Wednesday, May 24, 2017

A More Civilized Sort Of Jury Nullification

by Sherry F. Colb

In my column for this week, I write about the topic of jury nullification, occasioned by an episode of RadioLab that begins with a woman who served on a jury discussing having been criminally penalized for telling her fellow jurors about their ability to acquit the defendant for any reason. I talk about some of the pros and cons of nullification and conclude that if one has a basic trust of government and its officials, one will tend to oppose jury nullification and favor leaving it up to prosecutors to exercise their discretion in a just and wise fashion.

Tuesday, May 23, 2017

Necessary Conditions for A Few Republicans to Be Courageous

by Neil H. Buchanan

Everyone is still trying to figure out what to make of the last two weeks of nonstop news about Donald Trump's unraveling presidency.  His trip abroad is generating a bit of news (including his curtsy to a Saudi ruler), but until he inevitably becomes unhinged by the rigors of travel and diplomacy, the rest of the world will have some time to digest the multitude of shocking revelations that led to the appointment of a special counsel to investigate the Trump/Russia mess.

The overarching question that has generated serious political commentary is whether and when any Republicans will turn against Trump.  Until that happens, he is in no danger of being forced from the White House.  Of course, even something short of Trump's removal from office is a win for sanity, both because nonstop drama will derail the Republicans' regressive policy agenda and because it will keep Trump's supporters on the defensive in the 2018 midterm elections.

Still, it is reasonable to wonder what exactly it will take to shake a few Republicans loose.  As it happens, this is a subspecies of a question that I have been asking for the past few years, which is when the Republicans' headlong rush into fact-free extremism will push enough people to oppose them.

Monday, May 22, 2017

Villains, Careerists, and Patriots: Thoughts on Kobach, Rosenstein, Comey, and McMaster

by Michael Dorf
(cross-posted on Take Care)

As a college student in the early to mid-1980s, I knew Kris Kobach because we were on the debate team together. I'm a couple of years older than Kobach, but he started debating as a freshman, so I had two full seasons to get to know him. I recall him as smart and genial. He was conservative but in what at the time struck me as a middle American country-club Republican sort of way. I did not hear from Kobach again until the mid to late 1990s, when he was a junior faculty member at the University of Missouri-Kansas City. He contacted me to talk about an academic paper he was working on. It was very much a scholarly rather than polemical exercise. We had a pleasant substantive exchange, which confirmed my earlier impression of Kobach.

Thus, I was very surprised when, a few years later, Kobach emerged on the national political scene as the evil genius behind many of the state-level efforts to crack down on undocumented immigrants. At first I thought there must be some mistake. Maybe this was a different Kris Kobach? Or maybe his views were being reported inaccurately in the press? But eventually I bowed to reality. Either I had been profoundly mistaken about Kobach all along or at some point he had transformed himself. Accordingly, I have no illusions that in his role as the Vice Chair of the Advisory Commission on Election Integrity Kobach will be anything but a champion of disenfranchising minority voters via Trumped up claims of voting fraud.

I relate the foregoing personal anecdote because it may bear on how to think about people with good intentions and reputations for integrity who take at-best questionable actions. When do their actions demonstrate that (as in Kobach's case) whatever they might have been in the past, they are now villains? When do their curious actions reveal them to be careerists? And when does the sacrifice of personal reputation serve a greater good? I'll explore these questions with regard to Rod Rosenstein, James Comey, and H.R. McMaster.

Saturday, May 20, 2017

Judges Speaking Out: Justice Alito and Religious Liberty

By Eric Segall

On at least three occasions over the last seven months Justice Samuel Alito has made public remarks about the appropriate role of religion in this country that, if made by a liberal Justice, would likely result in conservative outrage and calls for recusal the next time the Supreme Court hears a case regarding religious liberty (there is such a case on the docket this term). Despite these public comments by Alito, there has been a deafening silence by those who often complain when other Justices make such political statements.

Friday, May 19, 2017

Federal Courts Exam on Travel Ban, Presidential Immunity, Etc.

by Michael Dorf

Once again, it's that time of year when I post an exam. There are three questions. As always, creative answers are welcome in the comments, but I won't grade them. I apologize for the fact that despite my best efforts to concoct outlandish hypothetical examples based on real events, the actual real events are still more outlandish.

Thursday, May 18, 2017

Time for Careful Lying by Team Trump

by Neil H. Buchanan

Donald Trump lies.  He lies all the time.  He lies effortlessly.  He lies shamelessly.  He lies garishly and promiscuously.  Before, during, and after the 2016 presidential campaign, Trump has lied repeatedly.

Trump is unfazed that he has no facts to back up his lies, and he seems not to care about the fact-checks that repeatedly expose his statements to be lies.  He lies so much that newspapers and TV networks finally felt honor-bound to stop downplaying Trump's lies with niceties and euphemisms -- "not backed up by facts" and "not truthful" -- and simply started to call them lies.

Trump's team has generally been equally brazen in their lies.  Sean Spicer and Kellyanne Conway repeat and amplify Trump's lies, and they too are apparently unconcerned that their lies are obvious even to a child.  Reince Priebus bothers to repeat Trump's lies, for example, the lie about Trump's "electoral landslide," not caring that it was in fact the 44th largest margin of victory out of 56 presidential elections.

Most of all, Trump and his team have lied carelessly.  Under increasing pressure, however, we are starting to see the emergence of what can only be called careful lying.  Not that the careless lies will stop, of course, but it is important to guard against having become dulled by the obvious lying to the more clever lies that some of Trump's people are now deploying.

Wednesday, May 17, 2017

James Madison, James Comey, and our Constitutional Blind Spot

by Michael Dorf

In Federalist 51, James Madison wrote:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Practitioners and scholars of constitutional law understandably focus their attention on those "auxiliary precautions." When Madison wrote the foregoing, the auxiliary precautions he had in mind comprised the constitutional system of checks and balances, in which "[a]mbition [is] made to counter ambition." Almost immediately after the ratification of the original Constitution (and in fulfillment of a promise by its supporters to its skeptics), the Bill of Rights was added as another auxiliary precaution against leadership by those who prove not to be "angels." And so we constitutional specialists spend our energy asking what powers the Constitution assigns to each branch and level of government, and what rights it grants to individuals.

The resulting questions are important in all times, especially now, but we must beware the tendency to pass too quickly over what Madison called "the primary control on the government": "the people." The debate among constitutional lawyers over the firing of James Comey illustrates this tendency. Those who argue that Trump had the formal power to fire Comey misunderstand the nature of the contrary argument that the firing was nonetheless a despicable or even impeachable act. That contrary argument is best understood as a Madisonian appeal to the people.