Law postsTuesday March 27, 2018
John Paul Stevens Gets Legal on the NRA's Ass
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.
The New York Times Magazine has a good piece by Jonathan Mahler entitled “All the President's Lawyers.” It's not only on Donald Trump's current plethora of lawyers, and not only some of his past lawyers, but the type of lawyer (and law) he prefers:
Trump Law does not concern itself with how you're supposed to do things. ''Donald would say, 'I hate lawyers who tell me that I can't do this or that,''' Goldberg told me. And so Trump Lawyers don't. It was an arrangement that worked for Trump and his legal teams for years. And so it continues in Washington. Under Trump Law, it is perfectly fine for the president of China to stay as a guest at Mar-a-Lago, for the lobbying arm of the Saudi government to spend hundreds of thousands of dollars at Trump's Washington hotel, for Trump to have a private dinner with the director of the F.B.I., James Comey, even as his agency was investigating Trump's campaign. Under Trump Law, it is O.K. for Trump not to divest himself of his assets or place them in a blind trust, and for the drafting and rollout of his Muslim travel ban to be overseen not by experienced government lawyers but by his 31-year-old senior adviser, Stephen Miller. Under Trump Law, Trump can appoint a national security adviser, Gen. Michael Flynn, who had worked secretly as a paid lobbyist for Turkey, and fire Comey, as he himself explained, to relieve the pressure of the Russia investigation.
Expect more of the same with this administration. Me, I think the law trumps Trump Law. I'll take David Boies.
The Four Attorneys of Steven Avery
In my day job, I talk to top attorneys around the country, and one of the questions we often ask is, “What’s the best advice you’ve received?” Here’s one of my favorite answers, which came to us from multiple sources:
Take the work seriously but don’t take yourself seriously.
It’s advice I wish I’d heard 30 years ago. The first part I’m fine with—I’ve always worked hard—but I think I've always taken myself a little too seriously.
I kept flashing back to this piece of advice while watching Netflix’s 10-part documentary series, “Making a Murderer,” which Patricia and I binge-watched, like so many of you, during the final days of 2015. We watched one episode Tuesday last week, six episodes on Wednesday, the final three on Thursday. It has relevance to my work, but we kept going because Patricia couldn’t stop. She had to find out more; I already knew. I knew because, as editor of our Wisconsin magazine, I kept coming across the story.
“Making a Murderer” is about Steven Avery, a Manitowoc County, Wisc. man convicted of sexual assault in 1985 who was exonerated by DNA evidence in 2003. Two years later, in the midst of a $36 million lawsuit against the county and its police department, and weeks after key figures had been deposed in that lawsuit, Avery was arrested again, this time for the rape/murder of photographer Teresa Halbach. He was ultimately tried for her murder—all rape charges stemmed from a suspect confession from Avery’s 16-year-old nephew, Brendan Dassey, on March 2, 2006—found guilty, and sentenced to life in prison without the possibility of parole.
The 10-part documentary suggests this was a miscarriage of justice.
And it was a miscarriage of justice despite the excellent representation Avery had. I was in an odd position watching the doc because I knew the players. Once Avery was arrested for the Halbach murder, for example, his appellate lawyer, Stephen Glynn, recommended two criminal defense attorneys, and with each name, I went, “Oh yeah, he’s good.” I knew their reputations. I knew they represented the profession well. And they do here, too.
Of Avery’s four main attorneys, in fact—two civil, two criminal—our publication has featured three of them, and, oddly, not because of their involvement in the Avery case. Robert Henak first came to our attention because he collected “drug tax stamps.” Glynn was our cover subject in 2007 because he was top-ranked, and has a long history of big cases, including representing (and exonerating) Native-American activist Leonard Peltier on a murder charge in Wisconsin. We ran our 2012 Q&A with criminal defense attorney Jerome Buting initially because he was a cancer survivor; he’d actually been diagnosed on, of all days, Sept. 11, 2001.
Each of these features, of course, also spends a good deal of time on the Avery cases. Together, they almost represent a timeline of his cases.
Henak’s story ran in 2005, and ends this way: “When Avery was set free [on the 1985 charge], Henak cried. Justice had been a long time coming—too long coming—but finally it had been done.” As we went to press, Avery was about to be arrested for the Halbach murder.
Glynn’s story ran in 2007 after Avery’s trial and conviction, and we focus on the emotional effect all of this had on the attorney who helped set him free: “Glynn never got over the feeling of guilt he felt the day Avery was arrested for the photographer’s murder.”
The Buting Q&A, from 2012, starts with a presumption of innocence. “I think his fight for justice is going to go on,” Buting says at one point. “It may take a long time before the truth comes out.”
The one attorney we’ve yet to feature is Avery’s other criminal defense attorney, Dean Strang. We’ll rectify this soon, I’m sure.
All four of these attorneys made me think of the above quote—the above piece of advice. Because they all take the work seriously but they don’t take themselves seriously. They’re advocates; they don’t grandstand or bask in the limelight. They know it’s not about them; they know it’s about something bigger.
Sadly, this can’t be said for every lawyer in “Making a Murderer.” There’s a lot of sad takeaways about our criminal justice system here, but one of the saddest to me is this: Attorneys who represent the profession well could not, in the end, win a case against those who don’t.
Quote of the Day
“What's placed now in high relief by many of the current disputes is the tension inherent in religion clauses of the First Amendment. The amendment prohibits the ”establishment“ of religion while also protecting ”the free exercise thereof.“ When does government solicitude for religious exercise cross the line into establishment? When does policing of the Establishment Clause's prohibition go too far and stifle free exercise? There is no easy or obvious answer, and the Supreme Court has never given a consistent one. The relative weight the court has accorded each of the religion clauses shifts over time, reflecting in broad strokes the concerns of the general culture as the tension between the two principles comes to the fore in different ways.”
-- Linda Greenhouse, “Drawing the Line Between Civil and Religious Rights,” in The New York Times. And yes, she digs into the Kim Davis controversy.