All the President’s Men

I just finished reading All the President’s Men: Carl Bernstein and Bob Woodward’s presentation of their Watergate journalism.

I’d barely known what Watergate was about before reading this book. While I found the who-did-what narrative to be interesting, even more interesting were the methods the reporters used to investigate it, the editorial scrutiny applied by the Post, and the reaction by the White House to the evidence closing in around them.

This was a very dense book. Skim a page and you’re lost. That was just a consequence of how scattered the information was that the reporters were tracking down. The cover-up went straight to the top—to President Nixon—but for over a year, Bernstein and Woodward were following leads so disparate that they were just puzzle pieces they couldn’t even tell belonged to the same puzzle.

With only one exception, Bernstein and Woodward made sure whatever they published was rock solid confirmed. Behind every published story, there was a pile of suspicions, leads, and questions. Washington Post’s readers, just like Bernstein and Woodward, were for a long time only seeing a small slice of the operation.

The tactics of the Executive Branch seemed familiar. Press Secretary Ziegler constantly questioned the accuracy and legitimacy of the Washington Post, accusing them of lying. The President would express “full confidence” in an aide before having to cut him loose. This happened with Stans, Chapin, Dean. All were involved with the cover-up. It was almost a tell. The White House became obsessed with the leaks to the media rather than the charges they made.

The book starts on June 17, 1972, the night of the attempted Watergate burglary. The acknowledgement is dated February 1974. Articles of impeachment wouldn’t be reported to the House of Representatives until July, and Nixon didn’t resign until August 9, 1974, more than two years after the burglary. When this book was published, Bernstein and Woodward had no idea their journalism would lead to the impeachment let alone the President’s resignation. The final sentence in the book quotes Nixon: “And I want you to know that I have no intention whatever of ever walking away from the job that the people elected me to do for the people of the United States.”

I read this book over a period of a few weeks. Despite the very compressed timeline, the buildup still felt more like a ramp than a roller-coaster. Knowing the ending helped pull me through this story. I’m going to watch the movie next, and am curious about how it manages to preserve that pace and the feeling that the incremental revelations aren’t actually getting anywhere.

Washington v. Trump

Today, the 9th Circuit denied President Trump’s appeal that would have reinstated his Executive Order on immigration. This opinion addressed only a preliminary question of whether the Executive Order will remain in effect while its constitutionality is fully argued in a lower court, but it reveals the trouble that the Government will have defending it.

One of the Government’s arguments was that “the President’s decisions about immigration policy, particularly when motivated by national security concerns, are
unreviewable, even if those actions potentially contravene constitutional rights and protections.”

The court rejected that argument.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

The Government also argued that “if the four corners of the Executive Order offer a facially legitimate and bona fide reason for it […] the court can’t look behind that.” In this argument, they were trying to prevent the court from considering statements, tweets, and interviews by President Trump and his advisors that could reveal that the Executive Order was, in part, religiously-motivated.

The court rejected that argument.

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.

The Government also tried to rely on “authoritative guidance” from White House counsel that the Executive Order does not affect legal permanent residents. The Government argued that the court should understand the Executive Order based on the most recent interpretation by the White House counsel. The court was concerned about the Government’s “shifting interpretation”, and rejected that argument.

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

The most interesting part of my past week was listening, along with a hundred thousand other people, to this case’s oral argument. It was a display of the kind of work the judiciary does every day: checking whether the case should even be before the courts, probing the limits of the arguments presented by each side, and at the core, just trying to understand the case and arguments before them so they can correctly apply the law.

There is nothing better than an adversarial dispute to crystallize the meaning of a statute, the limits of Government power, or the extent of our rights. I’ve spent as much time reading appellate opinions as any other material over the past few years. It’s not because I miss first year philosophy or want to be a lawyer; it’s because they contain tough questions that reveal how the various parts of our society fit together. And, much of it is decent writing. They are written as much for us as they are for lawyers. Good journalism answers “so what”, but nothing can sub in for the opinion itself.

Here are some of the law people I’m following on Twitter who give context to significant cases and insight based on their personal experiences with the courts (and also, some entertainment).

And here are a couple of sites that present primary sources: oral argument audio, transcripts, briefs, opinions.

I haven’t found anything close to the same for Canada. But, you can search our Supreme Court’s judgements by date, topic, party, etc. here. (Try to find the one where a farmer harvested, saved, and planted Monsanto seed across 95% of his farm and then claimed he wasn’t using it.)

Washington, D.C.

January 16, Martin Luther King Jr. Day

With thousands of others who waited hours for free tickets, I got to see Gladys Knight and the Let Freedom Ring Choir perform at the Kennedy Center. You can watch the event here. It was a joy-filled celebration of a man, a movement, and imperfect, incomplete success.

In this temple, as in the hearts of the people, for whom he saved the union, the memory of Abraham Lincoln is enshrined forever.

After the concert, I walked to the Lincoln Memorial. I read the words above his head with a comma: “the people, for whom he saved the union, …” Without the comma, it reads, “in the hearts of the people for whom he saved the union”, connoting that he saved the union only for some people. He saved the union for all people, at least a more expansive concept of people than at the outset of the union.

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January 17, Visit to the Capitol and the Library of Congress

My visit to D.C. let me see the people and institutions that might check executive power. The ten-minute pro-forma session was an example of that. It was a reminder that people trust in the power of their institutions. The Senate would not have held many of its pro-forma sessions except that they prevent the President from making recess appointments.

Next was the Library of Congress.

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I cannot live without books, but fewer will suffice…

Before I spent some time in the Reading Room, I visited Thomas Jefferson’s library. Jefferson offered to Congress his entire collection after the Library of Congress was largely destroyed in the 1814 burning of Washington. He numbered them, and arranged them by subject. It was filled with history, fiction, science, politics, religion, law, literary criticism, math… He had a Koran. Anticipating that Congress might think this collection too diverse, he wrote to them: “there is in fact no subject to which a member of Congress may not have occasion to refer.”

January 18, United States Supreme Court

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I chose to attend the oral argument of Lee v. Tam. It was a First Amendment case, it had a sympathetic plaintiff (Mr. Tam and the Slants), and the outcome will almost certainly determine the outcome for the “Redskins” trademark. A couple of people told me that I should arrive at 4am or even 3am to be guaranteed a spot in the audience. I arrived at 3:08 and was 8th in line, behind mostly line-holders who looked like they had been there overnight. By 4am, the line was past capacity.

At the front of the line, I was surrounded with people very familiar with the case: family of the attorney who would argue the case for Mr. Tam, an author of an NSFW amicus brief from the CATO institute,  somebody close to the legal team for Pro-Football, Inc…

The First Amendment protection of speech is an important check on the government. Expressive speech comes in many forms: journalism, literature, comedy, music. Today, much of this expression takes place in the commercial sphere. Sometimes, a speaker is emboldened to choose a particular message because they can trust in the protection of trademark law to secure exclusive use of that message as an indicator of their goods or services. The government has decided to withhold from a certain category of speech (speech that disparages) the special protections that trademark registration brings.

This case asks: is this kind of restriction a burden on speech, is that burden is viewpoint-based, and if so, is it nonetheless justified because of the purpose of the government’s trademark registration program?

The session started promptly at 10am with four minutes spent admitting attorneys from around the country to the Supreme Court Bar. Then, from Chief Justice Roberts: “Justice Sotomayor has our opinion this morning…” — I had already seen on SCOTUSBlog’s calendar that there would be an opinion announced today, so this wasn’t a complete surprise, but these don’t happen every session, and you never know what opinion will be presented — “…in case No. 14-1055, Lightfoot versus Cendant Mortgage Corporation.” I was unfamiliar with this case. She read her prepared opinion summary. Turns out that federal courts don’t have automatic jurisdiction over cases that happen to involve Fannie Mae. Who knew?

Chief Justice Roberts then introduced the first case, “We’ll hear argument first this morning in case No. 15-1293, Lee versus Tam.” You can listen to the argument here. Counsel for Mr. Tam and the Slants did not have a good day. Here are some excerpts:

A third of the audience departed after Lee v. Tam, so the room was much less full for the second case, Ziglar v. Abassi. This case relates to how hundreds of middle eastern men were detained and treated in the weeks and months after 9/11. The main question before the court was: can the men who were detained sue then Attorney General John Ashcroft (and others responsible for the detention and conditions) in his personal capacity?

Only six justices heard the case, the minimum allowed. Justices Kagan and Sotomayor had each recused themselves from the already shorthanded court. This case has been around so long that they each probably worked on it in some capacity before their appointments to the Supreme Court.

It was very well argued by Ms. Merropol (grandchild of Ethel and Julius Rosenberg). She took every opportunity to turn the argument back to points she wanted to emphasize or clarify. She was prepared for every question and handled hypotheticals with consistency. The oral argument audio is here.

This was also Mr. Gershengorn’s final argument as Acting Solicitor General for President Obama.

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January 19, Museum Day

NPR HQ! They were not hosting tours that day, but I still got to see their history exhibit and gift shop, and now I have a new mug.

The Smithsonian National Museum of African American History and Culture (that needs a shorter name) was out of passes, so I spent the afternoon in the Natural History Museum and then wandered the National Mall amongst the people who had already arrived for the inauguration the next day. The day-before-the-inauguration vibe was mostly one of spectacle and people watching people.