Category: Courts

The Supreme Spin: How The Travel Ban Victory Became A Victory For Critics

Supreme CourtThere was a curious shift that occurred in the 24 hours leading up to the decision of the Supreme Court in  Trump v. Hawaii.  News organizations repeatedly emphasized that the travel ban under consideration was, in the words of CNN, “very different” from the one first issued by the Trump Administration and the current order was much narrower.  It is certainly true that the current travel ban has a slightly different array of countries and a much enhanced record.  Moreover, I was a critic of the poorly drafted and poorly executed original ban. However, it is not true that those differences carried the day with the Court. The two threshold issues remained that same and, until the loss yesterday, challengers maintained that the legal issues had not materially changed.

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Abdicare Decisis: Supreme Court Overturns Its Prior Rulings And Opens Internet Sales To Taxation

Supreme CourtThe Supreme Court overruled its prior decisions in a historic decision this week that will allow politicians to tap into Internet sales with new taxes.  President Donald Trump has praised the decision in allowing Internet sales to be now subject to taxation from all 50 states.  The decision in South Dakota v. Wayfair overturns the prior 1992 ruling in Quill Corp. v. North Dakota (what is it about those Dakotas and Internet taxes?).  South Dakota wanted to take a cut of Internet sales even though these business have no property or employees in the state. To do so, the Supreme Court had to guy its prior requirement of a physical presence in a given state. It just did by a vote of 5-4. The opinion also contains a body blow to the doctrine of stare decisis (“to stand on the decisions”) under which the Court strives to maintain its own prior decisions.  We now have a doctrine of abdicare decisis (“To ignore the decisions).

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Why The IG Report Undermines Mueller’s Obstruction Investigation

Below is my column on the implications of the IG report for the obstruction allegations being investigated by Special Counsel Robert Mueller.  I have previously written how the most likely explanation for actions taken by this Administration will be found in Ockham’s Razor and that theory that requires the least number of assumptions.  The IG report is an example of following such logic rather than assumptions.

 

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Paul Ryan, Censor Deputatus

 

By Mike Appleton, Weekend Contributor 

I’ll admit that I had no idea who was serving as Chaplain of the House of Representatives until the recent controversy over the forced resignation of Fr. Patrick Conroy, S.J. But if someone had told me only that a Catholic priest had just been fired as House Chaplain, I would have guessed that he was a Jesuit.

The Society of Jesus has been a thorn in the side of princes and popes for centuries. Jesuits have been periodically banned by kings and suppressed by the Church, but they have always returned to continue speaking truth to power, inspired by a rich tradition of Ignatian spirituality and a fierce intellectual independence. My own alma mater, Jesuit High School in El Paso, Texas, occupied a campus built by Mexican Jesuits during a period of anti-clerical political repression in Mexico.

While I was still contemplating the meaning of the termination, the resulting political outcry resulted in Paul Ryan’s capitulation to political reality and Fr. Conroy’s reinstatement. But the question remains: what was behind the request for his resignation? The explanation initially provided, that he was not meeting the “pastoral needs” of  his congressional flock, struck me as contrived. Nor did I buy into the excuse that he was a victim of generalized anti-Catholic attitudes among certain House members. The correct answer, I believe, lies behind Fr. Conroy’s own comments that he had been asked to “stay out of politics” following a prayer before the opening of a House session on the then pending tax overhaul bill. The words of that prayer suggest that Fr. Conroy’s sin was primarily theological.

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Justice Department Tells Court That Trump’s Own Admissions Undermine Claims Of Attorney-Client Privilege Over Cohen Material

160px-Official_Portrait_of_President_Donald_Trump_(cropped) I (and many others) have cautioned the President for over a year that his tweets and public comments are underlying his case (and litigation like the immigration challenges) in federal court.  Now the Justice Department has used the President’s latest comments in a call-in to “Fox and Friends” as eviscerating efforts to claim privilege over documents on his behalf in the review of the material seized from his personal lawyer, Michael Cohen.  While opposing counsel like Democratic state attorneys general have used Trump’s comments against his Administration and the Justice Department has struggled to defend against such use, this is the first time that his own Justice Department is using the President’s comments effectively against his interests.  In the meantime, it was revealed yesterday that the FBI seized 16 different cellphones from Michael Cohen.

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SHOULD TRUMP PARDON COHEN?

Below is my column on the question of whether President Donald Trump should pardon his personal lawyer, Michael Cohen.  Cohen has notified a judge in California that he will refuse to answer questions in a case brought by counsel for Stormy Daniels by invoking his Fifth Amendment right against self-incrimination.  President Trump, who has ridiculed people who invoke their Fifth Amendment rights, called into Fox and Friends to

 

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Florida Judge Removed After Posting Of Video Berating Sick Woman In Wheelchair

screen-shot-2018-04-22-at-10-17-03-pm.pngBroward County Circuit Judge Merrilee Ehrlich is facing a torrent of criticism over her berating a defendant who is obviously experiencing serious physical discomfort in the courtroom.  Defendant Sandra Faye Twiggs, 59, complained about her trouble breathing but Ehrlich abused her and her counsel in a tirade on April 15th that has resulted in Judge Ehrlich being relieved of her duties.  It will not be of much relief to Twiggs, who died three days later.  Update: Ehrlich will now be forced into retirement.

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The Curious Case of The Andrew McCabe Legal Defense Fund

Below is my column in the Hill newspaper on the curious timing of a legal defense fund for Andrew McCabe — started and closed before the release of a report on his conduct.  With the sentencing of the first Mueller defendant, Dutch lawyer Alex van der Zwaan, there are obvious questions of why people like Flynn and van der Zwaan should face prison for single false statements while McCabe is accused of lying four times, including twice under oath.  Mueller’s office insisted that anyone who lies to investigators deserves to be sentenced and punished, but that standard appears to change be somewhat fluid when a former high-ranking FBI official is implicated.  Nevertheless, I can certainly understand McCabe’s interest in a legal defense fund given the ongoing IG investigation and addition of a prosecutor to the team.  However, the money was raised before donors could know the full account of the allegations against McCabe. Moreover, McCabe can use this money for any legal needs as he enters private life.

Here is the column:

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The Proposed Mueller Protections Would Achieve Little While Risking Much For Congress

800px-Capitol_Building_Full_ViewBelow is my column in the Hill newspaper on the push for new legislation to Robert Mueller.  I supported the appointment of a Special Counsel and still believe that Mueller must be allowed to complete his work. However, this legislation would do little in terms of real protection while putting at risk a major piece of precedent from the Supreme Court.

Here is the column:

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Sessions Moves To End The Spin Cycle: The Independent Investigation of FBI Allegations Is Long Overdue

jeff_sessions_official_portraitBelow is my column in The Hill newspaper on why a separate and independent investigation of the FBI’s conduct is warranted.  My support for the investigation is not because I believe that criminal charges will likely be brought. Rather, I have never seen our country more divided and I cannot imagine any way for us to get beyond this poisonous political environment without full and complete investigations with public disclosure of the findings.  As I have stated in interviews, I comment Attorney General Jeff Sessions in not only giving this matter to the Inspector General but ordered U.S. Attorney John Huber to assist in the investigation.  The combination of the U.S. Attorney and the Inspector General is likely to expedite the investigation and maximize the options for the Justice Department — including the option reserved by Sessions to eventually order the appointment of a Special Counsel.  Critics of Sessions are missing the import of the joint investigation.  He has selected a line prosecutor from outside of the Beltway to review the conduct of FBI officials, including James Comey and Andrew McCabe. Huber adds prosecutorial experience and powers to the ongoing IG investigation.

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Federal Court Permits Emoluments Challenge To Move Forward

1600_executive_branchA federal judge issued a surprising decision that allowed part of an emoluments challenge to proceed toward trial.  The opinion has been widely misreported, but still represents a rare win for those arguing that President Donald Trump is accepting prohibited payments from foreign governments at the various Trump properties.  However, the decision is only on the threshold standing question and did not address the merits of the constitutional claim.  Moreover, United States District Judge Peter Messitte dramatically narrowed the action to only claims related to the Trump Hotel in Washington, D.C.  These is considerable debate over the meaning of the Constitution’s “emoluments” clause.  There are clearly good-faith arguments that such payments fall within the meaning of the language, but I remain highly skeptical.  Even with the much reduced action, I think Messitte is wrong and that the action should have been dismissed in its entirety.  Previous actions have been dismissed.

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Bad Cases (and Bad Lawyers) Can Make For Bad Law

Below is my column in USA Today on the recent ruling against President Donald Trump in a civil lawsuit where his counsel sought dismissal on constitutional grounds.  It was a weak argument that made bad precedent for the Office of the President.  With yet another change in his legal team, Trump needs to focus on continuity among his legal team.  More lawyers does not necessarily translate to a stronger case. Indeed, it can undermine a case when lawyers are advancing conflicting or reckless arguments.

Here is the column:

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“I’m A F***king Judge”: New Jersey Judge Found Passed Out On Side Of Road and Later Found To Be Legally Drunk . . . But Charges Thrown Out

gavel2Municipal Judge Wilfredo Benitez is at the center of a controversy after he reportedly shouted profanities and cited his judicial position after being found passed out by the side of a road.  Benitez was later found to be intoxicated.  However, his charges were later thrown out by another judge.

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THE EXQUISITE CORPSE: HOW ANDREW MCCABE IS NOW PART OF THE BODY POLITIC

McCabeAt the turn of the last century, surrealists had a parlor game in Paris called “The Exquisite Corpse” where writers would create collective stories by writing lines without knowing what preceded them. The lines were often nonsensical like the line that gave the game its name: “Le cadavre exquis boira le vin nouveau. ” (“The exquisite corpse shall drink the new wine.”) With minutes of his firing, former FBI Deputy Director Andrew McCabe became such an exquisite corpse with various politicians adding lines to his story that seemed entirely disconnected to his story. Former FBI Director James Comey used McCabe to pitch his upcoming book while former Attorney General Eric Holder used him to effectively attack career staff at his former agency. The point of the game in both politics and literature is not to advance a coherent narrative but insert your own lines into a collective story.

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Will Court Challenges Shoot Down The Array Of New Gun Control Law?

h_butoday_Gun_violence
Photo courtesy of the St. Louis Circuit Attorney’s Office via Wikimedia Commons

Below is my column on various proposal for gun control reforms after the latest school massacre in Florida.  As the column discusses, the constitutional burden is more demanding than suggested by many politicians. This is clearly a right that is subject to reasonable limitations but it is an individual constitutional right that affords gun owners a higher protection in the court.

 

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