Q&A: Civil Rights Icon Discusses the Future of American Democracy
By: Robert Sisco
Civil rights attorney Daniel Sheehan has worked on dozens of historically significant cases during his 40-year legal career, including the Pentagon Papers Case, the Watergate burglary case, and the Iran-Contra scandal. Today, he is the President of the Romero Institute, an interfaith, non-profit law and policy center based in Santa Cruz, California. Sheehan and the Romero Institute are now setting their sights on climate change and environmental degradation, in an effort to address what he calls “the biggest threat facing humanity today.”
Q: You’ve worked on two significant cases that defended the rights of journalists and newspapers, In re Pappas and the Pentagon Papers case, what is your take on President Trump’s lawsuits against the New York Times and the Washington Post for libel?
A: I think that presents an extraordinarily positive opportunity for the New York Times and the Post to get after him. Because in Times v. Sullivan, a major US Supreme Court case that stated any kind of suit for libel against a major news media outlet requires a public person, such as the President of the United States, to prove not only that something was false, but also that the organization knew it was false and that they, did so with the intention of damaging the financial status of the person they were talking about.
I think the New York Times and Post have a great opportunity because the charges all relate to them asserting his campaign was colluding with Russia. Trump is trying to take advantage of the misrepresentation about the findings of the special prosecutor with regard to that. All he’s said is that he did not think he could get access to important, admissible evidence to establish beyond a reasonable doubt to a criminal standard. That in fact, there was a specific agreement made between Trump and Putin or the campaign and Russia to collude in getting Trump elected.
Finally, not to state the obvious, they could take his deposition. They could take the deposition of all the different people around him –– the people that were withheld from Congress to testify in the impeachment proceedings. I think it’s a golden opportunity for the New York Times and Post to really carve into this guy and take him to the cleaners. At which point, of course, Trump would withdraw the case. They have to do this in a careful way, because if you expose [your strategy] to the Trump side that you’re going to carve him up on this thing, he’ll just dismiss the case.
Then, the question is whether or not they could also file a SLAPP suit. They’ve got this strategic litigation theory going now to show that the plaintiff who’s filing this libel suit is just trying to chill the media. There’s a whole range of options they have at their disposal but the actual public interest thing to do is to go after Trump and subpoena him, since he filed the lawsuit for theatrical purposes.
Just go after him and get him into a deposition, start issuing subpoenas for depositions of all the people that knew perfectly well they were colluding. Get at these guys. Especially the guys who are being convicted. There’s nothing to prevent them from taking civil depositions from those guys. I’m not at all sanguine about the fact that they’re going to take advantage of it cause somehow they don’t see themselves as being devoted to the actual public interest of the people as distinct from the financial best interests of their corporation, the newspaper.
Q: Can you explain New York Times v. Sullivan for our readers?
A: Times v. Sullivan is the Supreme Court case that established the principle, that if a public person files a lawsuit against a media outlet, like the New York Times, under the standards of libel, they have to prove more than the fact that what was said was erroneous or untrue. They have the burden of showing it was untrue, the burden of proving that the person who published it knew it was untrue, and that they did it for the specific purpose of spite and malice - actual malice toward the person referred to in the article to try to destroy their financial reputation.
None of those things are established by Trump in this case. What they want to do is use Times v. Sullivan as a wedge, not just to get the case dismissed, but to go after him. They should eschew these technical grounds for getting the case dismissed as quickly as possible. They should set those aside and go after him and take advantage of the case himself and get the depositions of Trump and all of his campaign people and go after these people. That’s what they need to do.
Q: You worked on the Watergate burglary case, and that scandal resulted in Nixon’s impeachment. President Trump called his impeachment a Democratic witch-hunt and hoax, while his opponents denounced the trial as being rigged in Trump’s favor. What do you make of the impeachment and what it means for American democracy?
A: It was essential on the part of the House of Representatives to confront what was going on. The impeachment veered off into this narrow line focusing on the call with the President of Ukraine and withholding of the finances for the military equipment. I thought that was a mistake on the part of the Democratic Party. It provided a simple, targetable, and provable set of facts, but given the fact that all they had to do was withhold the witnesses that had firsthand knowledge, they were gonna fall flat.
They had to rely on third-hand hearsay. And the fact that the Congress was unable to effectively assert its authority to bring these people in under subpoena, given the fact that the courts are now stacked by the administration against everybody except Trump and the executive branch.
I think they should have gone after the information about the collusion with Russia. 86 percent of them are lawyers, they knew thoroughly well that the special prosecutor just simply saying he wasn’t certain he was in possession of court-admissible evidence to be able to establish beyond a reasonable doubt every single essential element of the crime of conspiracy on the part of Russia, in the Administration’s campaign. That’s a completely different standard than being able to establish that it was true.
The challenge that we have with the Republican-controlled Senate, it was always inevitable that they were going to refuse to convict him. Democrats managed to get one person, Senator Romney, to vote to convict on one of the two counts, but they knew from the beginning that they were not going to be able to get two-thirds of the Senate, which is controlled by the Republican Party, to convict Trump. They should’ve used the impeachment process in the House to draw out all of that information about the collusion –– the actual collusion that went on between the Trump campaign, Manafort, and these other fellows. The coordination and collusion. And they should’ve brought all that information out into the public view.
They just underestimated the intelligence of the American people, which they do all the time. Figuring it would sound too complicated. They needed to have one simple thing, like one phone call, he’s lying about it, and he withheld our military equipment and Ukraine was being attacked by Russia. They went right for the lowest common denominator and they still failed. I think that the entire reliance on Congress to do any kind of effective investigation was mistaken.
Q: You represented the alleged “ring-leader” of the Dakota Access Pipeline protests, the grassroots movement that opposed the construction of the oil pipeline through Lakota land in North Dakota. That movement resulted in nearly 20 states passing laws restricting people’s right to protest. Are you concerned about the future of protesting in the United States?
A: Absolutely. Kristi Noem, the rightwing Republican Governor of South Dakota has led that charge, but it was ALEC, the hardcore rightwing legislative drafting group, that drafted this so called riot-boosting statute. This is a subset of the fundamental problem of the hardcore shifts to the right of the Republican Party at the end of the Cold War and the Democratic Party following them to the right and wanting to have a right of center Democratic Party to take on the hardcore right of center Republican Party. In a dialect of that nature, you always come out somewhere right of center.
The States are moving in to try to crush protesting because the progressive community has had to resort to these types of protests in order to do anything. You’ve lost access to an effective court system. We don’t have any allies in the Democratic Party. The Obama administration didn’t cut off the Dakota Access pipeline until after Hillary Clinton had been beaten by Donald Trump. Donald Trump had already been elected in November and it wasn’t until December 4th that the Obama administration and the new, more moderate Democratic Party actually upheld the Environmental Protection Act to protect the environment. He did order the cutting off of XL, and I’m sure that either Bernie or Biden, whichever wins the nomination, if they’re elected, they’ll shut off the XL pipeline.
In that sense, we’re relying upon an elite theory of social change. Relying upon the Democratic Party to do anything right. I think we have to have a mass of citizens movement which is similar to what’s going on with Bernie Sanders to actually reestablish a forward leaning protection of our fundamental rights.
We’re not going to be able to rely on the courts to strike down these kinds of statutes because even if we get a good federal district court, it’s gonna go up to the Court of Appeals, which are all being stacked with hardcore, rightwing people. The Trump administration is gonna end up, before the end of its first term here, appointing 236 federal judges. Virtually every single one of them is from the Federalist Society, which is a hardcore, rightwing fundamentalist group of people that are a danger to the democracy.
We’re going to have to go through a difficult period here in the next few years unless Bernie Sanders wins, and it’s not looking that good for him as of this morning (March 4, 2020). If Joe Biden wins, he’s a good guy and he’s a liberal guy, but that type of an administration is not really equipped to take on and suppress this hardcore, right wing ascendency stirred up by Trump.
We’re gonna have to get a stronger administration in and slowly work our way back into getting progressive people back onto the court.
Q: What are the biggest threats to American democracy today and why?
That entire hardcore, rightwing element that owned the corporations ascended into power. Franklin Roosevelt pushed them back some with the New Deal. As soon as the Soviet Union dissolved, these guys sprang right back into full-throated support for this kind of hardcore corporation, ardent capitalist principles. And that’s what we’re really looking at right now. And we have to try to figure out how to push these people back into the box. That happened during the New Deal with Franklin Delano Roosevelt, but the fact of the matter is, all those forces were at play that lead to a whole world war –– WWII.
I know that we cannot depend upon some horrible thing like that having to happen, except that we’ve got global climate change, and global climate change is again one of the greatest threats to democracy because as global climate change descends upon us, and the existing political structures, people like even Joe Biden in the new more moderate Democratic Party, they’re proposing net zero carbon emissions not until 2050. That’s insane.
As the effects of global climate change settle in, you’re going to see forces of authoritarianism become stronger and stronger to try to shut off the borders, stop people from coming in as they’re fleeing from desertification, fleeing from the coastlines and the rising sea levels, the diminishing of the freshwater that’s available on the planet. You’re going to be encountering water wars. This is a terrible danger. I don’t mean to scare anybody to death with this article, but this combination between the rising global climate change and the ascendance of authoritarian elements inside the government together is an abject threat to democracy right now.
Q: What made you change gears from a civil rights focus to an environmental one?
A: This very thing I just mentioned. It became clear that global climate change was going to have such a dramatic effect on the increasing of authoritarian power on the part of the executive branch. The fact that the legislatures are going to react to that with these knee-jerk granting of more and more power to the executive branch to address the effects of climate change.
We realized that we have to get at the fundamental source of this problem. So that’s why our office is drafting the California Green New Deal, so that we can lay out in one comprehensive, omnibus bill all the dozen different factors that need to be addressed.This has to be done in order to protect the fundamental constitutional rights of people against the rise of this authoritarian state, which is the essential focus of human rights. That’s why we have to address this environmental crisis. That’s why we’re trying to address this now. We’ve got to turn our attention to global climate change and get it turned back or else we’re all gonna suffer a dramatic diminution of our civil rights.
Q: Besides the California Green New Deal, what projects are you currently working on?
A: Organizing to stop the Keystone XL pipeline, working with Oglala people at Pine Ridge, working with the people at the Cheyenne River, Standing Rock, Lakota people to try to turn back those pipelines coming through the center of our country, helping to generate additional community choice energy companies, which are publicly owned, safe and clean, sustainable sources of electrical energy.
We established the largest community choice energy agency in the entire world that includes Santa Cruz County, Monterey County, San Benito County, down into San Luis Obispo, Ventura, then going to be going into Santa Barbara. All those counties are joining together to have completely 100% sustainable sources of electrical energy. Also, working on the Green Power Project, which is building out regional global climate change plans to get every one of the major cities and counties to come forward with a global climate change addressing set of policies, such as not purchasing anymore fossil fuel vehicles, not allowing any buildings to be built unless ran on solar power.
We are developing a whole set of media tools to reach out to people to share information because we used to use the courts to do that direct confrontation with the bad guys. But in light of the temporary loss of the control of the courts to this hardcore, rightwing Federalist Society crowd, we’re going to have to go to the media to reach out directly to the people, organize the people. We’re setting out to put together a 501(c)(4) for being able to lobby on behalf of the Green New Deal and we’re going to be putting together a political action committee so that we can actually proselytize on behalf of specific policies and specific candidates to be able to replace the present leaders that are leading us to perdition.
(Editor's Note: This article was originally published in the March 2020 [Volume 50, Issue 3] version of The Advocate.)