by Diane Klein
On Friday, July 20, 2018, we learned what few of us could have been surprised to hear: that former Trump personal attorney Michael Cohen taped conversations he had with Donald Trump, including pre-election conversations about payments made to Karen MacDougal, the former Playboy Bunny with whom Trump had a 10-month affair in 2006. This seems likely to set off yet another "publicity tour" by attorney-commentator Michael Avenatti, whose representation of adult-film actress Stephanie Clifford (aka "Stormy Daniels"), has been a thorn in Trump's side since spring 2018 - and who predicted the existence and release of these tapes on May 30, 2018. In the aftermath of the raid on Cohen's office, as far back as April, 2018, there was speculation about such recordings, but the Washington Post and others expressed skepticism about whether any such recordings would include Trump.
Saturday, July 21, 2018
Friday, July 20, 2018
Reinvigorating “Defensive Crouch Liberal Constitutionalism” Part 2: Will Clarence Thomas Save Abortion Rights?
by Michael Dorf (cross-posted on Take Care Blog)
If the Senate confirms Judge Brett Kavanaugh to replace Justice Anthony Kennedy, the Supreme Court will almost certainly move to the right on a range of issues, most prominently abortion, where Kennedy wrote or joined key decisions upholding what he and two of his colleagues once called “the central holding” of Roe v. Wade. The post-Kennedy Court will cut back on the federal constitutional right to abortion and could well eliminate it entirely.
What then? Public discussion of a post-Roe future has assumed that the issue would “go back to the states.” Champions of abortion rights would be disappointed but not utterly defeated, as efforts might then focus on making transportation available from anti-abortion states to states where it is legal.
The US would look much like Ireland prior to its recent passage of a referendum liberalizing abortion regulation. Just as Irish women seeking abortions went to England, so women from Louisiana seeking abortions would travel to New York. Because the distances here are greater, abortion would be less accessible, especially to poor women, but laws banning public funding of abortion already make abortion all but impossible for many poor women in the US.
Yet what if the assumption of state-by-state regulation is wrong?
If the Senate confirms Judge Brett Kavanaugh to replace Justice Anthony Kennedy, the Supreme Court will almost certainly move to the right on a range of issues, most prominently abortion, where Kennedy wrote or joined key decisions upholding what he and two of his colleagues once called “the central holding” of Roe v. Wade. The post-Kennedy Court will cut back on the federal constitutional right to abortion and could well eliminate it entirely.
What then? Public discussion of a post-Roe future has assumed that the issue would “go back to the states.” Champions of abortion rights would be disappointed but not utterly defeated, as efforts might then focus on making transportation available from anti-abortion states to states where it is legal.
The US would look much like Ireland prior to its recent passage of a referendum liberalizing abortion regulation. Just as Irish women seeking abortions went to England, so women from Louisiana seeking abortions would travel to New York. Because the distances here are greater, abortion would be less accessible, especially to poor women, but laws banning public funding of abortion already make abortion all but impossible for many poor women in the US.
Yet what if the assumption of state-by-state regulation is wrong?
Thursday, July 19, 2018
Will Trump Go Off the Rails Again About the Putin Press Conference?
by Neil H. Buchanan
It did not even take eleven months for Donald Trump to go from the Charlottesville self-revealing crisis to the Helsinki self-revealing crisis. True, he has had plenty of crises in between, most of which have also in one way or another revealed his true self -- perhaps most prominently his putting-children-in-cages-and-lying-about-every-aspect-of-it display of abject cruelty that is still ongoing, but also including his decisions to fire and humiliate staff, withdraw from the Iran nuclear deal with no alternative in place, insult and threaten democratic allies, unconditionally befriend North Korea's murderous dictator, declare victory in the War on Poverty as an excuse to inflict further harm on poor people, and on and on and on -- but there is something about his embrace of white supremacists and his even tighter embrace of Vladimir Putin that sets these two crises apart.
One way to know that these crises are different is simply by watching how flustered Republicans become when dealing with various public relations crises, and they are truly panicking right now (as they did after Charlottesville). That is not to say that Republicans are going to do any more now than they did last August after Trump's "very fine people" reference to a crowd of hateful men shouting "Jews will not replace us!" If anything, Republicans this time seem not to care enough even to try to pretend that they are thinking about taking action. Still, their defensiveness and worry that Trump might actually be doing irreparable damage to their electoral chances (because principle means nothing to them, of course) is "blinking red," to co-opt a phrase much in the news recently.
But even beyond the tumult among Republicans, the more telling common aspect of the two big crises is Trump's response to criticism. He never takes criticism well, of course, and he always defends himself with a blur of lies and distractions, but when it comes to white supremacists and Putin/dictators, Trump cannot contain his disappointment upon learning that his true views are utterly toxic.
It did not even take eleven months for Donald Trump to go from the Charlottesville self-revealing crisis to the Helsinki self-revealing crisis. True, he has had plenty of crises in between, most of which have also in one way or another revealed his true self -- perhaps most prominently his putting-children-in-cages-and-lying-about-every-aspect-of-it display of abject cruelty that is still ongoing, but also including his decisions to fire and humiliate staff, withdraw from the Iran nuclear deal with no alternative in place, insult and threaten democratic allies, unconditionally befriend North Korea's murderous dictator, declare victory in the War on Poverty as an excuse to inflict further harm on poor people, and on and on and on -- but there is something about his embrace of white supremacists and his even tighter embrace of Vladimir Putin that sets these two crises apart.
One way to know that these crises are different is simply by watching how flustered Republicans become when dealing with various public relations crises, and they are truly panicking right now (as they did after Charlottesville). That is not to say that Republicans are going to do any more now than they did last August after Trump's "very fine people" reference to a crowd of hateful men shouting "Jews will not replace us!" If anything, Republicans this time seem not to care enough even to try to pretend that they are thinking about taking action. Still, their defensiveness and worry that Trump might actually be doing irreparable damage to their electoral chances (because principle means nothing to them, of course) is "blinking red," to co-opt a phrase much in the news recently.
But even beyond the tumult among Republicans, the more telling common aspect of the two big crises is Trump's response to criticism. He never takes criticism well, of course, and he always defends himself with a blur of lies and distractions, but when it comes to white supremacists and Putin/dictators, Trump cannot contain his disappointment upon learning that his true views are utterly toxic.
Wednesday, July 18, 2018
Dogs and the Fourth Amendment
by Sherry F. Colb
In my Verdict column this week, I discuss the case of Collins v. Virginia. In it, the Supreme Court recently held that if police want to search a vehicle located within the curtilage of a home, the Fourth Amendment requires them to get a search warrant. This answered an open question about the scope of the "automobile exception" to the warrant requirement, which generally allows police to search a car based on probable cause alone. What made this case different was the fact that a police officer had had to walk across a driveway to reach the vehicle and that walk included an area that he would not have had to cross to get to the front door.
In this post, I want to focus on a different sort of property that police sometimes disturb in the course of carrying out searches and seizures in and around a person's home. That property is canis lupus familiaris, or the dog.
In my Verdict column this week, I discuss the case of Collins v. Virginia. In it, the Supreme Court recently held that if police want to search a vehicle located within the curtilage of a home, the Fourth Amendment requires them to get a search warrant. This answered an open question about the scope of the "automobile exception" to the warrant requirement, which generally allows police to search a car based on probable cause alone. What made this case different was the fact that a police officer had had to walk across a driveway to reach the vehicle and that walk included an area that he would not have had to cross to get to the front door.
In this post, I want to focus on a different sort of property that police sometimes disturb in the course of carrying out searches and seizures in and around a person's home. That property is canis lupus familiaris, or the dog.
Tuesday, July 17, 2018
How Bad Will Things Become? Part 1
by Neil H. Buchanan
The last 24 hours have been truly astonishing. A few days ago, I had dreamed up the title of this column, "How Bad Will Things Become?" because I intended to write about how extreme the new Supreme Court is likely to be, far beyond what most commentators have yet realized (or, if they have realized it, have been willing to articulate). But then the Trump-Putin press conference happened, and I am truly at a loss.
Because legal commentary is the avocation for which I am actually qualified, I will go ahead and write some of what I had planned to write today. But before I do, I can only say ... Holy freakin' hell!! What is going on? Donald Trump stood next to the man who helped him steal the 2016 presidential election and, as a former CIA Director put it, made a series of unhinged statements that exceeded the bar for high crimes and misdemeanors and were "nothing short of treasonous."
To be clear, the offenses in the Constitution that justify the president's impeachment, conviction, and removal from office are "treason, bribery, or other high crimes and misdemeanors." That is an or, not an and, so it is not even necessary to wonder what constitutes high crimes and misdemeanors on this point. Treason is an independently impeachable offense. We will, of course, now argue about what constitutes treason, but given how promiscuously Republicans have thrown that word around in the past ten years or so, that could be a fun argument. Except for two things.
The last 24 hours have been truly astonishing. A few days ago, I had dreamed up the title of this column, "How Bad Will Things Become?" because I intended to write about how extreme the new Supreme Court is likely to be, far beyond what most commentators have yet realized (or, if they have realized it, have been willing to articulate). But then the Trump-Putin press conference happened, and I am truly at a loss.
Because legal commentary is the avocation for which I am actually qualified, I will go ahead and write some of what I had planned to write today. But before I do, I can only say ... Holy freakin' hell!! What is going on? Donald Trump stood next to the man who helped him steal the 2016 presidential election and, as a former CIA Director put it, made a series of unhinged statements that exceeded the bar for high crimes and misdemeanors and were "nothing short of treasonous."
To be clear, the offenses in the Constitution that justify the president's impeachment, conviction, and removal from office are "treason, bribery, or other high crimes and misdemeanors." That is an or, not an and, so it is not even necessary to wonder what constitutes high crimes and misdemeanors on this point. Treason is an independently impeachable offense. We will, of course, now argue about what constitutes treason, but given how promiscuously Republicans have thrown that word around in the past ten years or so, that could be a fun argument. Except for two things.
Monday, July 16, 2018
The Difference Between Presuming Innocence and Presuming Victim Perjury in Acquaintance Rape Trials
by Sherry F. Colb
The New York Times recently published a letter that I wrote about rape and statutes of limitations. I suggested that one reason to abolish statutes of limitations is the need to prosecute a category of crime that has long received little attention, acquaintance rape. Instead of calling such cases “swearing contests,” I proposed, we need to understand that victims are credible eye-witnesses while criminal defendants are not.
The New York Times recently published a letter that I wrote about rape and statutes of limitations. I suggested that one reason to abolish statutes of limitations is the need to prosecute a category of crime that has long received little attention, acquaintance rape. Instead of calling such cases “swearing contests,” I proposed, we need to understand that victims are credible eye-witnesses while criminal defendants are not.
In response to my letter, some readers accused me of wanting
to shift the burden of proof and eliminate the presumption of innocence. I am
interested in neither. Here I want to explain the difference between
the presumption of innocence and burden of proof, on the one hand, and the
presumption that an alleged rape victim is lying, on the other.
Friday, July 13, 2018
More Republicans Abandon Ship, But Nothing Changes
by Neil H. Buchanan
Having grown up in a centrist Republican household, but having been a Democrat for all of my adult life, I have long been fascinated by the people who have continued to affiliate with the Republican Party. The inexplicable nature of continued party loyalty as Republicans have accelerated their flight from sanity and their embrace of outright nastiness has led me over the last few years to write columns with titles like, "What Would It Take?" (as in, what would it take for a person of decency finally give up on the Republicans?), "The Neanderthal Question in U.S. Politics" (too subtle?), and the plaintive (if self-derivative), "Seriously, What Would It Take?"
One of the fascinating aspects of the Trump era has been the self-regenerating nature of what seems to be a constantly imploding Republican Party. There are periodic spasms of people jumping ship, but the ship never seems to be any emptier. (Sorry for the multiply mixed metaphors.) It is not hydra-headed (ibid.), however, because the party is certainly not growing, and even if one includes non-party members, Trump's support in the polls remains within a very narrow range.
After the worst outrages -- the Hollywood Access tape, firing Comey and bragging that he did it to obstruct the Russia investigation, Charlottesville and "very fine people" -- there are a lot of Republicans who announce that they have finally had enough. Some return (as many, such as now-former Congressman Jason Chaffetz, notoriously did after Trump's "locker room talk" explanation satisfied his base in October 2016), but somehow even the non-reversed public defections never seem to amount to much.
Now, spurred by the cruelty of the Administration's decision to take screaming children away from their horrified parents at the border, we have seen another round of "I've had enoughs" from lifelong Republicans. Will this time be different?
Having grown up in a centrist Republican household, but having been a Democrat for all of my adult life, I have long been fascinated by the people who have continued to affiliate with the Republican Party. The inexplicable nature of continued party loyalty as Republicans have accelerated their flight from sanity and their embrace of outright nastiness has led me over the last few years to write columns with titles like, "What Would It Take?" (as in, what would it take for a person of decency finally give up on the Republicans?), "The Neanderthal Question in U.S. Politics" (too subtle?), and the plaintive (if self-derivative), "Seriously, What Would It Take?"
One of the fascinating aspects of the Trump era has been the self-regenerating nature of what seems to be a constantly imploding Republican Party. There are periodic spasms of people jumping ship, but the ship never seems to be any emptier. (Sorry for the multiply mixed metaphors.) It is not hydra-headed (ibid.), however, because the party is certainly not growing, and even if one includes non-party members, Trump's support in the polls remains within a very narrow range.
After the worst outrages -- the Hollywood Access tape, firing Comey and bragging that he did it to obstruct the Russia investigation, Charlottesville and "very fine people" -- there are a lot of Republicans who announce that they have finally had enough. Some return (as many, such as now-former Congressman Jason Chaffetz, notoriously did after Trump's "locker room talk" explanation satisfied his base in October 2016), but somehow even the non-reversed public defections never seem to amount to much.
Now, spurred by the cruelty of the Administration's decision to take screaming children away from their horrified parents at the border, we have seen another round of "I've had enoughs" from lifelong Republicans. Will this time be different?
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