Thursday, June 20, 2019

Hope Floats

I didn’t go to law school, but I’m pretty sure you cannot make up something like “absolute immunity” as an excuse not to answer questions before Congress.

“Because of this constitutional immunity, and in order to protect the prerogatives of the Office of President, the President has directed Ms. Hicks not to answer questions before the Committee relating to the time of her services as a senior adviser to the President,” Cipollone wrote, adding that Hicks previously testified before the House and Senate Intelligence committees under similar circumstances.

The administration’s position that she does not need to answer questions about her time in the administration is unlikely to satisfy the committee’s Democrats, who could try to go to court to force her to answer their questions.

Unless you’re eight years old and “neener, neener” sounds too silly.

But there is such a thing as “contempt of Congress.”

Thursday, May 16, 2019

More Equal Than You

Earlier this week the White House told a judge that the judiciary branch of the government has no right to rule on what the executive branch does.  And now they’re telling Congress what they can and cannot do.

The White House’s top lawyer told the House Judiciary Committee chairman Wednesday that Congress has no right to a “do-over” of the special counsel’s investigation of President Trump and refused a broad demand for records and testimony from dozens of current and former White House staffers.

White House counsel Pat Cipollone’s letter to Chairman Jerrold Nadler (D-N.Y.) constitutes a sweeping rejection — not just of Nadler’s request for White House records but of Congress’s standing to investigate Trump for possible obstruction of justice. In his letter, Cipollone repeated a claim the White House and Trump’s business have begun making — that Congress is not a law enforcement body and does not have a legitimate purpose to investigate the questions it is pursuing.

But Cipollone stopped short of asserting executive privilege. Instead, he told Nadler he would consider a narrowed request if the chairman spelled out the legislative purpose and legal support for the information he is seeking.

“Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents or to pursue an unauthorized ‘do-over’ of exhaustive law enforcement investigations conducted by the Department of Justice,” Cipollone wrote.

In an interview, Nadler called the White House argument “preposterous.”

“The White House is making the outrageous claim that a president cannot be held accountable in any way to the American people,” he said, adding: “This is ridiculous, it would make the president above the law, and of course we totally reject it. We will subpoena whoever we have to subpoena.”

Do you remember what the “legislative purpose” was for investigating Bill Clinton’s sex life?  Or the ten investigations of Benghazi?  I must have been out that day.

Unless there’s some clause in the Constitution that’s been dormant since 1789 that says only the Republicans can investigate the peccadilloes or failed rescue missions of Democrats along with their stated duties of oversight, the law school where attorney Cipollone got his degree should have him back for his own “do-over” of federal case law study.

I get it that a lawyer has a duty to zealously defend his client in court and use every means and arguments available to ensure that he gets a fair hearing.  But even I know that you can’t either make shit up or come up with some cockamamie interpretation of the Constitution to pull it off.

Friday, March 8, 2019

Run-On Sentence

According to the folks who know the law and were following the trial of Paul Manafort, Trump’s former campaign manager and one-time lobbyist for unsavory people, the sentence handed down yesterday for his conviction last summer was far too lenient and came from a judge who demonstrated apparent sympathy for the defendant during the trial.  Mr. Manafort was given 47 months when the sentencing guidelines called for twenty years.

But it’s not over,  He also faces sentencing in a Washington, DC courtroom and this judge isn’t likely to be so friendly.

Chances are very good that he will be in prison for the rest of his life.

Tuesday, February 19, 2019

Civics Lesson

Learning about the Constitution in practical ways.

A Florida student is facing misdemeanor charges after a confrontation with his teacher that began with his refusal to recite the Pledge of Allegiance and escalated into what officials described as disruptive behavior.

The student, a sixth-grader at Lawton Chiles Middle Academy in Lakeland, Fla., east of Tampa, refused to stand for the pledge in the Feb. 4 incident, telling the teacher that he thinks the flag and the national anthem are “racist” against black people, according to an affidavit. The teacher then had what appeared to be a contentious exchange with the boy.

If living in the United States is “so bad,” why not go to another place to live? substitute teacher Ana Alvarez asked the student, according to a handwritten statement from her.

“They brought me here,” the boy replied.

Alvarez responded by saying, “Well you can always go back, because I came here from Cuba, and the day I feel I’m not welcome here anymore, I would find another place to live.” She then called the school office, as she did not want to keep dealing with the student, according to the statement.

Officials said the situation escalated. The student yelled at the administrative dean and a school resource officer with the Lakeland Police Department after they came to the classroom, accusing them of being racist and repeatedly refusing to leave the room.

“Suspend me! I don’t care. This school is racist,” the student, who is black, told the dean as he walked out of the classroom with his backpack, according to the affidavit.

According to a statement from the Lakeland Police Department, the boy then “created another disturbance and made threats while he was escorted to the office.” He was later charged by police with disruption of a school facility and resisting an officer without violence.

I am sure there are plenty of people who think the teacher and the cops were right to bust this kid for being unpatriotic and refusing to give in to the demands that he salute the flag and recite the pledge.  Fortunately they are in flagrant disagreement with the United States Supreme Court that ruled in 1943 that no state official can compel anyone to be patriotic.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

This would also apply to those who think that football players showing their feelings in a non-disruptive and silent way should be fired.  The Constitution has your number, too.

Monday, December 31, 2018

Looking Back/Looking Forward

Time for my annual recap and predictions for this year and next.  Let’s look back at how I did a year ago.

  • There will be indictments at a very high level in the administration as the Mueller investigation rumbles on.  Plea bargains and deals will be made and revelations will come forth, and by summer there will be genuine questions about whether or not the administration will survive.  But there won’t be a move to impeach Trump as long as there are Republican majorities in the Congress, and invoking the 25th Amendment is a non-starter.

I’ll give myself a B on that since it was pretty much that way a year ago and the gears of justice grind slowly but irresistibly.  No high-level members of the administration were indicted, but shame and scandal did bring down an impressive number of folks who had hard passes to the West Wing.

  • The Democrats will make great gains in the mid-term elections in November.  This is a safe bet because the party out of power usually does in the first mid-term of new president.  The Democrats will take back the Senate and narrow the gap in the House to the point that Speaker Paul Ryan with either quit or be so powerless that he’s just hanging around to collect pension points.  (No, he will not lose his re-election bid.)

I’ll go with a C on that since I hit the nail on the head in the first sentence; I should have just left it there.  But no; I had it backwards: the House flipped but the GOP still has the Senate, and who knew that Paul Ryan would decide to quit?

  • There will be a vacancy on the Supreme Court, but it won’t happen until after the mid-terms and Trump’s appointment will flail as the Democrats in the Senate block the confirmation on the grounds that the next president gets to choose the replacement.

I’ll take an A- on that since I got the timing wrong, but I think Brett Kavanaugh did a great job of flailing (“I like beer!”) before the Senate Judiciary Committee.  The predator still got on the court, though, and we all hold RBG in the Light for at least another two years.

  • There will be irrefutable proof that the Russians not only meddled in the 2016 U.S. election, but they’ve had a hand in elections in Europe as well and will be a factor in the U.S. mid-terms.  Vladimir Putin will be re-elected, of course.

A+ Duh.

  • Raul Castro will figure out a way to still run Cuba even if he steps down as president, and there will be no lessening of the authoritarian rule.

Another A+, but what did anyone expect?  Trump’s half-assed attempts to restrain trade with Cuba, along with Marco Rubio doing his yapping perrito act, only make it more ironic when it’s the administration’s policy to cozy up to dictators like Putin and the Saudis.  If Trump owned a hotel in Havana he’d be down there in a second sucking up to the regime with video to prove it.

  • The U.S. economy will continue to grow, but there will be dark clouds on the horizon as the deficit grows thanks to the giveaways in the GOP tax bill.  If the GOP engineers cuts to entitlement programs and the number of uninsured for healthcare increases, the strain on the economy will be too much.

I’ll take a B on this since I didn’t factor in tariffs and the trade war(s) he’s launched that led to wild uncertainty in the markets, not to mention Trump’s bashing of the Fed chair that he appointed and told him to do what he’s doing.

  • This “America First” foreign policy will backfire.  All it does is tell our allies “You’re on your own.”  If we ever need them, they’re more likely to turn their backs on us.

I get an A on this because it has and they are.

  • The white supremacist movement will not abate.  Count on seeing more violence against minorities and more mass shootings.

Sadly, a very predictable A on that.

  • A viable Democratic candidate will emerge as a major contender for the 2020 election, and it will most likely be a woman.  Sen. Elizabeth Warren is considered to be the default, but I wouldn’t rule out Sen. Kamala Harris of California or Sen. Kristen Gillibrand of New York just yet.  (Sen. Gillibrand would drive Trump even further around the bend.  She was appointed to the Senate to fill Hillary Clinton’s seat when she became Secretary of State in 2009.)

I get a B on this because it was rather easy to spot and I’m already getting begging e-mails from Ms. Harris.

  • On a personal level, this will be a busy year for my work in theatre with a full production of “All Together Now” opening in March and several other works out there for consideration.  I will also be entering my last full year of employment in my present job (retirement happens in August 2019) but I’ll keep working.

This was a great year for my playwriting with a lot of new friends and opportunities out there and more to come in 2019 (see below).

  • People and fads we never heard about will have their fifteen minutes.

Yep.  I’ve already blocked them out.

Okay, on to the predictions.

  • Barring natural causes or intervention from an outside force, Trump will still be in office on December 31, 2019.  There is no way he will leave voluntarily and even with the House of Representatives in Democratic control and articles of impeachment being drafted they will not get to the Senate floor because the Republicans are either too afraid to rile up the base or they’re too enamored of their own grip on power to care about the government being headed by a poor imitation of a tin-pot banana republic authoritarian douche-canoe.
  • The Mueller Report will be released to Congress and even though it’s supposed to be classified it will be leaked with great fanfare and pundit predictions of the end of the Trump administration with calls for frog-marching him and his minions out of the West Wing.  Despite that, see above.
  • There will be no wall.  There never will be.  Immigration will still be a triggering issue as even more refugees die in U.S. custody.
  • There will be no meaningful changes to gun laws even if the NRA goes broke.  There will be more mass shootings, thoughts and prayers will be offered, and we’ll be told yet again that now is not the time to talk about it.
  • Obamacare will survive its latest challenge because the ruling by the judge in Texas declaring the entire law unconstitutional will be tossed and turned into a case study in law schools everywhere on the topic of exasperatingly stupid reasoning.
  • Roe vs. Wade will still stand.
  • With the Democrats in control of the House, the government will be in permanent gridlock even after they work out some sort of deal to end the current shutdown over the mythological wall.  House Speaker Nancy Pelosi will become the Willie Horton for the GOP base and blamed for everything from budget deficits to the toast falling butter-side down.
  • We will have a pretty good idea who the Democratic front-runner will be in 2020.  I think Sen. Elizabeth Warren’s chances are still good (she announced her exploratory committee as I was writing this), as are Sen. Kamala Harris’s, and don’t count out Sen. Sherrod Brown of Ohio, but who knew that Beto O’Rourke, a charismatic loser in the Texas senate race, would raise a lot of hopes?  That said, fifteen years ago when I started this blog, Howard Dean looked like the guy who was going to beat George W. Bush.
  • The economy will continue with its wild gyrations, pretty much following the gyrations of the mood of Trump and his thumb-driven Twitter-fed economic exhortations.  The tax cuts and the tariffs will land on the backs of the people who provide the income to the government and the deficit will soon be out there beyond the Tesla in outer space.  But unlike that Martian-bound convertible, the economy will come crashing back to Earth (probably about the time I retire in August) and Trump will blame everyone else.
  • There will be a natural event that will convince even skeptics that climate change and sea level rise is real and happening.  Unfortunately, nothing will be done about it even if lots of lives are lost because [spoiler alert] nothing ever is done.
  • I’m going out on a limb here with foreign affairs predictions, but I have a feeling that Brexit will end up in the dustbin of history.
  • Personally, this will be a transition year.  My retirement from Miami-Dade County Public Schools occurs officially on August 31, 2019, and I’m already actively looking for something both meaningful and income-producing to do after that.  (E-mail me for a copy of my resume; nothing ventured, nothing sprained.)  My play “Can’t Live Without You” opens at the Willow Theatre in Boca Raton, Florida, for a two-week run on March 30, and I’m planning on returning to the William Inge Theatre Festival for the 28th time, either with a play or most assuredly with a scholarly paper.  I have my bid in for a variety of other theatre events and productions; I think I’m getting the hang of this playwriting thing.
  • I will do this again next year.  I hope.  As Bobby says, “Hope is my greatest weakness.”

Okay, your turn.  Meanwhile, I wish continued good health and a long life to all of you and hope you make it through 2019 none the worse for wear.

Friday, November 9, 2018

A Good Fit

Matthew Whitaker, the acting attorney general, seems like a perfect fit for the Trump administration.

Before Whitaker joined the Trump administration as a political appointee, the Republican lawyer and legal commentator complained that special counsel Robert S. Mueller III’s investigation of Russian interference in the election and of the Trump campaign was dangerously close to overreaching. He suggested ways it could be stopped or curtailed and urged his followers on Twitter to read a story that dubbed the investigators “Mueller’s lynch mob.”

Now — at least on an interim basis — Whitaker will assume authority over that investigation, an arrangement that has triggered calls by Democrats for him to recuse himself.

He also harbors interesting views on the role of the Supreme Court in the scheme of things, arguing that the landmark 1803 Marbury v. Madison case that affirmed the court’s role as the final arbiter of interpreting the Constitution was one of the worst decisions the court has rendered.

“There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

He also seems to think that our laws descend from a higher power.

During a 2014 Senate debate sponsored by a conservative Christian organization, he said that in helping confirm judges, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? — which I think is very important.”

At that point, the moderator interjected: “Levitical or New Testament?”

“New Testament,” Whitaker affirmed. “And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”

Religious tests for judges are barred by the Constitution, but I think we already know where he stands on interpreting it.

To round out the rest of the portfolio, as an attorney he’s been accused of defrauding clients.

When federal investigators were digging into an invention-promotion company accused of fraud by customers, they sought information in 2017 from a prominent member of the company’s advisory board, according to two people familiar with the probe: Matthew G. Whitaker, a former U.S. attorney in Iowa.

It is unclear how Whitaker — who was appointed acting attorney general by President Trump on Wednesday — responded to a Federal Trade Commission subpoena to his law firm.

In the end, the FTC filed a complaint against Miami-based World Patent Marketing, accusing it of misleading investors and falsely promising that it would help them patent and profit from their inventions, according to court filings.

In May of this year, a federal court in Florida ordered the company to pay a settlement of more than $25 million and close up shop, records show. The company did not admit or deny wrongdoing.

Whitaker’s sudden elevation this week to replace fired Attorney General Jeff Sessions has put new scrutiny on his involvement with the shuttered company, whose advisory board he joined in 2014, shortly after making a failed run for U.S. Senate in Iowa.

At the time, he was also running a conservative watchdog group with ties to other powerful nonprofits on the right and was beginning to develop a career as a Trump-friendly cable television commentator.

So, he’s got authoritarian-executive views of the basic laws of the country, he wants religious tests for judges, and he’s provided legal counsel to a fraudulent get-rich-quick scheme here in Florida.

My only question is why wasn’t he the first pick for Trump’s attorney general before Jefferson Beauregard Sessions III?

Bonus Track: According to two highly-respected legal scholars, Neal K. Katyal and George T. Conway III, Trump’s appointment of Mr. Whitaker as acting attorney general is unconstitutional.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.

It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

I heard one conservative commentator suggest that the Federal Vacancies Reform Act of 1998 allows such appointments in the case of a vacancy or incapacity, but it is for a relatively short period, and besides, the Constitution has supremacy.  So if Mr. Whitaker tries to fire Robert Mueller, he may face a legal challenge.

PS: Karma strikes again: George T. Conway III, the co-author of the op-ed, is married to Kellyanne Conway.

Tuesday, August 21, 2018

Thursday, August 2, 2018

Twelve People

I heard a commenter on NPR last night say that if Paul Manafort is acquitted, it will be a big setback for the Mueller investigation.  Trump and his minions will crow that it proves the whole thing is a rigged witch hunt and that if the prosecution can’t make the case against the former campaign manager, they won’t be able to prove anything against anybody else.  Trump will go on with his rallies and his bloviation, Fox News will carry on as if he’s been totally vindicated, and the imagination shies away from speculating as to what comes next.  And it’s all up to twelve people on a jury.

I have no doubt whatsoever that no matter what the outcome of the Manafort trial, Mr. Mueller and his team will press on.  The case against Manafort has nothing to do with the election of 2016 other than he was the campaign manager when the Russians came calling, and Trump’s obstruction of justice has been solely about keeping Mueller and law enforcement away from him and his activities.  But the optics of a Manafort acquittal mean that the next trial — either in court or in front of the cameras on the courthouse steps — will be that much harder to win.

Monday, June 4, 2018

It’s Not Good To Be The King

When the Constitution was written, the folks who wrote it did everything they possibly could to get away from a monarchic form of government.  They made all the people with power subject to election and to the rule of law, and they split the powers of the government between three branches: executive, legislative, and judicial.  That seemed like a good way to do it; no one branch could overtake the other, and there was accountability so that if one got out of hand, the others could deal with them until order was restored.  The few executive powers that resembled those held by a monarch were limited to benign or even restorative abilities, such as the power of the pardon.  The Founders probably thought this would be sufficient; they had the optimistic yet cautionary view that we were inherently good but that firm control via common sense and the ballot box would be enough.

They didn’t take into account the possibility that we would get Trump.

The 20-page memo from Trump’s lawyers to Robert Mueller, written in January and leaked by the New York Times on Saturday asserts that the president has the power to do whatever he wants in terms of controlling the Department of Justice; fire the director of the FBI, terminate an investigation, pardon himself for anything he might have done while in office, and basically assume the powers of an authoritarian without worrying that anyone in the executive branch can stop him.

Indeed, the President not only has unfettered statutory and Constitutional authority to terminate the FBI Director, he also has Constitutional authority to direct the Justice Department to open or close an investigation, and, of course, the power to pardon any person before, during, or after an investigation and/or conviction. Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.

People who have been to law school and have read this memo say that it is deeply flawed in both legal and logical terms.  The attorneys cite outdated statutes and take positions that stretch reason beyond the absurd.  But it is an insight into the defense strategy that will be mounted on behalf of Trump and sold to the GOP base at rallies as black-letter law: Trump is above the law and it’s good to be the Trump.

The only people who can bring an action against the president for violating the law or the Constitution is Congress.  They have done so twice in living memory: the articles of impeachment against Richard Nixon and the actual impeachment of Bill Clinton.  At those times — 1974 and 1998 — the Congress was held by the opposition party to the president, which means that their desire to prosecute the president was inherently a political one.  This time it’s different.  Trump is nominally a Republican, as is the House and Senate.  So the question then becomes do the people who have the power over the term of the current president believe more in the rule of law than they do in the integrity of their own party, their re-election, and their conscience that speaks to them when they’re outside of the glare of TV cameras and soundbites.

We decided over 200 years ago that we didn’t want a monarch any more (even if we do watch their royal weddings on TV) and gave ourselves and our elected representatives the power to control those who assume they have powers beyond those granted by law.  Whether or not Congress decides to do anything about that tells us more about the future of this country and our path forward as a constitutional democracy than the results of an election.

Friday, May 4, 2018

Legal Notes

Trump has hired Emmet Flood, the lawyer that represented Bill Clinton during his impeachment and also defended Hillary Clinton during the e-mail kerfuffle.  That must be going over really well with the wingnuts who attacked Mr. Flood for his previous work, not to mention the fact that when you start shopping for a lawyer who knows all about impeachment, there’s got to be a reason.

And with Rudy Giuliani shooting his mouth off on Hannity, it’s refreshing to see that now Trump the client is probably wishing that his lawyer would shut up instead of the other way around.

Tuesday, April 17, 2018

It’s A Privilege

You don’t have to be a lawyer to understand the concept of attorney-client privilege.  Watching a few episodes of “Law & Order” reruns will give you the basics: what you communicate to your attorney is secret, and your attorney can be disbarred for breaking it.  There are exceptions, of course, but by and large it’s pretty sacrosanct.

There is one important caveat: the privilege can only be invoked if the attorney is actually representing you.  So I don’t know how Sean Hannity, the blowtorch blowhard on Fox News and the Wormtongue to Trump, can claim attorney-client privilege with Michael Cohen out of one side of his mouth and vehemently deny that Michael Cohen is his lawyer out of the other.

The fact that Mr. Cohen is also Trump’s lawyer makes it interesting because of the “Law & Order”-style dramatic reveal in the courtroom.  But in the overall scheme of things, it makes you wonder what the big deal is all about; lots of lawyers have a wide spectrum of clients and they aren’t all connected to each other.  Heck, my own attorney represented Tony Bosch, the Dr. Feel-Good who juiced up A-Rod, and you don’t see me running around with 19-inch biceps and playing for the Yankees.  So why is Sean Hannity so freaked out by this reveal and claiming a privilege?

Maybe it’s because Michael Cohen only has three clients; the other one besides Trump is Elliott Broidy, the recently-resigned RNC finance chair.  And maybe there’s more to this relationship between Hannity and Trump and Cohen than just sharing a lawyer.  Which brings up the fact that attorney-client privilege goes out the window if the attorney is actively engaged with the client in the furtherance of a crime.

Friday, April 13, 2018

Former GOP Rep Convicted

Ah, justice.

Steve Stockman, a Republican former congressman from Texas, has been convicted of defrauding two conservative mega-donors and funneling their $1.25 million into personal and campaign expenses as part of what prosecutors have described as a “white collar crime spree.”

A jury in federal court in Houston ruled Thursday afternoon that Stockman is guilty of all but one of the 24 felonies he was charged with last March. After about 16 hours of deliberations over three days, the 12-person panel only declined to convict on one of four counts of wire fraud.

Stockman will appeal the verdict, his defense team said.

This may become a pattern.  One could only hope.

Tuesday, February 6, 2018

Do You Solemnly Swear

Via the New York Times:

Lawyers for President Trump have advised him against sitting down for a wide-ranging interview with the special counsel, Robert S. Mueller III, according to four people briefed on the matter, raising the specter of a monthslong court battle over whether the president must answer questions under oath.

His lawyers are concerned that the president, who has a history of making false statements and contradicting himself, could be charged with lying to investigators. Their stance puts them at odds with Mr. Trump, who has said publicly and privately that he is eager to speak with Mr. Mueller as part of the investigation into possible ties between his associates and Russia’s election interference, and whether he obstructed justice.

Yeah, if I were Trump’s lawyers I wouldn’t want him to testify under oath either.  He can’t order lunch without lying or contradicting himself, and while that may make him liable to be charged with perjury, the lawyers could be disbarred for suborning perjury by the mere act of advising him to testify.  They have to be thinking of their own careers, too.  (Of course, if you allowed yourself to take on Trump as a client, you have to wonder about your own fealty to the canon of ethics.)

Mueller could subpoena Trump in order to force him to testify, and he would fight it, but chances are very good that he’d lose.  And while that might guarantee you years of billable hours, there’s no good outcome for your client, and with his track record with people who’ve worked for him, you’d end up getting stiffed.

Tuesday, January 23, 2018

Throwing Out The Maps

The Pennsylvania Supreme Court has struck down the state’s congressional redistricting map that was drawn up by the GOP-dominated legislature.

In the Democratic-controlled court’s decision, the majority said the boundaries “clearly, plainly and palpably” violate the state’s constitution and blocked the boundaries from remaining in effect for the 2018 elections with just weeks until dozens of people file paperwork to run for Congress.

The justices gave the Republican-controlled Legislature until Feb. 9 to pass a replacement and Democratic Gov. Tom Wolf until Feb. 15 to submit it to the court. Otherwise, the justices said they will adopt a plan in an effort to keep the May 15 primary election on track.

The decision comes amid a national tide of gerrymandering cases, including some that have reached the U.S. Supreme Court.

This is important for a couple of reasons.  First, since this was a ruling by the state supreme court, not a federal court, appealing the ruling to the U.S. Supreme Court is a lot harder; it wasn’t a federal case to begin with.  (That doesn’t mean the Republicans won’t try to make it one, but the odds are against them.)  Second, this could mean that the Democrats start reclaiming districts that were weaseled away from them by a rapacious state legislature and what were once safe GOP districts could be up for grabs.

Monday, November 13, 2017

Intended Consequences

Some people forget that when you vote for a president — or don’t vote for the opponent because of a fit of pique — things like this happen.

Brett Talley, a 36-year-old lawyer whom President Trump nominated for a lifetime federal judgeship, has practiced law for only three years and has yet to try a case.

Before his nomination in September, he had been unequivocal about his political views. “Hillary Rotten Clinton might be the best Trumpism yet,” says a tweet from his account, which has since been made private. “A Call to Arms: It’s Time to Join the National Rifle Association” was the title of a blog post he wrote in January 2013, a month after a gunman in Newtown, Conn., killed 27 people before taking his own life.

Talley, who also writes horror novels on the side, moved a step closer to becoming a federal district judge in his home state of Alabama on Thursday. Voting along party lines, the Senate Judiciary Committee, on which Republicans outnumber Democrats, approved Talley’s nomination, which now goes to the Senate for a full vote.

Talley is the latest federal judicial nominee to draw scrutiny for what some say is his limited experience in practicing law and the level of partisanship he had shown on social media, on his political blog and on several opinion pieces he had written for CNN. He has also received a “not qualified” rating from the American Bar Association, which vets federal judicial nominees.

The vote on Talley’s nomination comes as Trump and Senate Majority Leader Mitch McConnell (R-Ky.) continue to intensify efforts to place conservative jurists, some of whom are young, on the federal bench. As Trump said as he stood next to McConnell during a news conference in October, the judicial nominations are the “untold” success stories of his presidency.

“Nobody wants to talk about it. But when you think about it, Mitch and I were saying, that has consequences 40 years out, depending on the age of the judge, but 40 years out,” Trump said. “So numerous have been approved. Many, many are in the pipeline. The level of quality is extraordinary.”

Which means that Trump could be out of office next year, if not sooner, but the consequences of electing him will still be felt when my three-year-old grand-nephew is watching his child get married.

Talley isn’t the only one.  As the article points out, the Republicans are whooping through a whole slew of right-wing youngsters to populate the judiciary into the middle of the century, and given the actuarial tables and the natural progression of life, they could infect the Supreme Court as well.

So all of you who voted for Jill Stein or Gary Johnson or held out for one more shot from Bernie because Hillary was too much of a centrist or whatever, thank you so much for having a pure conscience.  See how that works for you when the NRA and “religious liberty” are calling the shots from the federal bench and it’s easier to carry a gun into a school than it is to get a PAP smear.

Wednesday, August 23, 2017

Tuesday, April 18, 2017

Wednesday, March 8, 2017

Amendment XXV, Section 4

There is not much likelihood that Trump will be impeached.  In practical matters, it’s not going to happen as long as the Republicans are in control of the House, which is where articles of impeachment originate.  The last two times that a president was either impeached or got close to it — Bill Clinton and Richard Nixon — the opposition party to the president was in the majority in the House.  In addition, the bar for impeachment is “high crimes and misdemeanors,” which basically means the president has to commit a criminal act.  Tweeting outrageous garbage at 3:00 a.m. is not a crime; if it were, a lot of people — especially jilted boyfriends — would be under indictment.

So what recourse have we?  Well, there’s the part where we can genuinely question whether or not the current president is capable of fulfilling his duties due to mental disease or disability.

Martin Longman writes:

There was a period of time when it was at least in doubt whether Trump was a genuine Birther or just a cynical one using the slander as a shrewd ploy to win political support from the far right. That debate should be settled now that we see him in office embracing theories concocted in the fever swamps of Breitbart and the Alex Jones InfoWars radio show. He isn’t sophisticated enough to understand the difference between mercenary partisan propaganda and actual news reporting. This is why he repeats things like the story that New Jersey muslims were celebrating the collapse of the Twin Towers and that millions of non-citizens (all) voting for Clinton cost him the popular vote.

He doesn’t just repeat these stories that are intended to deceive the audience and enrich the author, but he asks that the government actively investigate them.

And this is the stuff that actually does move Trump closer to being removed from office. Because, you can be sure that many, many Republicans are more than perturbed that they have to constantly apologize for or try to rationalize the president’s insupportable statements and theories. They know he’s a dangerous loose cannon. They know he can’t be trusted or even reasoned with. And they want to live to see their grandchildren.

There seems to be push back when anyone accuses the president of having a mental disorder or disability, as if to say so is to suggest that people with mental problems can’t be trusted to take positions of responsibility. People say it’s wrong to try to diagnose a person without having the proper credentials or the opportunity to closely interact with them as a patient.

This is taking things too far when it comes to the president of the United States who commands enough radioactivity to end sentient life on Earth. You don’t want me to say that the president has narcissistic personality disorder and is clearly insane?

Fine, how about this? It’s a bad idea to hand your three year old a loaded handgun. Saying so is not to disrespect three year olds or to dismiss all the wonderful things they’re capable of doing. If you hand your three year old a handgun and he pulls the trigger and kills someone, that’s entirely your fault. And if your see a three year old walking around with a loaded handgun, your responsibility is to immediately disarm them.

That’s the best analogy for our current situation. And it would be true even if the president were not ethically compromised beyond belief. It would be true even if he were not undermining the European Union, demoralizing NATO, and seemingly more interested in furthering Vladimir Putin’s foreign policy goals than the strength and unity of the West.

It’s not that Trump tweets and re-tweets wild and unsubstantiated stuff from conspiracy-theorists and hate groups.  It’s that he believes it.

There is a solution.  It’s not easy, and it will require the cooperation of people close to the president and who owe their current position to him.  But it’s there: Amendment XXV, Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

The question remains, however, is what will it take to get them to use it.  By the time there’s a consensus among the principal officers, it could be too late.

Friday, February 10, 2017

Court 3, Trump 0

The short version of the ruling from the U.S. Court of Appeals is that the Government can’t ban people from coming into the country based on the principle of “because we say so.”

A US appeals court has rejected President Donald Trump’s attempt to reinstate his ban on visitors from seven mainly Muslim countries.

The 9th US Circuit Court of Appeals said it would not block a lower-court ruling that halted the order.

Mr Trump responded with an angry tweet saying national security was at risk and there would be a legal challenge.

But the unanimous 3-0 ruling said the government had not proved the terror threat justified the ban.

“The government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” the ruling said.

It also rejected the argument that the president had sole discretion to set immigration policy.

“Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all,” said the ruling. “We disagree, as explained above.”

Donald Trump’s lawyers did not make their case. In fact, according to three Ninth Circuit judges, they didn’t even really try to make their case. Rather than explaining why the temporary travel ban was needed, the administration argued that the president’s authority on immigration was so sweeping that they didn’t have to explain why the order was necessary.

According to the court, the government was unable to say why Mr Trump’s ban addressed a pressing national security threat that a temporary stay of the order would worsen. The lawyers for the challenging states, on the other hand, convinced the judges that re-imposing the order at this point would create further chaos by infringing on the due process rights of those on US soil, regardless of their immigration status.

By issuing a unanimous, unsigned opinion, the judges avoid accusations of partisan bias, as one of the three was a Republican appointee.

Mr Trump tweeted a sharp “SEE YOU IN COURT” following the decision.

The case will most likely go to the Supreme Court, and it will take a vote of five of the justices to overturn the lower court ruling.  Since there are only eight justices on the court — four liberal and four conservatives — chances aren’t too good that Trump will prevail.  In fact, that’s one of the reasons the court ruled to uphold the lower court: the Government did not prove that it would likely prevail.

In the spirit of our fearless leader, “NEENER NEENER.”

Friday, January 27, 2017