Justice Kennedy - vassal to Lord Trump?

Shock and alarm followed the resignation of  Associate Justice Anthony Kennedy.   He created a vacancy that Donald Trump could fill before the fall mid-term elections that could bring a Democratic Senate majority.  Kennedy vaporized liberal illusions that he might hold out precisely to preserve the possibility that a moderate might succeed him after the November mid-term elections.

As he left Kennedy again joined the 5-4 conservative majority this time in  Janus v. AFSCME eviscerating the finances of public employee unions, and  in Trump v Hawaii approved the President's ban on travel from five Muslim majority countries, with North Korea and Venezuela thrown in to blunt the accusation of religiously motivated discrimination. 

Suspicion soon began to mount when the retiring Associate Justice addressed his letter to"My dear Mr. President".   Like a vassal seeking leave of his Lord Kennedy displayed a personal familiarity with the President who has waged a relentless attack on the justice system - courts, investigators, and prosecutors.   How could the Justice known as an apostle of civility  leave a clear path for a lawless vulgarian to replace him with an even more hardline Justice than himself?

Answers began to emerge when the New York Times reported yesterday that the Justice's son Justin as a top banker at Deutsche Bank had approved over one billion  dollars of loans to Donald Trump's enterprises. No other major financial institution would lend a dollar to the hotel and casino mogul who had a long history of fiascos and non-payments.   We learned thus that the Justice did not share our revulsion at the President's bullying and vulgarity.

Although the United States Supreme Court exempts itself from the Code of Conduct for United States Judges  the United States Code 28 USC 1455 (a) provides " Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Kennedy, often lionized for his defense of  the rights of gays and lesbians in Lawrence v. Texas and its progeny - Obergefell v.Hodges, leaves now a legacy that will be recognized more for his exit than for his occasional departures from conventional conservatism.

But the unexpected final news - the familial intimacy with the international hotelier with undisclosed finances - leaves another question.   In Trump v. Hawaii should Anthony Kennedy have recused himself because his son's role in financing the now-President's real estate empire is a circumstance in which the Justice's "impartiality might reasonably be questioned"?

At this point we have nothing to lose - Alexandria Ocasio Cortez on Morning Joe

We believe...

There is religious bigotry behind Trump's travel ban - Thomas Berg - America

University of St. Thomas (MN) law professor Thomas Berg supported the religious liberty claims in Masterpiece Bakeshop and Trump v. Hawaii.  He has a new essay in America - The Jesuit Review. - gwc

There is religious bigotry behind Trump's travel ban -  Thomas Berg - America

The Supreme Court, on the day before Justice Anthony Kennedy announced his retirement, upheld President Trump’s ban on travel to the United States from seven countries, five of them overwhelmingly Muslim. In Trump v. Hawaii, the court majority refused to consider the president’s statements of anti-Muslim hostility that led up to the ban—as a presidential candidate, he had said “I think Islam hates us” and called for “a total and complete shutdown” of Muslims entering the country.

But earlier this month, the court decided in the Masterpiece Cakeshop case that a civil rights commission’s order that a baker serve same-sex weddings was invalidated by the statements of two commissioners displaying hostility toward the baker’s religious belief in traditional marriage.

It is unfair to accuse the court majority of hypocrisy in these two cases, as some have done. But the majority did miss an important opportunity to give teeth to one of the nation’s most basic constitutional principles: the prohibition on official religious bigotry. I filed or joined briefs in support of the religious liberty claims in both cases, regarding the travel ban and the cakeshop, and wish the court had protected both.

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The Fallout from New York's Shock Result - Jonathan Bernstein // Bloomberg News

The Fallout from New York's Shock Result
by Jonathan Bernstein  // Bloomberg News
***Whether the election is ultimately very important beyond turning out one Democrat for another, however, doesn’t really depend on what actually happened.

Various groups will now try to convince House Democrats that this earthquake was caused by whatever cause would help their faction. So any group supporting policies Ocasio-Cortez ran on will argue that the victory revolved around those. Socialist and very liberal Democrats will claim that this result vindicates their argument for having more influence in the party. Mainstream liberals, however, may instead warn of the danger to all members who neglect their district (or at least who duck debates). 

If one of those explanations catches on, Democratic politicians will adjust their behavior accordingly to avoid suffering the same fate. That’s why, for Democratic party actors, it’s worth fighting over. If, for example, Democrats wind up believing the cause was ideology, they’ll shift to more extreme policy positions to survive; if, instead, they interpret the result as an endorsement of running candidates who match a district's demographics, that will help some future candidates and hurt others. 

The size of the effect isn’t easy to predict — but I’d guess the surprise nature of the upset in New York will probably make the explanation for it more influential. 

Sonia Sotomayor - dissenting - Trump v. Hawaii

SUPREME COURT OF THE UNITED STATES No. 17–965
DONALD J. TRUMP, PRESIDENT OF THE UNITEDSTATES, ET AL., PETITIONERS v. HAWAII, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 26, 2018]

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting.

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created.

Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.

The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent. 

Trump v. Hawaii: The travel ban ruling will be the Roberts court’s shameful legacy.

Trump v. Hawaii: The travel ban ruling will be the Roberts court’s shameful legacy.
by Jed Shugerman
***And what about the fate and integrity of the Roberts court? Several of the justices who upheld the Japanese internment later redeemed themselves by striking down school segregation in Brown and pioneering an era of civil rights expansion. Roberts, along with four other justices, has been working to undo their work for most of his judicial career.

His majority opinion upholding the travel ban is consistent with his anti–civil rights career. And if Kennedy retires this week, his mixed legacy on civil liberties will end on a shameful note, denying voting rights and ignoring evidence of bad-faith religious discrimination. The majority seemed genuinely concerned with anti-religious bias in Masterpiece Cakeshop, but the decision in Trump v. Hawaii suggests the Roberts court is concerned only with anti-Christian bias (see Hobby Lobby) as opposed to religious liberty generally. Finally, it is troubling that the majority ignored evidence of fraud and animus against Muslims at the border while the administration is in the midst of implementing a fraudulent and animus-driven border policy of family separation.

Maybe these five justices will have a chance to redeem themselves if this case comes back after remand, and maybe they will find other ways to stand up for equality, civil liberties, and the rule of law as the Korematsu majority did later. But this week’s injustice obviously is not a good sign.

---

Alexandria Ocasio-Cortez defeats Joseph Crowley - 4th ranked Democratic House leader

Alexandria Ocasio-Cortez defeated Joseph Crowley - 4th ranked Democrat in the House of Representatives. 
I don't know much about Crowley - seems to be a reliable guy - long service in the Congress. Watch her video and you will know why she won.
She was a Sanders backer.  I'm not. He annoys me. He hurt us in 2016.
But as someone who rides the subways - she moves me in this ad.

It's time for a New York that works for all of us.

On June 26th, we can make it happen - but only if we have the #CourageToChange.

It's time to get to work. Please retweet this video and sign up to knock doors + more at https://t.co/kacKFI9RtI to bring our movement to Congress. pic.twitter.com/aqKMjovEjZ

— Alexandria Ocasio-Cortez (@Ocasio2018) May 30, 2018

A Decision That Will Live in Infamy - Noah Feldman - Bloomberg

A Decision That Will Live in Infamy - Bloomberg
by Noah Feldman (Harvard Law School)

In what may be the worst decision since the infamous Korematsu case, when the Supreme Court upheld the internment of Japanese-Americans during World War II, the court today by a 5-4 vote upheld President Donald Trump’s Muslim travel ban.

Like the Korematsu decision, Trump v. Hawaii elevates legal formalities as a way to avoid addressing what everyone understood is really at issue here — namely, prejudice. Chief Justice John Roberts’s majority opinion downplays Trump’s anti-Muslim bias, focusing instead on the president’s legal power to block immigration in the name of national security.

The decision will be a stain not only on the legacy of the Roberts court, but on that of the Supreme Court itself. The court tried to compensate by saying how bad the Korematsu decision was. And Justice Anthony Kennedy wrote a separate concurrence in which he hints that perhaps the lower courts could reconsider the question of anti-religious animus. But these efforts are far too little to save the court, or Kennedy, from the judgment of history, which will be harsh.

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Bohai legacy highlights weakness in China’s marine law | China Dialogue

Bohai legacy highlights weakness in China’s marine law | China Dialogue
by Feng Hao 冯 灏

A long and hard-fought lawsuit brought by a group of Chinese tourist operators against United States oil giant ConocoPhillips has quietly ended with an out-of-court settlement behind closed doors.

Despite the absence of media attention on the ruling, to ignore it would be a mistake. The drawn-out litigation, which has lasted six years, holds important lessons for the development of China’s maritime law, particularly how to legislate the thorny of issue of accountability.

The tourist operators’ case started in November 2012 following the Bohai Bay oil leak in 2011, one of China’s most serious maritime spills. Between June 4 and 17, 2011, several major oil leaks occurred in the Bohai Sea from offshore oilfields only 80 kilometres from the nearest city on China’s east coast. The drilling companies, the China National Offshore Oil Company (CNOOC) and ConocoPhillips China, reacted slowly and the leak spread, polluting 6,200 square kilometres of water – an area six times the size of Singapore – around the main oil field, Penglai 19-3.

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Blind Justice - the Supreme Court on Muslims, Bakers, and Voters

As a lawyer and law teacher we struggle to identify the often underlying logic of seemingly contradictory decisions.  The basic idea is an assumption that somehow or other we are all engaged in a search for truth and justice.  But sometimes that whole enterprise collapses. This is one of those moments.

In Masterpiece Bake Shop A baker who didn't want to bake a cake for a gay men's wedding was found to be the victim of religious bias because of a few unexceptional remarks about religion and bigotry "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”"

In Abbott v. Perez the Texas gerrymandering case Justice Alito wrote that good faith of legislators must be presumed.  The net effect is that it is effectively impossible to prove legislative bias -  which in Texas is plain for all to see.

In Trump v. Hawaii aliens from six predominantly Muslim countries were barred from entry on grounds of a need to vet them as to the threat of terrorism.  To defer in the customary fashion to the President's fulsome power over foeign affairs the court had to see no evil.  But the evil was Trumpeted by the candidate from the first moment of his campaign and his explicit calls to ban Muslims from entry.  And it has not abated.  In the last week he has said that immigrants must not be allowed to"infest" and "invade" our country. - gwc

How many law review articles will be written contrasting the Court's hypersensitivity to the (implausible) possibility of religious bias in Masterpiece (which couldn't possibly have affected the decision), with its indifference to obvious bias in Abbott and Hawaii?

— Marty Lederman (@marty_lederman) June 26, 2018

Kansas Supreme Court Rules Lawmakers Didn’t Increase School Funding Enough – Talking Points Memo

Kansas Supreme Court Rules Lawmakers Didn’t Increase School Funding Enough – Talking Points Memo

Sanders/Trump Lies on Immigration and Crime - Josh Marshall – Talking Points Memo

Please Bookmark This Post. Seriously. – Talking Points Memo

Sarah Sanders just again complained that Democrats support “open borders and rampant crime” that she claims comes with “open borders.” These are straight up lies, so blatant and frequently repeated that I thought it was important to provide links here which can allow anyone who is willing to state and repeat the actual facts again and again and again.

First, in 2013 the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act, the most recent iteration of so-called ‘comprehensive immigration reform.’ The bill was a mix of things both parties wanted, substantial funding for border security along with a path to citizenship for undocumented immigrants already in the country, etc. Here’s the actual text of the bill. The bill had critics on the right and left. But it included a huge amount of money and laws for border security and efforts to prevent illegal immigration. It is demonstrably not an ‘open borders’ bill. All 52 Democratic Senators voted for it as did the two independents who caucus with the Democrats. This is the clearest, most concrete and dispositve evidence that this repeated claim by Trump, Sanders et al. is a provable lie.

Second, “rampant crime.” The through line connecting all of President Trump’s rants about immigration policy is that immigration is a security issue, that there is a clear connection between the scale of immigration and crime. This is false. All credible studies, approaching the question from a variety of angles, find that immigrants – legal and not – commit crime at a dramatically lower rate than native born Americans. The scale is striking, ranging from 50% the rate of the native born to as low as 20%. Here are studies from The National Academy of Sciences, National Bureau of Economic Research, CATO. Here’s an overview of research from the Times. The evidence is consistent and overwhelming. Immigrants commit crime at dramatically lower rates than the native born. And large influxes of immigrants actually appears to bring the crime rate down in areas of high concentration. Immigration does not drive up crime rates at all. The entire premise of Trump’s immigration arguments are based on a demonstrable lie.

Vote Against the GOP in November - George F. Will - Washington Post

Vote Against the GOP in November - George F. Will - Washington Post

Amid the carnage of Republican misrule in Washington, there is this glimmer of good news: The family-shredding policy along the southern border, the most telegenic recent example of misrule, clarified something. Occurring less than 140 days before elections that can reshape Congress, the policy has given independents and temperate Republicans — these are probably expanding and contracting cohorts, respectively — fresh if redundant evidence for the principle by which they should vote.

The principle: The congressional Republican caucuses must be substantially reduced. So substantially that their remnants, reduced to minorities, will be stripped of the Constitution’s Article I powers that they have been too invertebrate to use against the current wielder of Article II powers. They will then have leisure time to wonder why they worked so hard to achieve membership in a legislature whose unexercised muscles have atrophied because of people like them.

Consider the melancholy example of House Speaker Paul D. Ryan (Wis.), who wagered his dignity on the patently false proposition that it is possible to have sustained transactions with today’s president, this Vesuvius of mendacities, without being degraded. In Robert Bolt’s play “A Man for All Seasons,” Thomas More, having angered Henry VIII, is on trial for his life. When Richard Rich, whom More had once mentored, commits perjury against More in exchange for the office of attorney general for Wales, More says: “Why, Richard, it profits a man nothing to give his soul for the whole world . . . But for Wales!” Ryan traded his political soul for . . . a tax cut. He who formerly spoke truths about the accelerating crisis of the entitlement system lost everything in the service of a president pledged to preserve the unsustainable status quo.

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"your fear of exposure is palpable" - John O. Brennan to Trump

Like former National Security Director Michel Hayden former CIA Director John O. Brennan (now of Fordham) is deeply alarmed by Trump's incompetence and dishonesty.

 

Your fear of exposure is palpable. Your desperation even more so. When will those of conscience among your Cabinet, inner circle, and Republican leadership realize that your unprincipled and unethical behavior as well as your incompetence are seriously damaging our Nation. https://t.co/n6ivjOYxzo

— John O. Brennan (@JohnBrennan) June 23, 2018

On respect for others

People have many aspects. They are entitled to respect for their humanity. But not for their ideas. Attitudes, like conduct, are appropriately judged. Character is rightly judged. That I respect your love for your grandchildren does not mean I shouldn't condemn your racism and ignorance. Those are both forms of respect ~ judging people on the contents of their character.

How Facebook Envy Fuels Donald Trump - Tom Nichols - The Federalist

Donald Trump is the avatar of the triumph of the politics of resentment.  He had predecessors - Paul LePage and Chris Christie prominent among them.  But a less blustery and coded version has been a powerful theme of the Republican Party since Reagan,  if not Nixon.  Until Trump there was room for a subdued version - George W. Bush's compassionate conservatism gave us Medicare Part D and a refusal to demonize Muslims - despite the Iraq war debacle. 

Tom Nichols who is an historian at the Naval War College is a self-described stay and fight Republican.  He has an interesting take on what fuels the triumph of resentment.  Though race is a major force it is more than that. Nichols traces it to envy magnified by social media which has yileded the revolt of the comfortable. -gwc
How Facebook Envy Fuels Donald Trump  - Tom Nichols - The Federalist

I blame a lot of people for Donald Trump. (Mostly, I blame Donald Trump.) “Trumpism,” insofar as we can call it a movement, is the product of many social forces. Some of the anger that propels Trump is a reaction to political correctness and elitist condescension; some an irrational, even racist, fear of changing demographics; some understandable rage at the painful and disparate impact of globalization. And some of it is just the lousy luck that 16 other Republicans, including a batch of no-hopers, all decided to run when Trump did.

But look past Trump’s public monkeyshines, and find one emotion that especially motivates his supporters: envy. Or, to use a more evocative French term, it is ressentiment, the need to blame others for one’s own frustration and circumstances......

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How the Party of Reagan Morphed into the Party of Trump - John Harwood - CNBC

White males moved right. Just watch tonight's Trump rally in Duluth, MN.  When two white guys raised signs in protest he ordered them out, saying go home to Mama.  Entirely white nearly riotous crowd chanting Build that wall!, lock her up, and other proto-fascist favorites. -gwc
How the Party of Reagan Morphed into the Party of Trump - John Harwood - CNBC

• Since Reagan's presidency, the demographic composition of Republicans and Democrats changed substantially.
• From 2008 to 2017, Pew found that non-college-educated white voters went from an even split between the two parties to a strong Republican tilt — 56 percent to 37 percent.
• Trump won the Republican nomination, and then the White House, by capitalizing on those and other changing demographic trends.

John Harwood | @johnjharwood

Taking the children from the mother: the feint legal basis - Deepak Gupta

Deepak Gupta lays out the argument between ACLU lawyers and the DOJ.
This enables you to figure out what Sarah Sanders is saying. Sort of.
Unaccompanied children must be protected under the Trafficking Victims Protection Act.  Deportation (removal) is a civil proceeding.  But prosecutors can decide instead to indict for unlawful entry.  How to "enforce the law" is a choice.

In a steep departure from practice the Trump administration announced on April 6 its policy of "zero tolerance".  Every illegal entrant will be criminally prosecuted and subjected to punishment, not simply removed (deported).  Since the accompanying parent is now charged with a crime - not the child - the mother or father is jailed and the child detained.

Today's Executive Order continues zero tolerance and treatment as criminal any entry at other than certain designated points on the 2,000 mile boarder.  Pending trial the U.S. will detain both adult migrants and their children.  This will doubtless lead to long confinements barred by an outstanding federal court order. - the 1997 Flores Agreement.   The Order directs the Department of Justice to seek modification of the Agreement to permit prolonged detention of children during  the criminal prosecution of their parent(s).
- gwc

Yes, the Trump Admin is really arguing in court that it's *required* to separate children--even though nobody read the law that way until now. The argument is all sophistry & wordplay: minors are unaccompanied (and hence trigger the TVPRA) when the gov't forcibly renders them so. https://t.co/P0t9PYqOBK

— Deepak Gupta (@deepakguptalaw) June 20, 2018

Chinese Law Translation Resources

by Susan Finder
Translation Resources

Chinalawtranslate’s glossary and links to other resources;

As cited by He Fan:
translations by Chinalawinfo and WoltersKluwer;
Taiwan’s Judicial Yuan’s bilingual legal glossary;
a glossary of translation of government institutions issued by the Beijing government;
Shanghai government’s glossary;
Shenzhen government’s glossary;
Analysis by foreign scholars.

How to translate Chinese Court Terminology - Supreme People's Court Monitor

How to Translate Chinese Court Terms - Supreme People's Court Monitor - Susan Finder

How to Translate Chinese Court Terms - Supreme People's Court Monitor - Susan Finder

When I write about the Supreme People’s Court (SPC), like many others writing about Chinese law in English, I face translation issues, as legal concepts are embedded in language.  The challenge is to find appropriate legal terminology in English for PRC Chinese legal concepts, an issue that “brother” blogger and creator of theChinalawtranslate.com blog Jeremy Daum, and more broadly, anyone dealing with the Chinese legal system confronts directly.

He Fan , head of the planning department of the SPC’s judicial reform office, prolific translator of (English language) books on the US courts, particularly the US Supreme Court, has recently written about English translation of Chinese court terminology in his Wechat public account. Earlier, the Chinalaw listserv also hosted a discussion of the translation of some specific Chinese court terms.  To bridge the translation worlds, I am summarizing He Fan’s views on the translation of court terms, with my own comments in italics. He Fan’s sources are listed at the end, as are details on how to make comments or corrections.

1. 司法机关:  literally translated as “judicial organs,” which in English generally refers to the courts only, but in Chinese sometimes means 公检法 (public security/procuratorate/courts). Foreign journalists often have difficulty understanding this term. He Fan notes that if the term is translated as the “Judicial Branch,” it appears to mean the court system [and to an English speaker implies a system with multiple branches of government];
2. 审判机关: He Fan translates as “Adjudicative Body,” which he says is generally accepted internationally, but in my own experience “judicial organ” is used more frequently.
3. 审判员: he considers “judge” more easily understood (my 1993 article had a discussion of this vs. 法官);
4. The Supreme People’s Court of the People’s Republic of China”–He Fan notes that internationally, SPC is the usual abbreviation;
5. 地方各级人民法院: local people’s courts at various levels;
6. “基层人民法院: He Fan notes several different usages–“primary people’s court”; “grass-roots people’s court”; “basic people’s court”; “district people’s court”–he prefers primary people’s court.

He Fan’s example: 北京市海淀区人民法院：Primary People’s Court of Haidian District of Beijing Municipality of the People’s Republic of China; abbreviated as Haidian Primary People’s Court [I would personally move “Haidian District, to before “Primary/basic level people’s court]

7. 中级人民法院”–usual translation is “intermediate people’s court.”

8.  高级人民法院:，“higher people’s court;，“high people’s court,” or rarely “superior people’s court”–He Fan’s preference is “High Court;”

9. 专门法院: He Fan notes that “Special Court” is sometimes seen but “Specialized Court” is more accurate，and won’t be mistaken for special tribunal。

• 军事法院: “Military Court”；
• 海事法院: “Maritime Court”；
• “知识产权法院”译为“Intellectual Property Court”；
• “金融法院”译为“Financial Court”；
• “互联网法院: “Internet Court,” He Fan says some translate it as “Court for Internet,” but the usual translation appears to be Internet Court.

Internal court organizations

In his first Wechat article, He Fan splits internal court institutions into those designated by law and other ones, but this blogpost will disregard that distinction.

1. 独任庭: single judge panel
2. 合议庭: collegial panel;
3. 国家赔偿委员会: “the State Compensation Committee.” I have also seen “State Compensation Commission.”
4. 审判委员会: “Judicial Committee”，or “Adjudication Committee,” He Fan prefers “Adjudication Committee,” as it is less likely to be confused with committees created by the judiciary. My view is that “judicial committee” is used more widely.
5. 庭：He Fan mentions chamber, division, tribunal, or “adjudication tribunal,” but he himself prefers “division,” as he considers it more accepted internationally, so:
   • 立案庭: Case-filing Division;
   • 民事审判庭: Civil Division;
   • 刑事审判庭: Criminal Division;
   • 行政审判庭: Administrative Division;
   • 审判监督庭: Judicial Supervision Division;
   • 速裁庭: Summary Division;
   • 人民法庭: but long-established practice is to translate it as people’s tribunal.

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https://supremepeoplescourtmonitor.com/2018/06/19/how-to-translate-chinese-court-terminology/

A roadmap ~ the NYAG Trump foundation suit

https://www.bloomberg.com/view/articles/2018-06-16/new-york-s-trump-lawsuit-may-be-a-map-for-mueller

Why dangling a pardon could be obstruction of justice

Rudy Giuliani today played the pardon card as Paul Manafort was jailed, Michael Cohen wobbled, and donald Trump raved bout the unfairness of it all.
So this is a good time to post Alex Whiting's March 2018 piece.
Why dangling a pardon could be obstruction of justice

by Alex Whiting (Harvard Law School)

March 16,2018

While acting as Donald Trump’s personal lawyer, John Dowd reportedly discussed the possibility of presidential pardons for Michael Flynn and Paul Manafort in separate conversations with their lawyers. Reports by the New York Times and Washington Post on Wednesday suggest that Dowd’s intent might have been to influence Flynn and Manafort’s decisions on whether to plead guilty and cooperate in the investigations, but that legal experts are divided on whether Dowd’s offers could constitute obstruction of justice.

Some experts have argued that the pardon power is absolute and that the President’s motives in issuing a pardon thus could not be questioned, while others contend that it could be a crime to issue a pardon for corrupt purposes (such as in exchange for cash). But the debate over the absolute nature of the pardon power is actually not relevant to the alleged incidents involving Trump’s lawyer. Indeed, that entire debate can be set aside for the moment. Why? Because there’s been no pardon. Instead, a pardon has only been dangled before Flynn and Manafort, and the analysis of whether that action could become part of an obstruction case against Trump raises entirely different considerations.

If Trump actually pardoned Flynn and Manafort, he would have to do so publicly and accept the political consequences of this profound act. As Jack Goldsmith suggests in the New York Times story, for those who believe that the pardon power is absolute and cannot be scrutinized by courts, the remedy for a corrupt pardon is in the political arena: elections or impeachment. What’s more, if Trump actually pardoned Flynn and Manafort, then the two men could no longer assert their Fifth Amendment privilege against self-incrimination because their pardons would erase their federal criminal liability, and therefore Mueller could call both to testify in the Grand Jury and in any subsequent trial. If they continued to assert their Fifth Amendment privilege on the basis of state criminal exposure, Mueller could obtain an order granting them so-called “use immunity” which would ensure that their testimony could not be used against them in any way in state court either. Manafort and Flynn would then be compelled to testify, or risk jail for contempt of court.

The pardon dangle works completely differently—and in important respects has the opposite effects. First, this kind of dangle is not a public act. Therefore, as long as it remained secret, it could be done without incurring any of the political downstream consequences that come with actually pardoning someone. It hides the President from scrutiny rather than exposes him to it as a potential check on the use of the power. Second, the objective of the dangle appears to have been to foreclose the prospect of Flynn and Manfort’s cooperating or testifying. Once again, this is the opposite effect of an actual exercise of the pardon. The message of the dangle was sufficiently clear: hang in there and keep fighting (do not cut a deal with the special counsel) because you will be pardoned before you spend a day in jail. The President and his lawyer’s hope would have been that with the threat of jail eliminated, neither former aid would feel compelled to plead guilty and cooperate with Mueller to reduce his sentence. But, since they were not actually pardoned or not yet anyway, they still kept their Fifth Amendment privileges, and so Mueller could not simply demand they testify before the Grand Jury. In this way, the dangle could operate to stop any cooperation from Flynn and Manafort, who could then be pardoned later if and when they were indicted or even after their cases went through pretrial, trial and appeal. Indeed, you also have to put yourself back at the time these events all took place: before Manafort was indicted and Flynn pleaded guilty. That’s when the dangle could work its magic.

Because a pardon dangle is secret and seeks to discourage cooperation with an ongoing investigation without public scrutiny or consequences, it should be analyzed differently than a pardon when it comes to an obstruction case. Because of the way a pardon dangle operates, it should acquire none of the deference that might be afforded an actual pardon, and if the dangle is found to be orchestrated with a corrupt motive, it should qualify as a potential act of obstruction of justice.

Trump is a genius at touting nonexistent achievements - The Washington Post

Trump is a genius at touting nonexistent achievements - The Washington Post
by Max Boot ( Jeane J. Kirkpatrick senior fellow for national security studies at the Council on Foreign Relations and a global affairs analyst for CNN. A best-selling historian, he is the author most recently of “The Road Not Taken: Edward Lansdale and the American Tragedy in Vietnam.”)

***The constellation of talk radio, Fox, Infowars, Breitbart (It’s English for “Der Sturmer”), devote every moment of bandwidth not spent fellating Trump to punishing and pursuing his critics. Sean Haw Haw of Fox News spends his nightly 43 minutes of airtime between commercials for catheters, reverse mortgages, stairlift, and survival food screaming into the camera like a turgid ham with a series of denunciations that would make Beria lean back and say, “Oh, easy there, tovarish.” Judge Jeanine Pirro needs only a pink hanbok to rival North Korea’s Ri Chun-hee for paint-peeling agitprop in service to Kim Jong Don.

Authoritarian states also require the sick infrastructure of informers, and enforcers, petty zampolits, petty commissars and chekists do what they do; punish deviations from the constant worship, adulation, and praise of the Dear Leader. The White House is Hobbesian snakepit, and Republican politics has become filled with denunciations of any deviation from the True Faith. When Republican National Committee Ronna Romney McDaniel tweeted, “Complacency is our enemy. Anyone that does not embrace the @realDonaldTrump agenda of making America great again will be making a mistake" it wasn't just the new normal; it was a set of marching orders to monitor, report, purge and punish any variation from Trump juche.

The entire l'etat c'est Trump mindset of today's Washington, D.C. is making Trump feel frisky, as the GOP continues to lay in the road like a dead animal, even as the buzzards of reality, conscience, and truth peck at them. Paul Ryan's utter, final moral collapse was on full display this week; now he’s pretending he doesn’t even read the news about Trump’s behavior or that of his cabinet members. Trump is unbounded, unbridled, and unhinged. Yes, some of Trump’s distractions are to cover the pendant doom of Paul Manafort, now rotting in jail for the foreseeable future, the Cohen trainwreck, and the failure of this weeks IG report to categorically demonstrate him is as pure as the driven snow and that his Russia ties were all Hillary’s fault.

But much of this authoritarian statist flirtation is because Trump wills it so. We are told to take Trump seriously, but not literally. I’m not sure we can afford to do that any longer. The President of the United States of America is an office which imposes a vast, consequential responsibility on the person who holds it to represent America's values to the world. If those values are liberty, equality, freedom, the rule of law, and the Constitution, Trump is failing on every front. If they are the values of the thug, the tyrant, the bully, the circus freak third-world tinpot? Then he’ll get his pledge pin any day now.
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Remembering Richard Goodwin

Today is a deeply disturbing day when Donald Trump rants about the FBI, lauds Kim Jong Un, denounces the jailing of former campaign manager Paul Manafort, and Rudy Giuliani demands Mueller be suspended - and suggests that pardons could "clean up" the Russia investigation.

David Axelrod attended a memorial service for the great Presidential speech

I was touched and inspired today by the memorial service for Richard Goodwin, brilliant presidential advisor and speechwriter and a relentless believer in the self-correcting power of our democracy.  Here is one of his historic speeches:https://t.co/sjVMpLJjk9 pic.twitter.com/qvny2jbR9D

— David Axelrod (@davidaxelrod) June 15, 2018

et tu Comey?

Say it isn't so.

IG found that on numerous occasions, COMEY used a personal GMail account to conduct official FBI business, according to source briefed on the report.

— Kyle Cheney (@kyledcheney) June 14, 2018

David Simon | Tony [Bourdain]

Lost in the Twitterverse and the cluttered maze of justice, suffering from TDS, all I knew of Anthony Bourdain was his ubiquity and my brother in law's regular quips and observations about him.  A chef and travel writer...not my track.
And then he died and the flood of tributes followed.
This long, brilliant piece by David Simon (The Wire, Treme, Homicide) reports the loss of a dear friend.  Simon's compelling writing reminds me that my lawyerly mastery of the declaratory sentence is, well, not memorable.  So READ THIS.
David Simon | Tony

I was still on the sofa at four in the afternoon, still half-dressed, when I decided that my life could not be complete if I did not somehow become friends with Anthony Bourdain. My son, then a young teenager, also in his underwear, was as inert and transfixed as I was. We were both locked into the ninth or tenth consecutive hour of a Labor Day weekend marathon of Bourdain’s cultural-journey-through-food breakthrough show, “No Reservations.”

I remember the exact moment, the exact image:

The long, lanky, exquisitely sad-faced visage of a road-worn Bourdain sitting on broken pavement in a South American alley – Buenos Aires or maybe Montevideo, there is no way to be sure when twenty episodes are consumed at once — his back to a stone wall, arms crossed above his knees, watching children play at rag-tag soccer with a deflated ball. And with the older men, he is sharing Siete y Tres, the backstreet concoction of cheap red wine and Coca-Cola. And all this imagery with his narration — his exquisite writing so weighted with love for other worlds and their peoples – just washing over another delicate moment.

“This guy is so fucking real,” I remember telling my son.

“This guy,” Ethan replied, correcting me, “might be the absolute coolest person on the entire planet.”

Still prostrate before the Travel Channel two hours later, I was located by my more culturally literate wife who informed me not only that my discovery of Tony Bourdain’s greatness was belated – the man was already a phenomenon in the world of cuisine — but also that we had met and enjoyed part of an evening with him at a crime-writing convention in England some years before. Freshly boosted by the success of Kitchen Confidential, Bourdain had been trying his hand at crime fiction – a master storyteller still sampling forms before simply inventing the documentarian oeuvre for which he was perfection itself.

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