Could Kamala Harris transform law enforcement as the vice president?
National conventions can serve as what magicians call the turn. As noted by “The Prestige,” every trick runs in three stages. First comes the pledge, when the magician “shows you something ordinary.” Then comes the turn, when he “makes it do something extraordinary” like vanish. Finally, he has “to bring it back in the hardest part” known as the prestige.
For American politics, candidates make the pledge to those voters on the extremes of their parties for the primaries. Then comes the turn, when the one of the leading nominees disappears at each convention. The turn was not as difficult for Joe Biden, who was fairly moderate as a senator, as this was for Kamala Harris, who is ranked by a government tracker website as the most liberal senator on the left of even Bernie Sanders.
In perhaps the neatest trick of all, the David Byler of the Washington Post described Harris as a “small ‘c’ conservative.” The concern for some of us is that the prestige, when older objects could reappear after the election, notably for the Justice Department and the legal system. There is reason to worry about what would be revealed after the election.
One of the convention speakers was former deputy attorney general Sally Yates, widely viewed as the leading candidate for attorney general under Biden. She was presented as the persona for the new Justice Department commitment to the rule of law. Yates said that she was fired for declining to defend the “shameful and unlawful Muslim travel ban” of the president. The problem is that was not the case. Yates was fired for telling the entire agency not to defend a travel ban that was held as lawful.
I was very critical of the travel ban, but I said the underlying authority of Trump would likely be constitutional. Despite some revisions of its scope and noted countries, opponents insisted it was unlawful. They continued to litigate on the same grounds all the way to the Supreme Court, where they lost two years ago. The Supreme Court ruled that the president had authority to suspend the entry of noncitizens based on their nationalities and had the “sufficient national security justification” for his order. It also held that, despite most of the included countries being Muslim majority, the ban “does not support an inference of religious hostility.”
That is why Yates deserved to be fired. Yates issued her order shortly after she learned of the travel ban and despite being told by the Office of Legal Counsel that it was a lawful order. She never actually said it was unlawful, only that she was not sure and was not convinced that it was wise or just. Instead of working to address errors with the original ban, she issued her categorical order as she prepared to leave the agency in a matter of days. Yates maintained that she believes the ban might be discriminatory, even with those revisions, but Trump could still use the travel ban for many of these same countries today under the underlying authority.
Yates was due to retire within days when she came up with her own firing. It made her an instant heroine and allowed her to denounce Trump at the convention over “trying to weaponize our Justice Department.” But that is exactly what she did when she ordered an entire agency not to assist the president, a move which even some critics of the president described as troubling. She could have resigned but chose to “go rogue” before even James Comey went rogue with the matter of Michael Flynn.
Harris has perhaps the greatest influence to recommend the next attorney general. The campaign spotlights her as a former prosecutor and attorney general of California. But she has a distorted view of the separation of law and politics. While Trump has been legitimately criticized over demanding prosecutions and improperly talking about pending cases, Harris has been accused of having the same disregard of the legal process.
She ran on a pledge to prosecute Trump, inspiring “lock him up” chants at rallies. She called Ferguson police officer Darren Wilson a “murderer” after he was cleared of that charge by state and federal investigators, including an official review with the Justice Department under Attorney General Eric Holder. This followed a recantation of witness accounts and disproving of the claims that Michael Brown was shot with his hands up.
Harris has a history of sentencings before verdicts. During the nomination for Brett Kavanaugh, she declared him guilty of rape without hearing from any witnesses, then called for his impeachment after his confirmation as a Supreme Court justice. Harris ran on a political promise to vote to remove Trump from office, months before his impeachment and before she sat in judgment during the trial, after she swore to be unbiased.
Harris has been shown to “weaponize” legal issues by reversing her own positions when public sentiment shifts. During the campaign, Harris was confronted with clips where she laughed about the controversy over her jailing of parents for the truancy of their kids and mocking calls to “build more schools then less jails.” Harris was also strong on jailing nonviolent offenders. With those positions now anathema to Democrats, Harris has embraced total opposite positions with incensed passion.
This month, however, came the turn for the Biden. When asked if he could envision his administration prosecuting Trump, Biden stated, “The Justice Department is not the private law firm for the president, and the attorney general is not the private lawyer for the president. I will not interfere with the judgment of the Justice Department.” To his credit, Biden was correct and has tended to observe the legal process over politics.
The main concern is whether the Justice Department of his administration would be shaped by Harris or led by Yates. The thing about politicians and magicians is that both have to work with the audience. As one character in that movie “The Prestige” had noted for us, “You are looking for the secret. But you will not find it because, of course, since you are not really looking. You do not really want to work it out. You want to be fooled.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
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