Archive for the 'Law' Category

My middle daughter gave me “Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia”, for Christmas. I was touched she thought I’d read a book from Cambridge’s Studies in Legal History; in fact, once I’d started found she was quite right. Her friend, Jessica Lowe, was trained in law but found legal history sufficiently beguiling to finish her doctorate with this dissertation. Full of footnotes, it is also rich with observations on law and human nature, clothed in a lovely style, that proves entertaining to even an uninformed reader.
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Today, a friend complained of the death of a young man in Portland, of the heart rending interview of his father on Hannity. Some deaths are memorialized, mourned and others disappear from the headlines. Deaths in gang shootings in Chicago of toddlers are given less attention than those of victims of drug overdose in police custody. Not surprisingly, ceremonial ritual respect is given to a police officer killed in defense of the capitol, while the family of a young veteran, a woman whose business was destroyed by the covid lock down, is not. One an “insurrectionist”, the other a defender. Antigone might understand the distinction, if lamenting it. Creon certainly would. Another woman is trampled. Medical emergencies happen. Chaos.

Later, suicides. Of those we speak softly, negation of life hard for strangers and even harder for families. I knew a mother who spent years denying her son was dead – long after she had buried him.

For three suicides following the 6th, we ask, as we always do of these, why? We wonder about a back story? Would it help us understand the fences about the capitol, the vitriol of the impeachment?

One was a rioter, a middle aged man, an officer in a bank, who had been charged by the police. Given the “everyone is an insurrectionist” rhetoric, being charged would make life difficult and being convicted? The proportions of why and what he did – and why and what was said, was charged – were important to him and might well be to us.

Then, the two suicides of defenders, one of a Capitol policeman and the other in the Washington force. They had their reasons – but are they ones we need to understand as citizens or only as sympathizers? Policemen are often of an honor culture who feel keenly their responsibility to protect. A friend posited another reason: resignations and firings are likely (though responsibility for inadequate preparation does not appeared to be the fault of the police but rather of politicians – seldom members of an honor culture). My friend observed that when the airline for whom her husband had piloted for decades went into bankruptcy (along with their pension fund), several pilots committed suicide. Middle aged, they were unlikely to find work of the same kind and pay; they had (according to the financial planner who served the group) chosen to leave their families in a stronger financial place than the coming bankruptcy would. The planner’s responsibility was to ensure those wishes were fulfilled. (She clearly was glad her husband had not chosen that path although 15 years later they have not yet received the appropriate pension.) Protecting family, protecting reputation – those are motives. Most suicides are prompted (if partially) by clinical depression. Back stories can be sad, but need not be, really, our business. But, given the political machinations before and after that day, the back stories might be telling.

This isn’t much of a post – I hope the comments are more substantive than it is.

Some newsy discussions:
For one, such responsibility was inherited – see CNN for what it is worth.
And Politico gives both officer’s names.
NBC gives details.

2/8 – Adding links
Banker
Another on him
The Financial Planner gives more information about Georgia’s employment; apparently he’d spent decades in finance and the order was because he had not “dispersed” when asked to by police. The difference between these arrests and those 4 years ago that protested Trump’s inauguration are telling and are not so much apples and oranges as some contend.

…which I haven’t seen much discussed:  Her education was an undergraduate degree at Rhodes College (English literature, French), followed by a law degree (Juris Doctor) from Notre Dame.

What’s so unusual about that, you ask?  Just this:  every single current Justice has a law degree from Harvard or Yale.  Ginsburg started at Harvard Law, but transferred to Columbia.  Scallia also went to HLS.   So, if ACB is confirmed, she will become the first recent Justice who did not graduate from, or even attend, the apparently-sacred duo of Harvard and Yale.

Does it matter that the Supreme Court has been so completely dominated by graduates of two universities?  Here’s something Peter Drucker (himself of European origins) wrote back in 1969:

It is almost impossible to explain to a European that the strength of American higher education lies in this absence of schools for leaders and schools for followers. It is almost impossible to explain to a European that the engineer with a degree from North Idaho A and M is an engineer and not a draftsman. Yet this is the flexibility that Europe needs in order to overcome the brain drain and to close the technology gap…the European who knows himself competent because he is not accepted as such–because he is not an “Oxbridge” man or because he did not graduate from one of the Grandes Ecoles and become an Inspecteur de Finance in the government service–will continue to emigrate where he will be used according to what he can do rather than according to what he has not done.

and

The Harvard Law School might like to be a Grande Ecole and to claim for its graduates a preferential position. But American society has never been willing to accept this claim.

The US has come a lot closer to accepting such a claim on the part of HLS than it had when Drucker wrote the above.  Admissions officers at Ivy League schools have been allowed by our society to effectively claim way too much discretionary power over the filling of key roles throughout government and elsewhere.  The way in which this discretionary power has been too often exercised can be glimpsed in the analysis showing that Harvard consistently rated Asian-American applicants lower than others on traits like “positive personality,” likability, courage, kindness and being “widely respected.  (Academic bureaucrats rating people on courage?)

Questions might also be asked about the internal academic cultures within universities to which so much power has been given: for example, a recent FIRE survey of free speech on campus found that 37% of Ivy League students say that shouting down a speaker is “always” or “sometimes” acceptable, compared to 26% of students not enrolled at Ivy League colleges.  And almost 1 in 5 Ivy League students find it “always” or “sometimes” acceptable to block other students from entering a campus event, compared to roughly 1 in 10 of non-Ivy students.  Way too much repressive thinking on American campuses these days; even worse at the Ivy League, evidently, than elsewhere.

I haven’t heard any publicly-stated objections to ACB’s non-Ivy background, and I certainly don’t think it’s a primary factor in the objections to her nomination, but I do wonder if it is influencing some individuals behind the scenes.

More importantly, though, this possible exception to what would otherwise be the Harvard-and-Yale-only rule for Justices points out just how much power these universities have garnered to themselves and to their selected graduates.

Federal Lawmen arresting Portland protesters shown in recent social media video had the word “Police” on the uniforms as well as black and green “Homeland Security” shoulder patches. That the Leftist voice over says they were “not identified” is not supported by the visuals under the voice overs.

It is clear these Federal lawmen were looking for someone specific and that they were doing so in an unmarked vehicle.

Federal law men do this regularly. This tactic is seen most in drug cases and when they are hunting cop killers. A later Federal statement about this action after the person being detained was released made clear the Feds were looking for an individual who attacked federal officers at the court house, and the person picked up may have been a “known associate.”

As for the rest of the Leftist voice overs, Federal law men are required to give Miranda rights in an arrest.

They are _not_ required to do so immediately. Removing a detained individual from the scene and reading Miranda rights later has been accepted by the Federal courts for decades.

Given the tendency of Antifa/BLM groups to mob lawmen removing their members. The Feds here were simply applying the least violent tactics.

PERSONAL SPECULATION BASED ON OBSERVATIONS

If the Feds are following their organized crime template. The organizations and the people wiring money to post these individual’s bail money are now under Federal electronic surveillance. This has been how the Feds deal with large organizations of people bailing out the people the Feds arrest since the “Drug King Pin,” “asset forfeiture” and RICO additions to the racketeering laws were passed in the 1980’s.

Given the “Big Data” tools available to the Feds, every Antifa/BLM person detained in Portland is having all relevant bio-metric identification taken from them and the information is being fed into various law enforcement data bases, to include those of the Secret Service. The latter has a higher level of access to the NSA data banks than the FBI to evaluate people as threats to the President or other politicians they protect.

In so many words, if any of the Antifa/BLM people being picked up in Portland were anywhere near a Secret Service presidential detail protected Trump campaign ot Administration event, Trump family event or Presidential /V.P. visit to any city outside Portland since the summer of 2015. Any metadata in cell phones, bank, hotel, credit card, airline, or bus line records somewhere that matches these people has been pulled. If this data compared with those Secret Service “security bubble” hits has a match.  It will cause an automated threat profile to be generated. A threat profile that will show all the electronic records of their travels and electronic money transfers for the period(s) of interest.

The latter — electronic money transfers — will be used to map the money flows at lower levels of Antifa/BLM to reach up to the higher levels of money flowing from the big corporations and Soros backed front groups.

Please note, Federal standard operating procedure with organized crime means some number of those Antifa/BLM being arrested & released in Portland are now Federal informants.

One more thing,  the Feds — and the Secret Service especially — have made very extensive use of both facial recognition and visual pattern recognition technology. I guarantee that these unmarked Federal law enforcement vans cruising in Portland Oregon have cameras with both technologies.

That Federal law men are getting out and walking a couple of blocks to their target from such vans and slow walking them back is a “poker tell” [AKA  tactics, techniques, and procedures (TTP)] of facial recognition technology’s use.  As everyone who turns to see the uniformed law men coming and watching them going with the detainee gives the watching camera’s enough eye-nose area data to match them up with their driver’s licence photos.

Please see:

https://www.cnn.com/2020/07…

“A 2016 study by the Georgetown Law Center on Privacy and Technology found that one in four US state or local police departments had access to facial recognition technology, and that nearly half of all American adults are in a police facial recognition database, in part because of agreements that provide access to repositories of drivers’ license photos.”

One of the many things that came back from Iraq  US Army surplus to American law enforcement was a visual surveillance technology called “Constant Hawk.”  The US Military pioneered artificial intelligence (A.I.) visual pattern recognition technology to beat the Iraqi road side bomb campaign, starting in 2006, with the “Constant Hawk”  camera system in MC-12 twin engine turbo props.  (A MC-12 is the Cessna King Air in olive drab and white paint job).

Strategy page -dot- com reports in 2020 that a “Constant Hawk-lite” technology has been shrunk to the point an 11 kg (22-lb) drone can carry it.  See:

Information Warfare: Son Of Hawk Sees More
https://www.strategypage.com/htmw/htiw/articles/20200707.aspx

“Constant Hawk uses a special video camera system to observe a locality and find useful patterns of behavior. Some of the Constant Hawk systems are mounted on light (MC-12s, mainly) aircraft, others are mounted on ground structures. Special software compares photos from different times. When changes are noted, they are checked more closely, which has resulted in the early detection of thousands of roadside bombs and terrorist ambushes. This largely eliminated roadside bomb attacks on supply convoys in Iraq.”

Short Form:

There are Federal law enforcement light planes and unmarked Federal law enforcement vans cruising above and around Portland “mapping the Antifa human terrain” the way that Google Earth does for roads and houses in your neighborhood.

My gut says we are going to see rounds of mass arrests based on the data these systems are gathering.

A fact to remember related to this effort is that the criminal conviction rates in Federal courts run to 98%.

-End-

Motion practice query. Where a judge appoints an amicus to represent a party or continue a litigation or prosecution because of an absence of adversity, then do not the parties first get notice and an opportunity to be heard to contest the appointment? Or does the court act on its own, make the appointment, and then allow the parties to make objections after-the-fact?
 
If the court had prior contacts with the amicus—eg, a beauty contest or competition for the starring amicus role—do the parties get to see the records of those contacts between the court and the amicus?
 
Who, if anyone, has oversight over Amicus (Inquisitor) Gleeson? Is it DOJ? Can DOJ assert authority over Gleeson or “his” case, like in a qui tam matter? Does Gleeson take an oath of office to support the Constitution? Is Gleeson subject to the ethical guidance which applies to federal prosecutors or the other policies of the DOJ?
 
[. . .]

Read the whole thing.

From the comments:

The jurisdiction of federal courts is of course limited to “cases and controversies.” If the US wants to dismiss, and the defendant wants to dismiss, where is the case or controversy? If the court has no subject matter jurisdiction, the case ends right there.

Today, the Department of Justice (so- called) dropped its prosecution of General Michael Flynn. This followed a ferocious defense by Sidney Powell, an attorney and author of the excellent book, “Licensed to Lie” which explained the federal misbehavior in the Enron cases, one of which resulted in a unanimous decision by the US Supreme Court that reversed the conviction of Arthur Anderson Accounting Corporation in a miscarriage of justice by Andrew Weissmann who should be disbarred for the Mueller investigation which he ran with Mueller as a senile figurehead.

Why was Flynn prosecuted ?

Here is an explanation.

The only other Republican candidate to repudiate the “Bush Freedom Agenda” was Senator Ted Cruz of Texas. That is why the 2016 Republican primary became a two-man race between Trump and Cruz. The whole of the American Establishment had signed on to a utopian crusade to impose the liberal world order on the Muslim world. After nine years of frustration in Iraq, it saw in the so-called “Arab Spring” demonstrations of 2011 a second chance to bring its agenda to fruition. The result of this was the near-collapse of Egypt and an eight-year civil war in Syria that killed half a million people and displaced 10 million refugees.

Flynn called attention to this massive intelligence failure and had to be destroyed. It’s a shame that Cruz did not endorse Trump at the end on become part of a unity campaign.

I have previously posted my opinion on the Flynn matter, which does not differ from David Goldman except in detail.

After Flynn was driven out of his post at DIA, things got even more threatening to the intelligence officials, as he became a prime advisor to candidate Trump and, early in the campaign, other Republicans. After the 2016 elections, the IC officials went all-out to keep him out of the White House, sometimes resorting to spreading ridiculous stories. President Obama warned Trump not to appoint Flynn as national security advisor, and Susan Rice actually warned the president-elect that Flynn might be in violation of the Logan Act, for which nobody has ever been prosecuted, and hence blackmailable by the Russians. Meanwhile, the Bureau had opened a counterintelligence investigation of Flynn’s activities. His digital communications were monitored, “unmasked” at the request of Obama officials, and leaked to friendly journalists.

Goldman’s version is a little different.

As chief of the Defense Intelligence Agency in 2012, Flynn had warned that American support for Sunni jihadists in Syria had the unintended effect of supporting the new caliphate movement, that is, ISIS. Among all the heads and former heads of the 17 agencies that make up the US intelligence community, Flynn was the only one who had objected to the disastrous covert intervention in Syria and foreseen its baleful consequences. Obama fired him, but Donald Trump hired him as a top campaign aide and then appointed him national security adviser.

That is the background to the mutiny in the US Intelligence Community against the elected commander-in-chief. America’s noble – or perhaps narcissistic – intentions did more damage than Trump’s indifference.

In retrospect, I think I agree even more with Goldman on this. I supported the Iraq War at first but it was botched beyond redemption.

This is another post I made on the same topic last February.

CIA must be disestablished. Its functions should be returned to the Departments of State, Defense, and Treasury. FBI must be restricted to law enforcement. At home, the Agencies are partisan institutions illegitimately focused on setting national policy. Abroad, Agencies untied to specific operational concerns are inherently dangerous and low-value.
Intelligence must return to its natural place as servant, not master, of government. Congress should amend the 1947 National Security Act. The President should broaden intelligence perspectives, including briefs from State, Defense, and Treasury, and abolish CIA’s “covert action.” State should be made responsible for political influence and the armed services for military and paramilitary affairs.

This is an obvious fact. Our intelligence capability has been destroyed in China and Iran by CIA incompetence in its secure communication systems.

Many people in government–including President Trump and several Congresspeople–have expressed dismay about the ‘stimulus’ checks sent to organizations such as Harvard University and Shake Shack.  I haven’t observed much curiosity, though, about why these checks got sent out in the first place.

Was the CARES act so written as to require money to be sent to such organization?  I haven’t read through this very large document, but here it is if anyone feels inspired to do so.

Was the language of the law so ambiguous that it was interpreted by the detailed implementers as requiring such funding, even though that was not Congressional intent?

Was it simply a matter of a coding error in a program that had to be written or modified very hastily in order to send out millions of checks?

I’m curious about the lack of curiosity re this matter.

Advanced trial techniques for defense attorneys.
 

Interesting observations:

On August 18, 2019, on Conlawprof, Professor BBB wrote:
 

Your note reveals a common misunderstanding of the predictive models. First, the models tend to under-predict. That is, the observed macro-effects exceed what the models predict. The models and reports also tend to under predict global temperatures. (The IPCC noted that “the [observed] level of warming in 2017 was 0.15°C–0.35°C higher than [predicted] average warming over the 30-year period 1988–2017.”) [citing: ]

 
I note that Professor BBB adds the word “predicted”. It is not in the original quotation. I checked the original quotation in IPCC5, and it struck me—generalist though I am—that he had inadvertently inverted the meaning of the quoted material. But not being expert, and realizing that different minds might reasonably disagree about such things, I promptly wrote my friends at the Intergovernmental Panel on Climate Change (IPCC) Secretariat…

Seth links to a paper he wrote whose abstract includes this passage:

Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted. The precise role for legal academics in the interpretation of such charters is controverted. Doctrine and case law as established by the courts remain the core of academic legal discourse. Case law is, after all, the object about which doctrine is based, built, and extended. But the interpretation of constitutional text through case law comes with costs — it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) the public. On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position. For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials…

Substitute “scientists” for “legal academics”, and “climate data” for “text and history”, and there might be some kind of parallel here.

The announced “death by suicide” of Pedo-Pimp to the Powerful Jeffrey Epstein in Federal government custody while;

1. On a 24/7 suicide watch,
2. After his first “suicide attempt,”  in late July, and
3. Before there was any time for a real autopsy…

…is such utter horse manure as to utterly destroy any shred of credibility of the Federal government.

That Federal Attorney General Barr first called for an FBI investigation of Epstein’s death — to deafening loud round of public rasp-berry’s.

Then he followed that credibility destroying knee jerk response near seconds later by saying the Department of Justice Inspector General would conduct the investigation — given the non-prosecution of so many in the DoJ & FBI after the IG caught them red handed leaking FISA surveillance sources and methods to the press — amounts to an “Eff-U” slap in the face to the General Public.

This is pure “Pravda Reporting on Chernobyl” territory.  It’s all about elite posturing and “Face” while the radioactive pile burns.

America functions on the consent of the governed.  This requires the government be credible through elite replacement by elections as well as the fair administration and enforcement of justice for both the powerful as well as the least of us.

The circumstances of Mr Epstein’s death are such that I’ve completely lost any faith in the concept of “Justice” that in any way involves the institutional FBI or Department of Justice.

I hate saying that because it leaves us here:

“Those who make peaceful change impossible make violent change inevitable.”

That Rubicon has now been crossed. G-d help the people of these United States.

Please comment and tell me I’m wrong.  I’m in the mood to be lied too.

Anthony Kronman, a professor of law at Yale, writes about how an obsessive focus by academia on ‘diversity’ (as that term is now used) is destructive of individuality and the search for truth.

Victor Davis Hanson observes that the Robert Muller’s “dream team,” loaded with Ivy Leaguers, was expected to devastate Trump’s legal team, which had scarcely a Harvard man or woman in sight.

Electricity problems in Sweden – looks like these are being driven by the closing of nuclear plants, the increased reliance upon wind, and the failure to build adequate transmission capacity to collect the wind turbines with the loads.

Professor ZZZ asks: “Trump is not Stalin but in the history of national (federal) political figures in this country, I’m wondering … where [would] you put Trump? … Having a POTUS so publicly awful along those lines lowers the horrible bar so dramatically that we will pay for years to come. Not being Stalin but being Roy Cohn is a hell of a legacy.”
 
Tillman responded:
 
[. . .]
 
Trump is ahead of Woodrow Wilson: World War I, and! his resegregation of the federal civil service. I grant you that being ahead of Wilson is not saying much…but then, the nation survived Wilson, and no one today thinks of Wilson as having lowered the bar vis-a-vis future presidents. Professor ZZZ seems to be worried about this. He wrote: “Having a POTUS so publicly awful along those lines lowers the horrible bar so dramatically that we will pay for years to come.” Really?—Will we pay for it in years to come, or is this just a shabby slippery slope-type argument?
 
I cannot say I see much sense in Professor ZZZ’s references to Roy Cohn. Roy Cohn’s permanent claim to fame is his association with McCarthy and aggressive anticommunism. Trump, by contrast, has been criticized for being too close to Putin. It is not exactly the same; actually, the two are not alike at all.
 
If words and pretty speeches are the measure of a president, then Trump comes up short. The question is whether that is the correct standard for measuring presidents in a dangerous world.

Read the whole thing.

Seth’s last line is a good summary of the general flaw with many anti-Trump arguments. However, Seth doesn’t go far enough with specific examples:

-Trump didn’t withdraw US forces precipitately from an overseas conflict, leaving the worst of our enemies to fill the resulting power vacuum as Obama did in Iraq.

-Trump didn’t reverse longstanding US policy, deprecating alliances with pro-American countries, in a foolish and futile effort to buy the love of the Iranian mullahs as Obama did.

-Trump didn’t let himself get played by the North Korean dictatorship as Clinton, both Bushes and Obama did.

-Trump didn’t use the IRS to harass his political opponents – as Nixon threatened to do, as the Clintons did to right-wing activist organizations, and as Obama did to organizations and individuals who were active in the Tea Party movement.

-Trump didn’t use the FBI and CIA to spy on his Democratic rivals’ election campaigns as Obama seems to have done to Trump’s 2016 presidential campaign.

I can think of numerous other examples of unwise or malicious actions taken by previous presidents that Trump hasn’t done. Feel free to add additional examples in the comments.

So it seems that race-hate faker Jussie Smolett walks away, free and clear. As a three-way protected person – being of color, gay and a C-list celebrity – and one with apparently plenty of pull among the Chicago political overclass, this probably should have been expected. Race-hate fakers generally seem to get away with the proverbial slap on the wrist and a stern warning not to do it again, once the initial outcry dies down and investigators have done a belated job in proving the initial outrage to have been faked. The same-old, same-old for Lil’ Jussie is about par, in the mind of cynics like myself.
Read the rest of this entry »

Here is another question: What if President Trump and his wife should choose to go their separate ways? Can the President seek a divorce? Getting a divorce is not a de minimis benefit. Getting a divorce, especially with concomitant determinations about the division of marital property, calls for judicial discretion—so I guess, under Plaintiffs’ theory, the President must remain married as long as he is President. Tough luck Melania! Under Plaintiffs’ theory, the President cannot get a divorce in a federal court—as that would be an “emolument” from the federal government beyond his regular presidential compensation (and so purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a state court—as that would be an “emolument” from a state government (again, purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a foreign court—as that would be a foreign “emolument” (and so purportedly precluded under the Foreign Emoluments Clause). Trump just can’t catch a break!

Great stuff.

In the Fourth Circuit, 3 judges have D/R or R/D appointments (i.e., CJ Gregory, Traxler & Floyd). 8 of the 18 have R or R-only appointments. 7 of the 18 have D or D-only appointments. The chances of drawing a strictly R-only panel of judges are 8/18*7/17*6/16 = 7%.
Not that it matters.
7%
Did I tell you?: only 7%.

Seth runs the numbers. His post is worth reading in full, as usual.

I do not know why Judge Messitte took this course of action. But if I had to guess this is what I would say. Judge Messitte denied the President his day in court, and when it looked like the President’s counsel was going to get his day in front of another court, Judge Messitte actively sought to frustrate those efforts. To put it another way, Judge Messitte, and all the parties, and all the amici, and all sophisticated observers know—we all know that this lawsuit was not brought by Plaintiffs in the hopes of prevailing on the merits. Plaintiffs would be happy with such a victory if it should come their way, but that is not why they brought this lawsuit. This lawsuit’s primary goal was and remains an effort by Plaintiffs to get discovery against Trump and his commercial entities—to see what (if anything) shakes out. The discovery in this lawsuit ordered by Judge Messitte was put on hold during the appeals process, and when Judge Messitte saw that his efforts to get discovery were being frustrated by the President’s counsel’s filing an appeal, Judge Messitte advised the Plaintiffs how (they might try) to lock the case out of the court of appeals and to put it back in his bailiwick where discovery could proceed, even where he refuses to rule promptly on threshold motions. Again, the President is not litigating against the Plaintiffs: they are little more than passive observers in this action. It appears to me that this litigation is, in reality, between Judge Messitte* and President Trump. Of course, that is all just guesswork on my part.

Read the entire post.

The plot gets curiouser:

Was Judge Messitte’s ordering the Plaintiffs to dragoon a second defendant into the case a breach of judicial ethics? I really do not know. But it is odd. Imagine one day finding yourself personally named as a defendant in some ongoing lawsuit, not because the plaintiff decided to drag you into the case in relation to some newly discovered evidence, but rather because the judge ordered the plaintiff to sue you before any discovery revealed any specific wrongdoing on your part. We don’t usually imagine that federal judges ought to chase down would-be plaintiffs, and then proceed to advise and urge (and order) them to sue people that the plaintiff had expressed no interest in suing. But that is basically what happened here.

Read the whole thing.

(Part III of this series of posts is here.)

Hundreds and thousands of actions go through the federal courts promptly—Judge Messitte and Judge Sullivan are dedicated judges who do not regularly let motions grow stale beyond the standard 6-month target deadline. So why cannot the President get his motions decided in a timely way just like any other litigant in the federal courts? It is all so difficult to understand.**

Seth helps us to understand.

Read the entire post.

(Parts I and II of this series of posts are here.)

…In other words, in the District of Columbia action, Judge Sullivan’s standing-only ruling did not dispose of the DOJ’s motion to dismiss. The customary or target deadline for resolving such a motion is 6 months—i.e., the 6-month target to resolve the motion was December 7, 2018. December 7 has come and gone. We are now 3 months post-deadline. There has been no call by the court for further clarification, renewed briefing, or renewed oral argument. Yet the DOJ’s motion to dismiss remains unresolved.
 
Why?
Why the delay?
Where is the decision?
What is going on?

Read Seth’s entire post.
 
 
UPDATE: Part II: The Mystery of Senator Richard Blumenthal v. President Donald J Trump

Important points:

In his 60 Minutes interview, former acting FBI director McCabe said:

There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt… publicly undermining the effort of the investigation.

https://www.lawfareblog.com/thoughts-andrew-mccabes-60-minutes-interview (emphasis added).
 
Is not this statement troubling, if not Orwellian? Think or speak the wrong thing—and the government investigates you? In a 2017 blog post on New Reform Club, I wrote about this issue as follows:

Read Seth’s full post.

https://reformclub.blogspot.com/2018/09/peak-conlawprof-i-and-ii.html

Too short to quote; worth clicking.

It strikes me that the complaint against judicial elections (as voiced on this listserv) is rooted in the absence of life tenure — not elections per se. You could have elections filling judicial vacancies — but with the candidates’ receiving life tenure. And you could have appointments by political authorities to fixed and limited judicial terms — with the possibility of reappointment. The threat to the rule of law (such as it is), lies with the prospective candidate for reelection/reappointment to judicial office biasing his/her decision for self-interested reasons. But that conflict of interest will appear whenever you have terms of limited duration with the possibility of reelection/reappointment. It is not elections per se that create the conflict.

This is an excellent point.

Read Seth’s post in full.

Josh Blackman & Seth Barrett Tillman at The Volokh Conspiracy:

For now, it is enough that we point out that the District of Maryland’s five-page rebuke of our brief rests on plain historical error. Moreover, that error was enabled by errors in the Plaintiffs’ briefs. On appeal, the burden remains on the Plaintiffs to show that the District of Maryland, and not President Washington, is the more faithful arbiter of the Emoluments Clauses.

Worth reading.

If your dispute with Trump and your call for his removal are based on policy (and his language about policy), rather than about discrete factual predicates amounting to legal violations, then you should eschew the language of the criminal law and push forward with debates (in this forum and elsewhere) about the prospective dangers you think Trump is creating or the harms he has already caused. But as I said, the country survived Johnson. To the extent that the argument against Trump is based on his saying stuff you think outrageous, I think the country will survive his talking big. I would also add that Trump has done little (as I see it) which substantially departs from his campaign statements—so a removal based on political disagreement about the expected consequences of policy is not going to be one with a strong democratic justification.
 
Technical point: It may be that deporting foreigners is not a criminal punishment, but exiling/banishing/deporting Americans who are in the country legally would seem to me to amount to a violation of a 14th Amendment liberty interest. This brings up an important cultural divide in America today (and not just in America, but across the Western world). Many of Trump’s supporters see the elites as being indifferent between their fellow citizens and foreigners. I ask you not to prove them correct.

Read the whole thing.