//  7/25/17  //  Commentary

Monday morning at 6:12 am Donald Trump sent the following tweet about Rep. Adam Schiff (D-CA), the ranking minority member of the House Permanent Select Committee on Intelligence:  “Sleazy Adam Schiff, the totally biased Congressman looking into ‘Russia,’ spends all of his time on television pushing the Dem loss excuse!”  This was 31 minutes after Trump sent a tweet asking why “the Committees and investigators, and of course our beleaguered A.G.” weren’t “looking into Crooked Hillarys [sic] crimes & Russia relations?”  It was six minutes before Trump tweeted that “Republicans have a last chance to do the right thing on Repeal & Replace after years of talking and campaigning on it.”  And it was shortly before Trump’s son-in-law, Jared Kushner, met behind closed doors with investigators for the Senate Intelligence Committee to answer questions about his dealings with Russian officials during the 2016 presidential campaign.

Trump poses so many dire threats on a daily basis—the threat of a banana-republic style political prosecution of his defeated opponent, the threat to strip millions of Americans of health care just so that he can claim a political victory—that it is easy to overlook his hour-by-hour, minute-by-minute assaults on basic norms of democratic civility.  So let’s focus for a moment on the tweet about Schiff.

Full disclosure:  I worked with Schiff in the late 1980s; we were federal prosecutors together in Los Angeles.  I admired him then, and I admire him still.  But this post really isn’t about Schiff, who can defend himself.   (He responded to Trump’s tweet with characteristic restraint:  “With respect Mr. President, the problem is how often you watch TV, and that your comments and actions are beneath the dignity of the office.”)

This is about something that has become so commonplace we’re in danger of becoming inured to it:  the way the President slings mud without the slightest regard not only for the truth but even for the appearance of caring about the truth.  He’s upset by something he sees a congressman say on television.  So he tells the country the congressman is “sleazy,” “totally biased,” and “spends all his time on television.”

Schiff has served in Congress for sixteen years.  Before that he was a California State Senator for four years.  So twenty years of legislative service, in which time there has been, to my knowledge, not the slightest suggestion of any ethical impropriety.  “Totally biased”?  He’s respected across the aisle and works across the aisle.  There can’t be a member of the House who has labored harder over the past decade a half to build bipartisan consensus on foreign policy.  “Spends all his time on television”?  Please.

Trump may not know any of this.  But he knows—and knew Monday morning—that he didn’t have any grounds to attack Schiff’s character.  He doesn’t care. He didn’t like what Schiff said, so Schiff is “sleazy” and “totally biased.”  We’ve seen this again and again. Anyone who opposes Trump—Republican, Democrat, judge, reporter, career prosecutor—is “crooked” or “sleazy.”  To call Trump a liar isn’t adequate.  He has no sense of shame.  It’s not clear he understands that honesty and integrity are real things, that there are people who actually try to live by those values.  What he respects—and he’s been perfectly clear about this—is “strength.”

This isn’t just repulsive.  It’s Orwellian, in the strongest sense we’ve ever seen in American politics.  So it’s important not to get accustomed to Trump’s reflexive, unabashed smears, not to mistake them for the ordinary rough-and-tumble of democratic politics.

Democracy depends not just on institutions but on engrained habits and practices.  These include the habit of good faith engagement and the practice of distinguishing “honest dissent” from “disloyal subversion.”  (The language is President Eisenhower’s.)  It’s worth remembering what Judge Learned Hand said in May 1944 (as Eisenhower was finalizing preparations for D-Day) about “the spirit of liberty”—the spirit that formed the “common purpose” and “common devotion” of Americans, the core conviction for which Americans were fighting in Europe and in the Pacific.  It wasn’t a belief in “ruthless … unbridled will,” Hand said.  Rather, he explained, the spirit of liberty was “the spirit which is not too sure that it is right … the spirit which seeks to understand the minds of other men and women … the spirit which weighs their interest alongside its own without bias.”  It was a spirit, Hand said, that cannot exist “except as the conscience and courage of Americans create it.”

Everyone has biases.  Learned Hand knew he was describing an ideal that had never been fully attained.  But you can’t even approximate impartiality—or honesty, or integrity—if you don’t believe in it.  Not the least of the challenges Trump presents to all of us is to retain our faith in the values he disdains. 

The Constitutionality of the 5-5-5 Supreme Court Plan

5/17/19  //  Commentary

It would be constitutional to have a 15-person Supreme Court consisting of five Republican-affiliated justices, five Democratic-affiliated Justices, and five more justices unanimously selected by the first ten from judges of the federal court of appeals for a single-year term

Daniel Epps

Washington University Law School

Ganesh Sitaraman

Vanderbilt Law School

Versus Trump: Trump Loses On Family Planning, Wins In The Ninth, and More

5/16/19  //  Uncategorized

This week on Versus Trump, Jason and Easha go through a few updates to cases involving Title X, which provides money for family planning; the Administration's policy to have many asylum applicants removed to Mexico; and the controversial border wall. Trump lost one, won one—for now, and hasn't yet gotten a decision in the third. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

When You Have Five, They Let You Do Whatever You Want

5/14/19  //  In-Depth Analysis

While several of the essays in the edited collection of Reproductive Rights And Justice Stories talk about social movements that have influenced the law, some recent events suggest we should have those discussions without losing our focus on courts themselves

Leah Litman

U.C. Irvine School of Law