Friday, July 21, 2017

The Prime Directive Is to Protect the Rule of Law

by Neil H. Buchanan

The transcript of Donald Trump's recent interview with the editors of The New York Times could simply be titled: "The Case for Dictatorship: A Child-Like Narcissist's Guide to Destroying America."  As soon as Trump started talking, he revealed for the umpteenth time that he is unwilling or unable to understand the limits on the president's power.

And now we learn that Trump has his minions investigating imaginary conflicts of interest that they can use as "leverage" against Special Counsel Robert Mueller and his team of investigators.  Trump even has his people talking about abusing the pardon power, including the possibility of pardoning himself.  He is, at long last, truly Nixonian: When the president does it, that means that it is not illegal.

Trump clearly believes that ethics rules are for suckers and non-presidents, and his claim that his toady of an attorney general, Jefferson Sessions, was "very unfair" for recusing himself from the Russia investigation tells us all we need to know about Trump's version of accountability.

Trump even attacked his own deputy attorney general, Rod Rosenstein -- who has probably done more than anyone else to destroy his reputation by working for Trump -- because Rosenstein is from Baltimore.  Why is that a problem, in Trump's addled mind?  "There are very few Republicans in Baltimore, if any."  As the kids say: WTF?!

Thursday, July 20, 2017

2017: Now Officially The Summer My Professional Responsibility Exam Questions Wrote Themselves

By Diane Klein

On July 17, 2017, The Rachel Maddow Show on MSNBC featured a segment about the latest allegations of financial wrongdoing involving Paul Manafort, Donald Trump's second campaign manager and attendee at the now-notorious Trump Tower meeting with Russian lawyer Natalia Veselnitskaya.

As part of that story, Maddow mentioned that Manafort is represented by Reginald Brown, a partner at Washington, D.C.-based megafirm WilmerHale.  Manafort hired him back on March 24, 2017.

For those who don't know, the law firm with the name that sounds like hipster beer is the result of a 2004 merger between Wilmer, Cutler & Pickering, and Boston-based Hale and Dorr.  It employs more than 1000 lawyers, 400 of them in D.C., the others spread over eleven more offices.  And virtually every lawyer associated with the Trump-Russia scandal is connected to it.

Wednesday, July 19, 2017

What's Wrong With Shotgun Weddings?

by Sherry F. Colb

My column for this week discusses the current state of California law, under which there is no minimum age requirement for marriage. There is a bill under consideration that would modify the law somewhat, but it has been amended to remove the age of 18 requirement and thus only adds some oversight in family court to prevent coercion. As I discuss in my column, the California statutory rape law, which requires that a person be 18 to consent to sex, suggests that sex with minors is inherently coercive and therefore not properly subject to oversight rather than outright prohibition.

In this post, I want to discuss one of the reasons that people cite for permitting children to get married, with parental (and court) permission: an unplanned pregnancy.

Tuesday, July 18, 2017

Freedom Apparently Means Whatever Republicans Need It to Mean

by Neil H. Buchanan

The Republicans' ongoing effort to take away health care coverage from tens of millions of people is probably only on hold.  In any event, their attempt to pass the Trump-McConnell bill has just "collapsed," because Senators Jerry Moran and Mike Lee have joined Rand Paul and Susan Collins in publicly opposing the bill.

That is a very good thing, of course, and I should take a moment to applaud Senator Collins, whom I have bluntly criticized many times over the last few years.  On this bill, hers was a public position that actually mattered, not a "free vote" or a statement of "concern" that then was not backed up by action.  Because the bill was unconscionable, she took a public stand against it.  I hope that she stands up like this again in the future, on health care and other issues.

Unfortunately, the other three Republican opponents of the bill -- Paul, Moran, and Lee -- did so because the bill was not harsh enough.  Apparently, Senator Ted Cruz's add-on to the bill, which saw him explicitly choosing full public funding for some health care recipients in order to give insurers the "freedom" to offer junk insurance policies to others, was too government-y for Paul and the others.

All of which means that Republicans' efforts to take away health care from vulnerable people is currently in limbo only because one of them was appalled enough to say no while three said, "Can't we make this even worse?"  Who knows how many Senate Republicans will sign onto something that the hardliners could support?

But there is another aspect of the Trump-McConnell bill that is worth considering, which is the Republicans' strategy to replace the dreaded "mandate" to buy health insurance.  It turns out that people's freedom to contract is sacrosanct to Republicans, unless that freedom must be sacrificed in order to destroy Barack Obama's Affordable Care Act (ACA).

Monday, July 17, 2017

Justice Gorsuch and Foolish Formalism

By Eric Segall

Last week, Professor John McGinnis wrote an essay at the Law & Liberty Blog praising Justice Gorsuch for his commitment to a “formal conception of law.” While others have criticized Gorsuch for his aggressive questioning and decision-writing so early in his SCOTUS career, McGinnis defended Gorsuch, arguing that his confidence stems from Gorsuch’s view that a “lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.”  According to McGinnis, being a Supreme Court Justice for a formalist is "no different from being any other kind of judge.”  Because Gorsuch is an “experienced judge” who believes in formalism, he “was able to act forcefully from day one on the Supreme Court.”

Professor McGinnis is a respected scholar. His views on originalism, in a book he wrote with Professor Michael Rappaport, are interesting, provocative, and need to be taken seriously (which I do in my forthcoming book). But this praising of Justice Gorsuch, and his commitment to formalism, is both unpersuasive and dangerous.

Friday, July 14, 2017

This Is What One-Sided Dishonesty Looks Like

by Neil H. Buchanan

Faced with the historic unpopularity of his health care bill, Senate Majority Leader Mitch McConnell responded by making it even worse -- or, as the sub-headline to a New York Times editorial put it, Senate Republicans "found a way to make a horrible bill truly hideous."

This is not surprising, I suppose, although McConnell did manage to make it worse than even I cynically predicted earlier this week.  The new window dressing is even more minimal than expected.  Moreover, he adopted a proposal offered by the much-beloved Senator Ted Cruz, who figured out how to indirectly destroy the highly popular provision in the Affordable Care Act that prevents insurance companies from denying coverage to people with preexisting conditions.

As Donald Trump might put it: mean, mean, mean.  My focus here, however, is not on the Republicans' attempt to deny health care to millions of people, as shocking as that is.  Instead, I want to put this latest truckload of Republican dishonesty into some context.

Latest Travel Ban Ruling Helps A Lot But Not Enough

by Michael Dorf

Judge Watson just issued an order and opinion granting the plaintiffs' request to enjoin the government's narrow interpretation of the SCOTUS interim ruling in the Travel Ban Litigation. Procedural junkies wondering how, given that just a week ago he denied that he had the authority: The prior motion sought "clarification" of the SCOTUS order; Judge Watson said only SCOTUS could clarify; the Ninth Circuit agreed but helpfully added that Judge Watson could grant specific injunctive relief; that's what he did.

The new order expands the list of relatives and others who count as "bona fide relationships" to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States." It also overrules the Trump administration by classifying an approved refugee's relationship with a resettlement agency as bona fide. And the order disposes of the plaintiffs' other requests, granting some and denying others. We can expect an almost immediate appeal to the Ninth Circuit, which I expect, will not disturb the injunction, and if that happens, the DOJ will try to go back to the SCOTUS on an emergency basis. I won't hazard a prediction about whether the Court would disturb this injunction before it reconvenes in October.

Thursday, July 13, 2017

Trump Jr. and Citizens United

by Michael Dorf

Despite its title, this is not an essay about whether Donald Trump Jr. violated federal election law by "solicit[ing]" a "thing of value" from "a foreign national" when he eagerly agreed to meet with a Russian lawyer acting on behalf of the Russian government for the purpose of receiving damaging information about Hillary Clinton's supposed Russian ties. I accept both that it is a somewhat unresolved question whether such information constitutes a "thing of value" under the statute and also that there is enough authority for the view that information alone can be a thing of value so that prosecuting Trump Jr. (and Jared Kushner and Paul Manafort) for their meeting with Natalia Veselnitskaya knowing what they knew would not constitute such a surprising interpretation of the statute as to violate the so-called rule of lenity (under which ambiguities in a criminal statute are resolved in favor of the defendant).

Nor is this an essay about whether construing federal election law to forbid the receipt of valuable campaign-related information from a foreign government agent--even if it was lawfully gathered, which Trump Jr., Kushner, and Manafort had no reason to assume Veselnitskaya's proffered information was--can be forbidden consistent with the First Amendment. I agree with Rick Hasen that if there are free speech concerns with some applications of the law under consideration (52 U.S.C. § 30121), the right approach would be either to construe the law so as not to reach such applications or to invalidate the statute as applied, not on its face. Thus, no one should read this essay as a defense of Trump Jr. or anyone else in the Trump campaign.

So what is this essay about? Simply put, I want to suggest that in a perfect world Section 30121 would distinguish between foreign governments involving themselves in U.S. elections and foreign nationals doing so. Unfortunately, we don't live in that perfect world because of the Supreme Court.