A Bad Few Days For The Rule Of Law
It’s been a pretty bad week for the rule of law, despite all the protestations that no one is above it. All the focus was understandably on Robert Mueller’s testimony yesterday, but there even more troubling pieces of news about the collapse of the rule of law that largely went unnoticed earlier in the week.
The first item highlighted the fact that the Department of Justice has now just become another political arm of the Republican party and personal defender of Donald Trump rather than an independent defender of the rule of law. In his testimony to the Senate Judiciary Committee, FBI Director Christopher Wray declined to provide the summaries of interviews agents had regarding the hush money payments to porn stars that Trump ordered and Michael Cohen facilitated as requested by Senator Leahy. But those summaries, known as 302s, were provided to House Republicans during the Hillary Clinton email investigation in 2016 and were also provided to House Republicans as part of their attempt to discredit the origins of the counterintelligence investigation of the Trump campaign. Selected pages of the FISA warrant for the surveillance of Carter Page were also released to House Republicans after Trump ordered their declassification. But now, when Democrats are asking for the release of 302s relating to Trump’s criminal campaign finance violation, all of a sudden the FBI will not cooperate. What’s even more egregious about this denial is that, unlike the Hillary emails, the 302s in this case actually are part of a felony campaign finance violation of which the President was the orchestrator. As Brian Beutler nicely summarized, “[T]here you have it. The FBI discloses investigative files helpful to Republicans and harmful to Democrats but not the other way around. An unacceptable, partisan standard”.
While Wray’s denial of access to 302s to Democrats shows the partisan, political corruption of the DOJ, the FTC’s settlement agreement with Facebook released yesterday illustrates how our federal agencies have been captured by the industries they were supposed to monitor and regulate. Facebook will pay a $5 billion fine for privacy violations which sounds like a lot of money but amounts to less than 10% of a single year’s revenue for the company. Perhaps the most egregious part of the settlement is that it indemnifies Facebook for any privacy violations prior to June, 2019. This covers privacy violations that continued despite earlier settlements with the FTC where Facebook promised to stop certain practices. That included the unauthorized use of Facebook user data by third parties, such as Cambridge Analytica, not agreed to by Facebook users. As Nick Confessore notes, “They were doing all this stuff *while under a prior FTC settlement* — which just suggests total contempt for the law.
Facebook’s internal data monitoring in this period was so sloppy that it couldn’t even complete the ‘app audit’ they promised after Cambridge Analytica. Here’s the upshot: Facebook swore to the federal government it would stop lying to users about their data, kept doing it anyway, and is now pinky-swearing it won’t do it again”.
The agreement does crack down on some of Facebook most abusive uses of customer data. It requires explicit consent for use of facial recognition technology. It stops Facebook from asking for login credentials for other services and it prohibits Facebook from using phone numbers gleaned from two-step authentication processes for its own ad targeting. Of course, like the earlier settlements with Facebook, there should be no expectation that the company will actually comply with these terms included in the agreement. Other than that, as one of the two dissenting members of the FTC raged, “the order allows Facebook to decide for itself how much information it can harvest from users and what it can do with that information, as long as it creates a paper trail”. I think we all know that this agreement will do nothing to stop Zuckerberg from finding new ways to monetize Facebook users’ data without their permission and then lying about it.
The corruption of the DOJ and Facebook getting off with a slap on the wrist are, however, peanuts compared to what happened on Tuesday. Although most of us don’t actually know it, due process is not actually guaranteed to those people living within 100 miles of a US border, which actually includes two-thirds of the US population. Under current law, any undocumented immigrant who has been detained within the 100 mile limit and who could not prove they had been in the country more than a few weeks can be deported under an expedited process without any kind of due process hearing. Now, the reality is that most Americans never have to produce documentation of citizenship on demand when they are walking the streets or driving within the US, unless you live near the southern border with Mexico or certain areas near the border near Canada. And many of those who have been stopped at those internal border checkpoints are often waived through solely on the basis of the color of their skin and the name on their driver’s license. But the reality is that CBP or ICE can currently ask anyone within the 100 mile limit to produce documentation on demand and, if the authorities believe that you have been here illegally for less than a couple of months, you can be summarily deported with no legal recourse, no judicial hearing.
On Tuesday, Trump expanded this extraordinary power to now include the whole country and expanded the eligibility for expedited removal of migrants in the country for just a few weeks to those who have been in the country for two year or less. The clear target for this new policy is the backlog of asylum cases that have built up since Trump’s election, the vast majority of whom are either already in detention or at a known address since they are following the procedures for actually obtaining legal asylum. The new rule would also allow for immediate deportations of migrants before they even have a chance to claim asylum.
The ACLU immediately challenged the new rule in court, saying that immigrants could now be deported “with less due process than people get in traffic court”. It is obviously assumed that the courts will eventually block this rule but with the courts now stuffed with Federalist Society hacks, nothing is certain. However, as we have seen in the past with the family separation policy, the Trump administration may surreptitiously keep on enforcing the new rule despite a court order to cease doing so.
In any case, as of today, we currently exist in a country where the writ of habeas corpus has been suspended. As one immigrant rights activist noted, “This is a national ‘show me your papers’ law. The burden is on the individual to prove that expedited removal does not apply to them. So if you don’t have the necessary paperwork on you — to show that you have a lease, or that you have status — then you could be taken into custody to try to fight this. And the problem is that this is a fast-tracked process”.
Some will scoff at that description simply because they will never be confronted with such a situation. But it is a reality right now for those immigrants living in communities near the border. And now it is a potential reality for immigrant communities across the entire country. It is not a theoretical legal problem. It is reality. In Texas, an 18 year old US citizen was stopped at a CBP checkpoint and detained even after producing a valid Texas ID which can only be obtained with a valid Social Security number. CBP officials apparently told him that he was being detained because he did not have a US passport. In addition, CBP had information from an earlier visa application that he had been born in Mexico.
This US citizen was held by CBP for three weeks without being able to communicate with his family or a lawyer or receive a judicial hearing. He was eventually transferred to ICE custody where he was able to contact his family who had previously gone to CBP and provided the child’s birth certificate and other documents proving his citizenship. He was still not released. It was not until the media got a hold of this story that immigration officials finally released this US citizen after a month in custody without any kind of judicial hearing. The law requires that any detainee claiming US citizenship is required to get a legal review within 72 hours. The law was clearly violated in this case.
The citizen’s “crime”, such as it was, was travelling with his younger brother who was an undocumented migrant. The brother signed a voluntary deportation order days after his detention and the citizen found the conditions so deplorable he almost signed a similar order just to escape custody. He was not allowed to shower for the 23 days in CBP custody and lost 26 pounds because CBP was not providing enough food. He was forced to sleep on the floor with just a aluminum foil blanket, crammed into a space with about 60 other detainees. Yes, these are concentration camp conditions.
Since 2012, nearly 1,500 American citizens have been detained by DHS and eventually released. Since the burden is on the detainee to prove American citizenship, detention can last for months or even years. One citizen was held for over three years and was forced to appeal a deportation order all the way up to the US District Court before he was freed.
Under the new policy just put in place, it is probable that there will be many more US citizens who may be detained, summarily deported, and never have a chance to not only to appeal that order but ever have the legal hearing they are entitled to under US law. Yes, we all know that only specific racially profiled locales and communities will be targeted now. But when one group of American citizens lose their rights, it is only a matter of time before others do as well.
Of course, the highlight of the week so far was Mueller’s testimony to the House. There was not much that we learned that wasn’t already in the Mueller report but the hearings at least highlighted the historic lie of “no collusion! no obstruction! witch hunt!”. We already know that the President committed multiple acts of obstruction of justice. We already had a pretty good idea that he probably perjured himself in his written answers under oath to Mueller. We already know that his entire team including Trump himself was more interested in making money off their position in the campaign than anything else. We already know that the President and most of his team was and is subject to blackmail. Apart from Mueller, we already know that the President directed a felony conspiracy in paying hush money to his mistresses during and after the campaign. And despite the fact that the President’s taxes and businesses have apparently not yet been investigated by any legal authority, we also basically know the President is a liar and a crook. But, as President, according to the OLC memo and the DOJ, he can not be charged with a crime. And with Democrats in the House apparently unwilling to go down the impeachment path and Republicans in the Senate unwilling to convict, he is apparently above the law.
As Cynthia Alksne ranted on Hardball last night, “Trump is getting away with it. That is what is happening”. And Trump knows it better than anyone else. After all, his understanding of the Constitution is that “Then, I have an Article II, where I have to the right to do whatever I want as president”. And, like he has done his entire life, he will continue to do whatever he wants until someone stops him.
All of which makes the Democrats’ pontifications yesterday that no one is above the rule of law remarkably hollow. Obviously Facebook believes it is. Donald Trump believes he is. As of now, the rule of law does not apply to anyone, even US citizens, picked up by CBP or ICE. And the federal agency committed to upholding the rule of law has become a partisan instrument of the Trump presidency. And it’s only Thursday.