A Broken Legal System
It’s hard not to look at the current state of our legal system and not recognize that it is badly broken. There is the two-tiered justice system that we have lived with for the entire history of the country. There is the lack of timely justice which allows corporations to bleed plaintiffs dry and makes congressional subpoenas now almost meaningless. There are the packed, partisan courts and the resultant venue shopping and absurd nationwide injunctions. And there is the legal professional class that has abandoned any pretense of holding its members to the standards set by its licensing terms. All of these failings have been on full display in recent weeks.
In April, 2017, Neil Gorsuch, the man who filled the seat stolen from Merrick Garland by Mitch McConnell and the GOP and who kept the Supreme Court under conservative control, cast his first vote on the nation’s highest court. That vote proved to be decisive in a 5-4 decision that allowed the execution of an Arkansas man to go forward. The case provided plenty of issues. The judge in the initial trial was having an affair with the assistant prosecutor. Despite pleas from the defense attorneys, the state refused to run DNA tests on the physical evidence it had collected from the scene. None of that physical evidence, including fingerprint analysis, connected the defendant to the crime. The defendant’s appellate lawyer was so drunk in court he was slurring his words. The drug that Arkansas proposed to use to render the defendant unconscious before the lethal injection would not necessarily have done so and was known to produce other serious reactions. Finally, this was just one of 11 executions that Arkansas was rushing to get done simply because the state’s supply of the lethal injection drug was due to expire within a month.
Gorsuch’s vote put an end to the defendant’s legal challenges and he was summarily executed. Now, four years after his execution, the DNA tests that the state refused to run show that the DNA on the murder weapon and other physical evidence belongs to another man other than the defendant. It is clear that Arkansas has executed an innocent man. In fact, it is estimated that one out of every ten inmates on death row is probably innocent.
In 2018, a Texas woman was sentenced to five years in jail for illegally voting in the 2016 election. The woman had been released from federal prison in 2015 on supervised release from a felony tax conviction. The woman was never informed by probation officials that she was not allowed to vote due to Texas’ felony disenfranchisement laws. Since she was not on the voter rolls when she did try and vote, she cast a provisional ballot that was never even counted. When she filed the provisional ballot, she again was never informed about the Texas’ felony disenfranchisement laws, although it was there in the fine print on the provisional ballot. Incredibly, prosecutors charged her with illegal voting and she was sentenced to a five year sentence. Since 2014, over 11,000 ineligible voters have cast provisional ballots in that same county and yet this defendant is the only one that prosecutors have ever charged with illegal voting.
A few weeks ago, a Texas appeals court upheld that conviction. The appeals court actually went even farther than the original prosecution, “Although Mason [the defendant] may not have known with certainty that being on supervised release as part of her federal conviction made her ineligible to vote under Texas law or that so voting is a crime…she voted anyway, signing a form affirming her eligibility in the process despite the fact that she was not certain”.
Earlier this month, a Pennsylvania man was found guilty of casting a vote in the name of his dead mother in an attempt to support Donald Trump. The man registered both his mother and mother-in-law, both of whom were deceased as Republicans. He then requested an absentee ballot for his mother and cast her vote. The defense claimed that the man was unduly influenced by “propaganda” about voter fraud and “This was his way of misguided political dissent”. The sentence for this intentional illegal voting was, wait for it, five years probation and four year ban from voting.
It will come as a surprise to no one that the defendants in Arkansas and Texas were Black and the Pennsylvania man is white. The two voting fraud cases are especially revealing in that an intentional act of fraud was treated far less harshly than an unintentional one. All of these cases are perhaps the clearest expression of the two-tiered justice system and concomitant white privilege that are still dominant in this country.
In 1993, Ecuadorians who live in the Amazon sued Texaco over being sickened by the oil giant’s operations in the area. Texaco fought the suit and managed to drag it out for nearly decade before the Justice Department and the Second Circuit Court of Appeals agreed that the case should be heard in Ecuador, not in the US. In 2003, the Ecuadorians accordingly filed suit in Ecuador, taking advantage of a new law that allowed individuals to sue not only for themselves but also for damage to the environment. The Ecuadorians were represented by an aggressive US lawyer. Chevron, having inherited the case due to its takeover of Texaco, fought the case for years but eventually it resulted in a $9.5 billion judgement against the oil giant in 2011, a full eighteen years after the original filing. Chevron then simply refused to pay and, having no assets within Ecuador at that time, forced the plaintiffs to try and seize assets in other countries to satisfy the judgement.
By that time, however, Chevron had already taken a different tack in its approach to the case, deciding instead to focus on trying to show that the plaintiffs’ lawyers had acted inappropriately. It used an obscure US law procedure that allowed it to collect evidence in the US to aid in foreign lawsuits. Using that process, Chevron managed to collect internal documents, including the lead lawyer’s own notes, from those who worked with the plaintiffs’ lawyers. In 2011, just days before the Ecuadorian decision was handed down, Chevron sued the plaintiffs’ lawyer in the US under the RICO Act, alleging he had submitted false evidence and tried to bribe the Ecuadorian judges. In 2014, a judge ruled in Chevron’s favor and prohibited the US lawyer from engaging in any efforts to enforce the Ecuadorian judgement. Based on this RICO conviction, an international arbitration panel ruled in 2018 that the Ecuadorian judgement was invalid and precluded any attempts to enforce it.
Yet even that did not satisfy Chevron as it continued to pursue the plaintiff’s lawyer. His New York law license has been revoked. His bank accounts have been frozen. He has been under house arrest for two years. And his refusal to turn over documents to Chevron has resulted in a contempt of court case that will be heard this month. As one judge noted, “The extent of his pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive”. But the entire case is also reflective of how corporations game our justice system. Chevron has spent over $1 billion on its legal defense and basically venue-shopped to avoid responsibility for its actions. And the indigenous people of Ecuador got nothing. As Max Kennerly summarizes, “the case is grotesque. Consider how it starts: 1993 Plaintiffs sue Chevron in SDNY. 93-02 Chevron says case must go to Ecuador and it’ll honor Ecuador’s judgment. SDNY & CA2 agree. 2011 Chevron loses. Chevron sues in SDNY, says Ecuador doesn’t count. SDNY & CA2 agree”.
The notoriously bad Fifth Circuit, which covers Texas, Louisiana, and Mississippi, has become the preferred venue for conservatives intent on using the courts to derail progressive policies and legislation. Obama’s Labor Department’s updated overtime rules, which raised the salary limit for overtime exemption for the first time in 30 years and restored it to its inflation-adjusted 1970s level, was blocked in the Fifth Circuit, using the specious argument that the salary level needed to be kept low in order to make it easier to determine who was performing exempt supervisory duties. Fifth Circuit district judges had previously blocked Obama’s executive orders concerning deportations, transgender bathroom rights, and labor law violations by federal contractors. It is no coincidence that the absurd case that Congress’ decision to zero out the individual mandate penalty somehow means the entire ACA is now unconstitutional originated in the Fifth Circuit. That case will be decided by the Supreme Court in the next month or so. It was another Fifth Circuit district judge who recently blocked Biden’s 100 day pause on deportations, ruling that the state of Texas would face unanticipated costs in housing detained immigrants temporarily instead of immediately deporting them.
The latest disaster from the the Fifth Circuit involves a district judge striking down the CDC moratorium on evictions, while at least allowing the moratorium to remain in place while the case is litigated. The judge incredibly ruled that eviction was not an economic activity that could be regulated by the federal government. Rather, eviction merely involved “possession of property” with no commercial exchange. As Leah Litman notes, accepting this restrictive approach to commercial activity could neuter whole swaths of federal regulatory power. Writes Litman, “The Fair Housing Act, for example, prohibits discrimination in the housing market. Under the district court’s theory, that statute may be unconstitutional — at least insofar as it bars discriminatory evictions…[U]nder the current understanding of the commerce clause, Congress can prohibit hotels and restaurants across the United States from refusing to serve customers on the basis of race. But under the district court’s theory of economic activity, a refusal of service probably would not count as something that Washington has any say over (since a refusal of service, like an eviction, concerns the right to be on the premises rather than an exchange of money)”. The Supreme Court is already allowing discrimination based on religious beliefs and this case could be used to extend such discrimination by limiting the definition of economic activity.
It will again probably surprise no one that the district judge that made this ruling is a 37 year old Trump appointee whose qualifications were being the Deputy Solicitor General of Texas and a true conservative ideologue. Increasingly, as the above case illustrates, we are now having to deal with the fallout from some of Trump’s largely unqualified, partisan judges. In November, 2019, Trump and McConnell finally flipped control of the 11th Circuit Court of Appeals to a conservative majority with the confirmation of Barbara Lagoa. The 11th Circuit covers Florida, Georgia, and Alabama, with the former two being critical swing states. Last week, the 11th Circuit ruled that federal judges had no option to reduce sentences under the First Step Act outside of the “extraordinary and compelling” reasons approved by the Bureau of Prisons. This was yet another restriction to the implementation of the Act, which was a bipartisan law signed by Trump focused on sentencing reform aimed at compensating for the abuses of the incarceration state created in the late 1990s. The majority decision of the three judge panel was comprised of a 39 year old Trump appointee with only six months of experience as a district court judge and a 43 year old Trump appointee who had been appointed as a judge on the Florida Supreme Court by Ron DeSantis. This decision conflicted with decisions made in the 2nd, 4th, 5th, 6th, 7th, 9th, 10th circuits.
This is not the first time that the 11th Circuit has been out of step with the majority of other federal appellate courts on the First Step Act. As Ekow Yankah notes, the Act allowed for resentencing of those who had been convicted under the discriminatory crack cocaine sentencing guidelines based on the modifications to those guidelines in the Fair Sentencing Act of 2010. The Fair Sentencing Act “vastly reduced the crack cocaine disparity. Specifically, the law increased the amount of crack punished as so-called Tier 1 offenses from 50 grams and above to 280 grams and above….In turn, the range of Tier 2 offenses was changed from between 5 and 50 grams to between 28 and 280 grams…Thus, one would think that Tier 3 offenses, previously between 0 and 5 grams, would now be those between 0 and 28 grams…Though that would seem the only sensible legislative math, Congress did not actually change the text of the Tier 3 provision. Armed with this congressional oversight, federal prosecutors took the position that penalties for Tier 3 offenses were not ‘modified’ by the Fair Sentencing Act and thus not eligible for retroactive resentencing under the First Step Act. To be clear, this commits one to the proposition that Congress intended for those sentenced to long prison sentences for carrying around significant amounts of crack to be resentenced more equitably, while leaving someone sentenced for carrying under 5 grams in prison for just short of a couple decades. This may seem so counter-intuitive that one might wonder why federal prosecutors would adopt such a view, why the government would defend it and whether any court could find it persuasive”. The 11th Circuit did, while other circuits did not. The Supreme Court will resolve this dispute in a decision later this spring.
During the course of the Trump administration, the Department of Justice routinely lied to federal courts. The DOJ misled the Supreme Court on Trump’s Muslim ban. It withheld documents and lied to multiple federal courts, including the Supreme Court, about the origins of the census question. It lied to federal courts in an attempt to block New York State from the Trusted Traveler program. It lied to federal courts in response to a New York Times’ FOIA request about the freezing of Ukrainian aid that was part of Trump’s first impeachment, with the judge in that case writing, “the Court discovered that there were obvious differences between the affiants’ description of the nature and subject matter of the documents, and the documents themselves”. In other cases, the DOJ has offered brazenly frivolous arguments to the courts, such as claiming that it did not believe it “could secure a conviction at trial” against Michael Flynn, despite Flynn having pled guilty to those very charges twice. Similarly, another federal judge described the DOJ’s actions in the Flynn case as having “a solemn responsibility to prosecute this case – like every other case – without fear or favor. It has abdicated that responsibility through a gross abuse of prosecutorial power”.
With all this in mind, it should come as no surprise that a federal judge has now accused the DOJ of lying to the court in another FOIA case about whether Trump should have been prosecuted for obstruction of justice in the investigation into the Russian interference in the 2016 election. The DOJ had tried to claim a particular memo was exempt from FOIA release because it contained legal advice to Attorney General Barr over whether or not Trump should be prosecuted. Barr claimed that he had made the decision not to prosecute after consultation with DOJ attorneys. In reality, the memo showed that the DOJ had already decided not to prosecute Trump and the memo instead contained strategic advice on how that decision would be presented as part of Barr’s overall misrepresentation of the Mueller report. Said the judge, “The fact that he [Trump] would not be prosecuted was a given” and that a full reading of the memo revealed “excised portions belie the notion that it fell to the attorney general to make a prosecution decision or that any such decision was on the table at any time”, adding that the DOJ “has been disingenuous to this court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege”. The judge noted that this disingenuousness was part of a pattern in which the DOJ lied to both Congress and the American people, specifically citing Barr’s mischaracterization of the Mueller report.
The judge noted that emails show that the top levels of DOJ leadership were involved in the effort to frame what was essentially a PR effort as a FOIA-exempt deliberative process, specifically naming “Stephen A. Engel, an Assistant Attorney General in the Office of Legal Counsel; Brian C. Rabbitt, the Chief of Staff in the Office of the Attorney General; Rod Rosenstein, the Deputy Attorney General; and Edward C. O’Callaghan, the Principal Associate Deputy Attorney General”. In addition, Paul Colburn, ad senior lawyer in the Office of Legal Counsel, Vanessa Brinkman, a DOJ FOIA specialist, and Julie Strauss Harris, a DOJ Senior Trial Attorney, all made knowing misrepresentations to the court about the memo. Marcy Wheeler gets to the heart of the problem when she writes, “But this leaves the question about what to do about all this lying — Colburn and Brinkmann and Straus Harris’ misrepresentations to protect the lies of Billy Barr and his team. Billy Barr is gone, along with Rosenstein and Engel and O’Callaghan and Brian Rabbitt (Barr’s Chief of Staff), who ‘colluded’ (heh) to make it appear that this process wasn’t all gamed for PR value from the start”. As Max Kennerly notes, many of them have already moved on to high paying jobs with big law firms – “In case anyone is wondering, these lawyers [Engel, Babbitt, Rosenstein, and O’Callaghan] ended up at, respectively, Dechert, Jones Day, King & Spalding, and WilmerHale. Good odds the only ‘sanction’ they get is a lucrative job at a corporate law firm”.
One thing the Trump era has made clear is that bar associations will do virtually nothing to sanction their members for misconduct without some sort of prior judicial adjudication. As one legal ethicist declared, “The disciplinary boards of various states are going to be reluctant to do anything without a finding by a judge that the lawyers have misbehaved”. Being unwilling to police their own members, bar associations have now simply become gatekeepers to the legal cartel.
Much of the above may seem like separate issues but they are indicative of the larger breakdown of our legal system. The racist, two-tiered justice system has been with us since the founding. The judicial branch has a long history of corporate favoritism, but the ability of corporations to venue shop and drag cases out for decades is a much more recent phenomenon. Despite conservative howls about “activist judges”, the Supreme Court, which has been in conservative control for the last half century, has been quite liberal in its striking down or severely limiting more progressive legislation passed by Congress and signed by the President. As Ian Millhiser writes, “the Republican Party doesn’t plan to pass its agenda through either one of the elected branches. Its agenda lives in the judiciary — and especially in the Supreme Court”. But perhaps the most worrying aspect of recent years is the apparent willingness for the government to openly lie to the courts, so far without sanction. The strength of our democracy was long supported by the strength of the legal system. With our democracy already under threat from incipient autocracy, a weakened judicial system just adds to the dangers we currently face.