Mark Levison, The Levison Group
2018. I cannot recall a year that has begun with more promise or trepidation. The stock market is at an all-time high. Unemployment is at an historic low. Inflation is under control. The Trump tax cuts favor the well off, a category that a lot of lawyers fall into. Republicans say the tax cuts will do even better things for the economy going forward. We all hope that is true.
I don’t have a lot of trials scheduled for 2018, which is a bit of a relief. America is not in any large-scale wars, and apparently Washington is working well, because according to President Trump he signed more bills in the first year of his presidency than any president in modern history—which leads us to the negatives.
The current American president, independent of any consideration of his political positions, does not appear to be particularly mature, or strongly tethered to the truth of his own assertions. At times it seems like he just can’t control himself, which is not the most sought after quality in a president. As an example, he touts his tax bill as a tax cut for the middle class that is going to hurt him personally. But then, during his holiday season visit to Mar-a-Lago, he boasted to his country club friends that his tax cut had just made them a lot richer. Why does anybody say something like that out loud?
Predicting the future is precarious, but viewing it from the perspective of week one of the New Year informs me that it will be surprising if there are no significant constitutional challenges in 2018. Consider the possibilities. The president, and many of his followers, are increasingly talking about fake news. As we enter 2018, a constitutional crisis between the executive branch and the press seems increasingly possible.
Then there’s the Russia investigation. We don’t know where that will lead and who else may be indicted. If it leads to the president, it may lead us to a constitutional crisis similar to what happened during the ill-fated Nixon presidency. Constitutional issues that could result from the Russia investigation loom around every corner. There has already been lots of discussion about executive privilege and attorney-client privilege evidencing attempts to keep information away from the investigators. Those positions don’t usually work out well for people trying to withhold information from the public and can lead to crisis along the way. And what about pardons? There was talk about pardoning Flynn before the ink dried on his guilty plea. Can a president pardon himself? What are the ramifications of pardoning his son? Can prosecutors use state charges to blunt the effect of federal presidential pardons?
Finally, in respect to the Russia probe, the firing of the special prosecutor would cause constitutional issues. Some in Congress are currently attempting to pass bills to make it more difficult for a president who is being investigated to fire the prosecutor who is investigating him. During the Watergate crisis, Nixon had the prosecutor investigating him fired, but it didn’t really gain him much of an advantage. Archibald Cox’s replacement, Leon Jaworski, finished the job leading to Nixon’s resignation.
As we begin 2018, we find Republicans complaining about the operations of both the Justice Department and the FBI. This, despite the fact that Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, FBI Director Christopher Wray, and Special Prosecutor Robert Mueller were all appointed by Republicans and are all Republicans themselves. If Michael J. Fox (aka Marty McFly) had landed his DeLorean on Capitol Hill in January 2018, and found Republicans complaining about FBI tactics and an alleged “deep state,” he would have concluded that his Temporal Field Capacitor had somehow warped the space time continuum and altered history.
Going back to 2016, then candidate Trump made repeated assertions that the election process was in danger of being compromised. Even after he won—although he had a decidedly better impression of the process at that point—he set up a Commission on Election Integrity to study voter fraud. Currently, losing Alabama senatorial candidate Roy Moore is claiming the recent election was stolen from him due to election irregularities engineered by the Democrats. People are laughing at Moore now, but we should ask ourselves what’s going to happen in the 2018 election, between potential foreign power meddling, and concerns over domestic finagling. Bush v. Gore was argued before the Supreme Court in Dec. 2000. We might be headed back in that direction in 2018.
A very significant crisis looming in 2018 is the face off in North Korea. Because of the president’s interesting reactions to North Korea’s “Little Rocket Man,” some Democrats on Capitol Hill are arguing that we need legislation prohibiting a president from ordering a first strike nuclear attack. I predict 2018 is going to be a busy year for constitutional lawyers.
If all this tension was not enough, an additional controversy we can count on in 2018 is that the “Me Too” movement will result in more men being accused of inappropriate behavior. Some men will immediately quit.
That could be because they think it’s the right thing to do, at this point, or because they know what they did and what may come out in the future. Others will not quit. That may be because they believe the charges are incorrect and in some instances that will possibly be the case. Some men will get fired, apparently before they have had an opportunity to put up a defense. That generally doesn’t sound right and could easily present legal issues. How the country differentiates between charges of inappropriate behavior, flat out stupid and weird behavior and plainly illegal behavior, are looming questions for 2018.
So here we go, it’s a new year: a lot of great things, a lot of scary things, a lot of legal things. As our old friend Charles Dickens would have said, “Things are looking up at the same time they’re looking down,” or some other catchy phrase like that.
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2017 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm Lashly & Baer, P.C. Contact Under Analysis by e-mail at comments@levisongroup.com
