Are you listening to the mild dronings of the President's lawyers?

Have you been half asleep and have you heard voices? I hear them calling Trump's name...

"Trump’s Lawyers Want Him to Refuse an Interview in Russia Inquiry."

The NYT reports, and I wonder which lawyers and why they (or someone in their confidence) would leak to the NYT that they were "concerned that the president, who has a history of making false statements and contradicting himself, could be charged with lying to investigators."

Did the NYT writers (Michael S. Schmidt and Maggie Haberman) insert their own "who has a history of making false statements and contradicting himself" or was that part of how their source described Trump's lawyers' concern? It makes a big difference! The lawyers could be concerned simply because prosecutors looking to charge somebody for something might lure the interviewee into useful contradictions and misstatements or because someone like Trump, with little experience listening carefully to questions and framing legalistic answers, risks too much.

Refusing to sit for an interview opens the possibility that Mr. Mueller will subpoena the president to testify before a grand jury, setting up a court fight that would drastically escalate the investigation and could be decided by the Supreme Court.

That sounds threatening — drastically escalate! — but I would love to see this issue wrestled into a sober, serious legal framework. I think a lot of people will be surprised at what they see, though most people — including most law-trained people — will obsess over the politics of the individual Justices. There will be a lot of talk of Nixon and his Watergate tapes, but Trump isn't withholding words already recorded. He's holding back what's in his mind. Even if Trump is in the end forced to submit to the interview, it's not the same as Nixon handing over the Watergate tapes. Nixon knew what was in the tapes and how it would hurt him. Trump would only need to begin to speak, and he could speak concisely and with circumspection (and the ability to resort to claims of executive privilege).

But John Dowd, the longtime Washington defense lawyer hired last summer to represent Mr. Trump in the investigation, wants to rebuff an interview request, as do Mr. Dowd’s deputy, Jay Sekulow, and many West Wing advisers, according to the four people. 

So "four people" are leaking about what Dowd and Sekulow supposedly think.

The lawyers and aides believe the special counsel might be unwilling to subpoena the president and set off a showdown with the White House that Mr. Mueller could lose in court. 

I'd love to see the showdown. Maybe if Mueller thinks he's likely to lose or doesn't want to expose his arguments about executive power to the scrutiny of the court, he'll simply accept Trump's refusal to do the interview. I can see why Dowd and Sekulow would predict that outcome. And I can see why they would want their opinion to leak to the NYT, though I'm pretty sure they didn't want to see that business about the "history of making false statements and contradicting himself."

One of the few voices arguing for cooperating with Mr. Mueller is Ty Cobb, the White House lawyer whom Mr. Trump also brought on to deal with Mr. Mueller’s investigation....  Since last summer, the White House has been in what Mr. Cobb has called “total cooperation mode.”...

There could be a strategy here of exhibiting "total cooperation mode" until you have to draw the line. Mueller may decide not to go where that line would be drawn, and so Trump can continue to look like the cooperative guy with nothing to hide. We see friendly, open Trump until he turns around and fights. If you don't want fighting Trump, then you have to cooperate with him. In this case, whatever the lawyers are saying in private, we don't get to see the resistant, closed-off Trump unless and until Mueller demands that Trump speak to him. And the NYT is performing the work of reminding us that that Trump is ready to emerge: Don't provoke him!

Religious monuments, government speech, Justice Breyer's "freak out" test, and Justice Stevens's Vietnam memorial hypothetical.

Dahlia Lithwick covers the oral argument in Pleasant Grove City v. Summum, the case about whether a city that has put up a donated 10 Commandments monument in a public park is stuck having to put up some other donated monument. (Here's the PDF of the transcript.) It shouldn't matter that the other monument represents a weird religion, should it? "Weird" is Lithwick's word:

With its pyramids, and mummification, and nectars, and hairless blue aliens, Summum is an existential stew of transcendental Gnosticism and particle physics: Isaac Luria meets Star Trek Voyager.

Lithwick quickly quips that it's always the other person's religion that seems weird, while your own religion seems "rational." But the reason the 10 Commandments seem more acceptable than the Summum "Seven Aphorisms" is not so much that we are not members of Summum -- maybe a few of you are -- it's that the 10 Commandments are a component of a long tradition that is elaborately integrated into the history of the United States.

That is the reason -- or part of the reason -- why the Supreme Court found -- in Van Orden v. Perry -- that it didn't violate the Establishment Clause for the state of Texas to have a 10 Commandments monument on its state capitol grounds. By the way, the 10 Commandments monument in Pleasant Grove is basically identical to the monument in Van Orden. The context is a little different though, in that the Van Orden monument has been where it was for more than 40 years, and the Pleasant Grove 10 Commandments only dates back to 1971. Also, the city of Pleasant Grove was founded by Mormons, and the 10 Commandments monument isn't the Mormon version of the 10 Commandments, so it doesn't reflect the history of the city in quite the same way.

Back to Lithwick:

In 2003, Summum's founder, Summum "Corky" Ra, requested permission to donate a monument to the park celebrating the Seven Aphorisms upon which their beliefs are based. (The Seven Aphorisms are, in brief: the principles of psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender.) Summum holds that these aphorisms were revealed to Moses at Mount Sinai, but he demurred because his people were not yet ready for them. The Decalogue was the rewrite.

Not surprisingly, the city doesn't want this monument in its park. But if they accepted the 10 Commandments monument from the donor (the Fraternal Order of Eagles), does it violate freedom of speech to reject the message Summum wants to express? Is it unconstitutional viewpoint discrimination to favor the Judeo-Christian speech -- in monument form -- over the similarly stone-carved Summum speech?

Summum isn't before the court as a religion case. It was brought as a free speech case, and, as Jay Sekulow of the American Center for Law and Justice learns about three minutes into oral argument this morning, if he wins this case as a result of the court's free speech jurisprudence, he will be back in five years to lose it under the court's religion doctrine. The more zealously the city claims ownership of its Ten Commandments monument, the more it looks to be promoting religion in violation of the Constitution's Establishment Clause.

Chief Justice John Roberts puts it to him this way: "You're really just picking your poison. The more you say that the monument is 'government speech' to get out of the Free Speech Clause, the more you're walking into a trap under the Establishment Clause. … What is the government doing supporting the Ten Commandments?"

Sekulow replies that the display is 100 percent Establishment Clause kosher in light of [Van Orden and its companion case McCreary]. Justice Stephen Breyer was the deciding vote in each of those cases, which—read together—stand for the current Third Aphorism of Religion Cases: Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer.

Is that really the law, you may ask, or is that some kind of joke? Here's the post I wrote about the cases at the time. Breyer's opinion was the deciding vote, and he eschewed any clear rule, opting instead for what he called called "legal judgment," "tak[ing] account of context and consequences measured in light of" the purposes of the religion clauses -- promoting tolerance and freedom.

Lithwick's line -- "Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer" -- is a joke with some truth to it -- and also some serious inaccuracy. It assumes a conclusion that is in issue: that the monument is a "government establishment of religion." And Breyer seems like too cool a character to be "freaked out" by anything. Plus, he votes against government religious expression much more than we'd see on anything like a "freak out" standard. (See McCreary.) It would make more sense to say Breyer permits government religious speech when the idea of courts stopping it freaks him out.

Lithwick notes that Breyer signaled his dissatisfaction with the doctrinal rules -- the "artificial kinds of conceptual framework." Breyer sent very similar signals at oral argument in Van Orden, which I noted at the time.

But it looks as though there is room for a clear rule here:

Justice Samuel Alito observes that there is a difference between free speech, in the classic sense of protests, leafleting, and speech-making, and hauling around massive granite monuments, then demanding public-forum analysis be applied to "the Washington Monument or the Jefferson Memorial." Joseffer says that when the government is "acting as curator," it can engage in viewpoint discrimination. In other words, it can choose the speech. "You can't run a museum if you have to accept everything, right?" says Scalia.

When government takes on the role of curator, it is no longer a question of the free speech of the original speaker. The government that chooses or rejects objects for presentation in one of its own displays is exercising its own speech, and it doesn't violate anyone else's free speech rights. It might violate the Establishment Clause, but that is another question.

Pamela Harris has 30 minutes to represent Summum, and Roberts hits her with the hypos: "You have a Statue of Liberty; do we have to have a statue of despotism? Do we have to put any president who wants to be on Mount Rushmore?"....

Even the most doctrine-loving justices seem to be bothered by the practical problem of city parks becoming cluttered with hate monuments, weird stuff, and, eventually, rusted-out cars.

I think it's pretty obvious that the city will win as the Justices (like Scalia) who support free speech for the government will have the support of the Justices (like Breyer) who look at real-world consequences and think practical thoughts.

But there still should be some hand-wringing over the one hypothetical that really did freak out everyone -- well, not Scalia, but almost everyone: What if the United States had decided to express itself by excluding the names of gay soldiers from the Vietnam memorial? Justice Stevens posed the hypothetical, and the Justices struggle with it. From the transcript:

JUSTICE BREYER: That seems to be the problem here. And what I have in this is the -- the problem I have is that we seem to be applying these subcategories in a very absolute way. Why can't we call this what it is -- it's a mixture of private speech with Government decisionmaking -- and ask the question, as we do in election cases, is the restriction proportionate to a legitimate objective? I know how you're going to answer that question. You're going to say: Of course, it is. But what's interesting me is, are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter? The answer to Justice Stevens's hypothetically is: Of course the Government can't do that because it's disproportionate.

JUSTICE STEVENS: I didn't get the answer. Did you --

MR. JOSEFFER [representing the United States, as amicus curiae]: Yes, the Government can choose to memorialize who it wants on the mall. When the Government is -- now, to be clear, that's under the Free Speech Clause.

JUSTICE BREYER: So what is the answer to the -- what is the answer to Justice Stevens's hypothetical? What is the answer to the homosexual hypothetical? What is the answer?

Breyer seems to be verging on freak-out mode there.

MR. JOSEFFER: The only question --

JUSTICE BREYER: Because that tests the theory.

MR. JOSEFFER: Well, as a matter of the Free Speech Clause, there are no limits on the Government's ability to speak freely. Under the Equal Protection Clause, the Establishment Clause, perhaps the Due Process Clause, there might be thought to be independent checks on the Government's speech. But the Free Speech Clause, whatever else it does, does not prevent the Government from speaking freely.

JUSTICE SCALIA: It seems to me the Government could disfavor homosexuality just as it could disfavor abortion, just as it can disfavor a number of other things that in -- in many States people are free to do. The Government can disfavor all of it, can't it?

MR. JOSEFFER: The Government would be powerless to do anything if it cannot first formulate and then express its own viewpoints....

JUSTICE KENNEDY: Does the law always require us to adopt an all-or-nothing position? Aren't there some extreme cases indicated by the hypothetical where the First Amendment does enter in? Do we have to decide this case that it's all or nothing?

So will the city win with a clearly stated rule, will the city win with a "legal judgment" based on the whole context, or will the city win based on a clearly stated rule that has an escape clause comprising Justice Stevens's Vietnam memorial hypothetical?

ADDED: Lawprof Chris Lund reads the transcript:

... Summum argues that the display was the Eagles' message in 1971, and it's the Eagles' message now. But that claim is really hard to square with the fact that the display has been owned and controlled by the government and has been sitting in a government park for 36 years. The Eagles haven't really been involved since 1971 -- so how is this their speech? So Summum's counsel says that the crucial thing is this -- it can't be the government's speech until the City officially adopts it by some sort of resolution....

JUSTICE SOUTER: So this case -- your claim would disappear if this town in Utah had passed an ordinance saying we adopt the Ten Commandments Monument?

MS. HARRIS: It would, Justice Souter. We would no longer have an equal access right going forward --

JUSTICE SOUTER: But that's -- I mean, if that's all that's involved here, we're engaging in kind of a -- almost a silly exercise in formality.

Now Summum's counsel tries to say it's not a mere formality. She suggests that much of the Mormon population might object to the display because it's not the Mormon version of the Ten Commandments.... But besides being arguably a formality, it's difficult to see where the "official resolution" requirement would be coming from in terms of precedent or principle....

Lund thinks Summum may lose 9-0.

"Argument by impressionistic psychodrama."

I have a review of Jeffrey Toobin's "The Nine: Inside the Secret World of the Supreme Court" in the New York Sun.

ADDED: My main problem with the book is a general problem with popular writing about law (and politics and plenty of other serious subjects). To make it readable and entertaining, you forefront the people, not the ideas, you use a lot of colorful details, and, like a novelist, you make the details seem to express deep things about the characters. Within this rhetorical style, when there are any ideas or events to describe, they seem to arise from the depths of your characters.

Toobin describes Supreme Court cases like that, and because his book is entertaining and readable, many people will get their view of the Court from it. The material analyzing the actual arguments and opinions in the cases is cut way back, as if the author wrote with constant awareness of how little patience you would have for any legal analysis. This is understandable, up to a point. But this extreme minimization of the legal material allows for much sleight of hand, and like a novelist, you are led to take the point of view of some characters over others. He's really making an argument -- an "argument by impressionistic psychodrama."

You don't get to read how Chief Justice John Roberts analyzed the equal protection precedent in deciding the Louisville and Seattle school integration cases and how Justice Breyer saw the same precedent in a different way. Instead you feel along with Justice Breyer: "Breyer's wan longing for stare decisis will stir few hearts," Toobin writes (at page 339). Wan longing! It reminds me of something Stephen Colbert said on the first episode of "The Colbert Report": "Anyone can read the news to you. I promise to feel the news at you." Anyone can explain the cases to you. Toobin feels the cases at us. And the reader, who's had his feeling massaged for 300+ pages, will read of Breyer's "wan longing" and think: I will be one of the few! My heart is stirred!

But you haven't been given the material to decide if the bad guys are really trashing the precedents. You're just accepting the viewpoint of the judges you've been felt at to think are the good ones. They feel sad, so it must be a calamity. "David Souter was shattered" (page 177), so Bush v. Gore was atrocious.

What is missing is the analytical substance that would let you decide for yourself. In the review, I write:

[H]uman individuals drive the law, as Mr. Toobin tells it. The story of Jay Sekulow, "a nice Jewish boy from Brooklyn" whose "ignorance" was "his best weapon," swells the 12-page chapter on the Supreme Court's religion cases, but there isn't a word about the Rehnquist Court's most important Free Exercise case, Employment Division v. Smith. Smith, written by the conservative Justice Scalia, said religion was not entitled to special exceptions from generally applicable laws. (You can't avoid the Controlled Substances Act, for example, by saying you need to use peyote in a religious rite.)

Smith doesn't fit the theory that the conservatives are out to favor religion or the proposition that the religion cases "usually come down simply to ‘What will Sandra do?'" Justice O'Connor opposed the doctrinal shift in Smith, as did the three most liberal justices: William Brennan, Thurgood Marshall, and Harry Blackmun. It was a liberal tenet that the Free Exercise Clause relieves religious practitioners from requirements the law imposes on everyone else. To bring up Smith would require Mr. Toobin to acknowledge that conservatives favor equality and liberals want to favor religion and that would mess up the narrative arc of his story.

There's something else in the religion chapter that I couldn't fit into the review. When Toobin writes that Jay Sekulow's "ignorance" was "his best weapon," he's portraying the lawyer as someone who bumbled into using the Free Speech Clause to win protection for religious activities. Toobin writes that Sekulow didn't realize that "cases involving religion were always argued under the Free Exercise Clause."

But a mere 3 pages earlier, he was praising Robert Jackson's 1943 opinion in West Virginia Board of Education v. Barnette -- the case that said schools couldn't force Jehovah's Witnesses to recite the Pledge of Allegiance. Toobin doesn't mention that Barnette is a free speech case and that Sekulow competently cited it.

(And what about all the cases based on the Establishment Clause? They involve religion, even if they aren't litigated by Jay Sekulow.)

The pop culture approach Toobin uses demands that the individual, not the case law, governs what happens. It's a little like the "great man" theory of history -- the inferior man theory of the law.

It is fun to read though. Jay Sekulow is "a nice Jewish boy from Brooklyn," who moved to Atlanta and out of laziness attended Atlanta Baptist College. There, accepting a challenge by a "Jesus freak" to take the Book of Isaiah seriously, he saw that the messiah must be Jesus and became one of the "Jews for Jesus." Etc. etc.... and that's why we have the recent cases that say it violates the Free Speech Clause to discriminate against the religious viewpoint.

It makes sense if you get caught up in the seductive pop culture reading that is "The Nine."

And another thing....

Writing about Barnette, Toobin enthuses about Justice Jackson's idealistic prose: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." But he makes Justice Kennedy seem foolish for his love of "drama and what he called 'the poetry of the law'" (page (147), "flowery language about the First Amendment" (page 167), and "Kennedyesque flourish like 'the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (page 223). But Toobin's not much different from everyone else there. Jackson had the knack for high-flown phrases, and Kennedy can't quite pull it off.

And I'm not completely opposed to pop culture writing about law. I do it too, and I follow my own standards of fairness. Like I think it's fair to tweak Toobin for making a big deal out of Kennedy's glasses -- how he changed from "seventies-style steel-framed aviators" to "a Euro-chic frameless model." This supposedly symbolized how much Kennedy is soaking up the influence of Europeans and European law as he travels to various conferences. What I find so hilarious is that on the back cover of the book jacket -- where there aren't any words at all, just a big picture of the smiling Jeffrey Toobin -- he's wearing rimless glasses. Meaningful!

(And aren't steel-framed aviator glasses in style right now?)

The lingering Justice O'Connor.

What is the effect of Justice O'Connor's continuing on the Court this term? What of all those lawyers who have shaped their arguments specifically to appeal to her way of thinking, whose briefs are already filed? And what of the lawyers who've considered or who are considering doing that, without knowing whether she'll be there to decide the case or not? Then there's the particular case of Jay Sekulow, director of the American Center for Law and Justice, who said, in a White House sponsored conference call pushing the Miers nomination:

"Let me tell you this from the perspective of someone who litigates cases regularly in the Supreme Court of the United States. I'm involved in three three cases at the Court this Term, and believe me: I want Harriet Meirs up there voting on these critical cases."

Eric Muller is very outraged at Sekulow and the White House. But Sekulow clearly states that he doesn't know for sure how Miers will vote. And I note his probable, though unspoken, preference to be free of O'Connor's vote.

Harriet Miers?

A new name surfaces in the O'Connor replacement talk:

Bush on Monday hinted he might choose a woman or minority member. But some outside advisers were intrigued by another part of Bush's reply. The president said he had interviewed and considered people from "all walks of life."

That raised speculation that Bush was actively considering people who were not on the bench -- such as Miers....

"It could be someone outside of the legal judicial field like a Larry Thompson, or it could be a senator," said Jay Sekulow, chief counsel for the American Center for Law and Justice, a public interest legal group founded by religious broadcaster Pat Robertson.

Sekulow said he's heard Miers' name mentioned "fairly significantly" during the past two days. She doesn't have judicial experience, but she's a "well-respected lawyer-- someone the president trusts."

"I think Harriet could certainly be in the mix," he said....

Miers is leading the White House effort to help Bush choose nominees to the Supreme Court so naming her would follow a move Bush made in 2000 when he tapped the man leading his search committee for a running mate -- Dick Cheney.

The old Cheney maneuver!

Here's the White House press release from when she was elevated to the position vacated by Alberto Gonzales:

"Harriet Miers is a trusted adviser, on whom I have long relied for straightforward advice. Harriet has the keen judgment and discerning intellect necessary to be an outstanding Counsel. She is a talented lawyer whose great integrity, legal scholarship, and grace have long marked her as one of America's finest lawyers. I have deep respect for Harriet and look forward to her continued counsel in this new role," stated President Bush.

Ms. Miers currently serves as Assistant to the President and Deputy Chief of Staff. Most recently, she served as Assistant to the President and Staff Secretary. Prior to joining the White House staff, Ms. Miers was Co-Managing Partner at Locke Liddell & Sapp, LLP, where she helped manage an over 400-lawyer firm. Previously, she was President of Locke, Purnell, Rain & Harrell, where she worked for 26 years. In 1992, Ms. Miers became the first woman elected Texas State Bar President following her selection in 1985 as the first woman to become President of the Dallas Bar Association. She also served as a Member-At-Large on the Dallas City Council. Ms. Miers received her bachelor's degree and J.D. from Southern Methodist University.

Interesting!

UPDATE: For many more posts about Harriet Miers, go to the October 3 posts on blog.