Tuesday, March 20, 2018

Trump Considers Reshuffling Legal Team as He Takes On Mueller More Aggressively - The New York Times

Trump Considers Reshuffling Legal Team as He Takes On Mueller More Aggressively - The New York Times
by Michael Schmidt and Maggie Haberman
In another sign of the president’s more aggressive posture, on Monday he hired Joseph E. diGenova, a longtime Washington lawyer who has appeared regularly on Fox News in recent months to claim that the F.B.I. and the Justice Department had manufactured evidence against Mr. Trump to aid Hillary Clinton.

Saturday, March 17, 2018

What We Know, and Don’t Know, About the Firing of Andrew McCabe - Lawfare

After all the appropriate cautions Wittes and Jurecic explain the rush to judgment - to force McCabe out before he retired as the final step in a long, vicious, and venal campaign by Tweets to get McCabe out.  It is obviously part of Trump's efforts to block the investigation of Trump's campaign and his finances. - gwc
What We Know, and Don’t Know, About the Firing of Andrew McCabe - Lawfare
by Quinta Jurecic and Benjamin Wittes

Anyone who is confidently pronouncing on the merits of Andrew McCabe’s firing Friday night is venturing well beyond the realm of known facts.
We certainly understand the instinct to rally to McCabe’s defense at a time when the president is issuing  and White House Press Secretary Sarah Huckabee Sanders is declaring him a “.” McCabe’s dismissal comes as part of a broader purge of the senior FBI leadership and specifically targets a man who behaved with  in the wake of James Comey’s firing last year. It is only natural for those repulsed by the president’s broader interactions with the FBI to assume the worst.
But on McCabe’s innocence or culpability for some infraction that might justify his dismissal, we will reserve judgment—and we caution others to as well. It is simply not clear at this stage whether or not the record will support his dismissal. KEEP READING

Former CIA Director Brennan denounces Trump for McCabe firing

 John Brennan , the former CIA Director, now a Distinguished Fellow at Fordham's Center for National Security Studies denounces Trump.

Friday, March 16, 2018

The War on Terror as the Launching of an American Crusade – LobeLog

With God on our side...
The War on Terror as the Launching of an American Crusade – LobeLog
by James Carroll
America may be sinking ever deeper into the moral morass of the Trump era, but if you think the malevolence of this period began with him, think again. The moment I still dwell on, the moment I believe ignited the vast public disorder that is now our all-American world, has been almost completely forgotten here.  And little wonder.  It was no more than a casually tossed-off cliché, a passing historical reference whose implications and consequences meant nothing to the speaker. “This crusade,” said President George W. Bush just days after the 9/11 attacks, “this war on terrorism…”
That, however, proved to be an invocation from hell, one that set the stage for so much of the horror to follow.  The Crusades were, of course, a centuries-long medieval catastrophe. Bush’s Global War on Terror, in contrast, has already wreaked comparable havoc in a paltry 17 years, leading to almost unimaginable mayhem abroad and a moral collapse at home personified by President Donald J. Trump.
Despite the threads of causality woven together as if on some malignant loom that brought about his election — the cult of reality-show celebrity, the FBI director’s last-minute campaign intervention, Russian mischief, Hillary Clinton’s vulnerability to self-defeat and misogyny, electoral college anomalies, Republican party nihilism, and a wickedly disenchanted public — the ease with which such a figure took control of the levers of power in this country should still stun us. Some deep sickness of the soul had already played havoc with our democracy’s immune system or he wouldn’t have been imaginable.  Think of him as a symptom, not the disease. After Trump finally leaves the Oval Office, we’ll still be a stricken people and the world will still be groaning under the weight of the wreckage this country has brought about. How, then, did we actually get here?  It might be worth a momentary glance back.
A Fever Dream of a War
“This is a new kind of evil.”  So said the president that September 16th, standing on the South Lawn of the White House.  “And the American people are beginning to understand. This crusade, this war on terrorism, is going to take a while.” In that way, only five days after the 9/11 attacks, George W. Bush elevated a band of petty nihilists to the status of world-historic warriors. “And the American people must be patient,” he continued. “I’m going to be patient.”
He, of course, is long gone, but what he initiated that day is still unspooling. It could have been so different. September 11th was a tragic moment, but the initial reactions of most Americans to those collapsed towers and a damaged Pentagon were ones of empathy and patriotism.  The selflessness of first responders that day had its echo in a broad and surprising manifestation of national altruism. The usual left-right divides of politics disappeared and the flag, for once, became a true symbol of national unity. The global reaction was similar. From across the world, including from erstwhile adversaries like Russia and China, came authentic expressions of support and sympathy, of grief-struck affection.
But in every phrase the president would speak in those weeks — “this is war… with us or against us… dead or alive” — he chose to take this country on quite a different path into the future.

Wednesday, March 14, 2018

Why the CLOUD Act is Good for Privacy and Human Rights - Lawfare

Why the CLOUD Act is Good for Privacy and Human Rights - Lawfare
by Jennifer Daskal and Peter Swire

A dozen privacy and human rights groups have opposed the  regulating cross-border data access, claiming that it will . They describe the bill as helping “” foreign governments to commit human rights abuses; endangering constitutional rights; and even, in an email sent to the Hill this week, undercutting LGBT rights around the world.
We respectfully disagree. Contrary to these claims, the bill would improve privacy and civil liberties protections compared to a world without such legislation.
This opposition to the CLOUD Act has so far focused on a provision authorizing the president to enter into executive agreements in order to facilitate cross-border access to communications content in the investigation of serious crimes.  Absent such an agreement, U.S. law requires foreign governments to make a diplomatic request for any such data that is U.S.-held, employing what is known is the Mutual Legal Assistance (MLA) process. There is broad consensus, however, that the current MLA system is slow, cumbersome and in need of updating to handle the growth of online cloud services and the .
The bill provides that needed update. It lifts blocking provisions for certain types of requests from certain rule of law-abiding governments: Partner governments can, pursuant to a long list of qualifications, directly request data of non-U.S. persons from U.S.-based providers without going through the MLA process. If the foreign government wants to request the data of a U.S. citizen or resident, it still needs to employ the MLA system. The bill sets forth a long list of privacy and human rights criteria as to the contours of those requests.
What’s more, for the first time, the bill sets up a mechanism for the U.S. government to review what foreign governments do with data once it is turned over. This is a privacy win—something that that no foreign government has agreed to in the past. In our view, these criteria will raise privacy protections on a global scale.

Tuesday, March 13, 2018

Russia wanted to Harm Hillarly clinton - Gowdy Statement on Russia Investigation | Congressman Trey Gowdy

Rep. Trey Gowdy (R-SC), Hillary Clinton nemesis, driving force in the Benghazi pseudo investigation is showing signs of independence since he announced he will not seek re-election.  He has announced that though he found "no collusion" the evidence nonetheless found that Russia was out to harm Hillary Clinton. - gwc

Gowdy Statement on Russia Investigation | Congressman Trey Gowdy

***It remains clear Russia sought to sow the seeds of discord and challenge the reliability of the 2016 election cycle. Russia is not our friend. Russia will do what it can, when it can, to undermine the foundations of our democracy.

It is also clear, based on the evidence, Russia had disdain for Secretary Clinton and was motivated in whole or in part by a desire to harm her candidacy or undermine her Presidency had she prevailed.

It is crystal clear Russia's ultimate goal was to turn Americans against Americans, undercut our confidence in the electoral process, and sow the seeds of discord. On that measure, we are in direct control—as Americans—of whether they succeed or not."

Mueller’s Choice of Criminal Charges: Why the Trump Team Should Be Very Worried | Just Security

We KNOW that the Trump campaign coordinated with the Russians.  Former foreign policy aide George Papadopoulos in his plea statement affirmed that his Russian contacts had stated their willingness to deploy emails to hurt Hillary Clinton.  And we know hat Trump, Sr. lauded the Russians.  There is a lot for the Mueller team to work on.  And they haven't even taken the testimony of the Donalds!
Mueller’s Choice of Criminal Charges: Why the Trump Team Should Be Very Worried | Just Security
by Sam Berger

Ryan Goodman recently highlighted an important revelation contained in the memo written by Democrats on the House Intelligence Committee: Not only had the Russians told the Trump campaign that they had dirt on Hillary Clinton in the form of thousands of emails, but they had also previewed for George Papadopoulos, a foreign policy adviser on the campaign, that they could help with disseminating them.
This revelation would suggest significant legal exposure on its own. But when viewed within the broader context of what we know about the Russia investigation, it is further evidence of an extremely troubling pattern of interactions between the Trump campaign and Russia-linked operatives, which show an intertwining of two campaigns to elect Donald Trump: one run out of Trump Tower and one run out of the Kremlin.
Goodman and the experts he spoke with identified four types of actions that could create criminal liability for the Trump team stemming from this new information: If the campaign consulted with the Russians on their plans to disseminate the emails; if the Trump campaign gave tacit assent or approval or support; if Trump officials intentionally encouraged the Russians; or if they sought to conceal the facts of a crime. Just looking at the publicly available information shows the outlines of a potential legal case against members of the Trump team along these very lines.
As campaign finance law expert Paul S. Ryan points out, campaigns cannot coordinate with foreign nationals on any expenditure that seeks to influence a U.S. election. Coordination includes cooperation, consultation, or acting in concert with, or at the request or suggestion of the candidate or his team. A key word is “or”—each of those actions could independently suffice to establish a violation. KEEP READING

Monday, March 12, 2018

"A bundle of irritable mental gestures which seek to resemble ideas"

Sunday, March 11, 2018

On Prisoner Rights, Justice Gorsuch Is Precisely Who We Thought He'd Be | Brennan Center for Justice

On Prisoner Rights, Justice Gorsuch Is Precisely Who We Thought He'd Be | Brennan Center for Justice

 He went out of his way last month to protect officials at the expense of injured inmates.

March 2, 2018
Justice Neil Gorsuch may have been curiously silent last week when a big public union case came before the Court. But he spoke eloquently one week earlier in an Illinois case about prison litigation that merits more attention than it so far has received. What the newest justice said, in effect, is that a dubious federal law used for decades to undermine accountability in cases of prison abuse and neglect ought to be even more protective of corrections officials and even less hospitable to inmates.
The Illinois case, styled Murphy v. Smith, was about who must pay attorney’s fees when a prisoner sues his guards and wins a damage award from a judge or jury. So this isn’t a case about a frivolous lawsuit. It’s a case about a meritorious one. Charles Murphy, the prisoner, was abused by guards at the Vandalia (Ill.) Correctional Center after he complained that the chair he was supposed to sit in for a meal had food and water in it. For that he was handcuffed and escorted to a segregation unit. Once there, Justice Sotomayor wrote in her dissent:
Murphy taunted respondent Correctional Officer Robert Smith, who responded by hitting Murphy in the eye and applying a choke hold, causing Murphy to lose consciousness. When Murphy woke up, Officer Smith and respondent Lieutenant Gregory Fulk were pushing him into a cell. His hands were still cuffed behind his back and he fell face-first into the cell and hit his head on a metal toilet. Officer Smith and Lieutenant Fulk then stripped Murphy of his clothes, removed his handcuffs, and left him in the cell without checking his condition. Thirty or forty minutes passed until a nurse arrived to attend to Murphy, who was sent to a hospital. Part of his eye socket had been crushed and required surgery. Despite the procedure, Murphy did not fully recover; almost five years later, his vision remained doubled and blurred.    KEEP READING

Why White Evangelicalism is So Cruel // Chris Ladd // Forbes

When you watch them cheering Trump, you know how little has changed. White.  Fundamentalist.  They won a victory when political correctness brought the change from `fundamentalist; to `evangelical' [which actually means spreading the Gospel] and `Bible belt' became unacceptable in the MSM.  Let's be candid - white is the part of their identity that matters most.  African Americans have been as "evangelical" as their white co-religionists and political antagonists. - gwc

Why White Evangelicalism is So Cruel  // Chris Ladd // Forbes
by Chris Ladd
"White Evangelical Christians opposed desegregation tooth and nail. Where pressed, they made cheap, cosmetic compromises, like Billy Graham’s concession to allow black worshipers at his crusades. Graham never made any difficult statements on race, never appeared on stage with his “black friend” Martin Luther King after 1957, and he never marched with King. When King delivered his “I Have a Dream Speech,” Graham responded with this passive-aggressive gem of Southern theology, “Only when Christ comes again will the little white children of Alabama walk hand in hand with little black children.” For white Southern evangelicals, justice and compassion belong only to the dead."

Saturday, March 10, 2018

31,527 prisoners granted amnesty in 5 years: supreme court - Xinhua | English.news.cn

It is good to hear that death penalties are "extremely small" and only for "extreme" crimes.  But the transparency which otherwise characterizes China's courts is completely absent regarding the imposition of capital punishment.  Maintaining this state secret only guarantees the presumption outside China that the death penalty is not rare.
31,527 prisoners granted amnesty in 5 years: supreme court - Xinhua | English.news.cn
BEIJING, March 9 (Xinhua) -- A total of 31,527 prisoners were granted amnesty across China in the past five years, a work report of the Supreme People's Court (SPC) said Friday.
Chinese courts have strengthened efforts to protect human rights in judicial practices, according to the report delivered by Chief Justice Zhou Qiang at a plenary meeting of the ongoing annual session of the National People's Congress.
Death penalty decisions were strictly reviewed to make sure that death sentences only apply to an extremely small number of criminals for extremely severe offenses, it said.
The report noted that the SPC has worked with the Ministry of Justice to enhance the legal aid system.
Cases involving minors have seen declines for five consecutive years, according to the report.
A total of 2.67 billion yuan (420 million U.S. dollars) of judicial subsidies have been granted to victims who failed to get compensations to help them continue their life, it said.

Friday, March 9, 2018

Trump’s World and the Retreat of Shame - The New York Times

Image result for guernica paintingBundesarchiv Bild 183-H25224, Guernica, Ruinen.jpg

 When the Luftwaffe and their Italian fascist allies destroyed the town of Guernica in 1937 there was outrage - memorialized by the great Spanish painter Pablo Picasso.  There was outrage during the Vietnam war - over napalm, carpet bombing, defoliants, the Christmas bombing of Hanoi, and the slaughter of innocents.  But such shame and outrage are scarce commodities today.

Trump’s World and the Retreat of Shame - The New York Times
by Roger Cohen
After Aleppo, now comes the agony of Eastern Ghouta. This suburb of Damascus, the last rebel-held enclave close to the Syrian capital, is bombarded by Bashar al-Assad’s forces for weeks on end, with Russian air support. More than 900 people, including many children, are killed. Hospitals are targeted in what François Delattre, the French ambassador to the United Nations, has called “a siege worthy of the Middle Ages.” Pregnant women bleed to death. Some 400,000 people are trapped.
France and Britain convene an emergency meeting of the Security Council and press for enforcement of last month’s Resolution 2401, calling for an immediate cessation of hostilities. In this effort, the United States is nowhere, silent, AWOL, as President Vladimir Putin and his Syrian sidekick do their worst. The message to Moscow is clear: Donald Trump’s America does not care about Syria, or war crimes, or human rights. Russian cynicism and American absence produce disaster.
Yes, it has come to this.
Emmanuel Macron, the French president, calls Putin. He dispatches his foreign minister to Moscow and Tehran in an attempt to stop the slaughter. Trump, to whom moral indignation — indeed morality itself — is a stranger, does not care. His Middle East foreign policy has two components: Back Israel, bash Iran. With respect to Putin, he is compromised, or enamored, to the point of incapacity. Let Syria burn.

Rakoff send Uber suit to Arbitration, denounces binding federal precedent

Rakoff sendS Uber suit to Arbitration, denounces binding federal precedent
New York-based federal judge Jed Rakoff has sent a major antitrust price-fixing lawsuit against Uber Technologies Inc. into arbitration, albeit reluctantly, and dismissed the case from court.
But not before first devoting pages of his opinion in Meyer v. Kalanick, 15-cv-9796, to fiercely criticizing the U.S. Court of Appeals for the Second Circuit, and the federal judiciary as a whole, for repeatedly upholding U.S. companies’ use of mandatory arbitration clauses that consumers assent to via internet-based customer agreements that appear on screens. Rakoff said such terms of service agreements “totally coerce” the consumer into waiving his or her constitutional right to a jury trial.
In two and a half pages of dictum that open the opinion, Rakoff, a senior judge in the U.S. District Court for the Southern District of New York, spares no niceties. He makes clear that he thinks the federal judiciary has gotten an important constitutional issue wrong for years, and that the law must change.

“Thus, while [federal] appellate courts still pay lip service to the ‘precious right’ of trial by jury,” he wrote, “and sometimes add that it is a right that cannot readily be waived, in actuality federal district courts are now obliged [because of appellate court rulings] to enforce what everyone recognizes is a totally coerced waiver of both the right to a jury and the right of access to the courts—provided only that the consumer is notified in some passing way that in purchasing the product or service she is thereby ‘agreeing’ to the accompanying voluminous set of ‘terms and conditions.’
“This being the law,” he continued, “this judge must enforce it—even if it is based on nothing but factual and legal fictions.”***KEEP READING

Thursday, March 8, 2018

Wednesday, March 7, 2018

Remembering Professor Whitmore Gray- pioneer student of China Law

Whit Gray has died.  Like Jerry Cohen he was one of the earliest American academics and lawyers to engage with China.  An emeritus law professor at Michigan, he taught at Fordham for many years.   Whit - a multi-linguist - was the first to teach Chinese law at Fordham. He was a member of the founding faculty of Peking University's School of Transnational Law in Shenzhen.  

In 2004 Ben Liebman delivered to me the first draft of what became China's Tort Law in 2009.  I brought it to Whit who had translated China's 1986 General Principles of Civil Law and suggested he translate it.  Why don't you do it? he replied.  He gave me the glossary he had developed for his translation of the General Principles.  I took to the task.  My translation appeared first in the Chinese law review Private Law 私法 and then with commentary in the Fordham International Law Journal  in 2007.

Xi Jinping Amends China's Constitution - Jerome Cohen - Lawfare

Jerome Cohen - the NYU professor and former partner in Paul Weiss - is the godfather and mentor of all all who study Chinese law in the U.S.
He recognizes China's great progress - in normalization of government, and in economic development.  But he is a determined critic of anti-democratic practices.  Among them are recent actions against dissenting lawyers and lawyers fr dissidents.  Now is the aggrandizement of a sitting leader, putting him on a plane with familiar icons - Marx, Lenin, Mao Tse Tung; and now eliminating term limits for the PRC's President.  - gwc
Xi Jinping Amends China's Constitution - Lawfare
by Jerome Cohen

The instantaneous reaction to the momentous news that Xi Jinping will be eligible to serve a third term and beyond as chairman of China’s government is the most recent demonstration that we live in a connected world. Domestically, Xi’s bold move to amend his country’s Constitution, although undoubtedly popular with the masses, has clearly generated significant . This has been visible even in non-transparent China, despite Xi’s stifling of information and free expression. Indeed, adoption of what could be life tenure for Xi apparently inspired considerable opposition even within the secret confines of the Communist Party Central Committee, which reportedly had to be dragooned into supporting his political coup.
The elimination of term limits for what are usually translated into English as China’s presidency and vice-presidency is only one of three crucial  about to be adopted. The other two are the enshrinement of “Xi Jinping Thought” and the formalization of government “supervisory commissions” that will strengthen what should be called the Inquisition with Chinese characteristics. Together they will expand Xi’s already fearsome powers over his countrymen and potentially extend his dictatorship into the indefinite future.

Saturday, March 3, 2018

Today's New Low "CRAZY"