John Ettorre

/ Best Lawyers – U.S. News Legal Issue 2018

Extreme weather continued to rock the globe, including in the United States. Centrist parties around the world wilted in the face of populist revolts. And in the most extreme development of all, a real estate developer and reality TV star, entirely untested in the political arena, became president of the United States and leader of the free world.

2016 Election

In what was arguably the biggest upset in American presidential history, Donald Trump was elected the 45th president, losing the popular vote by more than 2 percent, or almost three million votes, but winning comfortably in the Electoral College.

This was a moment like no other in modern American history. For the first time, a U.S. president took office without having previously served in political office or in the military.

But there are many other more pedestrian firsts for this president, who at 70 is the oldest to take office. Trump, for instance, is the first president ever to have appeared in a Pizza Hut ad and on the cover of Playboy magazine. First lady Melania Trump also became the first non-native speaker and the first third wife to ever serve in that role.

The stark departures from tradition continued on inauguration day. While inaugural speeches generally veer toward soaring notes of idealism—think John F. Kennedy’s call to “ask not what your country can do for you—ask what you can do for your country”—or stirring calls for bravery in the face of adversity—FDR’s “the only thing we have to fear is fear itself”—this new president took another tack entirely.

Trump delivered a blistering speech full of dark themes and isolationist rhetoric, vowing that “this American carnage stops right here and stops right now.” Even former President George W. Bush, himself no stranger to apocalyptic pronouncements, was heard to remark afterward “that was some weird [stuff].”

As the administration commenced its work, it won a major victory, getting its nominee to the Supreme Court, Judge Neil Gorsuch, confirmed by the Senate.

After that, it was mostly gridlock, highlighted by the epic battle over repealing and replacing the Affordable Care Act, the health care law also known as Obamacare (see page 21). 

But much of the failure wasn’t due to partisan or intraparty strife at all, but rather to a lack of action by the administration to populate its own ranks. 

According to a report compiled by the Partnership for Public Service, a nonpartisan organization, as of the end of July, the administration had nominated just 255 of the 1,100 top positions requiring Senate confirmation. And the Senate had confirmed just 51 of those, taking 46 days on average to do so, quite slow by historical standards.

The Travel Ban

Perhaps nothing exemplified the chaos and improvisational amateurism of the early Trump administration as much as the hastily constructed travel ban, first announced by the president as Executive Order 13769, just days after he took office.

It temporarily halted immigration from seven Muslim-majority countries in the Middle East and Africa, placing the onus on refugees and other would-be immigrants to prove they have a credible connection to a person or entity in the U.S. The order also flatly banned all immigrants from Syria, indefinitely.

The abrupt decision, ostensibly aimed at buying time to enhance immigration vetting procedures, immediately prompted deep confusion at entry points and touched off massive protests at airports and other venues. Federal courts in multiple jurisdictions quickly dismissed the order as an unconstitutional attack on a particular religion, in part because Trump had made plain during his campaign that he intended to ban Muslim immigration.

A federal judge in Washington State issued a restraining order on the ban, which other federal courts refused to lift.

But the Trump administration didn’t back down. Instead, its lawyers revisited the ban, more narrowly tailoring it to pass judicial approval. In March, Trump signed a revised travel ban, this one giving federal agencies a week to prepare for the new regime.
Only hours before a revised travel ban was set to take effect in mid-March, a federal judge in Hawaii suspended the ban nationwide. The standoff continued to ricochet through the American judicial system for months.

The White House issued a third plan in September, this time adding North Korea and Venezuela to the list of targeted countries whose immigrants would be restricted. But in October, U.S. District Judge Derrick Watson in Hawaii ruled that the revised restrictions suffered from the same fatal flaws as the previous plans. His ruling at least temporarily blocked the plan from taking effect nationwide.

The administration eventually appealed the case to the highest court. In October, the U.S. Supreme Court declined to hear one of two challenges to the travel restrictions, ruling that a case arising from Maryland was moot in light of the White House’s revised plan. But the case from Hawaii remains before the court—for now, at least. The White House is seeking an expedited appeal.

The Russia Probe

The Justice Department’s special counsel investigation of the Trump campaign’s possible ties to Russia has all the makings of a Cold War spy novel.

Every element for a gripping tale is there: international intrigue between East and West, alleged honey pots, and shadowy dossiers filled with explosive material. Except this is real life. 

The semi-independent inquiry was launched because Attorney General Jeff Sessions sided with Justice Department ethics officials and formally recused himself from overseeing any case involving probes of the Trump campaign, since his role in the campaign represented a conflict of interest. That decision would later lead his boss, the president, to bitterly denounce him in humiliating fashion, even though Sessions was among the first prominent supporters of his presidential campaign.

Former FBI director Robert Mueller was appointed to the job, and he immediately put together an elite team of seasoned career investigators with deep experience in the disciplines required to decode such a complicated case. And the team used tactics—like dawn raids on one time Trump campaign chair Paul Manafort’s house—that reminded some observers of Mafia probes.

While the investigation immediately gave rise to comparisons with Ken Starr’s Whitewater investigation of President Bill Clinton, which ultimately led to his impeachment trial in Congress (though not his conviction), the standards governing such investigations have changed.

In part due to criticisms of Starr’s overreaching in the Clinton investigation, Congress let the Independent Prosecutor statute, first passed in 1978 in the wake of Watergate, lapse in 1999. Now, Mueller’s powers are more closely circumscribed, and he can be removed from the investigation for cause—though some in Congress are trying to erect legislative hurdles to better insulate  from White House pressure.

The investigation has metastasized in several directions, thus making it harder to put the genie back in the bottle. In August, it was learned that Mueller had impaneled a federal grand jury in Washington, which would allow him to gather testimony and issue subpoenas and/or indictments. In September, Mueller’s team enlisted the IRS’ elite investigative unit to help sift through financial information about some of his targets, including Manafort and former National Security Adviser Michael Flynn. Then in October, Mueller pounced, indicting Manafort and a close associate, Rick Gates, on money-laundering and conspiracy charges. A third individual, George Papadopoulos, who had advised Trump on national security matters, pleaded guilty to lying to the feds and is cooperating with the investigation.

The powerful U.S. Attorney’s office in the Southern District of New York is also collaborating with the Mueller team in pursuing possible money laundering charges against Manafort. The special counsel has also teamed up with New York Attorney General Eric Schneiderman on part of the probe, prompting speculation that he did so in part to outflank a possible pardon of some targets, by filtering a portion of the investigation down paths that are immune from presidential pardons governing only federal actions.

All of this is unfolding even while five parallel Congressional probes are being pursued into possible collusion between the Trump team and Russia. 

First Amendment Struggles

The past year saw an assault on the news media—even the very notion of objective truth—unprecedented in modern American political history.

If Richard Nixon’s Vice President Spiro Agnew famously bated the media by calling them “nattering nabobs of negativism,” Trump’s constant assault on any reporting he doesn’t like by labeling it “fake news” (at one point even taking credit for coining the term) presented something of an existential crisis for the press. The presidency is a uniquely powerful bully pulpit, and his critical drumbeat reverberated across the country, even across the globe. Authoritarian leaders in Turkey soon began using the term to deflect criticism.

Perhaps most ominously, this hostility to public scrutiny began spreading throughout the federal government. Presidential press secretary Sarah Huckabee Sanders tried to shut down criticisms of White House Chief of Staff John Kelly by suggesting that a decorated military general is above rebuke. “If you want to get into a debate with a four-star Marine general, I think that that’s something that’s highly inappropriate,” she said at one of her regular press briefings.

Federal agencies, meanwhile, began pushing back against traditional public scrutiny with uncommonly aggressive means. Just days after Trump’s inauguration, the Environmental Protection Agency and the Departments of Agriculture, Interior, and Health and Human Services were ordered to halt external communication—including even routine website and social media postings—until Trump appointees could be installed.

As the president regularly transgressed political norms—perhaps most egregiously by equating rampaging white nationalist demonstrators in Charlottesville, Virginia, with counterprotesters—darker forces throughout the country that had been mostly relegated to the fringes seemed to take Trump’s tone as an invitation to ramp up their activities. Richard Spencer, an avowed white supremacist, is a case in point. This year, he became the face of what’s been called the alt-right, a loosely organized group that developed in response to mainstream conservatism and has been associated with white nationalism and anti-Semitism, through a series of provocative appearances at college campuses, where he dared administrators to bar him and his hate-filled messages.

It presented these public officials with a difficult juggling act, balancing their duty not to chill public debate in the academy with their obligation to maintain campus safety. That quandary was rendered even trickier in June, when the U.S. Supreme Court reaffirmed constitutional protections for hate speech except in cases where it incited “imminent lawless action,” a tough legal bar to clear. In the wake of Charlottesville, it’s perhaps harder than ever to separate hate speech from violence.

The Racial Divide

Race continues to haunt the American conversation, as it has since even before the country’s founding. This year, a few new wrinkles were added.

The Black Lives Matter movement steadily gained momentum across the country in response to the enduring drumbeat of instances of questionable deadly force used by police against minority individuals. But the development that received perhaps the most sustained attention got its start on August 14, 2016, when San Francisco 49ers backup quarterback Colin Kaepernick launched a silent protest by sitting during the playing of the national anthem before a preseason football game to draw attention to police violence and other forms of oppression against people of color.

But since he was injured and wasn’t dressed for the game, nor the one the following week against the Denver Broncos, Kaepernick’s protest wasn’t noticed until the third game on August 26, 2016, against the Green Bay Packers. By September 1, 2016, his protest had evolved: after a conversation with Nate Boyer, a retired Green Beret and former NFL football player, Kaepernick began to take a knee during the Star Spangled Banner, a move eventually widely followed by others.
Then, things began to build in waves.

In fact, it’s since become known as the Kaepernick effect. The sympathetic protest initially spread to other teams in the NFL, and then to high school and college games and even some middle schools. Then it filtered into other sports, first with WNBA players and then to such sports as soccer.

As the new NFL season commenced in the fall, Trump did what he generally does: inserted himself more forcefully into the drama, thereby upping the ante. By Week 3 of the season, Trump had bullied the NFL into taking a stand, with the league saying players should stand but not actually forcing them to do so. Some owners suggested players might be benched or fired if they did not stand.

Race seemed an underscore in many political battles and even in nonpartisan events, like the deadly hurricanes that struck Puerto Rico. Trump was accused of a lackluster response to the island’s near-destruction after winning plaudits for his quick response to Hurricane Harvey, which hammered Texas and the Gulf Coast. Critics suggested that Trump did not know Puerto Ricans are Americans.

The Epic Battle Over Health Care

Democrats have been trying to enact comprehensive national health care coverage since the days of Harry Truman.

In 1945, just months after he became president upon the death of Franklin Roosevelt, Truman told Congress that “millions of our citizens do not now have a full measure of opportunity to achieve and enjoy good health. Millions do not now have protection or security against the economic effects of sickness. The time has arrived for action to help them attain that opportunity and that protection.”

But it would take more than half a century to accomplish.

In 2010 it finally happened, with passage of the landmark Patient Protection and Affordable Care Act, which came to be popularly known as Obamacare. While it fell short of the lofty hopes of some proponents, who clamored for a single-payer form of universal coverage, it did significantly change the landscape, ushering in coverage for an additional 22 million Americans.

The legislation was the result of an exquisite series of compromises and patiently negotiated buy-in from interests representing nearly one-fifth of the American economy. But it attracted no Republicans votes, and the party seethed for years, promising to “repeal and replace” the legislation when it got the chance.

That chance came in November 2016, when Republicans captured the White House and majority control of both houses of Congress. But despite the leadership’s repeated best efforts, it couldn’t get the votes to overturn President Barack Obama’s signature accomplishment. In a dramatic midnight vote, Arizona Senator John McCain, newly diagnosed with brain cancer, cast the deciding “no” vote to bury his own party’s proposal. Subsequent attempts by the Senate leadership to find a compromise that could pass the chamber all failed.

So in October, taking a page from his predecessor, President Trump embarked on shorter-term fixes, doing so through executive order. The president ordered an end to subsidies to health care providers designed as reimbursement for offering coverage to low-income individuals and families, a key provision of the law. And he took action to make it easier for providers to offer the kind of cut-rate coverage plans that could easily undermine the entire system, perhaps even leading it to implode. All the while, he publicly berated the law and suggested the program was at death’s door.

“There is no such thing as Obamacare,” Trump flatly told his cabinet in October.