JONATHAN TURLEY

Bullying’s day in court;
From hall monitors to personal injury lawyers: Parents send a message by forcing bullies from the schoolhouse to the courthouse.

Mathew Mumbauer, 11, never saw it coming. One moment in early March, he was walking down the stairs at Brickett Elementary School in Lynn, Mass. The next moment he was lying at the bottom of the stairs. He was left paralyzed and on a ventilator. Mathew’s parents blame bullies who had been hounding Mathew for most of the year.

Mathew is only the latest victim of bullying in our schools, and some parents are turning from the schoolhouse to the courthouse to seek relief. Meanwhile, tens of thousands of students are anxiously counting down the days left in summer and the approach of another bullying season.

With the advent of the Internet, YouTube and MySpace, bullying is becoming more prevalent and more lethal — allowing bullies to move from playgrounds to cyberspace in pursuit of their prey. While the number of bullying lawsuits is unknown, some high-profile cases are focusing attention on the national problem.

Dealing with bullies has long been treated as just part of “growing up,” a natural and even maturing element of childhood. Encounters with the ubiquitous bully in movies and literature are treated as a type of rite of passage, particularly for boys. From “the Ogre” in Revenge of the Nerds to Scut Farkas in A Christmas Story, the bullies always lose when you simply stand up to them, right?

Perhaps, or you can end up dead. Across the country, schoolchildren have been killed after standing up to bullies in places as wide-ranging as West Paducah, Ky., Edinboro, Pa., and Jonesboro, Ark.

A video hunt

Being a bully remains a popular choice for students, particularly in middle schools, where bullying often peaks. A 2004 survey by KidsHealth found that 40% of children from 9- to 13-years-old admitted to bullying. Another recent study prepared for the American Psychological Association showed that 80% of middle school students admitted to bullying behavior in the prior 30 days. Like Piggy in Lord of the Flies, a child can become a collective target — the object of a natural juvenile inclination to subordinate and isolate individuals. Just ask 15-year-old Billy Wolfe in Fayetteville, Ark.

At some point, high school bullies made him a type of collective sport prey. They even filmed the hunt. One video shows a boy spontaneously announcing that he is going to beat up Billy Wolfe in front of Billy’s younger sister, walking up and punching him at a bus stop.

Billy’s beatings were triggered years ago after his mom complained to the parents of a bully. The next day, the boy presented Billy with a list of 20 names of boys who signed up to beat him up. Attacks would occur at any time and any place — the bathroom, shop class, the school bus — with one requiring that Billy receive medical treatment.

This is not the first lawsuit involving Fayetteville and bullying. The district was previously sued after a student was savagely beaten for being gay. In a similar case in Kansas City, Kan., a jury awarded Dylan Theno $250,000 against the Tonganoxie School District for years of bullying due to the false rumor that he was gay.

As the suicide of 13-year-old Megan Meier showed the nation, Internet sites such as MySpace have opened up new opportunities for cyberbullying. Megan’s suicide was allegedly triggered by an adult neighbor, Lori Drew, pretending to be a 16-year-old boy who not only dumped her but also initiated a cyberpile-on by other kids. A 2008 study of more than 40,000 adolescents by the Rochester Institute of Technology revealed that 59% of cybervictims in grades seven to nine were bullied by kids whom they knew.

The underlying costs

The social costs of bullying are often ignored. A federal study found that 60% of boys who were bullies in middle school had at least one criminal conviction by the age of 24. Bullying is also routinely tied to suicide attempts, drug abuse, and drop-outs or worse, violence by the victims.

In Littleton, Colo., the killers at Columbine High School in 1999 had complained about being bullied. In Hoover, La., Felicia Reynolds sued the school district after her son, Ricky, stood up to an alleged bully named Sean Joyner after years of complaints to officials at Hoover High School. After being removed from the school due to a separate incident, Sean was allowed to return and fought with Ricky. Sean died from a knife wound, and Ricky was put away for 20 years. Unlike the Hollywood formula of bully movies, when the Karate Kid in real life stands up to bully Johnny Lawrence, he ends up doing one to five years in the county jail.

While many will chafe at the notion of moving from hall monitors to personal injury lawyers, litigation could succeed in forcing schools to take bullying more seriously.

The first step, however, is to dispense with the image of bullies as mere Scut Farkases waiting to be challenged and conquered. Bullies are not adverse object lessons for an educational system; they are the very antithesis of education. They are no more a natural part of learning than is parental abuse a natural part of growing up. That is one lesson Mathew Mumbauer learned all too well.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

USA TODAY: July 15, 2008

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HEADLINE: The next president’s court;
Today’s Supreme Court has a historic parallel — FDR’s court. So what might that mean for McCain or Obama?

With the end of the U.S. Supreme Court session last week, legal experts are mulling over the recognition of the individual right to bear arms, the expanded rights of detainees and other important rulings. But the most interesting aspects of this session might be less the message than the messengers. The Roberts court is becoming an intriguing case of history repeating itself. It took seven decades, but the Four Horsemen have returned.

The original Four Horsemen were conservative justices during Franklin D. Roosevelt’s presidency. They effectively blocked many of his economic reforms and programs. The return of the horsemen could well shape the legacy of a President Obama or a President McCain, with decisions rendered before either takes the oath of office.

The similarities between the courts of Chief Justice Charles Evans Hughes and Chief Justice John Roberts are striking. Both the Hughes and Roberts courts ruled during periods of economic difficulties and political shifts in power. Both courts had four conservatives who maintained a united voting bloc on most major issues. On the Roberts court, the Four Horsemen are the chief justice and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

What FDR faced

If elected president, Barack Obama could find himself in a position strikingly similar to FDR’s first term, when Roosevelt inherited a conservative bench from his Republican predecessors. With a country in economic crisis and a world in upheaval, Obama would face a court with a near majority of ideologically hostile justices. Worse yet, unlike the original Four Horsemen, whom FDR accurately dismissed as the “old men” (all were over 70 in 1937, their last year on the court together), the new horsemen are mere judicial adolescents in comparison — Roberts is 53, Alito is 58 and Thomas just turned 60 last week. Only Scalia has serious miles on the odometer at 72.

Ironically, if John McCain wins, he will face a close proximity of the other bloc of the Hughes court, three justices called the Three Musketeers. For McCain, the Three Musketeers are Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer, with David Souter playing the role of d’Artagnan — the fourth Musketeer. The difference (and advantage) for McCain is age. The average age of the left wing justices is about 75, and the iconic leader of the left wing, Stevens, is 88 years old. The next president will likely be replacing liberal justices — a great opportunity for McCain to fundamentally change a wide array of legal doctrines, and a great anxiety for Obama to try to (at least) maintain existing doctrines such as Roe v. Wade.

Make no mistake: This court is deeply divided. While the number of 5-4 opinions fell slightly from the previous term, the appearance is deceiving. There were also 10 fewer unanimous or near-unanimous decisions. Moreover, in some major rulings that escaped the 5-4 category, it was often because liberals moved over to join the conservatives rather than a shift from right to left. This was the case on the 7-2 vote to uphold lethal injection (with Stevens and Breyer) and the 6-3 vote (with Stevens) to uphold photo identification requirements for voters.

President Bush’s appointees — Roberts and Alito — proved as good as advertised for conservatives. Though Roberts insisted at his confirmation that he was a centrist, his center has proved somewhere between Thomas and Scalia. He was there this term to cast the fifth vote to recognize the individual right of gun ownership, to strike down a law effectively penalizing millionaires financing their own campaign, to extend immunity of law enforcement officers from lawsuits and (in a 5-3 vote) to drastically cut the punitive damages in the Exxon Valdez disaster.

Yet not all decisions this term were predictable for the court’s right wing, such as those that protect employees from retaliation and one supporting a Louisiana death-row inmate’s claim of racial discrimination in jury selection.

Where the divide was deep

Even so, the ideological divide was deep and raw in cases such as the detainees decision, where four justices were willing to allow the president to deny the protections of habeas corpus to those held at Guantanamo Bay, Cuba. While Roberts tended to use more moderate language, Scalia predicted that his liberal colleagues had signed the death warrants for their fellow citizens because the decision “will almost certainly cause more Americans to be killed.” It was something one would expect to hear on a late night four-in-a-box dogfight cable show — not a historic court decision.

This term also showed that on the most important issues, both McCain and Obama would begin their presidency with a court of one: Justice Anthony Kennedy (the same role played by Justice Owen Roberts on the Hughes court).

Indeed, this often looked more like the Kennedy court than the Roberts court, with major decisions on habeas corpus (Boumediene v. Bush), limits on the death penalty (Kennedy v. Louisiana) and immigrant rights (Dada v. Mukasey). All were 5-4 decisions where Kennedy held back the Four Horsemen by joining the Four Musketeers. After years in the shadow of Sandra Day O’Connor, Kennedy seems to have found his voice — one that either Obama or McCain will likely have to heed in the years to come.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

July 2, 2008

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An Extra Ordinary Earmark — Even for Don Young

Last week, the Senate took an unprecedented step asking the Justice Department to investigate the possible criminal conduct of a House member. The subject of this ignoble moment is Rep. Don Young. For many, it was a well-earned distinction for Young, who is often cited as the face of earmark corruption. However, this is different. Young is accused of effectively stealing millions of dollars for a campaign contributor by changing the words of an appropriations bill after it was passed by his colleagues.

The resulting investigation raises some challenging constitutional and criminal questions. Indeed, Young may have relied on such political and constitutional protections - and may discover that he crossed those limits when he crossed out the language of a duly enacted law.

The Young allegations involve a curious form of crime: fraud by whiteout. At issue are $10 million and a highway earmark in Florida.

Originally, this was a simple road widening project in southwest Florida’s I-76 — a pittance in the engorged, pork-filled $286.4 billion highway bill. However, one of Young’s donors, Florida developer Daniel Aronoff, happens to own environmentally-sensitive land near Coconut Road that would benefit
greatly from a nearby highway.

As the former Republican chairman of the House Transportation and Infrastructure Committee, Young was the guy to see, a Member who had long filled his campaign coffers with money from business interests seeking earmarks. With his equally controversial colleague, Sen. Ted Stevens, he pushed an
appropriation for $223 million to build the infamous “Bridge to Nowhere” in Alaska.

Of course, it is meaningless in Congress that the officials in Florida did not ask for and did not want the study. Indeed, the Lee County Metropolitan Planning Organization rejected it three times and expressed confusion as to why they had been given money for a project that they did not want.
If they reviewed Young¹s list of campaign donors, their confusion would have been instantly lifted.

After Young went to Florida to examine the area (and hold a signature campaign fundraising event), he quickly received more than $40,000 in contributions from Aronoff and associates, including Rick Alcalde, who worked on behalf of Aronoff’s real estate firm.

There was only one problem. The bill had already come out of conference and been passed by both Houses. That is when Young went too far, even for this Congress.

His staff apparently instructed the enrollment clerk (who was cleaning up the bill for the President’s signature) to erase the reference to “I-75″ and replace it with the words “Coconut Road.” In doing so, Young had taken $10 million from a federal project and used it to benefit a favored donor.
As a matter of criminal law, the controversy can be boiled down to simple fraud and related crimes. Investigators would likely focus on crimes ranging from conspiracy to fraud to false statements to obstruction of justice. While 28 Senators voted against the investigation — including Alaska’s two
Republican Senators, Ted Stevens and Lisa Murkowski, Young’s best hope may be the Constitution — by ironically wrapping himself in the very institution that he has discredited.

Any prosecution is likely to turn on the interpretation of the Speech or Debate Clause contained in Article I, Section 6 of the Constitution, providing that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.”

This is the same barrier faced in the search of Rep. William Jefferson’s office. As one of the witnesses who testified that the raid was unconstitutional and unnecessary, I believe that there are some salient distinctions between the cases. It was always clear that Jefferson was not protected from the investigation itself — only the brutish means chosen by the Bush Administration.

The fact that this amendment originated in the Senate rather than the House is an embarrassment for the latter institution. While Speaker Nancy Pelosi has indicated that she will favor the Senate provision, the House could refuse to turn over certain documents or evidence.

The House General Counsel office has traditionally taken a bright-line approach to subpoenas for legislative material from aides or members, as it recently did in the investigation of Reps. Jefferson and Jerry Lewis. There could be a problem when staffers are asked to disclose information about
prior conversations related to Young earmarks as well as instructions given by Young or his staff.

Since the 1881 decision in Kilbourn v. Thompson, the Speech or Debate Clause was first given a boad interpretation. Of particular interest to Young will be the 1966 decision in United States v. Johnson where the court held that the testimonial privilege under the Clause was absolute and that it barred
investigation of the motivation of members in taking legislative actions. Yet, what Young allegedly did was manifestly outside of the legislative process since he changed the language of a finalized bill. By definition, it is not a part of what the Supreme Court called “the due functioning of the legislative process.” It was the very antithesis of a due functioning legislature.

In United States v. Brewster, the Supreme Court held that” while [i]t is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process,” the act of taking a bribe “is, obviously, no part of the legislative process or function.”

Any prosecution would present a court with the challenging circumstance of a member who acted outside of the legislative process, but the evidence would cover protected discussions leading up to the finalization of the bill. Of course, some evidence like Young’s fund-raising efforts in Florida and
communications with people like Aronoff would not present a serious barrier for the Justice Department.

The question will be whether Congress wants to waive these protections and wait to fight this issue on a better day — and in a better case. In the past, Congress has allowed staffers to be interviewed on alleged crimes like the leaking of intelligence information despite the connection to
legislative functions.

In the end, what is at stake is more serious than a simple $10 million — a tiny appropriation that few members noticed, let alone cared about. In the Madisonian system, the legislative branch plays a vital role in stabilizing the country. Through bicameralism and legislative procedures, Congress is the institution that forges majoritarian compromise out of often sharp factional disputes. You can wheel and deal. You can even waste and deceive. What you cannot do is go outside the rules.

Indicting Young would not end earmark abuses, but it might signal that there remain a few incidental rules that should be followed — if only for appearances.

Jonathan Turley
Roll Call: April 17, 2006 ————————————————————————————————————-

Unequal votes;
The Electoral College is a relic of elitist Framers who didn’t fully trust ‘the people.’ Yet the Democratic Party’s superdelegate system relies on the same disturbing principle.

It appears that the Electoral College has finally found a passionate advocate. Indeed, the past few weeks, Hillary Clinton has been talking so much about the Electoral College, one would think she was an alumna.

In her campaign for superdelegates, Clinton has been insisting that it is irrelevant whether Barack Obama receives the majority of votes or even the majority of states. It is all about the Electoral College; therefore, voters in red states who chose Obama do not really count because, as Democrats, they will not have any say in the general election.

Clinton is, of course, correct.

There are those, however, who would like to change that. This month, Sens. Bill Nelson, D-Fla., and Carl Levin, D-Mich., proposed the elimination of the Electoral College and the long-overdue adoption of direct election of the president. While attempted many times before, reformers hope that the current outcry over superdelegates will highlight the equally undemocratic role of the Electoral College.

Kindred systems

The Electoral College and the superdelegate system work on the same premise: Citizens sometimes cannot be entirely trusted to choose the next president. Clinton last week even dismissed the notion of “pledged” (or non-super) delegates as a “misnomer,” suggesting that they are free to disregard the will of voters in choosing a nominee.

The senator of New York has stressed that such delegates would not be swayed by the “passion” and oratory of Obama. Since many of Obama’s states are locks for the Republicans in the Electoral College come November, her campaign has called on the party leadership to recognize that she is more electable in a system that does not recognize the national majorities.

Clinton would have found great allies in the Framers. Massachusetts delegate Elbridge Gerry warned that “the people are uninformed and would be misled by a few designing men.” Even George Mason, the great advocate of the Bill of Rights, dismissed direct election due to the inability of ordinary citizens to actually see and hear candidates, given the country’s size: “It would be as unnatural to refer the choice of a proper magistrate to the people as it would to refer a trial of colors to a blind man.”

While the Framers were great believers in the natural rights of the common man, they actually had little faith in the judgment of the common man. Indeed, most of the Framers were unflinching, unrepentant elitists. They wanted a representative democracy to create a buffer of educated men between citizens and their government. It was not until 1913 that the country finally amended the Constitution to allow for direct election of senators (who were originally elected by state legislatures).

Throughout U.S. history, the Electoral College has worked as designed: to place elections in the hands of an elite. Past controversies involved the same personal wheeling and dealing that we’re seeing today with superdelegates:

*In 1800, there was a tie in electoral votes between Thomas Jefferson and Aaron Burr. Jefferson’s successful power play left such a bitter aftermath that it might have contributed to Burr’s alleged betrayal of his country and his shooting of Alexander Hamilton.

*In 1824, Andrew Jackson received the most votes of four candidates. However, John Quincy Adams effectively bought off Henry Clay who, in return for throwing his votes to Adams, became his secretary of State.

*In 1876, Samuel Tilden won the majority of votes by a margin of 250,000 over Rutherford B. Hayes. Yet Hayes bought the nomination with a promise to withdraw Northern troops from the South and end Reconstruction.

Then, of course, there was the 2000 election, when Al Gore won more popular votes than George W. Bush but was denied the White House because of the Electoral College system.

Defenders of status quo

Advocates often insist that the college forces candidates to pay attention to small states in their campaigns. Yet, the opposite is true.

A Democratic nominee currently has little reason to campaign in Utah, or a Republican nominee to visit Massachusetts. But if the country had direct elections, a candidate would have every reason to go to such states to secure a couple hundred thousand votes. Given the often close margins of modern elections, no candidate is going to leave thousands of votes in Salt Lake City untapped if they actually counted toward the election.

The fact is that the Electoral College is preserved for, and by, the people who created it: the nation’s ruling elite. The college gives both parties locks on states by discouraging opposing candidates from campaigning in their states and undermining their party’s control. Conversely, a direct election would allow candidates to make pitches directly to citizens and thereby reduce the influence of the two-party monopoly. Suddenly, people in Boise and Boston would see both candidates campaign for their votes instead of sitting out the general election as pre-ordained electoral proxies for their parties. Moreover, voters are no longer “blind” and now can see and hear candidates for themselves.

Despite our immense respect for the Framers, they were not perfect. Even so, they did possess the humility to acknowledge that time could prove them wrong and created a process by which we could amend the Constitution. We have proved them wrong about the ability of ordinary citizens to make decisions directly about their government; we have proved better than their expectations.

One politician understood that in 2000, stating, “We are a very different country than we were 200 years ago. … We should respect the will of the people and to me, that means it’s time to do away with the Electoral College and move to the popular election of our president.”

It was Hillary Clinton.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of the USA TODAY board of contributors.

USA Today: April 8, 2008

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A fool and his lawyer;
Can you be competent to stand trial but unfit to represent yourself?

It is a well-worn cliche that a man who represents himself in court has a fool for a lawyer. Beneath this common expression is a central truth: Nothing protects a defendant against ineffective counsel if he is his own counsel.

That may change with an appeal before the Supreme Court this week. In the case of Ahmad Edwards, the court must decide whether a person can be deemed competent to stand trial but not competent to represent himself.

Edwards’ unlikely journey to the Supreme Court began over a pair of wingtips. In 1999, Edwards stole a pair of shoes in downtown Indianapolis and fired a shot that grazed a guard and hit a bystander in the leg. He was then shot by an FBI agent who happened to be in the area.

Edwards was not just crazy for wingtips. He twice was found mentally incompetent to stand trial. However, in 2004, a state court ruled that after five years at a state hospital, he was fit to stand trial. The court, however, found that he was not competent to represent himself.

After he was forced to accept a lawyer, he lost. He appealed his case, and the Indiana Supreme Court agreed that he had been wrongly denied the right to represent himself. Now the U.S. Supreme Court will hear his case.

It has been a touchstone of American law that every person has a right to choose an advocate, even himself. In the American colonies, many citizens distrusted lawyers, who were viewed as lackeys to the king and the establishment — often choosing instead to speak for themselves before juries of their peers. A lawyer in those days was merely an option, someone who could serve as a surrogate for those who felt unable to present their case. Often these were people who were illiterate or uneducated.

Historically, if you were competent to stand trial, you were competent to argue your own case. In the 1975 case of Faretta vs. California, the court reiterated this basic principle, setting the bar extremely low for defendants, holding that they need only be “literate, competent and understanding,” and not necessarily skillful or effective.

Some self-represented, or pro se, defendants have proved reasonably capable at defending themselves. In the notorious California “Red Light Bandit” rape/kidnapping case in 1948, the defendant, Caryl Chessman, represented himself over objections from prosecutors and defense lawyers. Although he was found guilty, the trial court judge ultimately complimented him on the professional job he did on his own behalf. Sixty years later, private eye Anthony Pellicano is representing himself in his wiretapping case in Los Angeles. He may prove another fool’s lawyer, but he is clearly competent to make such a decision for himself.

But Edwards is another story. The government insists that he was a hazard to himself in a courtroom and cites incomprehensible motions like this attempt to have the case dismissed: “Defendant moves the grounds of this court to dismiss this cause: if any notation of grand avoids a bill immunity proceeding at criminal information true-bill grounds. Defendant prays psalm 15.5 for innocent of court property to be dismissed wherefore, so shall it be done.”

It’s hard to win with arguments like that, bolstering the government’s claim that defendants like Edwards should not be left to their own devices. However, another case last month in Maryland would seem to belie such assumptions. Harold J. Stewart was also viewed as an incompetent self-lawyer but a competent defendant. A high school dropout, he was accused of beating a man to death with a baseball bat. Given the strength of the evidence, his lawyer tried to persuade him to accept a guilty plea of second-degree murder with a maximum penalty of 30 years in prison. He refused, insisting instead on representing himself. He also made rambling, incomprehensible motions that led to questions about his mental competency. Yet he won a complete acquittal of charges of first- and second-degree murder against two experienced prosecutors.

Less than 1% of felony prisoners represent themselves. Many do great harm to their own cases and suffer the consequences of such self-inflicted wounds. There are also costs to others. When Colin Ferguson killed six passengers and injured 19 others on the Long Island Rail Road in 1993, for example, he insisted on representing himself despite the clear evidence that he was a delusional psychopath. Yet he was deemed fit to stand trial under the extremely low standard of competency. The resulting bizarre trial mixed moments of mental clarity with total fantasies of mistaken identifies. Victims were forced to be cross-examined by the man who shot them as he tried to convince them that they saw someone else on the train. He was found guilty.

In a case in Texas in 1995, Scott Louis Panetti was treated as competent for trial and proceeded to represent himself in his murder case. He was a lunatic who dressed as a cowboy in court, tried to subpoena Jesus and clearly traumatized his estranged wife, Sonja, in a cross-examination that forced her to relive the murders of her parents. A jury convicted Panetti in 90 minutes. (The Supreme Court in 1997 stayed his execution on insanity grounds.)

Notably, his treating psychiatrist, Dr. F.E. Seale, asked the most poignant question after Panetti’s conviction: “My God, how in the world can our legal system allow an insane man to defend himself?”

The answer can be found not in the twisted minds of these defendants but in our own twisted legal standards. We have been manipulating “competence” for years to guarantee that mentally ill individuals can be tried. After John W. Hinckley Jr. was found not guilty by reason of insanity in the assassination attempt on President Reagan in 1981, enraged politicians ripped up existing insanity laws and replaced them with standards so low that even the most clearly insane defendants, such as Andrea Yates, who killed her five children in Texas in 2001, would be viewed as entirely competent to stand trial.

When these same individuals then invoke their right to self-representation, however, we are caught in a trap of our own making.

Obviously, we are embarrassed when the people we seek to execute or imprison are so mentally incompetent that they make a farce out of a proceeding. Thus, judges seek ways to find them sane enough to execute or imprison — but incompetent to argue their own cases. This is what happened in the case of Zacarias Moussaoui, who proved to be a barking lunatic before his terrorism trial. The court found him competent to stand trial but denied him the right to represent himself. (His appeal of that decision is pending in the U.S. 4th Circuit Court of Appeals.)

There are relatively few major cases of self-representation, and most, like the Panetti and Edwards cases, would have been avoided by simply recognizing the defendants’ incompetence to stand trial in the first place.

Rather than address the ridiculously low standard for competence to stand trial, many now want the Supreme Court to raise the standard for self-representation. But by imposing skill and educational requirements, courts could force many defendants to have others speak for them while they are expected to pay the costs of any resulting verdict.

If we insist on ignoring the mental illness of our defendants, then we should live with the untidy and unpleasant results.

Jonathan Turley

Los Angeles Times: March 26, 2008
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Supreme Redux: Is John McCain Ineligible to Be President?

Imagine this. The country is fresh from a close presidential election when the Supreme Court is asked to decide who will be president. If you are thinking about the 2000 election, think again. The expected nomination of John McCain for president could trigger a fight over a relatively obscure provision in the Constitution: the requirement that president and vice president be “natural born” citizens. McCain is certainly a citizen, but there is a legitimate question of whether he is a “natural born citizen” given his birth in the Panama Canal.

To complete this Supreme redux, former Bush counsel Ted Olson has been enlisted to develop arguments for McCain. Sen. Barack Obama and others would prefer to avoid such a sequel to Bush v. Gore. They have been quick to support a legislative fix introduced by Sen. Claire McCaskill (D., Mo.). However, such legislation unlikely to resolve the constitutional question, which will be answered on the basis of the language and purpose of Article II of the Constitution.

Section 1 of Article II of the Constitution states in part:

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

Under the 12th amendment, vice presidents must also be natural born.
The requirement of being “natural born” appears to have been initially suggested by John Jay — who wrote a letter to George Washington on the requirement. In his July 25, 1787 letter, Jay wrote:

Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.

Some Framers were probably concerned with a desire among some to have a King, including some foreign princes who might rule the nation. (The theory that it was written to block Alexander Hamilton who was born in the West Indies seems apocryphal since he would have been grandfathered into eligibility at the time of the Constitution’s ratification.)

The requirement that an American be “natural born” has long been controversial, but few associated John McCain with the problem as opposed to popular “naturalized” politicians like Arnold Schwarzenegger. McCain was born in 1936 in the Panama Canal Zone while his father was stationed there as a naval officer. As objectionable as it may be, it is not clear whether a Panamanian-born citizen is a natural born citizen. The issue has simply never presented itself for judicial review because all prior presidents were born in the United States.

The only president who seemed to have a possible Article II problem was Chester A. Arthur, the 21st president. Arthur was rumored to have been born in Canada, but claimed that he was born in Vermont.

Some past contenders for the presidency would have forced the question if elected – but weren’t. The last time that we faced this question in a serious candidate was Barry Goldwater, who was technically born while Arizona was a territory in 1909. Other such questions were raised by Mitt Romney’s father George Romney, who ran in 1968 despite his birth in Mexico, and former Sen. Lowell P. Weicker Jr., who was born in Paris.

The problem is that such an issue is only “ripe” for review after a general election and before the swearing in ceremony. While it is conceivable that a ballot challenge (contesting the eligibility to be on a ballot) is possible, a court could deny any pre-election lawsuit as an impermissible request for an “advisory opinion.”

Any review would turn on a difficult interpretive question. Two obvious meanings are possible. The Court could view the term as referencing a purely territorial qualification: people born within our borders. The Court could also view the meaning as encompassing a parentage meaning: covering people born to citizens regardless of the place of their birth. The latter interpretation would make natural born status as synonymous with citizenship and the colloquial term “native son.”

Interestingly, McCain and Olson each articulated different theories of why he is eligible. When confronted last week. McCain cited Goldwater and articulated a territorial argument – suggesting that a territory is U.S. soil and Panama was a territory. McCain insists that Goldwater had resolved the question, yet that is not accurate. It was never resolved because Goldwater was never elected president.
When pressed, Olson offered the parentage or native son theory. However, while there is some logical sense for such a theory, the historical sources and text do not establish such a meaning conclusively. Indeed, it does not appear to be the common law understanding of natural born at the time.

In answering this question, the court would likely look to English common law. Notably, the Parliament in the eighteenth century had to make special provisions for English citizens born in the colonies to guarantee things like inheritance rights and office holding under English law. It could be argued that these laws were necessary because it was not assumed that English parents alone or birth in a colony would qualify for the status of natural born citizens.

In 1790, Congress passed An Act to establish a uniform Rule of Naturalization, providing:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been residents in the United States … .

“Considered as natural-born citizens” can be subject to debate as to its meaning. Moreover, some would claim that this bill was an effort to change the pre-existing territorial understanding of that term.

The 1904 law governing births in the Canal Zone is equally unhelpful, merely saying that children of U.S. citizens shall also be citizens. No one is suggesting that McCain is a foreigner. The question is whether he is foreign born.

Absent a constitutional amendment, the issue will remain one of constitutional construction, not legislative correction. The zone was a foreign military base like Guantanamo Cuba. Ironically, the Bush Administration has been arguing for years (with Senate support) that U.S. laws and jurisdiction do not extend to Cuba in the cases of the detainees. If such bases are now treated as U.S. soil, it is unclear how that would affect this long-standing claim that it is not for purposes of civil liberties.

Military installations like Panama were sitting on leased land. Panama was never U.S. soil. It is different in that sense from embassies or even territories. If such military installations are U.S. soil, it raises a host of even more difficult questions. For example, when illegal immigrants have a child in the United States, the child is a U.S. citizen. Does that mean that foreign citizens who give birth at United States military hospitals or installations are entitled to U.S. citizenship for the child? How about U.S. ships or aircraft?
The new legislation will not likely resolve this question. If a court takes a territorial view of the requirement of being natural born, Congress cannot change that meaning through legislation –any more than it could redefine other words. Thus, it could not legislatively define the age 35 requirement to mean 25 by saying that it is the view of Congress that 25 is the new 35.

It is, of course, a good thing that members are seeking a resolution, but they will have to be cautious not to take one course that could fail in the brief window between a general election and the swearing in ceremony.

In the long run, the McCain candidacy can indeed serve to unite the nation – at least on one question. We need to amend our Constitution and allow all of our citizens to be eligible regardless of the place or status of their birth. As for McCain’s Panamanian problem, Congress is unlikely to be able to settle the question, which will remain not just one of constitutional interpretation but a close one at that.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

Roll Call: March 6, 2008

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Mukasey’s Paradox;
On further review, his manipulations are a beautiful, twisted thing.

The recent decisions of Atty. Gen. Michael B. Mukasey to block any prosecution of Bush administration officials for contempt and to block any criminal investigation of torture led to a chorus of criticism. Many view the decisions as raw examples of political manipulation of the legal process and overt cronyism. I must confess that I was one of those crying foul until I suddenly realized that there was something profound, even beautiful, in Mukasey’s action.

In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey’s Paradox, lawyers cannot commit crimes when they act under the orders of a president — and a president cannot commit a crime when he acts under advice of lawyers.

Such a perfect paradox is no easy task. Most attempts fall apart because of some element of logical consistency. The closest example to Mukasey’s Paradox is the Grandfather Paradox: If you go back in time and kill your grandfather before he meets your grandmother, you would not be conceived and therefore you could not go back to kill your grandfather. That one can play real tricks with your head.

Mukasey’s Paradox appears designed to play tricks with Congress. Its origins date back to Mukasey’s confirmation hearings, when he first denied knowing what waterboarding was and then (when it was defined for him) refused to recognize it as torture. In fact, it is not only a crime under U.S. law, it is a well-defined war crime under international law.

The problem for Mukasey was that if he admitted waterboarding was a crime, then it was a crime that had been authorized by the president of the United States — an admission that would trigger calls for both a criminal investigation and impeachment. Mukasey’s confirmation was facing imminent defeat over his refusal to answer the question when Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) suddenly rescued him, guaranteeing that he would not have to answer it.

Once in office, Mukasey still had the nasty problem of a secret torture program that was now hiding in plain view. Asked to order a criminal investigation of the program, Mukasey refused. His rationale left many lawyers gasping: Any torture that occurred was done on the advice of counsel and therefore, while they may have been wrong, it could not have been a crime for CIA interrogators or, presumably, the president. If this sounds ludicrous, it is. Under that logic, any president can simply surround himself with extremist or collusive lawyers and instantly decriminalize any crime.

However, this is only half of Mukasey’s Paradox. The other half occurred last week when Mukasey refused to allow contempt charges against White House Chief of Staff Josh Bolten and former White House counsel Harriet E. Miers to be given to a grand jury. Bolten and Miers stand accused of contempt in refusing to testify before Congress in its investigation of the firings of several U.S. attorneys in 2006. Mukasey wrote to House Speaker Nancy Pelosi that their refusal to testify could not be a crime because the president ordered them not to testify under executive privilege.

Under this logic, no official can be prosecuted for contempt as long as a president ordered them to commit the contempt — even if the president’s assertion of privilege is clearly invalid or incomplete. In this case, many experts have expressed skepticism that all or any of President Bush’s assertions of privilege in this case would be upheld.

When Mukasey blocked the contempt cases, many legal experts were filled with rage. But I came to see his rationales as objects of beauty rather than scorn. When one combines the two decisions, they fit neatly into Mukasey’s Paradox. Mukasey was saying that lawyers could not be charged criminally because the president ordered them to commit the act — and that the president could not be charged criminally because lawyers told him he could do it.

Now some have pointed to other paradoxes in Mukasey’s tenure. There is, for instance, the “paradox” that his confirmation was saved by Democrats — who thereby allowed the president to avoid a confrontation on torture. There is the “paradox” of Mukasey insisting that courts should not investigate the Justice Department’s failure to preserve the CIA torture tapes because the Justice Department should be allowed to investigate its own failure to previously investigate.

Yet these are not real paradoxes — they’re merely political ironies. A paradox is a statement that seems true but yields a contradiction or a dual truth. When reduced to its purest form, Mukasey’s Paradox is that government officials cannot violate the law — but that because executive privilege is also a law, it’s sometimes necessary to violate the law in order to uphold the law.

Mukasey’s Paradox will now join other paradoxes such as Zeno’s Paradox. Indeed, members of Congress already use a variation of Zeno’s Paradox to explain their lack of action on civil liberties, torture and Iraq. They seem to be always working toward “change” without actual change occurring. The answer is found in Zeno’s Paradox: You will never reach Point B from Point A as you must always get halfway there, and half of the half, and half of that half, and so on.

Mukasey’s Paradox, if adopted, will result in administration officials being effectively beyond the reach of the law. Yet there is always hope.

Consider that Mukasey took an oath under which he swore to uphold the laws of this country — even if the violator is the president of the United States or his aides. That oath means that all laws must be upheld without exception. Except, according to his interpretation, that executive power is a form of constitutional law that creates exceptions to the enforcement of laws.

But there’s something known as the Exception Paradox, which goes as follows: If there is an exception to every rule, then every rule must have at least one exception, including the rule that there must be an exception to every rule. Thus, perhaps this is a rule without exception, and the president cannot order criminal acts.

But that brings us back to Mukasey’s Paradox. Even if there is no exception to the president ordering crimes, there is no crime because the president ordered it. Perfection.

Los Angeles Times: March 4, 2008
Jonathan Turley