Trump already retracted transgender rights in schools, bathrooms, prisons, military
Trump already retracted transgender rights in schools, bathrooms, prisons, military
Former Russian leader weighs in Donald Trump’s decision
Sadiq Khan says another referendum is needed because young people’s ‘future is on the line’
The rule of law requires friends who are willing to ignore the partisan din that afflicts our institutions. In that spirit, 20 years ago, we participated in a friend-of-the-court brief urging the Supreme Court of the United States to reject a claim of privilege by President Bill Clinton, who was seeking to avoid civil litigation alleging sexual misconduct while he was governor of Arkansas. The Supreme Court did reject Clinton’s claim of immunity, vindicating the principle that no person is above the law.
Now, President Donald Trump is appealing from an order denying his motion to dismiss a civil case brought against him. The plaintiff, Sumner Zervos, alleges that, while a private citizen, Trump defamed her when he called her a liar for accusing him of sexual misconduct. The president asserts that he has a constitutional privilege that protects him against civil litigation in state court, whether or not the claims relate to his official conduct.
There is a depressing similarity in the alleged misconduct underlying the Clinton and Trump cases, but they differ in two ways: (1) the courts in which they were filed (one in federal court, the other in state court); and (2) the parties of the presidents seeking immunity (one a Democrat, the other a Republican). Neither difference should lead to a different result. The principle for which Clinton v. Jones stands is bipartisan and deserves disinterested champions. For those reasons, we filed a friend-of-the-court brief opposing Trump’s legal arguments, just as we opposed Clinton’s position in the Supreme Court of the United States two decades ago.
The central lesson of Clinton v. Jones is that the privilege invoked in that case attaches to the office of president, not the person who holds it. It does so for the purpose of ensuring faithful and robust performance of the duties of office unimpeded by the concern that official action or inaction might be the source of civil litigation. When a civil action is brought against a president because of alleged conduct occurring before that individual assumed office, the reason for the privilege is not present, the principle is fully operative, and there can be no categorical immunity. The same is true in the Trump litigation.
The Clinton court did not, it is true, decide whether state court litigation should be treated differently for this purpose than federal court litigation. Yet, any such differences could reflect only a case-specific analysis of circumstances that might adversely affect the performance of official duties. Another principle informing the Constitution is that state courts can faithfully implement federal law. Article VI proclaims the supremacy of federal law, not of federal officers. Trump should not fear biased treatment from the courts of his home state, and because they follow more liberal rules for appeals than apply in federal litigation, New York courts may be better equipped to ensure that the trial court manages the litigation so as not to interfere with the president’s performance of his official duties.
Although all three of us are law professors of a certain age, we are affiliated with different institutions, specialize in different areas of the law, and have different backgrounds and political and jurisprudential commitments. For one of us, involvement in the Clinton brief was a product of Watergate, reflecting the powerful effect that the high court’s decision in United States v. Nixon (the Nixon tapes case) had on him as a young lawyer and as a citizen. For another, participation in that brief flowed from deep commitment to political equality and popular sovereignty. All of us believed that the principle affirmed in Nixon required a friend in court even if (or perhaps because) some people who were involved on both sides of the Clinton litigation had partisan political motives. The same is true of our involvement in Zervos v. Trump.
BLOOMINGTON, Ind. — Bernie Sanders can still draw a crowd.
Touching off a nine-state midterm election blitz here Friday, rally-goers clad in T-shirts from Sanders’ 2016 campaign cheered as the independent senator from Vermont reprised his progressive credentials on student debt, health care and the minimum wage. And they jeered along with Sanders as he mocked Trump — a prelude to a potential 2020 campaign.
“Now Trump, he’s a very, very tough guy,” Sanders told about 3,000 people in this college town. “He’s a very, very strong guy when he tears little children at the border from the arms of their mothers. What a tough guy. But he ain’t such a tough guy when he has to deal with Putin … He is not such a tough guy when he has to deal with his billionaire friends in Saudi Arabia, who just tortured and murdered a courageous journalist.”
No longer the curiosity that he was when he entered the 2016 presidential primary — with his then-meager fundraising base and Hillary Clinton’s near-inevitability staring him down — Sanders now wields one of the most coveted email lists of progressive voters and donors in the country. He owns a national profile that most of his potential rivals have yet to develop.
And while Sanders may run into a buzz-saw as early as Saturday, when he visits the less hospitable early primary state of South Carolina, he proved here Friday that he remains a popular force on the left.
The rally — and a brisk march that Sanders led from the rally to a voting center blocks away — opened Sanders’ nine-state blitz ahead of the midterms, with planned appearances in the early 2020 nominating states of Iowa, Nevada and South Carolina. But his first and last appearances, in Indiana and California later this month, are freighted with significance, as well: Sanders won the Indiana primary in an upset in 2016, and his prospects in 2020 would rely on a large delegate haul in California, where Sanders campaigned for weeks in his losing race to Clinton.
Jeff Weaver, Sanders’ 2016 campaign manager and closest political adviser, said Friday that he does not know whether Sanders will run in 2020.
But caught up in the throng of supporters surrounding Sanders as he led supporters to the voting center — with the crowd spilling from the sidewalk onto the street — Weaver said, “From my perspective, this is an auspicious start.”
By the end of his tour, Sanders will have visited 32 states since the 2016 election. He has raised about $1.8 million for fellow candidates, with that total to exceed $2 million by the end of the election cycle.
“Back in the  primaries, just prior to that, people almost thought we were conspiracy theorists,” said Laurie Cestnick, a former Sanders campaign volunteer and founder of Occupy DNC Convention, which held dozens of protests during the 2016 Democratic National Convention.
Now, she said, “I think the awareness [of Sanders] is just there, where it wasn’t before … I think he has a far greater chance.”
If he runs in 2020, the challenges will be stiff. In part because of Sanders’ prodding on issues ranging from health care to the minimum wage, the Democratic Party has shifted closer to his leftist profile since the 2016 election, and Sanders will almost certainly face opposition from other high-profile progressives.
“It’s a different environment for him: The landscape for progressive Democrats has shifted pretty substantially, and largely in our favor,” said . But at the same time, there’s more room” for other progressive candidates to run.
In the run-up to the 2016 election, Democracy for America was part of an unsuccessful effort to recruit Sen. Elizabeth Warren (D-Mass.) to run for president, before ultimately endorsing Sanders. This year, Warren is poised to enter the race, and Sen. Jeff Merkley (D-Ore.), the only senator to endorse Sanders in 2016, is mulling a run.
While Charles Chamberlain, DFA’s current executive director, said his members’ support for Sanders is “definitely strong,” he added, “Will he be the choice of our membership for the presidential race? I think that’s an open question.”
In 2016, Chamberlain said, “It was [Sanders] versus Clinton. What we’re going to be looking at in  is Bernie Sanders versus 20 other people.”
In an expansive 2020 presidential field, Sanders is likely to be squeezed not only by progressive rivals, but by many moderate Democrats who continue to keep their distance from him. Earlier this week in Indiana, Democratic Sen. Joe Donnelly cut a campaign ad criticizing “socialists” and “the radical left” for positions on health care and immigration, while moderate Democrats in South Carolina, where Sanders will be on Saturday, have responded tepidly to his pre-election tour.
“If Bernie wants to run again, as he is definitely thinking about, then it’s clear that he has to approach it differently than he did the first time,” Hasan said. “I think the first time, he really kind of made it about, ‘There’s two visions of the Democratic Party: progressive and not,’ and that was kind of his singular analysis.”
Now, Hasan said, “One of the things that he’s really come to learn is that there are so many different factions and flavors of the Democratic coalition.”
In addition to the three early nominating states that Sanders will visit, his tour will take him to Michigan, Iowa, Wisconsin, Arizona, Colorado and California. The last stop is critical to his 2020 chances, with Sanders’ advisers believing the weeks he spent campaigning there in a losing effort in 2016 — effectively his last stand of the primary campaign — could pay off with a large delegate haul in 2020.
Sanders has used the midterm election cycle to lay groundwork for a 2020 campaign in subtler ways, as well. In recent months, he has expanded his focus on foreign policy — a perceived weakness in 2016 — articulating his brand of progressivism not only as a domestic matter, but as a vehicle to counter authoritarianism abroad. More significantly, he has used the midterm elections to align himself with several prominent African-Americans, whose lack of support in 2016 hobbled Sanders in the South.
This year, he has supported all three African-American Democrats running for governor in November. In addition to backing Stacey Abrams in Georgia and Ben Jealous in Maryland, Sanders delivered a crucial endorsement to Andrew Gillum, now Florida’s Democratic gubernatorial nominee, when few thought Gillum could prevail in the primary.
Still, Sanders has a ways to go to overcome his landslide loss to Clinton in South Carolina and his failure to gain traction with African-American voters in the South.
Antjuan Seawright, a South Carolina-based Democratic strategist who worked for Clinton’s campaign in 2016, said he’s doubtful Sanders can significantly expand his coalition.
“With the potential of several other candidates being African-American, and there’s some talk about a possible Latino or two to also be in the race, I think that presents a real challenge for Sen. Sanders and a lot of other people who are entering the race,” he said.
Sanders has demurred when asked about his 2020 plans, telling CNN recently that “we will see what happens.” But the effort to distinguish Sanders from the rest of the burgeoning Democratic field has been ongoing since the 2016 election, with Sanders’ supporters casting his economic populism as a 2020-ready alternative to Trump’s.
Larry Cohen, a former head of the Communications Workers of America who now chairs the board of Our Revolution, a political offshoot of Sanders’ 2016 campaign, said that in 2016, “Working people weren’t feeling listened to.”
“Bernie was [listening], and Bernie is,” Cohen said. “He’s authentic, in terms of decades of saying working people matter … People may not agree with him, but they don’t doubt he means what he says.”
The first time I met Nikki Haley, in 2010, I was a columnist for the Sun News in Myrtle Beach, S.C., and she was a little-known state legislator vying for the governor’s mansion near the end of Mark Sanford’s tenure. I had been invited to a quiet Q&A session Haley was having with a group of local attorneys at a popular Myrtle Beach restaurant. I felt a vibe similar to the one I had the first time I met Barack Obama, when he was visiting South Carolina during the 2008 Democratic nomination fight. I thought her political skill set was that impressive, even though we disagreed about many things. She’s been proving me right ever since.
But unless she does what Obama did and ignore conventional wisdom, particularly that coming from within her own party, she could miss the opportunity to become this country’s first female president.
When Haley announced that she would resign as ambassador to the United Nations on October 9, she attempted to put to rest all speculation about a 2020 run. “For all of you who are going to ask about 2020, no, I am not running for 2020,” Haley said. “What I can say is I will be campaigning for [Trump].”
It’s certainly the safe play. Established party officials and political pundits might look forward to the day Haley throws her hat into the presidential ring, but most surely don’t think she should do it now. As Democratic leaders believed about Obama in 2008, Republican Party brass think Haley should wait her turn, because the party already has a popular figure at its helm who will be hard to beat in 2020—President Donald Trump. And while Haley has found ways to set herself apart from Trump—on Thursday she said in a speech “in America, our political opponents are not evil,” a break from Trump-style politics—she is, it appears, following their advice.
But back in 2008, Obama was smart enough to ignore party bosses. He understood that political landscapes change, sometimes by the day, the hour even—that he had a chance in 2008 that might not come again. The question is, is Haley smart enough to understand that? Is she smart enough to see that 2024, or 2032, if Trump wins reelection and Mike Pence is able to succeed him, is an eternity away in political time and that the opportunity she has now might not materialize in future?
And, is the Republican Party smart enough to see that Trump is more vulnerable than they think, and that Haley might be the GOP’s best chance to win in 2020?
Though you won’t hear this from pundits and political analysts who are still smarting from getting it wrong in 2016, Trump is highly unlikely to win a national presidential race in 2020. His chances aren’t zero, and whoever wins the Republican nomination two years from now has a chance to win. But his prospects for a second term are extremely dim. Four years ago, he ran against a candidate nearly as unpopular as he was. He had help from the Russian government. He was aided by an eleventh-hour intervention from then-FBI Director James Comey. Aggressive voter suppression efforts by Republicans also played a role in his victory. (Some version of each of those things might still be in place in 2020, but they are not nearly as rooted as they were in 2016.) And despite all of that support, he lost the popular vote by nearly 3 million and won the Electoral College because of a roughly 80,000-vote difference in three states. He’s unlikely to benefit again from a confluence of such events.
Things have gotten only tougher for Trump since he got into office. Democrats are energized in a way they weren’t in 2016. His poll numbers remain in the high 30s or low 40s, even with a historically low jobless rate. Trump is incredibly unpopular despite a strong economy. Econ 101 tells us that we are overdue for a recession. What if that materializes in the next two years? We should not forget that Robert Mueller is still quietly going about his work, the results of which reportedly might be revealed by the end of this year and alone could have a devastating effect on Trump’s 2020 plans.
Beating Trump—a sitting president—in a primary would much harder than defeating him in the general, of course. But a poll from analytics firm Applecart suggests he is more vulnerable even among Republicans than many think. The same poll also found that Haley is the most popular among GOP challengers and would have a real shot if she declared her intentions to run.
Republicans should be jumping at that chance. Let’s be frank. Haley is a highly-qualified woman and a member of a minority group who shattered the glass ceiling and destroyed racial barriers in a Deep South state to become governor of South Carolina. She is also far more conservative than Trump. That combination of attributes should be extremely appealing to a party that knows, despite its current hold on power, its base is shrinking by the year. The party knows that in order to avoid becoming a regional party a couple of decades from now, it must make a choice: Either keep trying to subvert the democratic process by implementing voter-ID and other laws designed to curtail the Democratic vote—which will be harder to do once Democrats begin retaking power in Washington and numerous state capitals during the midterm elections, not to mention as the American electorate continues to change—or make itself seem more inviting to minority voters. Those paying close attention know Trump is more Jesse Ventura than Ronald Reagan—a shock to the system, not a transformative figure—and that his brand of racist, white nationalistic, angry politics has a short shelf life.
I know the GOP knows this, even if it doesn’t want to admit it publicly. South Carolina officials told me the reason no top Republicans dared challenge Tim Scott in his run for U.S. senate in 2014—after Haley had appointed him to the seat in 2012—was because it would have “been unseemly” to have challenged a popular Republican vying to become the first black man elected to the Senate from the Deep South since Reconstruction. I got the same message from several of my white conservative readers, who in one breath said identity politics was awful but in the next emphasized how proud they were to vote for a conservative black man. Though they loudly protested and claimed otherwise, they were desperate to get out from under the cloud and charges of racism that has dogged Republicans in the South for decades, and voting for Scott was one way they believed they could do this.
That same dynamic is at play in the era of Trump—maybe even more so. Concern with party diversity was one of the reasons the all-male GOP caucus in the Senate Judiciary Committee hired a woman to question Christine Blasey Ford during Supreme Court Justice Brett Kavanaugh’s contentious confirmation hearing, and why some Republicans are now touting that Kavanaugh, who was credibly accused of sexual assault, has the first all-female clerk team in the court’s history, including a black woman. And the top conservative political pundits and analysts, who have spent years complaining about so-called identity politics on the left, had no problem with any of this. Not only that, Trump himself has been accused of sexual misconduct by nearly two dozen women and was recorded bragging about casually sexually assaulting women. His record of racism and open bigotry is so deep and long and disturbing, most black voters automatically become suspicious of any black person who cozies up to Trump, if not hold them in outright contempt, no matter their black bona fides. Ask Kanye West and the presidents of historically black Colleges and universities if you doubt this.
Publicly, Republicans repeatedly claim that none of this matters because Democrats are supposedly worse. They point to how Democrats defended Bill Clinton 20 years ago, not just of an illicit affair with a young intern in the White House, but also turned a blind eye to charges of sexual harassment and rape. But privately, Republicans know their record sends an awful message, one that might have worked to their advantage these past two years but that can’t last forever.
That’s why Haley is perfectly positioned to save the GOP from itself. Her positioning didn’t come by accident. She did not jump on the Trump train during the contentious Republican primary season or during the general election. Neither did she take John Kasich’s principled, but politically unwise, route and offend the party’s base. That gives her space to accurately claim in a potential presidential run of her own that she was able to hold fast to her principles, something many Republican officials simply can’t say they did, while not abandoning the party by joining the ranks of #NeverTrumpers despite enormous pressure to just give in to political winds. And she has gone on the record—several times—criticizing Trump and declaring that the women who have accused him of appalling things should be heard. No one can credibly accuse her of turning a blind eye to Trump’s excesses the way Pence and Paul Ryan and Mitch McConnell other Trump enablers clearly have.
You want tough, one of Trump’s supposed strengths? Haley was hit with ugly negative headlines about sexual rumors when she was trying to become governor, and even while she was a member of the Trump administration, and successfully fought them off. She knows how to fight. She knows how to win. She’s had to deal with more than most politicians. It’s hard to express just how difficult it was for a young Asian-American woman to do what she did in one of the reddest states in the heart of the Old South by winning the governor’s office twice, then navigating the tricky political terrain—which includes factions of Republicans with sharp elbows competing against one another—to become a rising star in the GOP. I say this as a man who disagrees with Haley vehemently on a variety of political issues and will never forget that she passed on billions of federal dollars through the Affordable Care Act that would have brought health insurance to maybe a quarter of a million struggling residents of my poor native state, along with creating maybe 44,000 jobs. But that’s the kind of decision that would help her in a Republican presidential primary contest.
She was also wise to become U.N. ambassador. It provided her national and international experience. It convinced Trump loyalists that she was a team player. But the position is so critical and unique, she can easily argue that she did it, not for Trump, but because her country needed her, and that was more important than her personal views about Trump’s behavior. She’s covered her bases, not by accident, but because her political skills are immense.
The kicker is that she did all of this shortly after becoming the South Carolina governor who took down the Confederate flag from the State House, where it had flown for more than half a century and, it seemed, would fly forever. It’s true that she spent most of her two terms as governor dodging that issue. It’s true that the blood spilled by Dylann Roof in a Charleston church had more to do with the flag’s removal than Haley’s leadership. But it’s also true that whoever is in office during a time like that will receive an enormous amount of the credit for the change. That’s precisely what I’ve been hearing—even from black Democrats and independents. Though they despise the Republican Party for having elevated Trump and his open bigotry to the White House—something they won’t ever forget, something I won’t ever forget—they are willing to listen to Haley because of what she did with the flag in the aftermath of the Roof shooting.
I suspect Melissa Harris-Perry, one of the most popular black progressives in the country, and a former MSNBC host, sees what I see and that’s why she recently tweeted:
“Mark it. @nikkihaley will be president.”
I’m a black guy who used to vote for Republicans as easily as I did for Democrats. When I saw the GOP become more extreme and increasingly OK with open bigotry and racism, I vowed not to consider another Republican candidate for the foreseeable future, if ever again. Haley would force me to at least reconsider. That’s how desperate I—and many others—are to move beyond Trump.
Democrat candidate faces Republican Senate incumbent Ted Cruz on 6 November