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Author Topic: Legal issues  (Read 53875 times)
Power User
Posts: 41424

« Reply #150 on: October 13, 2017, 01:30:13 AM »
Power User
Posts: 41424

« Reply #151 on: October 16, 2017, 10:51:24 AM »

The ‘Resistance’ vs. George Washington
If a president can’t take emoluments, the founders were crooks.
Louis XVI in his coronation robes, painted by Antoine Francois Callet (1741-1823).
Louis XVI in his coronation robes, painted by Antoine Francois Callet (1741-1823). Photo: DeAgostini/Getty Images
By Josh Blackman and
Seth Barrett Tillman
Oct. 15, 2017 6:13 p.m. ET

The Trump administration has been under siege from the left’s self-professed “legal resistance.” Perhaps the highest-profile example involves President Trump himself. Several lawsuits allege that his business interests run afoul of the Constitution’s Foreign Emoluments Clause.

The Justice Department has done a good job defending the president’s actions on most issues—but not on this one. The department still has refused to make its strongest argument: that the Foreign Emoluments Clause does not apply to the president. The Trump administration needs to throw out a 2009 opinion from the department’s Office of Legal Counsel that concluded, without any analysis, that the Foreign Emoluments Clause “surely” applied to President Obama. Instead the department should defend the president’s unitary role in the separation of powers—a position the Constitution supports.

The Foreign Emoluments Clause says that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” These lawsuits argue that when foreign dignitaries pay to stay at Trump hotels, they’re putting money in Mr. Trump’s pocket, and such payments constitute an unlawful foreign emolument or a present. But the constitutional clause refers only to persons holding an office under the U.S. The Constitution’s language extends only to appointed positions, not to elected ones.

History backs up this reading. Treasury Secretary Alexander Hamilton set the precedent in 1793: When the Senate requested a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States,” Hamilton’s comprehensive report excluded all elected offices—the president, vice president and members of Congress—but included appointed positions in all three governmental branches.

George Washington accepted, as a diplomatic gift from France, a framed full-length portrait of King Louis XVI. Thomas Jefferson accepted a bust of Czar Alexander I from Russia. Neither president sought Congress’s consent to keep the gifts.

But for some reason the Trump administration continues to stand by the 2009 opinion, drawn up when Mr. Obama was being awarded the Nobel Peace Prize, which came with a $1.4 million award. The Office of Legal Counsel concluded Mr. Obama could accept the money, but the opinion simply assumed the Foreign Emoluments Clause applied to the presidency. It was taken as a given with no citations either to judicial rulings or to the practices established by Washington and other founders.

We have submitted friend-of-the-court briefs in New York, the District of Columbia and Maryland explaining this argument. At a minimum, the historical record should give Justice pause. But ideally the department would abandon the 2009 opinion and argue in court that the president is not governed by this clause. Mr. Trump’s adversaries are arguing that Washington and Jefferson were crooks.

Mr. Blackman is a law professor at the South Texas College of Law of Houston. Mr. Tillman is a law lecturer at Maynooth University, Ireland.
Power User
Posts: 41424

« Reply #152 on: October 16, 2017, 03:00:14 PM »

Gorsuch Joins Court’s Liberals Over Protections for Criminal Defendants
Case explores whether defendants give up all rights to appeal after entering a plea bargain
By Jess Bravin
Oct. 4, 2017 6:23 p.m. ET

WASHINGTON—Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.

Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.

Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.

According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.”

Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.

A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.

A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.

Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked.

“No, your honor,” Mr. Feigin said.

Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.

Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment—but not that those actions necessarily are illegal.

“You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.

Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.

Wednesday’s other case, involving a lawsuit by 16 partygoers alleging they were improperly arrested by Washington, D.C., police, may have been more illuminating about some justices’ personal experiences than their views on constitutional law.

One question involved whether police legitimately could assume from the threadbare décor and detritus on the floor that the partygoers were using a vacant home without permission. Justice Gorsuch, who recently has relocated to the Washington area from Colorado, appeared concerned that could put new tenants in legal jeopardy.

“We all live with folding chairs for a period of time when we move,” he said.

Justice Sonia Sotomayor challenged whether the mess the officers found was legally significant. “What happens during a party? ” she said. “Disarray. So what was different in this disarray from a party? ”

Justice Breyer suggested that the revelers would have no reason to doubt that they lacked the owner’s permission to gather at the house.

“Younger people frequently say, ‘Hey, there’s a party at Joe’s house.’ And before you know it, 50 people go to Joe’s house,” said Justice Breyer, 79 years old. “I would think the people who went over there, whether they knew Joe, heard it secondhand, thirdhand or whatever, are normally, naturally going to think that Joe has a right to the house.”

Justice Kagan questioned whether the alleged presence of marijuana smoke and alcohol indicated criminal activity in the house.

“From the partygoers’ point of view, they just know that Joe is having a big party, and it’s a good time, and—and maybe there will be some liquor and maybe there will be some recreational drugs,” she said.

“There are these parties that once, long ago, I used to be invited to,” she said, to the courtroom’s laughter. “Where you didn’t know the host, but you know Joe is having a party. And can I say that long, long ago, marijuana was maybe present at those parties?” she said.

Decisions in the cases—Class v. U.S., Sessions v. Dimaya and District of Columbia v. Wesby—are expected before July.
Power User
Posts: 41424

« Reply #153 on: October 17, 2017, 01:27:22 PM »

The Citizens United Disaster That Wasn’t
Critics warned that a flood of corporate money would irreparably taint politics. No such thing happened.
Photo: Getty Images
By Floyd Abrams
Oct. 16, 2017 6:56 p.m. ET

When the Supreme Court announced its 2010 decision in Citizens United v. Federal Election Commission, the public condemnation from certain quarters was fierce. The notion that a corporation would spend large sums of money to support or denounce a political candidate struck many Americans as deeply troubling. Some saw the court’s 5-4 ruling, which held that corporate political spending is protected by the First Amendment, as constituting a grave threat to the democratic fabric of society.

“Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests,” Justice John Paul Stevens wrote in a 90-page dissenting opinion. He retired from the Supreme Court at the end of that term and later suggested a constitutional amendment to overturn the ruling.

Many of Citizens United’s harshest critics imagined a nation controlled by multibillion-dollar corporations that would dictate business-friendly legislation to paid-for lawmakers. A New York Times editorial predicted that the ruling would “thrust politics back to the robber-baron era of the 19th century” by allowing “corporations to use their vast treasuries to overwhelm elections.” The Washington Post warned that “corporate money, never lacking in the American political process, may now overwhelm both the contributions of individuals and the faith they may harbor in their democracy.” The San Francisco Chronicle warned that “voters should prepare for the worst: cash-drenched elections presided over by free-spending corporations.”

Since those predictions, two presidential and four congressional elections have come and gone. There’s now solid data, filed with the Federal Election Commission, showing how much money corporations have spent in recent elections. It turns out the apocalyptic forecasts were not just inaccurate but utterly insupportable.

It is true that in the wake of Citizens United many groups sprang up that are permitted to spend unlimited sums supporting or opposing candidates and issues. These so-called super PACs have proved themselves a political force. But the money they have spent since 2010 has not come primarily—or even mostly—from corporations.

Super PACs across the political spectrum raised $1.8 billion between Jan. 1, 2015, and Dec. 31, 2016, according to data analyzed by the Center for Responsive Politics. Of that, $1.04 billion came from individual donors and $242 million from unions, trade associations, politically active nonprofits and other organizations. Only $85 million was contributed by business corporations. The table nearby shows the top 20 donors. Among the Top 40 contributors to super PACs during the 2016 election cycle were eight unions and only one corporation.

These numbers do not include donations to campaigns from corporate political action committees. That money comes not from the corporate treasury but from people employed by the company or otherwise connected to it. In any event, corporate PAC donations are on the small side compared with the numbers above—$1.9 million to presidential candidates in 2008 (before Citizens United), $855,348 in 2012 and $942,116 in 2016.

The data suggest two conclusions. The first was summarized by Brooklyn Law School Professor Joel Gora after the 2012 election: “The predicted wave of corporate financial political intervention never materialized. Of all of the super PAC independent expenditure spending that escalated in the 2012 election, very little of it came from corporate contributions.” That remained true in 2016 and probably will into the foreseeable future.

The second is that corporations remain conservative—with a small “c.” Fear of public disapproval limits their appetite for potential controversy, so they do their best to steer clear of high-profile political entanglements. A comment often attributed to Michael Jordan captures this attitude: “Republicans buy sneakers, too.” The unwillingness of large corporations to offend their actual or desired customers is difficult to overstate.

Despite the bombastic rhetoric and dire predictions, corporations and their vast treasuries have not dominated elections post-Citizens United. In fact, corporations have donated a comparatively small percentage of the money spent in political campaigns since 2010. It would be nice if those who expected a darker world would acknowledge that fact.

Mr. Abrams represented Sen. Mitch McConnell in the Citizens United case and participated in oral argument in the Supreme Court. An extended version of this article will appear as a chapter in “The Free Speech Century,” to be published next year by Oxford University Press.

Appeared in the October 17, 2017, print edition.
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