Law posts

What’s your biggest takeaway from Monday’s events?

The usual way to get documents from somebody you trust is to give them a subpoena. Almost any time that the government is trying to get documents from a corporation, they do it by issuing a subpoena, or even by informal request. With any normal civilian, you will issue a subpoena and the person will collect the documents and produce them.

You use a search warrant, and not a subpoena, when you don’t believe that the person is actually going to comply. For me, the biggest takeaway is that the Attorney General of the United States had to make the determination that it was appropriate in this situation to proceed by search warrant because they could not be confident that the former President of the United States would comply with a grand-jury subpoena. ...

Based on what you are saying, I assume that the Justice Department would need to convince a judge that a subpoena would not work. Is that accurate?

That is not accurate. The decision about whether to use a subpoena or to use a search warrant is a discretionary one made by the executive. A judge doesn’t weigh in on that. A judge doesn’t say, “I am not going to issue a search warrant because you could do this by subpoena.” That is not something that a court would weigh in on. But what the court would weigh in on is the following: in order to issue a search warrant—unlike a subpoena, where you don’t need any factual predication—there has to be a determination by a judge that there is probable cause of a crime, and that the evidence of that crime will be in the location that you seek to search.

-- from Isaac Chotiner's interview with former federal prosecutor and FBI general counsel Andrew Weissmann, following the FBI raid on former Pres. Trump's Mar-a-Lago estate Monday. Love Weissmann's use of “any normal civilian.” Things are getting interesting. 

“A federal judge said Monday that then-President Donald Trump 'more likely than not' committed federal crimes in trying to obstruct the congressional count of electoral college votes on Jan. 6, 2021 — an assertion that is likely to increase public pressure on the Justice Department to investigate the former commander in chief.”

-- from an article in The Washington Post about U.S. District Court Judge David O. Carter, who had to read over sensitive emails between Trump and conservative lawyer John Eastman to determine if they were covered by attorney-client privilege. That was Eastman's claim before the Jan. 6 committee: You can't see this correspondence because of attorney-client privilege. But such privilege is void if the correspondence relates to the commission of a crime. Carter has apparently determined that that's the case. According to the article, Eastman's legal team says that he “intends to comply with the court's order” to turn over documents.“ As Richie Valens sang, ”Let's go."

The best thing about our courts is you can't just blab on as you can before the press; the court won't take it. Remember David Boies' line about eviscerating an anti-marriage equality proponent during the Prop 8 case? “In speeches, no one got to cross-examine him.” But Boies did. And there went that guy's argument.

Last week, Donald Trump's personal $20k-a-day lawyer, Rudy Giuliani, who's been busy spouting theories of voter fraud, went back into the courtroom for the first time in decades. It didn't go well. 

Asked what standard of review should be applied, Giuliani responded “the normal one.” He said he didn't understand what “strict scrutiny” meant. He said he didn't understand what “opacity” meant, then guessed it meant “you can see.” U.S. District Judge Matthew W. Brann responded: “It means you can't.”

My favorite line from Judge Brann? 

“You're alleging that the two individual plaintiffs were denied the right to vote. But at bottom, you're asking this court to invalidate more than 6.8 million votes, thereby disenfranchising every single voter in the commonwealth. Can you tell me how this result can possibly be justified?”

Man, why can't journalists do this? 

Cut to the chase. Yesterday, Brann ruled on a request to dismiss Giuliani's/Trum's case. His ruling was basically “Fuck, yeah.” It was “Get this shit out of my court.” Here's his intro: 

In this action, the Trump Campaign and the Individual Plaintiffs (collectively, the “Plaintiffs”) seek to discard millions of votes legally cast by Pennsylvanians from all corners – from Greene County to Pike County, and everywhere in between. In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.

That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more. 

P.S. Brann is a Republican.

Trump won't go away on Jan. 20 but he will be removed from holding the levers of power; and we'll be a better country and a better world for it. 

“As with President Trump's two earlier nominees to the court, Neil Gorsuch and Brett Kavanaugh, the details of Judge Barrett's jurisprudence were less important than the fact that she had been anointed by the conservative activists at the Federalist Society. Along with hundreds of new lower-court judges installed in vacancies that Republicans refused to fill when Barack Obama was president, these three Supreme Court choices were part of the project to turn the courts from a counter-majoritarian shield that protects the rights of minorities to an anti-democratic sword to wield against popular progressive legislation like the Affordable Care Act. ...

”It was never about letting the American people have a voice in the makeup of the Supreme Court. That's what Mr. McConnell and other Senate Republicans claimed in 2016, when they blocked President Obama from filling a vacancy with nearly a year left in his term. ...

“It was never about fighting 'judicial activism.' For decades, Republicans accused some judges of being legislators in robes. Yet today's conservative majority is among the most activist in the court's history, striking down long-established precedents and concocting new judicial theories on the fly, virtually all of which align with Republican policy preferences.

”It was never about the supposed mistreatment that Robert Bork, a Reagan nominee, suffered at the hands of Senate Democrats in 1987. ...

“Of all the threats posed by the Roberts Court, its open scorn for voting rights may be the biggest.”

-- New York Times Editorial Board, about yesterday's rushed confirmation of Amy Barrett to the U.S. Supreme Court to fill the spot vacated by the death of Ruth Bader Ginsburg last month. I've said it a zillion times: Hillary Clinton's vast, right-wing conspiracy has been replaced by a vast, right-wing hypocrisy that is out in the open and doesn't give a fuck.

Follow the money. Who gives it to Graham, to McConnell, to the Federalist Society? Follow the money. 

“Since Donald Trump entered politics, he has surrounded himself with grifters and figures of gross incompetence. [Secretary of Labor Eugene] Scalia is part of a smaller cohort: distinguished conservatives who have joined the Administration to advance their own ideological goals. A graduate of the University of Chicago Law School, where he edited the law review, and a partner at the white-shoe firm Gibson, Dunn & Crutcher, where he has specialized in labor-and-employment law and administrative law, Scalia has an intellectual pedigree that most members of Trump's inner circle lack. Temperamentally, he has little in common with the bombastic President. Yet, like virtually everyone in the Republican Party, Scalia has chosen to view this Administration chiefly in opportunistic terms. His longtime agenda has been curtailing government, and at the Labor Department he has overseen the rewriting of dozens of rules that were put in place to protect workers. As the coronavirus has overrun America, Scalia's impulse has been to grant companies leeway rather than to demand strict enforcement of safety protocols.”

-- Eyal Press, “Trump's Labor Secretary Is a Wrecking Ball Aimed at Workers,” in The New Yorker. And yes, Eugene is the son of. Seriously depressing article. Make sure you read it.  

What Tucker called her doesn't matter because Tucker doesn't matter: legal ruling.

Amid the news insanity of the week—No. 1 being the refusal of the president of the United States to commit to a peaceful transfer of power, which should've been the biggest news story of the year but hardly made a peep among the usual legit-media suspects—there was, last night, not necessarily good news, but it did make me smile for a moment.

On the surface, no. On the surface, it was bad. Judge rules in favor of Fox News/Tucker Carlson in defamation lawsuit brought by Karen McDougal. I'd rather the opposite. And: Trump legal team to argue in Second Circuit in year-long subpoena of Trump's financial records by Manhattan DA. I'd rather we get the financial records finally. The financial records Trump promised to reveal when he won the 2016 presidential election, and which, ever since, he's fought in court to keep private. 

But dig a little and the stories get amusing. 

Trump's lawyers will argue before the Second Circuit that Trump's financial records are outside the purview of the DA Cyrus Vance Jr. and Vance should stick to the issue at hand: the involvement of the president of the United States in hush-money payments to porn stars and others prior to the 2016 election. That's what the president's lawyers want the case to be limited to. And the payments aren't even alleged. It's just a matter of how involved Trump was. So that's kind of amusing when you think about it. 

And then Tucker. Oh, Tucker.

Backstory. Playboy playmate Karen McDougal has claimed a year-long affair with Donald Trump from 2006 to 2007, and it came up during the 2016 election. She sold that story for $150,000 to The National Enquirer, which, rather than publish the salacious details, squelched the story. Ronan Farrow wrote about those details years later for The New Yorker. The tabloid practice is called “catch and kill,” and it was done here, apparently, because the owner of the Enquirer, American Media, Inc., ws run by the aptly-named David Pecker, who is a friend of Trump's. That's the backstory. 

Anyway, in 2018, after the Farrow article appeared, and I guess after McDougal told her story to Anderson Cooper on CNN, Tucker Carlson attacked her on his Fox News show. He accused her of extortion, which is the opposite of what happened. So she sued him for defamation. 

Yesterday, Judge Mary Kay Vyskocil dismissed the lawsuit. She agreed with the Fox News lawyers. That McDougal was an extortionist? No, that wasn't the argument. The argument, brought by Fox News lawyers, is that Tucker Carlson shouldn't be taken seriously. From the New York Times story:

In reaching her decision, Judge Vyskocil relied in part on an argument made by Fox News lawyers: that the “general tenor” of Mr. Carlson's program signals to viewers that the host is “engaging in 'exaggeration' and 'nonliteral commentary.'” The judge added: “Given Mr. Carlson's reputation, any reasonable viewer 'arrive[s] with an appropriate amount of skepticism'” about the host's on-air comments.

So that's kind of amusing. 

And not. There's still no accountability. Fox gets to call itself “News” and escape traps like this by saying, in effect, “Who are we? Nobody. We're just bullshitting. We're just a billion-dollar industry that attacks who we want for partisan reasons and gets away with it.” In effect, the judge just gave Tucker Carlson a license to lie.

Sincere follow-up for Judge Vyskocil: Would any “reasonable viewer” be watching Tucker Carlson's show in the first place?

Alito says that “sex” must be defined exactly the way that lawmakers understood that term in 1964. I'm skeptical he‘ll apply that same rule to defining what counts as “arms” when reading the Second Amendment.

— Adam Winkler (@adamwinkler) June 15, 2020

Background: On Monday, the U.S. Supreme Court ruled 6-3 that members of the LGBT community were protected under Title VII of the 1964 Civil Rights Act. In other words, they can’t be fired for being gay, bi or trans. Justice Gorsuch, of all people, wrote the decision and was slammed by textualists, who claim that the writers of the Act didn't have anyone from the LGBT community in mind when they wrote it. Gorsuch went with a straightforward interpretaton of the meaning of “sex”: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

“President Trump and his minions relentlessly grind out despicable acts — gratuitous insults to war heroes, over 18,000 (and counting) false or misleading statements, many decisions courts have ruled illegal. But Mr. Trump's wantonly cruel tweets about the tragic death in 2001 of Lori Klausutis are distinctive: They may constitute intentional torts for which a civil jury could award punitive damages against him. ...

”Under the court's unanimous 1998 ruling in Paula Jones's sexual harassment suit against President Bill Clinton, both of these lawsuits — by Mr. Klausutis and by Mr. Scarborough — could proceed against the president while he is still in office. Because his tweets reach followers nationwide, the lawsuits could probably be brought in any state. And since the subject of his tweets had nothing to do with his presidential responsibilities, he probably could not hide behind an assertion of executive privilege.“

— Yale law professor Peter H. Schuck, in his Op-Ed, ”Trump's ‘Horrifying Lies’ About Lori Klausutis May Cross a Legal Line," on the New York Times site

Former federal prosecutors have a statement up on Medium.com saying that based on the evidence in the Mueller Report, if it were up to them, Donald J. Trump would be charged with multiple felonies for obstruction of justice:

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller's report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

They provide examples:

• The President's efforts to fire Mueller and to falsify evidence about that effort;
• The President's efforts to limit the scope of Mueller's investigation to exclude his conduct; and
• The President's efforts to prevent witnesses from cooperating with investigators probing him and his campaign.

There's no heat to the piece, it's just matter-of-fact, just the rule of law. Just. It includes federal prosecutors from left and right, from Republican and Democratic administrations. Check it out. Pass it around. Yesterday morning there were 600+ signatures. Now there are nearly 800. Where she stops...?

“Consider voting rights. In the past decade, Republicans have changed and applied electoral laws to make it harder for Democrats, especially people of color, to vote. The Supreme Court abetted these practices with its decision, in 2013, in the Shelby County case, which gutted the Voting Rights Act. The midterm elections brought home the consequences. In states around the country—especially Florida and Georgia, where African-Americans ran competitive statewide campaigns—voter suppression, in various forms, demeaned the process and may have affected the outcome.

”And what has the Trump Justice Department done about these outrages? It's encouraged them...“

— Jeffrey Toobin, on his straightforward and nuanced piece, ”Making the Case," about the confirmation hearings for William Barr for AG 

Temperament, temperament, Judge.

Regardless of the allegations against him, yesterday Kavanaugh revealed himself to be what his CV long implied he was: a partisan hack, without the temperament to earn a lifetime appointment to the U.S. Supreme Court. This is from his opening statement:

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election; fear that has been unfairly stoked about my judicial record; revenge on behalf of the Clintons; and millions of dollars in money from outside left-wing opposition groups.

Really? The Clintons? Again? How long will the Republicans play that tune? I guess as long as their idiot supporters get up and dance. 

Kavanaugh's exchanges with U.S. Senators Amy Klobuchar and Kamala Harris—both former prosecutors—were particuarly bad. He was petulant, taunting. To Klobuchar, it was like the student asked about his homework who responds, “Where your homework?” Worse, perhaps, was the exchange with Harris. He just didn't answer. He didn't answer a basic question: Do you want an FBI investigation into these allegations? Generally, if someone makes allegations against you that you feel are BS, you want to shed as much light as possible. You tell others: Please investigate this. When the light is shed, you will see there is nothing there. His reaction was the opposite. He wouldn't even say whether he wanted it investigated. He didn't even want that on the record. 

McConnell, Grassley, Graham, et al., are intent on pushing this through anyway. They will regret it. More, the country will regret it. It will further weaken our institutions. My god. How much damage is done by those wearing the flag and beating their chests. 

Turns out current SCOTUS nominee Brett Kavanaugh was for prosecuting POTUSes before he was, like, totally against it. 

Here, via Jeffrey Toobin, is his POV when he was on the Starr commission investigating Pres. Clinton in the 1990s:

Kavanaugh, who “was considered one of Starr's intellectual heavy-lifters, pushed hardest to confront Clinton with some of the dirtiest facts linked to his sexual indiscretions with Lewinsky.” In a memo to Starr, he proposed that Clinton be asked the following questions, among others, before the grand jury: “If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying? . . . If Monica Lewinsky says that on several occasions you had her give [you] oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?” Starr apparently thought better of this plan ...

Then Kavanuagh thought better of the whole “Are presidents above the law?” thing:

Kavanaugh's service in the Bush White House—and, perhaps, his view of future Republican Presidential patrons—led him to revise his Clinton-era view of the rights of Presidents who are under investigation. In a law-review article from 2009, Kavanaugh said that Presidents should not only be free from the possibility of indictment while in office but should also be allowed to avoid questioning from law-enforcement officials. He wrote that Congress should “consider a law exempting a president—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”

Here are four questions I'd like to ask him:

1. You‘ve been appointed to the highest court in the land by a president who gained office with help from Russia. How do you feel about that?
2. Because of your views on presidents being above the law, would you recuse yourself from any decision involving Pres. Trump’s Russian scandal and/or Robert Mueller's investigation into same?
3. If it turns out Pres. Trump's connections to Russia go deeper than already revealed, to the point where we have to question his loyalty to this country, would you resign?
4. Have you ever ejaculated into your wife's mouth?

Louis Menand has a piece in The New Yorker on the legal and technological history of privacy in America that's worth reading. The following is one of its least important parts but it hit home.

In the late 1940s, the District of Columbia began allowing the Muzak company to pipe radio broadcasts (90% music, 5% news, 5% ads) into its buses and trollies at low volume. Two men objected, took their case to the U.S. Supreme Court, but lost, 7-1. The lone dissenter was William O. Douglas, who felt it was a privacy issue. “The beginning of all freedom,” he wrote, is “the right to be let alone.” Not many have agreed with him. Or: People agree but on a case-by-case basis.

As for why it was 7-1 when there are nine justices? Menand writes:

One Justice, Felix Frankfurter, recused himself. Frankfurter explained that his own aversion to Muzak was so visceral—“my feelings are so strongly engaged as a victim,” he wrote—that he was incapable of attaining the degree of disinterestedness necessary to render a judgment. 

Many years ago, I wrote a piece on just this: my endless search for quiet:

In Taiwan in the late ‘80s I was forever asking restaurant managers to turn down their overly sentimental, usually western rock n’ roll so I could study during lunch. Tai da shung, I would tell them, pointing at the ceiling. Too loud. Ching... I would pantomime turning a dial. Back at my table, was it my imagination, or had the music actually gotten louder?

At a hotel restaurant in Portland, the waitress appeared both surprised and grateful by my request. You mean we can actually turn the music...down? Thank God! A teriyaki place I frequent in Seattle, on the other hand, has adamantly refused my entreaties. Because the kitchen help is listening to the same music and it's all they have to help through another day of drudgery? No, they play their own tunes. The music is for our benefit. Background noise, perhaps, so we won't hear one another chew, or so single diners might feel less lonely (listening to songs of love and loss). The real reason probably lies closer to my own reaction. As soon as I finish my food, I'm gone. There's no reading the rest of the chapter. There's no lingering there.

Over the years, I think I‘ve gotten better at blocking it all out. I guess you have to. There are no quiet places. At the Mariners game on Wednesday, my friend Jim complained about the overly loud music between innings, making conversation difficult, and I nodded, but I’m like the traffic cop now. “Oh right. That.” But back when I wrote the piece? The Mariners game was exactly one of the complaints:

At a baseball game my friends and I have to shout at one another to be heard over the PA system and its warmed-up rock classics. Ditto the bar after the game. Are we all such lousy conversationalists that we need to create so many impediments to conversation? Or does the loud, raucous background give the appearance that we are leading loud, raucous lives?

Anyway, now I know who to blame: Public Utilities Comm'n v. Pollak (1952).

I had two immediate thoughts when I went on Twitter this morning and saw what was trending:

• Repeal the Second Amendment: “Yeah, right. Good luck.”
• John Paul Stevens: “Oh no! Hope he's OK!”

Turns out they were related. Stevens, a former justice to the U.S. Supreme Court, appointed by Pres. Ford, had penned an Op-Ed in The New York Times entitled “Repeal the Second Amendment.”  

OK, now I was intrigued. But not surprised. 

In Chapter Six of Stevens' 2014 book, “Six Amendments: How and Why We Should Change the Constitution,” he takes on the Second Amendment, and comes out in favor of mitigation. He also focuses on the amendment's original meaning. The key is in the first clause, the whole “well-regulated militia” crap. To Stevens, the amendment was designed to protect states from the federal government. It was the Jeffersonian counterpoint to a fear of the Hamiltonian. Bluntly: It's a collective right rather than an individual right. 

He repeats some of these thoughts in the Op-Ed:

In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.” 

During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”

And then in 2008 the conservative court, in a 5-4 vote, codified that fraud in District of Columbia v. Heller. Stevens dissented. He continues to dissent. 

The piece is great. I'm a longtime fan of Stevens, who, as a kid, saw Game 3 of the 1932 World Series in which Babe Ruth supposedly called his shot, and who, as a justice, got more liberal as the court got more conservative. I also like that he begins the piece by applauding the millions that marched on Saturday—and the kids in particular who organized it. 

Rarely in my lifetime have I seen the type of civic engagement schoolchildren and their supporters demonstrated in Washington and other major cities throughout the country this past Saturday. These demonstrations demand our respect. They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.

Would you buy a used car from this man? 

From Jeffrey Toobin, or Toobs as my friend Adam calls him, in a piece called, “Donald Trump and the Rule of Law,”  via The New Yorker website. This is the sum-up graf:

The Times' revelation [that Trump sent White House counsel Donald F. McGahn to ask AG Jeff Sessions not to recuse himself from the Russian investigaiton] makes an obstruction case stronger. Trump asked for loyalty from James Comey, the F.B.I. director, who was supervising the investigation. When Comey equivocated, Trump fired him, then put out a false story for why he did so, which he promptly undermined by admitting the real reason. And when e-mails emerged over the summer showing that Donald Trump, Jr., had met during the campaign with a Russian lawyer offering dirt on Hillary Clinton, the President participated in concocting a bogus story to explain them. (An especially incriminating version of Trump's role in the e-mail cover story appears in “Fire and Fury,” Michael Wolff's explosive new book.)

I'm reading the book right now, btw, about 1/4 of the way through. Much of it is what we always thought (Trump knows next-to-nothing about government, let alone governance, and doesn't care to know), or suspected (he didn't expect or want to win the presidency, but then felt it was his destiny). He is the joke we assumed he was, but, as Randy Rainbow sang, the joke's on us. That so many could‘ve been suckered in makes one worry about the future of democratic government. 

Toobs’ piece is not only about Trump's contempt for the rule of law but about the gaps he's left, and the loyalty he's won, from traditional lawpeople, such as U.S. attorneys. “There are positions for 93 U.S. Attorneys,” Toobs writes, “but Trump has nominated people to fill only 58 of them, and the Senate has confirmed just 46.” The rest are acting U.S. attorneys, accountable only to Sessions and Trump. And, one hopes, to history, and to the rule of law. But that's just a hope. 

Fasten your seatbelts.