Dorf on Law

by Michael Dorf When the news broke yesterday that former Trump campaign chairman Paul Manafort and his business partner Rick Gates had been indicted, speculation almost immediately turned to the question whether Manafort and Gates--and/or George Papadopoulos, another Trump advisor--would offer dirt on Trump in exchange for leniency. Trump channeler/ potty-mouthed newly-former Twitterer Roger Stone and Trump lawyer Ty "Not that Ty Cobb" Cobb tried to throw cold water on the idea, saying that Manafort has no damaging information to share about Trump. Maybe not, but the fact that Stone and Cobb say something is--how to put this?--not exactly irrefutable evidence of that something. Certainly the concerted efforts of Trumpologists to discredit special counsel Robert Mueller as biased because he is a professional acquaintance of fired FBI Director James Comey suggests that Trumpworld is not simply counting on the truth. Rather, the efforts to paint the longtime Republican wi...

by Neil H. Buchanan Is there common ground between American liberals and some subset of the people who identify themselves as conservatives?  That is, are there meaningful issues on which -- were it not for the existence of a malignant narcissist in the White House -- something resembling middle-of-the-road reasonableness might prevail? Sadly, we know the answer to this question when it comes to elected Republicans.  In my two most recent columns, I explained that there are no "moderate" Republicans in public office (and certainly not in the U.S. Senate, which is where America's most clueless pundits are sure that moderate Republicans most assuredly can be found), and I also argued that there are not even any "principled" or "reasonable" Republican officeholders, much less moderate ones. It is true that a tiny number of Senate Republicans have recently taken a stand against the way Donald Trump conducts himself as president, which is a good...

by Michael Dorf Acting before the Department of Justice could seek an emergency stay from the Supreme Court, an undocumented minor known in court papers as Jane Doe received an abortio n just a day after the en banc US Court of Appeals for the DC Circuit ruled that the federal government could not continue to block her from doing so. Judge Millett's concurring opinion provides the chief rationale for the ruling, which was an otherwise unexplained per curium order. It is a remarkably thorough opinion, given the tight time constraints. In a Verdict column next week, I intend to discuss one of the arguments that the government offered  in its opposition to en banc review: the notion that permitting Doe to receive an abortion, even at private expense, would make the government complicit in the abortion, which the Trump administration opposes on moral grounds. I shall explain that while this is an unprecedentedly extreme view of complicity, it is the next logical step in a rat...

by Neil H. Buchanan There is no question that moderation has died in the Republican Party, especially among those in the U.S. House and Senate.  From the environment to gun safety to women's rights to economic inequality to judicial appointments, congressional Republicans continue to vote in lockstep to pass an agenda that would make even Ronald Reagan cringe. Recent events, however, have raised hopes that some of those extremely conservative Republicans will begin to act differently.  Might some, including those who are retiring -- the two most celebrated being Senators Bob Corker and Jeff Flake -- at last be willing to buck the party line and vote against the most extreme policies that their leaders have (since long before Donald Trump came along) been forcing down the country's collective throat? Not a chance.  The underlying policy situation has not changed, with Republicans in Congress moving forward on their extreme agenda no matter what their feelings are ab...

by Michael Dorf Watching the well-deserved fall of Harvey Weinstein, Bill O'Reilly, and other public figures who paid large sums to settle lawsuits for sexual harassment (and possibly worse), one can't help but think about the Groper in Chief: If a pattern of sexual harassment makes a man unfit to run a movie studio or to serve up daily doses of right-wing tripe on FoxNews, why didn't the Access Hollywood tape and the credible accusations of a dozen gropees sink Donald Trump's presidential campaign? The conventional answer over the last year or so has been a variant on Trump's Fifth Avenue Conjecture. Trump famously said "I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters." People who supported Trump, the conjecture goes, knew he wasn't a saint but didn't care. They were in the tank for him, warts and all. Undoubtedly there's something to that, but I want to propose a more radical--and more ...

by Neil H. Buchanan Note to readers: I have lightly edited this column at approximately 9:10pm on October 24 to incorporate the news of Senator Jeff Flake's surprise announcement that he will not run for reelection next year. America's pundit class is terrified of the idea that there are no more moderates in American politics.  More accurately, the typical pundit (from moderate left to moderate right) is concerned that there seem to be no moderate Republicans left standing. Simply recognizing this new reality would be threatening to the typical mainstream political writer, however, because admitting what has happened would make it necessary to saying something unacceptable: the two parties are not equally wrong about everything.  Because admitting that out loud is forbidden, these arbiters of political good taste both refuse to see moderation among Democrats and imagine moderation among Republicans. Supposedly, polarization in both parties is driving all of our problem...

by Sherry F. Colb Here is an open letter to the author of a recent essay on Above The Law : Dear Mr. Mystal: I had occasion last week to read your Above The Law essay, “Columbia Law Vegans Are Probably Discriminated Against, And I Assume Delicious.”  It was quite disappointing, and I feel inspired to explain why. Let me start by referencing the caption for the photograph at the beginning of the essay. It features a group of vegetables like corn and zucchini, and the caption reads “Would you kill me if I was able to look sad?” This is the only reference—and a rather oblique one, at that—to what might be motivating vegans to take upon ourselves “self-imposed ‘dietary restrictions.’” The caption suggests that vegans avoid animal products because animals “look sad” when they’re being slaughtered. Beyond this caption, if one were learning about vegans for the first time from your essay, one could be forgiven for concluding that we have no reason at all to refrain from eating and...

by Neil H. Buchanan The sales job for the White House's non-plan to change the tax system is not going well, by all accounts.  As usual, Donald Trump's lack of focus has distracted everyone, as he flits from one personal feud to another and circles back around to his obsessions with destroying the health care system and building his expensive and pointless wall. Even so, I stand by my prediction that at some point Trump and the Republicans will pass something that -- no matter how limited or small it is -- they will call "sweeping tax reform," and the supposedly hostile press will play along. After all, this is a group of people who held a Rose Garden celebration merely because they managed to pass a (terrible) health care bill through one house of Congress.  Imagine their victory lap even if they have done nothing more than, say, change the exclusions for the Alternative Minimum Tax or the depreciation rules for capital investment?  Imagine the lies that th...

By Eric Segall This week ProPublica issued a report with the headline "It's a Fact, Supreme Court Errors aren't Hard to Find." The group reviewed "dozens of cases" and said that it found a "number of false or wholly unsupported claims." Examples included erroneous voter registration rates in Chief Justice Robert's Shelby County decision striking down a key section of the Voting Rights Act; an unsupported conclusion by Justice Alito about the percentage of American companies that require background checks for its workers similar to the ones used for federal employees; and Justice Kagan's statements about the reliability of drug sniffing dogs in an important Fourth Amendment case. ProPublica claimed in the report to review 83 randomly selected opinions over a five year period and found assertions of "legislative facts" in 24 of those cases. The group alleged that seven of those opinions, more than 25%, contained false or unsuppo...

by Michael Dorf My latest Verdict column asks whether a federal ban on bump stocks would violate the Second Amendment. The short answer is no, but as I explain, the full answer is a bit more complicated. During the litigation that culminated in the 2008 SCOTUS ruling in DC v Heller , it was taken for granted by all the lawyers and justices that the federal ban on possession and transfer of machine guns made after 1976 is valid. Indeed, as I note in the column, Walter Dellinger, arguing for DC, labored to persuade the Court that machine guns are indistinguishable (for Second Amendment purposes) from other firearms and that therefore the Court ought not recognize an individual constitutional right under the Second Amendment. The ultimate opinion for the Court strongly hints in dicta that the machine gun ban is valid, but doesn't do a very good job of explaining why. My column argues that the actual test the Court announced for whether various types of weapons count as "arms...