The Most Important Court Case You’ve Never Heard Of

I fear I’m about to disappoint you. Mere days away from the conclusion of a contentious presidential election that has already brought more than 52 million people to the polls (not a typo—that’s almost 40 percent of total 2016 turnout, and we’re still 11 days from “election day”), you might be hoping for a scintillating, insightful, and compelling dose of election analysis. Instead, I’m mainly going to talk about a court case. 

But before I get to the United States District Court for the Western District of Washington, I do have three thoughts about the debate and the state of the election.

First, I thought Trump helped himself last night. I think it was probably his best debate, ever, and while it doesn’t change the race, it might help shore up support among the small percentage of anguished Trump voters who were thinking about staying home or jumping ship. In short, I agree with my esteemed Advisory Opinions co-host, Sarah Isgur—to the extent we see the polls move between now and November 3rd, expect them to tighten just a bit. 

Second, I remain unimpressed with the Hunter Biden October surprises. The contents of the hard drive Rudy Giuliani provided to the New York Post do not (yet) provide any evidence of wrongdoing by Joe Biden—apart from implying he took a meeting with a Burisma executive. And we do not (yet) know if the hard drive Rudy produced matches the purported Hunter Biden laptop in the FBI’s possession. 

Yesterday’s surprise involved text messages and testimony from Tony Bobulinski, a former business associate of Hunter Biden’s. Bobulinski claims that Joe Biden was involved in a potential business deal with a Chinese company after Biden left office in 2017. He claims that text messages from Hunter referring to the “big guy” or “chairman” refer to Joe. The deal apparently never came together, and in one of the alleged texts, Hunter says, “my Chairman gave an emphatic NO.” 

In a fascinating twist, the Wall Street Journal published two accounts of the potential deal, one in the opinion side, by Kimberly Strassel, and one on the news side, by Andre Duehren and James Areddy, and they adopt decidedly different tones.

Strassel argues that “Joe Biden has a problem, and his name is Hunter.” The news story, however, throws cold water on the purported links between Hunter’s deals and Joe. The Journal reports that corporate records it reviewed “show no role” for Joe Biden.

The Biden campaign said he “never even considered being involved in business with his family.” In the debate last night Biden denied he took any foreign money, and he noted that his tax returns are available for public scrutiny. 

To the extent Americans knew anything about Hunter Biden, they knew he was a troubled son who profited from his family name. The evidence of wrongdoing by Joe is thin indeed, and even if he did know more about Hunter’s business than he’s disclosed, the foreign entanglements fall far, far short of the Trump organization’s ongoing, open and obvious business deals with a wide collection of foreign entities, including Chinese companies and Chinese individuals. 

While there are still a few days to go, the “surprises” thus far pale in comparison to 2016’s shocking October news that the FBI had reopened its investigation into Hillary Clinton’s potential criminal misuse of classified information. 

Third, I’m in awe of both the early turnout in this race and the projected turnout numbers. I’ll say it again—52 million people have already voted. That’s an enormous number. And look at this turnout projection:

As Sarah pointed out in a tweet, this number would match the total number of people registered to vote in 2016. Could unprecedented turnout yield unpredictable returns? Perhaps not, but I do wonder. 

Now, on to the main event. Last Friday, judge Thomas Zilly issued an order that mostly denied the city of Seattle’s motion to dismiss a lawsuit brought by a coalition of businesses and individuals who challenged the city’s handling of the so-called Capitol Hill Occupied Protest (CHOP). 

The plaintiffs didn’t sue the city for failing to stop the occupied protest, but rather for actively supporting the protest and even facilitating the occupation of several Seattle city blocks. Among other things, they claimed that the city’s actions denied both their procedural and substantive due process rights and violated the Constitution’s takings clause. 

I’m not going to walk through the opinion step-by-step, but it’s worth repeating some of the Plaintiffs’ key claims (citations omitted):

According to Plaintiffs, the City “entirely handed over” the approximately 7-acre Cal Anderson Park to the CHOP participants. The City also allegedly provided CHOP participants with medical equipment, washing/sanitation facilities, portable toilets, nighttime lighting, and other material support. The City further allowed CHOP participants to build makeshift gardens in the park “to grow food for CHOP,” with the Mayor tweeting her support for the “new community garden popping up in Cal Anderson Park.” Plaintiffs allege that members of the public could not use the park, and if they got too close, CHOP participants threatened them or their property…

More:

Plaintiffs allege that the City “adopted a policy supporting the CHOP occupation, acting with deliberate indifference toward those suffering harms from it.” Plaintiffs also allege that because of the City-provided barriers that CHOP participants used in the streets and sidewalks, local residents could not use public streets, sidewalks, or other rights-of-way to enter their homes or businesses, they could not receive deliveries, and their clients were unable to visit their businesses. Plaintiffs allege that garbage and recycling services could not enter CHOP, forcing them to pile up their refuse. In addition, Plaintiffs allege that they did not have “full use” of their property that was normally freely accessible, including their garages, in order to prevent vandalism to their properties. Plaintiffs also allege that CHOP participants painted graffiti on most available surfaces in the area. If a property owner painted over the graffiti, CHOP participants allegedly replaced the graffiti or threatened business owners if they painted over the graffiti.

To be clear, these are the plaintiffs’ allegations—and for purposes of deciding a motion to dismiss the court is required to assume those allegations are true. The city will be able to mount a factual defense later in this case. But if the plaintiffs can prove these factual claims, I agree with George Mason law professor Ilya Somin that they should win their case:

The key question here is whether the City’s actions were closely enough connected to the CHOP activists’ violations of the owners’ property rights to  be considered as assistance “sufficiently direct and substantial” enough to qualify as a taking.

Given the scale of the city’s alleged assistance to the private occupiers, I tentatively think the answer is yes. The city authorities apparently provided extensive aid to the CHOP activists both by giving the material assistance, and by allowing them to use city property. And it was foreseeable they would use these resources to violate local landowners’ property rights.

The case is important for two reasons. First, if the plaintiffs prove their claims, they’ll expose a true public scandal—where the city (for a time) essentially aided and abetted a criminal enterprise. Justice in this case would act as a vital deterrent against any future municipal capitulation to violent mobs.

Second, one of the strangest aspects of the ideological civil war on the right has been the rise of right-wing critics both of the American Constitution and of conservatives who zealously defend the constitutional order. Constitutional conservatism represents mere “proceduralism,” they claim, inadequate to the task of securing the “common good.” 

Cases like this, however, demonstrate that the Constitution—including the Bill of Rights and the Civil War amendments—isn’t a mere “procedural” document. It defines and protects the common good. Due process, for example, is both a common good and a mighty instrument in defense of the common good. So is the Takings Clause. 

Time and again we find that systemic injustices directly result from failures to secure constitutional liberties, and the “common good” can only be restored or preserved through the protection of those liberties. In many ways the American social compact depends on preservation of the Bill of Rights—including its equal application to all American citizens. 

Police brutality violates the Bill of Rights, but then so does city cooperation with and facilitation of violent protest. Walk back through history, and you’ll see that every single one of our worst chapters is intertwined with the selective defense of American liberty and/or the targeted and systematic deprivation of American liberty. 

Moreover, the liberties secured in the Bill of Rights connect with ancient moral truths. When the police barged into Breonna Taylor’s home — or when city officials allegedly helped violent and destructive protesters occupy entire city blocks — they not only violated legal principles that are designed to protect a person’s security in his or her home or property, they violated a biblical principle that animates American pluralism. 

Readers will remember this verse, from Micah. I’m fond of quoting it, and so was George Washington (for the same purpose): “Everyone will sit under their own vine and under their own fig tree, and no one will make them afraid…”

Indeed, that’s a principal reason why I’ve argued that the next, post-Trump version of the Republican Party—the version that seeks to reach out to every member of the American community—should center itself around the Bill of Rights as core to its identity. These “Bill of Rights Republicans” would defend life and liberty. They would also be indispensable to the restoration of the social compact in many of America’s most marginalized communities. 

One more thing …

I’m not going to do this forever, I promise. But The Week’s Damon Linker said some really nice things about my book, and you know the drill. I’ve got to share:

In thinking through how to navigate these treacherous civic waters, our best guide so far is David French’s Divided We Fall. Unlike Dreher and the authors of most of the center-left books on the dangers confronting American democracy, French is a (classical, or conservative) liberal who situates himself somewhat above the immediate political fray, placing concern for the enduring ideals and institutions of American democracy ahead of his own policy preferences and partisan commitments. This allows him to see the U.S. for what it is at the moment—namely, a country coming apart, spiraling toward ever deeper and potentially calamitous division.

French examines the concrete ways in which the country could come undone, and he proposes solutions. I agree with him that our best shot at de-escalation—at accepting and learning to live with our vast differences—has to involve a greater willingness to embrace federalism. Though I also worry that this could produce a country waging a (cultural) civil war by other means. (We need to beware doing even more to foster division.)

But this is a relatively small and potentially fruitful point of possible disagreement. French’s book is important because he has his eyes fixed on the real or most fundamental problem confronting American democracy, and because he doesn’t allow himself to get sucked into or distracted by the more superficial conflicts that feed into that problem and make it worse. His book deserves to be widely read and debated among those who would help America avoid the worst of its many possible futures.

I’m grateful for the kind words. If you haven’t bought the book yet (why not?), you can get it here.

One last thing …

Have I shared this yet? We don’t get Dune this year, but we do get Season 5 of The Expanse. I won’t say that’s almost as good, but it’s still quite good. If you haven’t seen the series yet, you’ve got time to binge. You won’t regret it. Here’s the trailer. Very good times:

Photo by Jason Redmond/AFP via Getty Images.