Saturday, July 21, 2018

Seventh in a Series: Adult Coloring Book, "The Lawyers of Trump-Russia" (feat. Michael Avenatti)

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.

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?

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.

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.

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.

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.

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?

Thursday, July 12, 2018

Originalist Judicial Activism

By Eric Segall

Now that President Trump has named Brett Kavanaugh as his nominee to replace retiring Justice Anthony Kennedy, we can expect the confirmation process charade to proceed apace. Judge Kavanaugh will dodge most if not all the hard questions put to him by members of the Senate Judiciary Committee, the Democratic members will complain loudly, and then the nominee will be confirmed by a party line or almost party line vote.

One word we can expect to hear a lot during this process is “originalism.” More on that below. One phrase we likely will not hear uttered by folks on either side of the aisle is “judicial activism.” That is truly unfortunate.


Complicity Jurisprudence as the Next Conservative Opt-Out from Modernity

by Neil H. Buchanan

How much interaction with unpleasant reality must anyone be expected to endure?  That would not seem to be a particularly pressing legal issue, but it seems that it has been keeping the Supreme Court's arch-conservatives up at night.  Americans who wish that they did not have to go out in the world and interact with other people of different religions, races, beliefs, and political views seem to have found salvation (pun intended) in a bloc of justices who are eager to protect fragile conservatives from being "complicit" in things that make them uncomfortable.

That is the thesis of my new Verdict column, in which I tie together the Court's recent anti-union case (Janus v. AFSCME) and its run of cases in which Christian conservatives have been unexpectedly validated by a Court that says that they do not have to do things that they view as immoral.  My tone in the column is unsympathetic to the people who beg the courts to allow them not to participate in any way in unpleasant things, but I do want to spend some time here giving the instinct to self-separate its due.

Wednesday, July 11, 2018

Reinvigorating "Defensive Crouch Liberal Constitutionalism" Part 1: Originalism and Searches

by Michael Dorf

At no time since the appointment of Chief Justice Warren Burger in 1969 has there been a clear liberal majority of the Supreme Court. Yes, the Court has produced liberal decisions in various areas during the ensuing period, but always by picking up one or more conservative justices, often with the consequence that even liberal results were justified in conservative terms.

Justice Kennedy's majority opinion in Obergefell v. Hodges is a good example. While finding a right to same-sex marriage, it extols the virtues of marriage in a way that sounds in traditional conservatism, even to the point of insulting people who choose not to marry: "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Lines like that are the price that we liberals grew accustomed to paying in order to secure liberal results based on conservative rationales.

Accordingly, in anticipation of a Democratic victory in the 2016 presidential election, some liberals  began to imagine an activist liberal agenda for the Supreme Court. They began to imagine, as Mark Tushnet put it in the title of a blog post on Balkinization in May 2016, "abandoning defensive crouch liberal constitutionalism." The election of Donald Trump, the Republicans' success in first denying to Merrick Garland and then granting to Neil Gorsuch the seat that became vacant when Justice Scalia died, and the anticipated confirmation of Brett Kavanaugh to take Anthony Kennedy's seat all mean that for the short-to-medium term, liberals will need to continue to practice defensive crouch liberal constitutionalism.

Tuesday, July 10, 2018

Polarization and the Kavanaugh Nomination

by Michael Dorf

As we approach what then-Senator Joe Biden memorably termed the "kabuki dance" of a Senate Judiciary Committee confirmation hearing for a nominee to the Supreme Court, staffers are no doubt busily assembling questions and follow-ups for the Senators to ask Judge Kavanaugh. The exercise is largely pointless. Judge Kavanaugh will not say that he has active plans to overrule Roe v. Wade or any other precedents--and that will be sufficient to satisfy at least one of Senator Collins, Senator Murkowski, and the three red-state Democrats who voted to confirm now-Justice Gorsuch. The only really open question is the final vote.

Monday, July 09, 2018

Why is Trump Now Pro-Life?

by Michael C. Dorf

Some abortion opponents argue that feminists ought not to favor abortion rights because women's access to abortion ultimately serves the interest of men who want access to women's bodies for sex without consequences. The argument is flawed. The feminist arguments for a right to abortion can be (and IMHO are) persuasive, regardless of whether some people support abortion rights for other reasons.

That said, the pro-lifers are not wrong that some men who support abortion rights do so in order to maximize their own freedom to objectify women. As Susan Brownmiller wrote last fall after the death of Playboy founder Hugh Hefner, a man living the Playboy lifestyle "refused to be cornered into marriage just because a young lady he had bedded had the misfortune to get pregnant." Brownmiller drew the obvious comparison between Hef and Donald Trump, who, she noted, formerly supported abortion rights.

In a 1999 interview with Tim Russert in contemplation of a run for the presidency, Trump said that while he hates abortion (presumably because he thinks it immoral), he is nonetheless "very pro-choice" and thus would not ban abortion or so-called partial-birth abortion. 1999 Trump doesn't say why he is very pro-choice, other than to note that he was raised in and lives in New York, but the viewer has little difficulty inferring that 1999 Trump was pro-choice for the sorts of reasons that other people who think abortion immoral (as I think it is with respect to most abortions of sentient fetuses) might nonetheless be pro-choice: because of the impositions that forced pregnancy imposes on women; because laws forbidding abortion reduce its safety but not its incidence; etc.

Maybe those factors partly explain why 1999 Trump was pro-choice, but Trump also presumably had a Hefnerian reason. After all, Trump is essentially a cruder version of Hefner, and the Playboy founder seems to have been almost as much a mentor to Trump as was Roy Cohn. We also have circumstantial evidence. Both Karen McDougall and Stephanie Clifford (aka Stormy Daniels) have said that when they were having affairs with Trump in 2006, he didn't want to use a condom. Perhaps Trump assumed that McDougall and Clifford were both using birth control, although one still wonders why he was not concerned about contracting an STD that he might then transmit to the mother of his then-infant son. But I digress. The main point is that Trump's whole playboy lifestyle and image revolved around treating women as sexual objects, for which ready access to abortion was useful.

Friday, July 06, 2018

Lawyers Who Participate in the USCIS De-Naturalization Task Force (and the Head of USCIS) May Be Engaged in Professional Misconduct

by Diane Klein

In mid-June 2018, the Director of the United States Citizenship and Immigration Services (USCIS), announced the formation of a new task force focused on de-naturalizing U.S. citizens.  This new office will be in Los Angeles, and is scheduled to open in 2019.

Like "voter fraud" and ICE "liberating" towns from MS-13, there is no substantial naturalization fraud.  There is no crisis requiring a "task force" or a new U.S. Citizenship and Immigration Services (USCIS) office.  This is another pseudo-problem, put forward to advance the Trump Administration's racist, populist, and nationalist themes, regardless of the evidence (or the lack of it), and to justify mobilizing government resources against vulnerable people.  This time around, those people are citizens.  Lawyers who participate in this project - to the extent it targets individuals on the basis of race, religion, or national origin, as it seems very likely to do - should know that they do so at the risk of violating their professional codes of conduct.

Thursday, July 05, 2018

Privacy and Anti-Gay Discrimination: What's Old is New Again

By Sherry Colb

My column on Verdict this week discusses the US Supreme Court's decision in Carpenter v. United States. The Court held there that the government must get a search warrant before obtaining cell site location information from a target's wireless carrier. This means that if the government wants to know your comings and goings over the course of some period of time, and it hopes to do so by looking at a record of your cell phone's approximate locations (revealed to and recorded by your carrier at regular intervals when your phone is on), it needs to first go to a magistrate and successfully apply for a warrant.

The lineup for the 5-4 decision was somewhat reassuring: Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy was not part of the five, so his departure should leave things unchanged for now in this one area of Fourth Amendment law.  In writing his opinion, moreover, Chief Justice Roberts said that people enjoy a reasonable expectation of privacy in the approximate locations where their cellphones (and therefore they) visit over time.

Why is the "privacy" formulation important? Because procedural (Fourth Amendment) privacy has sometimes been linked to substantive privacy, and substantive privacy under the Fourteenth Amendment includes such rights as contraception, abortion, and gay sexual relations.

Does this mean that I think the Chief Justice is now on board with protecting substantive privacy rights? No. I think he believes in digital privacy and chooses to rely on the phrase "reasonable expectations of privacy" that the Court has used since 1967 to refer to freedom from unreasonable searches. He is less inclined than some of his colleagues to throw out everything he dislikes.

Tuesday, July 03, 2018

The Supreme Court Free-for-All is Off to a Very Bad Start

by Neil H. Buchanan

For obvious reasons, the new Supreme Court vacancy has been dominating the news for the past week.  In the meantime, Justice Kennedy's retirement seems to have raised Donald Trump's spirits, and even though we have not completely forgotten about Trump's cruel immigration and refugee policies, the "Who will he pick?" story is exactly the kind of cliffhanger that the former reality TV huckster loves.

The media have all kinds of reasons to pump up the Supreme Court story, too, but I continue to believe that there really is no mystery about what will happen, as I will explain below.   I will then critique what is in the running to be the worst fact-check of all time.

Monday, July 02, 2018

Trump v. Hawaii and Chief Justice Roberts’s “Korematsu Overruled” Parlor Trick

by Anil Kalhan


In Chief Justice John Roberts’s 5-4 opinion in Trump v. Hawaii deeming President Donald Trump’s third Muslim ban legally valid, one passage stands out as judicial clickbait: its two-paragraph discussion of Koremtasu v. United States.
Korematsu, of course, is a justifiably reviled Supreme Court decision, one long regarded as a leading case in the American constitutional anti-canon. It is not surprising, therefore, that this passage in Roberts’s opinion has garnered widespread attention. In her dissenting opinion in Trump v. Hawaii, Justice Sonia Sotomayor welcomes the Court’s “formal repudiation of a shameful precedent” as “laudable and long overdue,” characterizing Roberts’s opinion as “tak[ing] the important step of finally overruling Korematsu.”
However, especially in the context of a decision validating a policy primarily motivated by anti-Muslim animus, there is little to find “laudable” in Roberts’s self-serving discussion of Korematsu. Clearly, Roberts saw “rhetorical advantage” (to borrow his own phrase) in characterizing Korematsu as affirming the deprivation of Japanese Americans’ liberty “solely and explicitly on the basis of race” and then proceeding to forcefully denounce the decision. But the Court deserves very little credit for the manner in which it has sought to clothe a decision upholding Trump’s Muslim ban in the garb of purporting to “overrule” Korematsu.