Your weekly source for analysis and insight from experts at the Brennan Center for Justice at NYU School of Law

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The Briefing

For only the fourth time in history, the House of Representatives is moving to impeach a president. The articles announced today against President Trump are tight and focused. They will force the debate onto the ground — not of facts, which are undisputed, or of their impropriety, but of whether they merit impeachment and removal from office.

Of note, the first article focuses on “abuse of power.” From the perspective of the Framers and how impeachment has developed over two centuries, this is a more appropriate ground than a slightly tortured effort to squeeze the facts into the legal straightjacket of “bribery.” (Who bribed whom? This was extortion.)

The second article also focuses on acts that do great damage to the constitutional order: obstruction of Congress. Presidents and legislators always tussle over investigations, witnesses, hearings, documents, and so on. But the Trump White House’s blanket refusal to cooperate with the House’s impeachment inquiry at all is unprecedented. (A much less complete attempted stonewall was one of the articles against Nixon.)

Last week at the NYU School of Law, I spoke with Supreme Court lawyer and former Acting Solicitor General Neal Katyal, author of the new book Impeach: The Case Against Donald Trump. We discussed ([link removed]) the origins of impeachment in the Constitution, the Ukraine scandal, and how the outcomes of the impeachment proceedings might affect the future of the United States.

Democracy

A Chance to Revive the Voting Rights Act

In its 2013 Shelby County ruling, the Supreme Court gutted the Voting Rights Act (VRA), the landmark law that prohibits racial discrimination in elections. Since the ruling, voter purges have surged in the states once covered by the strong provisions of the act, according to a Brennan Center analysis. On Friday, the House of Representatives made progress toward mending the VRA when it passed H.R. 4, the Voting Rights Advancement Act. If enacted, the bill would restore and modernize the core protections of the VRA. // READ MORE ([link removed])

First-Ever Native American Justice Named to Washington State Supreme Court

Judge Raquel Montoya-Lewis made history last Wednesday when she was appointed to the Washington State Supreme Court, where she will become its first-ever Native American justice. Last month, a Native American district judge was named to the Oklahoma Supreme Court. Minnesota is the only other state that currently has a Native American state supreme court justice.

In the July report State Supreme Court Diversity, the Brennan Center highlighted the lack of racial, ethnic, and gender diversity on state supreme courts. For example, white men are dramatically overrepresented on state supreme court benches, while 18 states have never had a Black supreme court justice. // READ MORE ([link removed])

Strong Confidentiality Laws Protect All Data the Census Bureau Collects

In June, the Supreme Court blocked the Trump administration from adding a citizenship question to the 2020 census. Soon after, President Trump issued an executive order requiring the Census bureau to collect citizenship information by other means. In October, the bureau asked most states to provide driver’s license records. Last month, Nebraska became the first state to comply.

But the Census bureau has no legal authority to order states to turn over any records, writes Brennan Center Counsel Kelly Percival, and other states have thus far refused to do so. The Census Act, Percival notes, also prohibits the bureau from sharing any personally identifiable data or from using census data to harm a census respondent. // READ MORE ([link removed])

Constitution

Trump Administration Sued Over Social Media Screening for Visa Applicants

Since May, the Trump administration has required almost all applicants for a U.S. visa — nearly 15 million people each year — to register their social media handles with the government. Last week, documentary filmmakers backed by the Brennan Center and the Knight First Amendment Institute filed the first major legal challenge to the policy. The filmmakers argue that the government’s collection of social media chills constitutionally protected speech and association, deters filmmakers from traveling to the United States, and makes it harder for groups and audiences to engage with artists and journalists from around the world.

“We believe [the new visa requirement] is both unconstitutional and illegal,” Faiza Patel, co-director of the Brennan Center’s Liberty & National Security Program, told the Washington Post ([link removed]). “The very fact the U.S. government is collecting social media identifiers sends a message to the whole world that we are watching what you say online.” A Los Angeles Times ([link removed]) op-ed from one of our client organizations decries the new visa requirement. // READ MORE ([link removed])

Justice

How Cash Bail Works

The United States is virtually alone in the world in requiring cash bail for those who have been arrested and want to stay out of jail while awaiting trial. The bail system discriminates against people of color and the poor, and it urgently needs reform. Some states and cities are making progress, but much more work is needed to bring fairness to this corner of the criminal justice system.

A new Brennan Center explainer describes the cash bail system, what happens to defendants who are unable to pay bail, the effects of waiting for trial in jail, the discriminatory nature of cash bail, and how the cash bail system can be reformed. // READ MORE ([link removed])

Coming Up

- This week, the Brennan Center will release a new analysis on the politics of judicial elections.

News

- Theodore R. Johnson on five myths about black voters in the United States and how they might factor in the 2020 election // WASHINGTON POST ([link removed])

- Michael Li on the NAACP’s efforts to stop the practice of “prison gerrymandering” // WHOWHATWHY ([link removed])

- Faiza Patel on the lack of evidence that government’s social media screening policies help national security // WALL STREET JOURNAL ([link removed])

Have an issue you'd like us to cover? Feedback on this newsletter? Email us at [email protected]
mailto:[email protected]

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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.

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