Blog Ipsa Loquitur

Elie Mystal, writing at Above the Law: Asian-American Affirmative-Action Lawsuit Against Harvard Has Always Been On Behalf Of Mediocre White People

Harvard University almost certainly discriminates against Asian-American applicants in a number of ways. Foremost is the fact that because so many Asian-Americans have absolutely outstanding test scores, good luck getting in if you don’t. If there is an abundance of “crazy rich Asians” with perfect SAT or ACT scores, don’t try being the Vietnamese-American whose parents were refugees who merely scored in the top 15th percentile while working two jobs and helping your parents with rent. Best hit up Rutgers if you didn’t make the mathlete team.

You can tell [anti-affirmative action activist Ed] Blum’s lawsuit is disingenuous, because it — and the media coverage of it — is hyper-focused on “ending” affirmative-action and calling into question “race-based preferences.” It’s looking at only one prong of Bakke and trying to gut it.

The legal underpinning of affirmative-action in college admissions rests on two straight-forward principles. The Supreme Court case, Regents of the Univ. of Cal. v. Bakke, held that colleges and universities could use race as “one factor among many” in their admissions process, and that colleges and universities could not use a quota system to fill their classes.

Blum’s argument goes something like this: One, the population of Asian Americans has increased by 72% since the turn of the millennium. Two, the population of Asian American students admitted to Harvard has stayed more or less flat since then, even while the applicant pool becomes steadily more Asian. At this point, something like 43% of Harvard applications are Asian, but only 20% of the class is Asian. Three, this means Harvard is imposing a quota on Asian students.

And as Mystal points out, Ed Blum is probably right. The Supreme Court said “yeah, affirmative action is Constitutional, just don’t set up a quota system” and now Harvard sure looks like it’s got a quota system. Harvard’s policy probably ought to change. But make no mistake: Blum isn’t hoping to get Harvard’s admissions policy tossed out. He’s arguing that Harvard shouldn’t be taking race into account at all, and he aims to get Bakke overturned. As the Supreme Court has taken a rather hard right turn in the intervening years, there’s a non-zero chance we see affirmative action end up severely weakened.

Of course, if Blum does succeed in his lawsuit, he might not like the results. Let’s all take a second to appreciate one of my favorite headlines of all time “White People Think College Admissions Should Be Based on Test Scores, Except When They Learn Asians Score Better Than Whites.” Without that (again, probably unconstitutional) quota system that Harvard’s got, there are going to be fewer white kids at Harvard, not more.

I joke, but Mystal astutely observes this is about more than a few solid students rejected by Harvard because of a quota:

Blum does not want 43 percent of the Harvard class to be made up of Asian-American students. Instead, he wants Harvard to stop using race as one factor among many, but to keep using all the other non-academic factors. There’s no Ed Blum lawsuit trying to get Harvard to stop using legacies as a factor in admissions, there’s no lawsuit trying to get Duke to stop using a fundamentally sound jump-shot as a factor in admissions, there’s no lawsuit trying to get Liberty to stop using pastor recommendations as a factor in admissions. There’s only the ongoing, generational effort to rinse black people out of higher education.

Here’s hoping Justice Ginsberg makes it another few years.

Today, U.S. Attorney General Jefferson Beauregard Sessions III resigned his office in an undated letter to the President. If Sessions had been fired, Deputy Attorney General Rod Rosenstein would have become the Acting Attorney General until the President appointed a replacement. However, because Sessions voluntarily resigned, the President is allowed to choose someone else to become the Acting Attorney General for up to 210 days under the terms of the 1998 Federal Vacancies Reform Act. This person will oversee the Mueller investigation into Russian interference in the 2016 election, taking that responsibility from Deputy AG Rosenstein. (You’ll recall that Rosenstein was supervising the Mueller investigation because AG Sessions recused himself from all 2016 election-related inquiries.)

The President chose as Acting AG Sessions’s chief of staff Matt Whitaker, who has repeatedly criticized the Mueller investigation:

In May 2017, after Trump fired former FBI director James Comey — but before Rosenstein appointed Mueller — Whitaker wrote in an op-ed in the Hill that calls at the time for an independent prosecutor or commission to investigate Russian interference in the 2016 election “ring hollow” because Democrats hadn’t called for special counsels during “scandals” of the Obama administration. Whitaker hadn’t yet joined the Justice Department at that point; he was executive director of Foundation for Accountability and Civic Trust.

“Serious, bipartisan congressional investigations into the Russian allegations have been under way for weeks and they have made progress. Hollow calls for independent prosecutors are just craven attempts to score cheap political points and serve the public in no measurable way,” Whitaker wrote.

Several months later in August, he wrote in a CNN op-ed that he was concerned about reports that Mueller’s office might be investigating the finances of the Trump Organization and Trump’s family.

Acting AG Whitaker is now Special Counsel Mueller’s boss. That has some immediate and profound consequences.

At the outset, it’s important to note that Mueller is almost certainly not going to get fired out of nowhere. Firing FBI Director James Comey started this whole Special Counsel mess, and I think this administration has learned that particular lesson. But there are more subtle ways to mess with Mueller’s investigation.

one: just say no

There are rules for how the Special Counsel’s Office operates. Per 28 CFR § 600.7:

The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3).

Big developments in the Special Counsel’s cases, whether that’s investigative (subpoenaing evidence, interviewing suspects, etc.) or prosecutorial (presenting evidence to the grand jury, indicting Russian spies, etc.) have to get pre-approval from the AG. Mueller has to explain the particulars of each step in the process, and Whitaker can direct Mueller not to take that step if Mueller asked to do something “inappropriate or unwarranted under established Departmental practices.”

For example, Whitaker in his August 2017 CNN op-ed wrote that Rosenstein should “order Mueller to limit the scope of his investigation to the four corners of the order appointing him special counsel” in response to reports that Mueller was investigating the Trump family business. Whitaker is now in a position to make that happen; he can wave Mueller off of whatever line of investigation he believes is inappropriate.

The good news is that Whitaker has to report to the House and Senate Judiciary Committees with a list of all the times he told Mueller not to take a specific action. The bad news is that report goes to the Judiciary Committees at the end of the Special Counsel’s investigation, so Whitaker gets to keep his running list of “rejected Mueller actions” private until it’s too late for Congress to do anything about it.

two: the money

Currently, there are thirteen prosecutors working in Mueller’s office. As Acting AG, Whitaker has complete authority over the budget and personnel matters of the Special Counsel’s office. Here’s Matt Whitaker on one of those CNN talking head panel shows in July 2017:

“I could see a scenario where Jeff Sessions is replaced, it would [be a] recess appointment and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt.”

Well, now we can all see that scenario over the coming months. Peachy.

It’s worth noting that last year, the Mueller investigation cost about $17 million. That sounds like a lot of money, except for the $46 million in Manafort’s assets that the government seized in September. I’m not sure what the resale value on ostrich-skin jackets is, but the Mueller investigation has more than paid for itself out of Manafort’s pockets alone.

three: the mole

Honestly, the Mueller investigation has been rolling along for eighteen months, and the FBI investigation for almost a year before that. I don’t know that the investigation is at the stage where it needs a ton of lawyers because it opens up a lot of new avenues; Mueller might spend less time asking permission to pursue new leads and more time handing Whitaker a stack of indictments. What kind of boss would say no to that?

Even if Mueller isn’t asking permission, he still has to explain his investigative and prosecutorial actions to his boss. What if Whitaker simply tells the Trump White House who and what the Special Counsel is investigating? He could provide nearly real-time updates as witnesses are interviewed, evidence is uncovered, and grand juries indict ham sandwiches. Trump’s defense attorneys could even tell Whitaker what Mueller is and isn’t allowed to investigate.

And then there’s Congress: members of the House of Representatives spent months last summer demanding FBI records related to the Russia investigation. Rosenstein pushed back on those demands and ended up turning over a very narrow set of records to Congress. What if the Senate comes looking for more records tomorrow? Whitaker could say “sure thing! You want fries with that?”

Lastly, Special Counsels write a report on their findings at the end of their investigation, but the AG decides whether to publish that report or not. Nothing says the AG has to make that public, and nothing would trigger the libs harder than just sitting on a Mueller report.

There’s no end to the ways an AG hostile to the Mueller investigation could undermine it. Those are just the first few that come to mind. There’s a reason the president has been so apoplectic that Sessions and Rosenstein weren’t doing more to protect him: the Attorney General can do a lot to protect the president from investigations because the Attorney General supervises investigations.

the end?

Look, Mueller is no idiot. The reason he got hired in the first place was because Trump tried to shut the Russia investigation down by firing Comey. Mueller has to have known this was coming one day; in fact, we had a dress rehearsal in September.

Maybe he’s been filing sealed indictments in the weeks before the election, just in case his new boss was Matt Whitaker. Maybe he’s been handing off cases to regional US Attorney’s offices, like the Southern District of New York. (Those offices report to Mueller’s boss, too, so that might not protect an investigation Whitaker finds particularly inappropriate.) Maybe Mueller’s been referring cases to the New York State Attorney General.

Whatever the plan is, the fact that Mueller needs one right now means we’re in the middle of a slow motion constitutional crisis.

Yes, I did all read all 13,000 words of the New York Times’s unbelievable investigative report: Trump Engaged in Suspect Tax Schemes as He Reaped Riches From His Father. What the Times found was what some folks had suspected for years: the President is less a master of the art of the deal and more a master of inheriting a real estate empire from his father. The President, with all the self-assuredness of a playground bully, responded to the report by calling it “defamatory” upon its publication, “misleading” later that night, and “often told” the following morning. As David Frum pointed out, the President’s responses “are rapidly evolving from denial to acknowledgment” of the substance of the report.

That’s all well and good. The person whose presidential campaign sounded like a con man’s has apparently been a con man for his entire life. It’s always nice to have your priors confirmed.

But the most interesting part to me isn’t what the Times learned but how they learned it.

We’re days away from the floor vote to determine whether Brett Kavanaugh will be the newest justice on the Supreme Court, and here’s the best of what I’ve read about last week’s hearing. Professor Rebecca Hamilton, writing for NYU Law School’s Just Security blog:

Dr. Christine Blasey Ford threw her life into turmoil yesterday to testify before the nation. Asked by Sen. Dick Durbin (D-Ill.), with what degree of certainty she believed that Judge Brett Kavanaugh assaulted her, she responded: “One hundred percent.” Every senator voting to confirm Kavanaugh to the Supreme Court should be pushed to answer one question: Do you believe her? […]

Testimony is evidence. If Ford is credible, as she is largely acknowledged to be, her testimony should be given the evidentiary value it deserves. In most U.S. courts, credible testimony alone can be enough for a criminal conviction. And for good reason. In sexual assault cases, the perpetrator and the victim are often the only ones present at the scene of the crime. If credible victim testimony did not stand as evidence, then there would be even less justice for survivors of sexual assault than there is already. (Also important to keep in mind, is that confirmation hearings are about assessing the fitness of a nominee – a task involving a significantly less demanding standard of proof than that required in a criminal, or even civil, trial.)

There are a really important few points going on here, on two different bits of the law. The first is that the things that witnesses (including victims) say is evidence. Juries are charged with determining what happened. Each side presents evidence of what happened, in the form of records and testimony, and the jury has to figure out who to believe about what. Defendants can be convicted on the testimony of a single witness, if the jury finds that witness credible enough.

The second point is the standard of proof. In a criminal trial, the defendant is innocent until the government proves his guilt beyond a reasonable doubt. That doesn’t mean the jury is 100% certain the defendant is guilty, but it does mean something like 95% or 98% certain; the only doubts the jury has are unreasonable doubts, like an evil doppelgänger or time-traveling super villain framed the defendant. If I’m ever on a jury, and that’s my only doubt, I might be comfortable voting guilty.

In a civil trial, the defendant isn’t going to prison no matter how poorly they defend themselves, so the standard of proof is lower. Civil cases are things people sue one another over that aren’t necessarily against the law, like breach of contract, or slandering one another. A civil plaintiff wins if they demonstrate by a preponderance of the evidence that the defendant is liable for whatever lousy thing the two sides are fighting over. As Black’s Law Dictionary puts it: “the jury is instructed to find for the party that, on the whole, has the stronger evidence, however slight the edge may be.” That’s not 98% or even 60%: the preponderance of the evidence standard is literally the tiniest quantum of proof beyond 50%.

And this is Professor Hamilton’s final point, which I think a lot of folks are gliding right past: this isn’t a trial. “Innocent until proven guilty” is for criminal trials, and “he’s more likely to be telling the truth” is for civil trials. This is a Senate Judiciary Committee deciding whether or not Judge Kavanaugh is fit to receive a lifetime appointment on the Supreme Court. The standard is way lower than in a trial – any trial. And as we’re about to see, it’s not just the sexual assault claims that make this guy unfit.

Save your fork; there’s lie

Nathan J. Robinson’s 10,000 word epic on why Kavanaugh should not serve another day as any kind of judge  covers all the dodges and misdirections and white lies in Kavanaugh’s testimony. No, really, all of them. It’s the most detailed deconstruction of the problems with Kavanaugh’s testimony you can find:

He went before the United States Senate and showed total contempt for his vow to tell the truth. He attempted to portray a highly esteemed doctor as a crazy person, by consistently misrepresenting the evidence. He treated the public like we were idiots, like we wouldn’t notice as he pretended he was ralphing during Beach Week from too many jalapeños, as he feigned ignorance about sex slang, as he misread his own meticulously-kept 1982 summer calendar, as he replied to questions about his drinking habits by talking about church, as he suggested there are no alcoholics at Yale, as he denied knowing who “Bart O’Kavanaugh” could possibly be based on, as he declared things refuted that weren’t actually refuted, as he claimed witnesses said things they didn’t say, as he failed to explain why nearly a dozen Yale classmates said he drank heavily, as he invented an imaginary drinking game to avoid admitting he had the mind of a sports jock in high school, as he said Ford had only accused him last week, as he responded to his roommate’s eyewitness statement with an incoherent story about furniture, as he pretended Bethesda wasn’t five miles wide, as he insisted Renate should be flattered by the ditty about how easy she was, as he declared that distinguished federal judges don’t commit sexual misconduct even though he had clerked for exactly such a judge.

But for my money, Robinson’s point on why this high school stuff is so relevant is his best argument:

Some Republicans tried to suggest that scrutiny of Kavanaugh’s yearbook was grasping at straws. Here we are trying to make sense of nonsense scrawlings from some silly kids in a musty old book. Here’s Lindsey Graham: “if we want to sit here and talk about whether a Supreme Court nomination should be based on a high school yearbook page, I think that’s taken us to a new level of absurdity.” But as with Ford’s allegation itself, what’s relevant is not just what happened then but what is happening now: Kavanaugh is lying. The evidence from the yearbook bears on the credibility of his statements about his character in high school, and Kavanaugh himself made his character a central part of his defense and his argument for why Ford should not be believed. Kavanaugh’s supporters can play dumb and suggest examining the yearbook is absurd, but being in the keg club and objectifying and demeaning women is evidence that his “I was always either at the soup kitchen or buried in my schoolbooks” defense is an act.

Realistically, I understand why Kavanaugh lies constantly. If he admits to binge drinking until he blacked out, there are episodes he by definition won’t be able to remember. Mounting a defense when you don’t know your own alibi sounds pretty tricky. Instead, Kavanaugh has to lean on this ‘choir boy’ defense, but that involves all sorts of lies that don’t pass the straight face test. He left quite the paper trail of his youthful indiscretions: now, his explanation for his famously weak stomach, devil’s triangle, and Renate Alumnius are all absolutely ridiculous.

And here’s the thing: remember how witness testimony is evidence? If there are only two witnesses, and one lies constantly about all sorts of ridiculous and demonstrably false stuff, while the second witness… doesn’t, how do you think the evidence shakes out? When the witnesses disagree, which one would you believe?

a vast left wing conspiracy

Even if you think Kavanaugh’s telling the truth about his teenage years (he’s not), and even if you didn’t find Ford’s testimony compelling (it was), there are other reasons the Senate might not approve Judge Kavanaugh. Compare the Chief Justice Roberts’s “aw shucks, Senator, a judge is like an umpire: you don’t take sides, you just call balls and strikes” with whatever the heck this is:

“Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation,” [Kavanaugh] said. He referred to Democrats calling him “evil.” Then he turned directly to Democratic senators on the committee. “You sowed the wind,” he said, and “the country will reap the whirlwind.” He accused Democrats of “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election.” He even suggested it was “revenge on behalf of the Clintons” — referring to his work on special counsel Kenneth Starr’s investigation of the Clinton administration in the 1990s. Later, he later directly addressed the senators again. “Thanks to what some of you on this side of the committee have unleashed,” he said, gesturing to his right, “I may never be able to coach [girls’ basketball] again.” He added that he loves teaching law at Harvard University, but “I may never be able to teach again.”

He’s in a league of his own.

The Cut has a fantastic excerpt from Rebecca Traister’s forthcoming book “Good and Mad” – the except is titled And You Thought Trump Voters Were Mad: American women are furious — and our politics and culture will never be the same.

The idealized vision of what this country might be was born of the virtuous, and sometimes chaotic, fury of the unrepresented. We are taught it as patriotic catechism — give me liberty or give me death; live free or die; don’t tread on me. We carve our Founders’ anger into buildings, visit their broken bells, name contemporary political factions after the temper tantrums they threw, dressed in native garb, dumping tea in a harbor. We call these events a revolution.

This is the anger of white men, of course. Their anger is revered, respected as the stimulus for necessary political change. Because they’ve always been the rational norm, the intellectual ideal, their dissatisfactions are assumed to be grounded in reason — not the emotional muck of femininity. (This isn’t just in the past. Think about how the anger of white men in the Rust Belt is often treated as politically diagnostic, as a guide to their understandable frustrations: the loss of jobs and stature, the shortage of affordable health care, the scourge of drugs. Meanwhile, the Movement for Black Lives, a response to police killings of African Americans initiated by women activists, is considered by the FBI to pose a threat of “retaliatory violence” and discussed as a “hate group” by Meghan McCain.)

The whole thing is beautifully written, and it’s striking and more than a little depressing that after two hundred years of this, women are still fighting the same fights. This time might really be the start of something new: polls have suggested for months that women are abandoning the Republican Party in record numbers. November sure is going to be interesting.

On Friday, twenty members of Special Counsel Bob Mueller’s team walked into a federal courtroom in Washington, D.C. with Paul Manafort. The attorney who the New York Times described as “Mueller’s Legal Pit Bull” spent thirty minutes detailing the charges against Manafort, who pleaded guilty to two conspiracy charges and signed a cooperation agreement with the Special Counsel’s Office (SCO). This agreement requires Manafort to give interviews and briefings to the SCO, turn over any documents he has to them, and testify in other proceedings on their behalf. We’ll get into that.

Manafort was indicted alongside his business partner Rick Gates a few times, most recently in February 2018, and while Gates began cooperating almost immediately thereafter, Manafort held out for more than six months. The SCO piled dozens of charges on him—successfully convicting him of eight felonies in a Virginia federal court—and was days away from prosecuting the second trial by the time Manafort pleaded guilty.

This is huge, right?

Yeah, this seems pretty huge. We don’t know exactly what the SCO is thinking, but they’ve put a lot of effort to get Manafort to flip. That suggests they think Manafort has lots of information that would be helpful to the investigation into the Russian interference in the 2016 election. And if you read the plea agreement Manafort just signed, he seems to believe he has some pretty valuable information, too. It’s not impossible that both parties are mistaken about what the other thinks. This sort of thing happens sometimes.

But I’m gonna Occam’s Razor this one: Manafort, the shadowy political operative for pro-Russian interests and whose top lieutenant was “Kostya from the GRU” and who owed millions of dollars to Bad Dudes In Russia, joined the Trump campaign within days of the GRU beginning its spearphishing campaign of the Clinton campaign. Manafort is later promoted to chairman of the Trump campaign two weeks after the infamous Trump Tower Meeting With All The Russians. That’s right about the time the Russians start dripping emails out for the rest of the campaign. Oh, and at no point during any of this does Manafort—again, millions of dollars in debt to Bad Dudes In Russia—take a paycheck from the Trump campaign.

You don’t need a security clearance or a J.D. to read that paragraph and see why the SCO wants to chat with Paul Manafort. But let’s take a closer look at what just happened.