The role of the chief justice in an impeachment trial - SCOTUSblog

Think John Roberts will force Mitch McConnell to hold a real trial - the kind with witnesses?  Not hardly.  He's a team player - and he doesn't like beer so there'll be little grandstanding. 
But remember - according to the Rules of the Senate - even if one is not removed via the political procedure known as trial in the Senate - a person impeached is "impeached forever".
- gwc
The role of the chief justice in an impeachment trial - SCOTUSblog
by Frank Bowman (Georgetown Law)

Sometime in the next week or two, the impeachment trial of President Donald Trump will convene in the Senate. When it does, Chief Justice John Roberts will preside. There has been a good deal written about Roberts’ role, some of it intimating – or at least hoping – that Roberts could wrench control from the politicians who make up the Senate and transform the proceeding into a trial of the conventional judicial sort, with both sides able to compel the appearance of live witnesses and the production of documents and to inquire into any matter logically relevant to the charges against the president.

For better or worse, neither the Constitution, the rules of the Senate, historical precedent nor the personal predilections of Roberts himself make this the least bit likely. Instead, Roberts is most likely to serve as a dignified figurehead in an affair entirely dominated by the Republican senatorial caucus. Here’s why.

The Constitution specifies only four points about the Senate impeachment trial of a president: (1) The Senate “shall have the sole power to try all impeachments”; (2) when sitting as a court of impeachment, senators “shall be on oath or affirmation”; (3) conviction of any accused officer requires “concurrence of two thirds of the members present”; and (4) when the president is the accused, “the Chief Justice shall preside.”

U.N. weapons inspector Hans Blix faults Bush Administration for lack of "critical thinking" in Iraq

Why I don't think we have a right to be in Iraq. 
Blix was, if anything, too kind in this videotaped interview on the first anniversary of our 2003 invasion of Iraq.
I remember things like the war hysteria puffed up by the smallpox vaccine campaign - on which hundred millions were spent - stirring up fear of biological warfare on NO evidence.  A subject I wrote about as it was happening in this essay in the Fordham Environmental Law Journal.
U.N. weapons inspector Hans Blix faults Bush Administration for lack of "critical thinking" in Iraq

BERKELEY – Speaking on the anniversary of the United States' invasion of Iraq, originally declared as a pre-emptive strike against a madman ready to deploy weapons of mass destruction (WMDs), the man first charged with finding those weapons said that the U.S. government has "the same mind frame as the witch hunters of the past" — looking for evidence to support a foregone conclusion.

"There were about 700 inspections, and in no case did we find weapons of mass destruction," said Hans Blix, the Swedish diplomat called out of retirement to serve as the United Nations' chief weapons inspector from 2000 to 2003; from 1981 to 1997 he headed the International Atomic Energy Agency. "We went to sites [in Iraq] given to us by intelligence, and only in three cases did we find something" - a stash of nuclear documents, some Vulcan boosters, and several empty warheads for chemical weapons. More inspections were required to determine whether these findings were the "tip of the iceberg" or simply fragments remaining from that deadly iceberg's past destruction, Blix said he told the United Nations Security Council. However, his work in Iraq was cut short when the United States and the United Kingdom took disarmament into their own hands in March of last year.

Central Inspection Group gives feedback to the Supreme People’s Court (2020 edition) | Supreme People's Court Monitor

Central Inspection Group gives feedback to the Supreme People’s Court (2020 edition) | Supreme People's Court Monitor
by Susan Finder

In September, 2019, this blog reported that Central Inspection Group (CIG) #4 would inspect the work of the Supreme People’s Court (SPC) Party Group for approximately two months. On 10 January 2020, Chinese media reported on CIG #4’s feedback to the SPC’s Party group. The summary and brief analysis below is based on the press release published in state media, rather than the full report given to the SPC. Palpably better judicial transparency does not include Party documents of this nature. This process signals to the world outside of China that the SPC has a different role in the Chinese political system from the supreme courts of other major jurisdictions.

Chen Xi, Politburo Member, head of the Organization Department, and deputy head of the Leading Small Group on Central Inspections chaired the meeting. In the audience was: the head of the CIG #4 Group and its leader; members of the supervision office ( 监督检查室), leaders from relevant bureaus of the Party Organizational Department, leaders from the CCDI/Supervision Commission office stationed at the SPC, leaders of the SPC, and other responsible persons from the SPC. The results and the recommendations of what needs to be improved, as in 2017, were conveyed to the Standing Committee of the Politburo. The inspection group found that:

New data on immigration judge grants and denials for asylum

Torts Today: New data on immigration judge grants and denials for asylum

Agreement Reached in Connecticut School Desegregation Case | NAACP Legal Defense and Educational Fund

Torts Today: Agreement Reached in Connecticut School Desegregation Case | NAACP Legal Defense and Educational Fund

Make a batch of new states! -Harvard L. Review Note

https://harvardlawreview.org/2020/01/pack-the-union-a-proposal-to-admit-new-states-for-the-purpose-of-amending-the-constitution-to-ensure-equal-representation/

For most of the twenty-first century, the world’s oldest surviving democracy has been led by a chief executive who received fewer votes than his opponent in an election for the position.^1×1. See Dennis W. Johnson, Campaigns and Elections 70 (2020). The first of these executives started a war based on false pretenses that killed hundreds of thousands of civilians.^2×2. See Rebecca Adelman & Sherifa Zuhur, Iraqi Freedom, Operation, Casualties Of, in The Iraq War Encyclopedia 199, 201 (Thomas R. Mockaitis ed., 2013); Gregory W. Morgan, Iraq, History of, 1990 to Present, in The Iraq War Encyclopedia, supra, at 184, 188; Tim J. Watts & Paul G. Pierpaoli, Jr., Bush, George Walker, in The Iraq War Encyclopedia, supra, at 72, 75. The second — a serial abuser of women^3×3. See Michael Barbaro & Megan Twohey, Crossing the Line: How Donald Trump Behaved with Women in Private, N.Y. Times (May 14, 2016), https://nyti.ms/24RqHYi [https://perma.cc/7AM8-V74F]. who hired as his campaign manager a lobbyist for violent dictatorships^4×4. See Franklin Foer, Paul Manafort, American Hustler, The Atlantic (Mar. 2018), https://www.theatlantic.com/magazine/archive/2018/03/paul-manafort-american-hustler/550925 [https://perma.cc/2DA7-2Y7E]. — authorized an immigration policy that forcibly separated migrant children from their families and indefinitely detained them in facilities described as “concentration camps.”^5×5. Isaac Chotiner, Inside a Texas Building Where the Government Is Holding Immigrant Children, New Yorker (June 22, 2019), https://www.newyorker.com/news/q-and-a/inside-a-texas-building-where-the-government-is-holding-immigrant-children [https://perma.cc/4LT4-LGL7].

Democracy, as they say, is messy.^6×6. Cf. 444 Parl Deb HC (5th ser.) (1947) col. 203 (UK) (statement of Rt. Hon. Churchill) (“No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried . . . .”).

But even when democracy is messy, a society’s commitment to the endeavor rests on the belief that giving power to the people is appropriate and fair.^7×7. Sidney Verba, Fairness, Equality, and Democracy: Three Big Words, 73 Soc. Res. 499, 503 (2006). Recent events have highlighted some of the ways in which federal elections in the United States are profoundly undemocratic and, thus, profoundly unfair.^8×8. See generally Ezra Klein & Mallory Brangan, Vox, The Roots of America’s Democracy Problem, YouTube (Nov. 20, 2018), https://youtu.be/0ySL82WbcvU [https://perma.cc/9JWL-5R7W]. The Electoral College — when it contravenes the popular vote — is an obvious example of this unfairness. But it is just one of the mathematically undemocratic features in the Constitution. Equal representation of states in the Senate, for example, gives citizens of low-population states undue influence in Congress. Conversely, American citizens residing in U.S. territories have no meaningful representation in Congress or the Electoral College.

If we truly hold to be self-evident that all are created equal,^9×9. See The Declaration of Independence para. 2 (U.S. 1776). then it is time to amend the Constitution to ensure that all votes are treated equally. Just as it was unfair to exclude women and minorities from the franchise, so too is it unfair to weight votes differently. The 600,000 residents of Wyoming and the 40,000,000 residents of California^10×10. QuickFacts, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/CA,MT,WY/PST045218 [https://perma.cc/98R8-3JCA]. should not be represented by the same number of senators. Nor should some citizens get to vote for President, while others do not. Any rationalization of the status quo must adopt the famous Orwellian farce: “All animals are equal but some animals are more equal than others.”^11×

Jack Goldsmith: Ideological sorting for judicial clerkships at Harvard

Jack Goldsmith has an interesting take on ideological sorting in judicial clerkship applications at Harvard Law.

1/ Much in this article is misleading or wrong. I cannot recount everything, but here are a few reactions. https://t.co/q3tY82Tu30

— Jack Goldsmith (@jacklgoldsmith) January 10, 2020

New York City Bar Association Urges Congress to Commence Formal Inquiries into Conduct of Attorney General William P. Barr | Media Listing | NYC Bar

New York City Bar Association Urges Congress to Commence Formal Inquiries into Conduct of Attorney General William P. Barr | Media Listing | NYC Bar

The New York City Bar Association has sent a letter to Congressional leaders, urging them “to commence formal inquiries into a pattern of conduct by Attorney General William P. Barr that threatens public confidence in the fair and impartial administration of justice.”

The letter asserts that in several extended public statements during the past few months, Mr. Barr has disregarded “bedrock obligations for government lawyers,” including “to avoid even the appearance of partiality and impropriety, and to avoid manifesting bias, prejudice, or partisanship in the exercise of official responsibilities.”

These statements include an October speech at the University of Notre Dame, now posted on the Department of Justice’s website, in which Mr. Barr stated that “the Founding generation . . . believed that the Judeo-Christian moral system corresponds to the true nature of man” and that “Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct.” Expressing his view that “Judeo-Christian values . . . have made this country great”—while simultaneously rejecting the moral basis of secularism and, by implication, other religions (and atheism) as “an inversion of Christian morality,” Mr. Barr vowed to place the Department of Justice “at the forefront” of efforts to resist “forces of secularization.”

In a November speech at the Federalist Society’s National Lawyers Convention, Mr. Barr charged that “opponents of the Trump presidency’s policies” have been “engaged in the systematic shredding of norms and the undermining of the rule of law” and referred to what he called a “progressive holy war,” characterized by the use of “any means necessary to gain momentary advantage.” By contrast, Mr. Barr proclaimed, conservatives “tend to have more scruple over their political tactics” and are “more genuinely committed to the rule of law.”

In December – following earlier remarks at a Fraternal Order of Police gathering in which he criticized District Attorneys from “large cities” who “style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law,” and “an increasingly vocal minority” that “regularly attacks the police and advances a narrative that it is the police that are the bad guys” and “automatically start[s] screaming for the officers’ scalps, regardless of the facts” following “a confrontation involving the use of force by police”– Mr. Barr warned at a DOJ awards ceremony that “the American people have to . . . start showing, more than they do, the respect and support that law enforcement deserves,” and “if communities don’t give that support and respect, they might find themselves without the police protection they need.” While Mr. Barr did not specify which “communities” were at risk of seeing decreased police protection because they lack respect for law enforcement, and notwithstanding his later denial that he had suggested that people should not criticize police officers and his assertion that he had merely been referring to the high rates of job vacancies in police agencies throughout the country, “his comment was understood by some observers, not unreasonably, as being directed toward members of communities of color protesting excessive use of force by police,” the letter states.

Pelosi Floor Speech in Support of War Powers Resolution | Speaker Nancy Pelosi

Pelosi Floor Speech in Support of War Powers Resolution | Speaker Nancy Pelosi
January 9, 2020
Washington, D.C. – Speaker Nancy Pelosi delivered remarks on the Floor of the House of Representatives in support of H. Con. Res. 83, to limit the President’s military action regarding Iran. Below are the Speaker’s remarks:

Speaker Pelosi. Thank you, Madam Speaker. I thank the gentleman for yielding, and I thank him for his leadership in bringing this important opportunity to express our concern about the President's actions. I salute him and thank the support on the other side of the aisle for this legislation.

As we know, last week, the Trump Administration conducted a provocative and disproportionate military airstrike targeting high level Iranian military officials and he did so without consulting Congress. When I first heard from the Administration, the Secretary of Defense and the Chairman of the Joint Chiefs, I said, ‘How – why did you not consult Congress in this change in approach?’ And they said, ‘Because we had to keep this close.’ ‘We had to keep this close.’

You had to keep it ‘close’ from the Gang of Eight? The Leadership of the Congress? ‘We had to keep it close because we didn't word to get out.’ Well, we deserve the respect from the Administration, and the Congress deserves by dint of the Constitution the requirement of the Administration to consult Congress.

We know full well, better than many in the Administration, the importance of classified information. We know that we're supposed to support sources and methods. We also know that the consultation that they would give to us does not enable us to divulge any information. So, who are they ‘keeping it close’ from? They admitted, this Administration, they were ‘keeping it close’ from the Congress of the United States. And they did so – now, they did a classified presentation yesterday, which their own party members, Republican Senators, said it was the most demeaning and worst classified briefing they had had. I myself think there's stiff competition for that designation of worst presentation by this Administration in a classified briefing.

Iran's Surgical Strike is a Shot Across the Bow

Could the Iranians have killed some people? Sure, if they'd launched a surprise attack and targeted places where there were likely to be a lot people. That's not what this looks like. I continue to think they knew exactly what they were doing. https://t.co/BtHdEeOWXp

— Tom Nichols (@RadioFreeTom) January 9, 2020

Standing Up for Public Defenders

Nieves v. Office of the Public Defender

On January 6 the New Jersey Supreme Court heard oral arguments in this matter, which considers whether an attorney acting on behalf of the government to represent a private client in a litigated matter, where representation is provided as a constitutional right, is entitled to protections under the Tort Claims Act (TCA) when sued for legal malpractice. George Conk, arguing on behalf of the New Jersey State Bar Association, urged the Court to affirm the Appellate Division’s decision to apply the TCA to legal malpractice claims:

Our fundamental objectives are to serve the public by protecting the integrity, competence, and vitality of the Bar; help to assure citizens access to justice and adequate remedies, and to assist the Courts in their mission to guarantee that justice is done. This court granted certification to answer two questions:[1] Are legal malpractice claims exempt from the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and

[2] Is plaintiff’s “loss of liberty” damages claim subject to the verbal threshold of the TCA?* 

The answer to the first question must be NO.  Lawyers such as full and part time Public Defenders serve the State by whom they are employed.  They help to vindicate the Constitutional obligations of due process, equal protection, and fair trials.  But such public servants – full or part time – may falter and thereby give rise to professional liability claims.
 Competent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs.  Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill-served. The Tort Claims Act blocks frivolous claims via its verbal threshold (59:9-2), limits certain damages [e.g. grants credits for collateral sources, pre-judgment interest.  The Act bars civil punitive damage awards against the State and any other public entity.  But compensatory damages are not capped.  Costs of defense are beyond the capacity of staff PDs and of the typically young, free-lance pool attorneys. 

Antonio Chaparro Nieves was represented by a public defender when he was convicted of several crimes for which he served 12 years and four months. He was ultimately released, the charges were dismissed on his petition for post-conviction relief, and he has recovered under the Mistaken Imprisonment Act. The trial court ruled that the procedural requirements of the Tort Claims Act do not apply to legal malpractice claims. The Appellate Division reversed, holding that the Office of the Public Defender is a public entity and that public defenders are public employees who fall within TCA’s immunities and defenses.

“[T]he qualified immunity and indemnification afforded to lawyers under the Tort Claims Act is an important guarantee of the availability and independence of counsel who provide constitutionally mandated representation to those who cannot afford counsel, whether a lawyer is acting as a direct employee of the state, as a `pool attorney' hired through the Office of the Public Defender - a state agency, or on a pro bono basis assigned by the Court,” said the NJSBA in its brief. 
The NJSBA encouraged the Supreme Court to extend statutory qualified immunity, defense and indemnification  not just to public defenders, but also to pro bono attorneys assigned to serve gratis by courts from the so-called Madden list.  Such assignments arise in cases such as termination of parental rights and other civil cases in which the courts have found indigents have a right to counsel.  The Supreme Court declined to hear the NJSBA’s arguments relative to Madden list representation.

* The Bar Association did not address the second question.