Category Archives: Law

I fear for america

Yes, there are racists in America. Always have been and always will be.  But William Galston is likely closer to the truth in his analysis that there is something missing in American police organization that will not correctly address the “bad apples”, the bad cops who are the cause of an extremely high percentage of the problems.  And if the Police unions bear some of the blame, they need to own it too.  mrossol

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WSJ 6/3/2020. by William A Galston

Along with millions of Americans, including President Trump, I watched the video in which former Minneapolis police officer Derek Chauvin kneeled on George Floyd’s neck for nearly nine minutes before Floyd died. Although Mr. Chauvin knew he was being recorded, he appeared not to care. He must have believed that he could act with impunity. And why not? The 18 complaints previously filed against him had led to nothing more than two letters of reprimand.

This is part of a larger pattern. Civilians have lodged more than 2,600 complaints against Minneapolis police officers since 2012, the Journal reports. Only 12 have resulted in disciplinary action, and the most severe penalty was a 40-hour suspension from duty. It is hard to believe that the facts underlying so many complaints warranted no more than this.

Rioters Torch the Rule of Law

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Writing in these pages on Monday, Robert L. Woodson, a veteran African-American leader, recalls his work decades ago with the National Black Police Association, which recommended requiring police officers to restrain or even arrest other officers who were using undue force against civilians. “Loyalty and commitment to the rule of law should prevail over loyalty to fellow officers,” Mr. Woodson writes.

This did not happen in Minneapolis last week. The three other officers on the scene did nothing to restrain Mr. Chauvin and said almost nothing to persuade him to alter his conduct. It is hard to believe that they would have behaved this way if Mr. Woodson’s unarguable principle had been an enforceable rule in their department.

In some ways, Minneapolis was ripe for this incident. The city’s income gap between white and African-American households is among the widest in the country. Minorities are significantly underrepresented in its police force. Only 8% of its officers live in the city—almost none in minority communities—compared with a nationwide average of 40%.

Although Minneapolis has had its share of reformist police chiefs and elected officials, change has come haltingly. As in many other cities, the police union has protected its members against discipline and dismissal. The current head of the Police Officers Federation of Minneapolis was named in a racial-discrimination lawsuit brought by a group of black officers, including the city’s current police chief.

Despite its special history, Minneapolis is far from unique, which helps explain the eruption of protests across the country. The U.S. has a pervasive problem. Bolstering federal criminal and civil laws against police misconduct is part of the solution—if the attorney general is committed to enforcing them vigorously. But the bulk of the response must take place at the state and local level, starting with Mr. Woodson’s proposal. And while officers charged with misconduct are entitled to due process, police unions should be deprived of the power to thwart needed disciplinary action.

Sadly, Americans’ response to these episodes has become routinized. We repeat, accurately, that most officers are dedicated public servants doing their best, under difficult conditions, to protect local residents and preserve public order. We insist, as we should, on preserving a bright line between peaceful protest, which is the right of every citizen, and violence against lives and property. And we recognize, rightly, that when arson and looting occur, minority-owned businesses are often the principal victims.

But Americans have been mouthing these sentiments for decades, and nothing has changed. A structural problem requires a structural response. We need one urgently.

I have long regarded 1968 as the worst year for America since the Civil War. The assassination of Martin Luther King Jr. and the violent protests it sparked; the killing of Robert F. Kennedy and the Democratic Party’s subsequent self-immolation at the Chicago convention; intensifying controversy over the Vietnam War, which divided classes and generations; George C. Wallace’s racist and populist presidential campaign, which garnered 13.5% of the popular vote and 46 electoral votes—these were but some of the milestones in that annus horribilis.

April 1968. Smoke was billowing in the distance—from the South Side—as I drove in Chicago, where I was a student at the time. I remember saying to myself: It can’t get worse than this. For more than half a century it didn’t—until now. A health crisis, an economic crisis, and a racial crisis have converged to produce a clear and present danger to American democracy. U.S. enemies abroad cannot contain their glee; America’s friends regret our plight—and fear for the future of a world order that was built on a foundation of American power, principles and persistence.

Adam Smith famously remarked that there is “a lot of ruin in a nation.” But there are limits, and we are testing them. Previous crises have always summoned the leadership the U.S. needed. Will our current crisis do the same? I’m not sure. I fear, as never before, for the future of my country.

https://www.wsj.com/articles/ive-never-been-so-afraid-for-america-11591139729?mod=opinion_featst_pos3

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Judge Sullivan: Beyond the Pale

5/15/220 – WSJ.

In his zeal to convict Michael Flynn of something, federal Judge Emmet Sullivan is harming his own reputation. He’s also violating the law, as he’d know if he had read Supreme Court Justice Ruth Bader Ginsburg’s opinion last week overturning the Ninth Circuit Court of Appeals.

On Wednesday Judge Sullivan appointed an ex-judge to explore whether former Mr. Flynn should be held in criminal contempt for perjury even though prosecutors have sought to drop the charges against the former national security adviser. The relevant case is U.S. v. Sineneng-Smith, in which the Supreme Court reversed a Ninth Circuit ruling striking down a criminal statute involving immigration as unconstitutionally overbroad. The case was overturned because instead of adjudicating the issues raised by the parties, the Ninth Circuit panel invited outside groups to brief them about a defense the defendant never raised.

This is akin to what Judge Sullivan is trying to do with Mr. Flynn by asking outside parties to make new arguments for prosecution—and even appointing former judge John Gleeson, who has shown clear public bias (in an op-ed) against Mr. Flynn, to make the case. Judge Sullivan’s abuse is more egregious given that the real prosecutors now say they don’t believe they can honestly prosecute Mr. Flynn.

Justice Ginsburg’s argument is that the job of judges is to judge, not to substitute for prosecutors. As she wrote in a 2008 case, in our system of justice “courts follow the principle of party presentation, i.e., the parties frame the issues for decision and the courts generally serve as neutral arbiters of matters the parties present.” Last week in Sineneng-Smith, she wrote that “the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion.”

The 9-0 ruling doesn’t bode well for Judge Sullivan on appeal, and it makes us wonder if in his rage at the prosecution he has lost his legal, and maybe emotional, bearings. Judge Sullivan is acting like Justice Ginsburg said the Ninth Circuit judges did: “beyond the pale.”

Source: Judge Sullivan vs. Justice Ginsburg – WSJ

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The Vindication of Michael Flynn

“If they [bad political, partisan actors] can do it to an honorable Army general, they can do it to you.”  I applaud this result, but my paranoia remains.  There remains much house cleaning yet to be done in the FBI and Justice Department.   mrossol

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WSJ  –  5/12/2020

The Justice Department dropped its case against Michael Flynn on Thursday, “with prejudice,” in a legal filing that should echo far beyond this tragedy of justice delayed. The latest evidence further undermines the credibility of James Comey’s FBI, special counsel Robert Mueller, and the entire “Russia collusion” investigation.

The retired Army general had initially pleaded guilty to making false statements to the FBI on Jan. 24, 2017, when two agents interviewed him at the White House shortly after he took over as Donald Trump’s national security adviser. But he later reversed his plea as new information emerged that the FBI may have tried to entrap him.

The documents filed on Thursday in federal court vindicate the general’s reversal. Justice said the FBI’s interview of Mr. Flynn was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” and that the interview was not “conducted with a legitimate investigative basis.”

We recommend the filing for readers who think this couldn’t happen in America. The filing recounts how the FBI had concluded in late 2016 that there was no evidence that Mr. Flynn had colluded with Russia. But the FBI kept the investigation open after it received a transcript of Mr. Flynn’s conversation with the Russian ambassador to the U.S.

Mr. Comey and his loyalists then set up Mr. Flynn in an interview despite having no legal basis. The documents show that Mr. Comey told his deputies not to inform the White House general counsel of the visit and not to tell the White House about his conversation with the ambassador. They also show that Mr. Comey worked around senior Justice officials, including Acting Attorney General Sally Yates, who thought the White House should be informed. As he did with Attorney General Loretta Lynch on Hillary Clinton’s emails, Mr. Comey acted as if he was a law unto himself.

At the time the agents admitted they did not think Mr. Flynn was lying to them. But as the Justice filing notes, without a legitimate investigative purpose, whether Mr. Flynn was lying was immaterial. He should never have been prosecuted.

Yet Mr. Mueller, who knew all this soon after becoming special counsel, pursued Mr. Flynn, threatening him and his son with ruin until he got the guilty plea. The prosecutor on the case, Brandon Van Grack, was part of Mr. Mueller’s team and consistently denied there was relevant material the government had not turned over to the defense.

But surely the lack of a legal predicate for the interview was exculpatory. Mr. Van Grack told the court Thursday he is withdrawing from the case, but an investigation is warranted to see if he lied to the court. Mr. Mueller’s reputation also stands self-besmirched, and the entire Russia collusion probe looks even more illegitimate and political.

All of this came to light after Attorney General Bill Barr assigned another U.S. Attorney, Jeffrey Jensen, to look at the Flynn case anew. The partisan press will portray this as a political decision done to please Mr. Trump. But Mr. Jensen is a long-time veteran of Justice and the FBI. He is not someone who would seek to damage those institutions for political purposes.

Mr. Jensen put it this way in a statement Thursday: “Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case. I briefed Attorney General Barr on my findings, advised him on these conclusions and he agreed.”

Messrs. Jensen and Barr deserve credit for a brave decision that will not be popular with some prosecutors and certainly not with the Democratic media. But as the filing notes, the cause of justice is paramount, even after a guilty plea has been made, if the evidence demands a reversal.

There is still much we don’t know, and many Russia-related documents we still do not have, and we hope Mr. Barr will continue to make them public as he cleans up after one of the most shameful episodes in FBI and Justice Department history. For now, at least Michael Flynn can get his life and reputation back.

Source: The Vindication of Michael Flynn – WSJ

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Lawyers against Free Expression

How blatant does it need to be??

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WSJ 5/6/20

Judicial Code of Misconduct

Here’s one for the books: The ethics committee that wants to bar judges from belonging to the Federalist Society because it is supposedly too political is now being used as a political weapon against a judicial nominee. Let’s unspool the political skulduggery. In January we told you about the draft advisory opinion by the Committee on Codes of Conduct of the U.S. Judicial Conference. The committee, composed of 15 or so judges, sets ethical guidelines for the judiciary. The committee had circulated a draft that reversed decades of policy by saying judges shouldn’t belong to the Federalist Society or American Constitution Society (ACS).

The draft offered a phony political balance because the Federalist Society leans right and ACS was created as a liberal counter to the Federalist Society. But the ACS plays an active role in political issues while the Federalist Society avoids taking sides on policy and doesn’t file amicus briefs. The Federalist Society is composed of chapters, notably at law schools, that host debates and panels on legal issues that often include giants of the legal left.

Our editorials echoed in the judicial community, which has responded with what we’re told are more than 70 letters to the Codes of Conduct Committee. The vast majority oppose the advisory draft. A March 18 letter was signed by 210 judges, including such lions of the judiciary as José Cabranes of the Second Circuit Court of Appeals and district court judges Richard Leon and Royce Lamberth of the D.C. Circuit.

We believe the exposure draft conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences,” the judges write. “The circumstances surrounding the issuance of the exposure draft also raise serious questions about the Committee’s internal procedures and transparency. We strongly urge the Committee to withdraw the exposure draft.” That’s what we call feedback.

But here’s the rub. One of the signers is Justin Walker, a district court judge in Kentucky whom Donald Trump has nominated to fill a vacancy on the D.C. Circuit Court of Appeals. The political left is trying to stop Judge Walker’s confirmation, and his Senate hearing is scheduled for this week. In what is no coincidence, the letter signed by Judge Walker was leaked Sunday to the New York Times.

Here’s how the daily diary of the judicial left spins the letter: “As the Senate this week considers elevating a politically connected judge to an influential federal appeals court, the judge has stepped into a fierce ideological debate about a legal group shaping President Trump’s rightward overhaul of the judiciary.

“The judge, Justin Walker of the U.S. District Court in Kentucky, has joined more than 200 federal judges—a majority of them appointed by Mr. Trump—in signing a letter that defends their right to be affiliated with the group, the Federalist Society.” The horror. The horror. A judge who belongs to the Federalist Society, as dozens of others do, signed a letter defending membership in the group. The story rolls through the usual fantasy political offenses of the Federalist Society and, inevitably, calls on the Senate’s main antagonist of conservative judges, Sheldon Whitehouse (D., R.I.) for an above-the-fray, fair-minded, thoughtful comment. Or not.

Reports the Times: “‘The Federalist Society has become so significant in the judicial selection process,’ Mr. Whitehouse said in an interview. ‘That is a particularly noxious role for an organization that has judges as its members.’” The Times did not report that Mr. Whitehouse has a friend and long-time legal collaborator who contributed to the Codes of Conduct draft. His name is John McConnell, a former Rhode Island plaintiff lawyer who is now a federal district court judge. The main Senate sponsor of Judge McConnell’s nomination? Sheldon Whitehouse.

We don’t know who leaked the judges’ letter, and many people saw it. But the leaker set up the Times reporters to spin the story as an attack on Judge Walker days before he is scheduled to appear before the Senate Judiciary Committee. Mr. Whitehouse is on Judiciary.
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All of this raises even more doubts about the fairness and transparency of the Codes of Conduct Committee’s deliberations and advisory draft. As the letter from the 210 judges puts it: “Yet reports suggest that no member of the Committee was permitted to dissent, despite some members’ strong disagreement with the exposure draft. Other reports suggest that at least one member of the Committee was barred from voting on the draft. And the Committee’s reversal of its prior, settled interpretation— without any relevant change in the Code—raises further concerns.”

We’ll be blunter. This ethics committee is being manipulated unethically to stigmatize the Federalist Society and now to defeat a judicial nominee. Chairman Ralph Erickson, a judge on the Eighth Circuit, has let his committee be used. If he lets the draft become formal policy, even when it is opposed by so many judges, he will have turned the committee into precisely the politicized body his draft claims to dislike.

What an embarrassment—to Judge Erickson, to the Judicial Conference, and perhaps to the entire judiciary if the committee accedes to Sheldon Whitehouse’s agenda. Chief Justice John Roberts is the official head of the Judicial Conference, and he should call Judge Erickson and tell him to kill this draft forthwith.

Source: The Wall Street Journal

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