believe, has not thoughtfully considered this point.

A forced, public “confession of sins,” even by an owner-president who has acted outrageously, is a humiliation this court once termed “incompatible with the democratic principles of the dignity of man.” It has a punitive, vindictive quality, and is the kind of personal performance command equity decrees have avoided. See Restatement (Second) of Contracts § 367 (1979); Lumley v. Gye, 2 El. & Bl. 216, 118 Eng.Rep. 749 (Q.B.1853); cf. Lumley v. Wagner, 1 DeG., M. & G. 604, 42 Eng.Rep. 687 (Ch.1852) (acknowledging lack of authority to grant specific performance of defendant’s concert singing obligations, court issued injunction preventing defendant from breaching covenant not to sing elsewhere).

Moreover, … a reading of the notice by the president may be less effective than a reading by another responsible officer. The former, humiliated and degraded by the personal specific performance order, may demonstrate “by inflections and facial expressions, his disagreement with the terms of the notice.” The latter, assigned the task but lacking the same personal involvement, may perform it with less distaste, more detachment, and thus with greater credibility. I would not single out the president here, or any other named individual, hand him lines, and make him sing.

Judge Ginsburg was in dissent there, and her views did not persuade Judge Wald—or the third panel member, then-Judge Scalia. But my quick research that more recent decisions have largely agreed with her, and provided that any such order must allow either for the notice to be read by some other corporate officer, or, if the company so chooses, by an agent of the NLRB. Consider, for instance, this 2016 D.C. Circuit opinion by Judge Stephen Williams:

For those familiar with 20th century history, such an order conjures up the system of “criticism-self-criticism” devised by Stalin and adopted by Mao. “Criticism” generally took the form of an attack on the target by his or her peers at a meeting with fellow workers, spouting claims fed them by powerful members of the Communist party (on pain of themselves being tagged enemies of the people), and then regurgitated by the target (“self-criticism”) in the hopes that full confession might avert dispatch to the gulag, torture or execution.

What is the subtext communicated by the sort of scene the Board would mandate? What is communicated to the assembled workers and the perpetrator himself? “You see before you one of your managers, who normally has a responsibility to make important choices as to your work. But who is he? Not merely is he a lawbreaker, but he is a pathetic creature who can be forced to spout lines some government officials have put in his mouth. He is not even a parrot, who can choose when to speak; he is a puppet who speaks on command words that he may well abominate. We have successfully turned him into a pathetic semblance of a human being.” Of course, one may say, here it is just that the mighty have fallen; he was a lawbreaker. But fallen so low? Fallen to a condition that denies his autonomy? Cf. United States v. Gementera (9th Cir. 2004) (Hawkins, J., dissenting) (saying that the sole purpose of a sentence requiring a convicted mail thief to stand outside a post office for eight hours wearing a sandwich board stating, “I stole mail. This is my punishment” was “to turn him into a modern day Hester Prynne”)….

Indeed, some judges express reservations about even the NLRB-reading option:

The General Counsel and Union argue that the option for a Board agent to conduct the reading alleviates any First Amendment problems. But like the Fifth Circuit, this option “does not assuage our concerns.” The notice is phrased as if Sysco’s employees are speaking the words (e.g., “We will not threaten you that a strike is inevitable …”). It requires named individuals—Shaeffer and Barnes, if still employed by Sysco—to stand at attention as human demonstratives in the employer’s confession of sins. And it runs headlong into the Supreme Court’s recognition that compelled speech violations extend to situations “where the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (2006).

Now I don’t want to overstate the influence of Ginsburg’s argument here: Of course, the criminal justice, rightly or wrongly, routinely lowers defendants’ sentences if they “accept responsibility” by publicly acknowledging that they were wrong. That’s not strictly speaking a court-ordered “confession of sins,” but it’s very nearly that (since a defendant who declines to confess his sins that way will likely be given a materially longer sentence than one who does).

Also, as the citation to the Gementera dissent shows, some courts (such as the Gementera majority) allow even court-ordered public self-shaming; and of course the rules may be different when the government is acting as employer or as K-12 educator than when it’s acting as sovereign. As with many forceful articulations of important principles, there are limits to how far the legal system (or even Justice Ginsburg herself) would follow that articulation. Still, the Ginsburg passage struck me as interesting and surprisingly little-known, so I thought I’d pass it along.

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