The Milquetoast Patriotism of the “Cabinet Resistance”

If the President is incapable of performing the duties of the office to which he was elected, he should be removed.

From the moment President Trump took the oath of office, many of us suspected as much – even as a candidate the President showed no interest in or knowledge of the difficult details of policy, nor a desire to ameliorate his ignorance, preferring instead to spit bigoted lies and snake-oil promises.

More recently, a new book by Bob Woodward and an anonymous op-ed by a senior White House official have confirmed this in devastating detail. In particular, the op-ed alleges that there is a secret alliance of Trump officials in the White House who, in turns and by degrees, seek to frustrate his worst impulses and try to limit the damage he is doing to our institutions.

What they don’t realize is that preventing Trump’s insanity from becoming policy doesn’t protect our institutions – in the long run, keeping the ship of state afloat by flattering the President’s ego but refusing to follow his orders turns the Presidency into a figurehead. When the buck stops nowhere, the damage to our institutions is done whether the orders are carried out, or someone whisks the relevant paperwork out of sight.

Sure, I can contemplate a certain bravery to mitigating the consequences of his orders (by refusing to follow them). But what this op-ed really says to me is that its author (and their compatriots) prefer to use the Presidency as a hot-air balloon for their personal policy agenda instead of using their power to protect the integrity of the office the way the Constitution intended.

When the Founders contemplated the eventuality of an unfit President, they didn’t create a chattering body of unelected advisers to make decisions in his stead – they gave the House of Representatives the power to impeach, and the Senate the power to try all impeachments.

Implied in this concept of impeachment is the radical notion that the President should be held responsible for their decisions. In turn, it is implied that the President should actually be allowed to make decisions.

Yes, there have likely been times when the worst impulses of every President needed to be checked in quiet ways – but when it happens all day, every day, such conduct ceases to be patriotic stewardship and starts to resemble the cynical calculus of a cover-up for the “greater good”. The “Cabinet Resistance” may be helping in small, short-term ways – but at the end of the day, the right thing to do is call bullshit. If the President is incapable of performing the duties of the office to which he was elected, he should be removed. He is. And we should.

 

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Sometimes You Win Some

Time for a happy post.
 
I’ve been representing an elderly Vietnam veteran for the past few months – he’s been in the process of being discharged from one of the CalVet Veteran Homes, a group of retirement homes up and down the state for retired CA vets that range from skilled nursing to independent living, for alleged code of conduct violations.
 
Simply put and without revealing anything confidential, the discharge was flatly legally deficient. Part of the problem is that the regulations governing when a veteran can be discharged from a home within the statutory 60-day probation period are vague or nonexistent, which unfortunately led to a situation where my client was given conflicting and contradictory guidance by Home staff, implicating fundamental due process concerns.
 
I’ve been arguing as much, and ended up escalating the issue to the California Veterans Board, which equivocated as to whether they had jurisdiction over this dispute (again, regulatory murk), but referred the case back to the CA Dept. of Veterans Affairs for analysis in the general counsel’s office. Long story short, I just got off the phone with one of their staff attorneys, and the Department has directed the Home to rescind the discharge, based on their own investigation as well as my advocacy and my client’s personal testimony. He’s going to get to stay, and I’m completely over the moon about it.
 
And as a little silver lining, the other attorney complimented me on my advocacy/lawyering. Obviously not the important part of this story, but in this line of work (and this case specifically) you can sometimes feel like you’re fumbling in the dark, and it’s immensely validating to have an expert tell you you’re doing something right.
 
Big picture, today an elderly veteran was able to stay in his home because the people of Los Angeles elected to give back to their community via the Measure H sales tax, which funds my job and jobs for dozens of attorneys across the county to defend the rights of indigent and vulnerable tenants. Sometimes, the system works – and while this is just one case, I can’t help but be optimistic for the success of this “civil public defense” model going forward.

On The French, Trevor Noah, and Hyphenated Identity

Yesterday, I saw a lot of friends sharing the statement from the French ambassador to Trevor Noah’s joke about the African-ness of the French World Cup-winning squad, figured I’d share the response (and mine). While I saw the French statement mostly as an opportunity for the Macron government to score easy points razzing a country whose President went to Europe and repeated white supremacist talking points, some of my friends seemed to take the French position at face value, decrying hyphenated identity as a positive thing.

Here’s Trevor Noah’s response:

What do y’all think about Noah’s point that duality and the acknowledgement and integration of separate identities is a good thing? And separately, how do you all respond to the fact that despite the French statement’s hilariously stereotypical nose-thumbing, France also has a long history of using non-whiteness as a tool of social control and enforced stratification?
Broadly, I don’t think insisting on unitary national identity is accurate as a matter of human psychology or useful as a political – it is a problem, of course, is when such divisions become a priori rationales to further divide us from one another, but papering over the complexities of how history and law and power have made us who we are by taking the Chief Justice Roberts “Parents Involved” approach (and simply refusing to talk about race) is a superficial solution that doesn’t solve anything. It’s like electing a black president and thinking we solved racism forever.

Being afraid that hyphenated identity is more a force for division than unity misunderstands both the intent of the ones asserting that identity, as well as the status quo. In a nation where racism and xenophobia continue to perpetrate systems of disproportionate violence and denial of opportunity against minorities, hyphenated American identity has been a tool for Footnote Four minority groups not to reduce or qualify their American-ness, but to insist on the fullness of it. It’s an argument for a bigger definition of what being American means, and who gets to claim it.

To some extent, it’s the same mistake that people make about Black Lives Matter. Saying “Black Lives Matter” doesn’t mean other lives matter less – it’s a rallying cry to call attention to the ways our nation’s culture and policies have intentionally targeted and destroyed black lives because of their blackness. The way to fix this isn’t to insist that minorities drop the hyphenate when they describe who they are. The real solution, the hard solution, is to foster a culture of empathy and solidarity that has a clear-eyed view of history, but also incorporates the complexity of identity with the shared goal of working diligently toward the perfection of our union.

One Small Justice at a Time

I wanted to take a minute to highlight the work of trans activists across the country through a short anecdote:

Today, I had my first infraction ticket trial in many months. My client was a young transgender woman who is currently experiencing homelessness but working with Safe Place for Youth (SPY) to find housing and a job. Left unaddressed and unpaid, this ticket could accumulate heavy fines and/or result in a pedestrian warrant against her, harming her ability to find housing and employment, and supplying a pretext for discrimination from service providers, government employees, and law enforcement officers.

The court documents accusing my client of smoking a cigarette in a prohibited area had her legal, or dead, name, in bold print across the top. As I stood at my desk, preparing to draft a motion asking the court to dismiss my client’s case, I pondered names and pronouns. My client had already expressed to me the first name she preferred to go by, as well as her preferred pronouns (she/her), and my first instinct was to use them in the documents I was preparing to file.

But then, as I typed away, adding footnotes, and citing to letters from her case manager and statistics about LGBT homeless youth, doubt crept in. After all, these were legal documents, and conforming my writing to my client’s legal name and gender would be a foolproof way of avoiding technical difficulties later.

Moreover, I didn’t know whether the judge or, particularly, the police officer I would be negotiating with at trial would be sympathetic to a client they knew was trans. In most of these ticket cases, which involve strict liability statutes and everyday conduct (blocking a sidewalk, smoking, having an open container of alcohol), the best or only play an attorney has is to appeal to the sympathies of the court and the police – if either was transphobic (or simply ignorant), I risked getting a worse outcome for my client by disclosing their gender identity.

The principle that ultimately made the decision for me is at the root of legal practice – while the lawyer is ceded authority over matters of pure strategy, the client is ultimately in charge of all decisions which involve the invocation or waiver of their constitutional, statutory, or common law rights. And while no, my client’s real name is not her legal name, and she is not legally female, it seemed to me just and proper and close-hewn to the idea of lawyer-as-advocate to proffer the name and pronouns the client wanted to be known by to the court and the police officer.

In the Wild West of infraction, or traffic court, the defendants, most of whom stand accused of things like speeding or running a red light, are given a chance to negotiate with the police officer that cited them before the case goes before the judge. I generally try and find my client’s citing officer a little early to beat the rush, and to avoid eavesdroppers. Putting on my most winning smile, I shook the officer’s hand and ushered them out of the courtroom, making the usual small talk about their morning – LAPD Officer Ruiz had just gotten out of a CPR training, and seemed in a good mood. Better yet, he remembered me from a previous case.

As I started to make my client’s case, I began by identifying them as “[legal name] [last name], who prefers to go by [real name] – her ticket came to me through Safe Place for Youth.” Internally, I braced myself for the officer to push back, to assume that I had gotten it wrong, or worse, laugh or show disgust. But to my surprise, Officer Ruiz said, “Oh, ok – [real name],” and proceeded to use the correct pronouns for the rest of the conversation. We agreed that it would be best if the fines and fees on the case were reduced to zero in light of the circumstances, and went to the judge to ask his approval.

And again, to my surprise, the judge pro tempore filling in for the usual Commissioner, an older white man with a shock of thin, frizzy hair in a ring like a monastic tonsure, leaned forward with his chin on his knuckles as I told him my client’s story, and crinkled his mouth sympathetically when I said, “My client, [legal name] [last name], who prefers to go by [real name], is a young transgender woman experiencing homelessness.” No side-eye of judgment, no confused follow-up questions, no surly proclamations starting with “Counsel, I must say…”. Just empathy, and an almost perfunctory attitude – because of course he would reduce the fines to zero. As if there was obviously only one right choice, a conclusion I agreed with but was nevertheless shocked to see the court reach with such compassionate ease. I walked into court expecting a battle, but it turned out to be one of the easiest infraction cases I’ve ever done.

Just a few years ago, a scenario like this would have been impossible. And indeed, today, trans people remain at disproportionate risk of harassment, (lethal) physical and sexual assault, and unjust treatment by and within our criminal justice system. But however incremental the change, none of it would have been possible without the relentless work of trans activists bringing visibility to their existence.

As Janet Mock once said,

There’s power in naming yourself, in proclaiming to the world that this is who you are. Wielding this power is often a difficult step for many transgender people because it’s also a very visible one.

Without trans people able and willing to take those difficult steps to publicly live internal truths, it would not be possible for a police officer and a judge to hear that a defendant is trans and react with understanding and nearly instinctive compassion. Let’s keep saying it so we all remember: trans activists’ bravery and passion continue to make real change, one small justice at a time.

 

What Did I Learn?

My last day as an Equal Justice Works Fellow was September 27, 2017. Since then, I’ve been writing this post in fits and starts to try and sum up the experience. Part of the difficulty is that strong opinions and emotions tend to make maudlin and trite things bubble up in the writing, and right now every thought I put down on the page feels imbued with passion and urgency and even anger. I think the best way to mitigate these risks is to begin with old news and ease into the new things. For those of you who may be reading about my work for the first time:

Continue reading “What Did I Learn?”

The Unearned Valorization of Hope Hicks

Hope Hicks has left the building. And judging by the coverage of her resignation, one would think that Mary Poppins herself had, parrot-pommeled parasol in hand, soared out of the West Wing and over the Potomac to wherever fresh-faced, kindly governesses come from. Take this morning’s New York Times for example. The image of Hicks it, along with many other publications, cultivates is of a faithful if long-struggling squire who, through dutiful service to her mercurial feudal lord, suffered too long and too much for any person to bear – tearfully boarding a plane to a fog-embraced colonial in Connecticut where, her labors complete, she will at last find rest.

What a bunch of bullshit. I have no reason to doubt Ms. Hicks’ work ethic, nor her loyalty to the President. And her uncharacteristic ability to do her job without becoming the subject of lurid headlines (until the end) is certainly commendable, albeit by this White House’s practically subterranean standards of conduct. But while hard work and fidelity may be virtues in a vacuum, I’d like to think that when we judge those qualities in real life, context matters. And when someone chooses to devote such energies to a man like Donald Trump, I think the public and the media has an obligation to judge their character in light of the object of its favors.

Ms. Hicks, like every other member of the Trump administration, has chosen to remain by his side through every scandal and crisis, from the “Access Hollywood” tapes to today. Moreover, she has been an active participant in the trough of lies the White House spews on a daily basis, denying any and all allegations which could remotely tar the President’s reputation. She was a critical part of the Air Force One meeting where the President formulated a transparently false statement about a Trump Tower meeting between Russians and top campaign officials, and most recently told the House Intelligence Committee that she had told “white lies” on the President’s behalf, an admission which ultimately precipitated her resignation.

As Hicks has intentionally cultivated a low profile and privileged fidelity to the President and his agenda over whatever moral qualms, if any, she may have experienced in her time on the campaign trail and in the White House, we must infer that she is either a private demagogue or a thoughtless sycophant. Judging from the only(?) interview she has ever given, to Forbes magazine, where her answers to even the slowest of softball questions are babbling, perky pablum that makes the back of a Dr. Bronner’s soap bottle look like Hemingway, I’m leaning towards the latter.

In either case, Ms. Hicks has not earned the sympathetic eulogization which has followed her departure from the White House. Unlike other members of the Cabinet, such as General Mattis, there is no indication that her stint in public service was out of a sense of duty or obligation toward her country, its laws, or its Constitution. Nor is she shackled to him by family bonds. Her service was entirely volitional, and her loyalties devoted to Trump alone, her dream client (“There’s nobody else”). If anything, her blind devotion to our 45th President has earned the opposite treatment, not least because of her boss’s (and apparent boyfriend’s) treatment of women. As Madeline Albright said, “There is a special place in hell for women who don’t help other women.” When she had to choose, Hicks decided to stand by one man who walked in on naked underage models, and another who punched his wives in the face.

People who are valueless – or who subordinate their values to partisanship or tribal loyalty or fame or riches – are scarcely better than the Steve Bannons of the world. Her silver gel pens and fresh-baked cookies notwithstanding – by sins of commission and omission, Hope Hicks has revealed herself to be one of these. When the dust of the Trump administration settles and a hundred hot takers open laptops to write its obituary, she should be remembered not as a long-suffering aide-de-camp, but rather as a vapid automaton who ducked and dodged and lied and schemed to enable the embrittling of American democracy by one of its worst Presidents.

The Problematic Nexus of Gun Control and Mass Incarceration

After yet another horrific mass shooting, this time in Sutherland, Texas, gun control is back in the news. Justice demands that we do more as a society to prevent gun violence. But I’ve said it before, and I’ll say it again until I’m hoarse: liberals/progressives/gun control advocates should be very careful that in passing new gun laws, we don’t inadvertently contribute to the problem of mass incarceration.

In our criminal justice system, it is all but guaranteed that any law which creates new frontiers of criminal behavior is going to be disproportionately enforced on poor and working class communities of color. We’ve seen this happen over nearly fifty years of a “War on Drugs”, but it applies to nearly every level of government punishment of individual behavior, from the severity of criminal sentencing to basic interactions with law enforcement to school discipline for children. You don’t need to be a Second Amendment firebrand to anticipate that any new law punishing individuals for, e.g. failing to register a firearm will bring the hammer down hardest on those who can least afford it.

To add a wrinkle to a common comparison, look at the havoc that vehicle registration laws have wrought on poor and working class Americans of color. More than 4 million Californians have a suspended driver’s license, and with it, hundreds if not thousands of dollars in court-ordered debt. Penalties are disproportionate to the offense to society because the money is used to fund the courts themselves and other programs. This creates a two-tiered system of justice where wealthy people can simply buy their way out of the system, whereas poor people accumulate massive financial liabilities they will never be able to pay off.

In addition, vehicle registration offenses are often used as an excuse to justify heavy-handed and often unconstitutional police conduct, such as illegal searches and seizures.  Philando Castile, the legal firearm owner who was shot and killed by Jeronimo Yanez of the Twin Cities Police Department for no reason whatsoever, had been pulled over 49 times in 13 years and was fighting a multitude of vehicle-related infractions.

The vehicle context differs in important ways from the firearm context, of course. For example, the economic impact of being unable to use a firearm is significantly less than the impact of being unable to drive a motor vehicle. And in many states which already heavily restrict open carry, such as California, the risk of opportunistic police behavior around firearm regulation is not nearly as perverse as it is for vehicles. However, the cost of noncompliance with firearms can be higher than it is for vehicle laws. While failing to register a motor vehicle in California is merely an infraction (and will not go on a criminal record), failing to register previously owned firearms within 60 days of becoming a resident of the state is a misdemeanor, which does create a criminal record and can interfere with eligibility for education, employment, military service and other benefits.

Regardless, even if a case is never brought against someone, it is not difficult to imagine scenarios in which new firearm regulations could create a pretext for unlawful discrimination and harassment on the basis of race or class. And even if registration and/or licensure violations are treated as mere infractions, the associated fines and fees, if not implemented equitably, could be crippling – 47% of Americans lack the liquidity to cover an emergency expense of just $400. And at the end of the day, while we should certainly do our best as a society to prevent mass shootings, such heinous violence nevertheless makes up a tiny portion of total gun deaths (107,141 deaths and injuries in 2013), 60% of which are suicides and only a third of which are intentional homicides. We must push our government to create a more effective, just, and constitutional firearms regulation regime. However, in doing so, we must learn lessons from the War on Drugs and other well-intentioned but failed government projects, and make sure that we are not simply creating a new pit of criminal liability that only punishes the poor and disenfranchised.