Law

The two Martin Luther King Jrs

Featured image Today being Martin Luther King’s birthday, I took time off from thinking about the dossier/s***thole and read an essay written for the Heritage Foundation by Peter C. Myers: “The Limits and Dangers of Civil Disobedience: The Case of Martin Luther King, Jr.” I recommend it. Myers argues: (1) America’s founding principles of natural rights and the rule of law permit the practice of civil disobedience narrowly conceived. (2) American civil »

Comey speaks

Featured image The FBI’s counterintelligence investigation of alleged Trump campaign “collusion” with Russia has now been taken over by Special Counsel Robert Mueller. The investigation seems to have involved abuse of the Foreign Intelligence Surveillance Act in general and section 702 in particular, under which the National Security Agency’s warrantless surveillance program operates. Under the leadership of James Comey, the FBI appears to have conducted wayward surveillance of the Trump campaign. If »

Defer this

Featured image Yesterday Judge William Alsup entered an order preliminarily enjoining the Department of Homeland Security against enforcing the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program implemented by the Obama administration. Judge Alsup is a Clinton appointee to the United States District Court for the Northern District of California. It seems to me that Judge Alsup’s order is of a piece with the other lower federal courts »

Up from Google

Featured image James Damore is the former Google employee who famously expressed heterodox thoughts while in the employ of the company. Represented by Harmeet Dhillon, Damore and David Guteman filed a class action lawsuit against Google yesterday in California state court under various provisions of California employment law. FOX News reports briefly on the lawsuit here, CNN here, and TechCrunch here. Putting the merits of the lawsuit to one side, and the »

Does Comey need the Comey defense?

Featured image Former Assistant United States Attorney Andrew McCarthy is a natural teacher. In his current NRO column, he gives a short course on the intent element of criminal statutes. All our criminal laws set forth the elements of an offense. The intent element of a given crime (oversimplified, the intent to perform a given act) is to be distinguished from motive (the reason for performing the act). In his July 2016 »

Manafort’s complaint [updated]

Featured image Yesterday Paul Manafort filed a lawsuit against the Department of Justice, Deputy Attorney General Rod Rosenstein, and Special Counsel Robert Mueller. In the lawsuit, among other things, Manafort seeks to have the actions taken against him by Mueller set aside as beyond his authority. Politico has posted a copy of Manafort’s Complaint here. I won’t comment on the merits of the lawsuit before the defendants respond and its substance is »

Fear & loathing at the DoJ: Andrew McCarthy comments

Featured image There is no one whose opinion I wanted more than that of former Assistant United States Attorney Andrew McCarthy on “Fear and loathing at the DoJ.” He knows what he is talking about. I am grateful that he took the time to read the post, watch the video of Howard Root’s account of the criminal case against him (Howard, that is), and comment via Twitter (below). Andy’s tweet to his »

Fear & loathing at the DoJ

Featured image In the memoir Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit List (written with Stephen Saltarelli), Howard Root tells the story of his experience as chief executive officer of Vascular Solutions caught in the crosshairs of the federal government when prosecutors sought to put his company out of business and to send him to the big house. Howard touched on one aspect of his story in »

A framework for analyzing the Colorado wedding cake case

Featured image Listening to the oral argument before the Supreme Court in the wedding cake case, it struck me how artificial the discussion was. Much of it centered on whether and under what circumstances cakes are speech. Bizarre. I don’t blame the advocates or the current Justices for the content of the argument. They must be mindful of Supreme Court precedents whether or not, as a practical matter, they fit this case »

An encouraging oral argument in the Colorado cake case

Featured image The Supreme Court heard oral argument today in the Colorado cake maker case. The issue is whether Colorado can coerce a baker, Jack Phillips, into making a custom cake for a gay wedding when he objects to gay marriage on religious grounds. It quickly became apparent that, to no one’s surprise, Justice Kennedy’s vote will likely decide the case. The questions Kennedy asked created some discomfort for both sides, but »

The left clings to power at the CFPB

Featured image The Consumer Financial Protection Bureau (CFPB) is the federal agency that’s supposed to protect consumers in the financial sector. It was created by the Dodd-Frank Act. The CFPB’s director heads the agency free from presidential supervision. Given the CFPB’s broad authority over the U.S. economy, the director “enjoys significantly more unilateral power than any single member of any other independent agency.” So said the U.S. Court of Appeals for the »

The administrative state revisited

Featured image As it wound up its 2017 National Lawyers Convention this past Saturday, the Federalist Society convened an all-star panel to discuss administrative agencies and the separation of powers. Newly minted Eleventh Circuit Judge Kevin Newsom served as the panel’s moderator. The panel of law professors included Boston University’s Gary Lawson, the author of a classic article on administrative law, and Columbia University’s Philip Hamburger, author of (in my estimation) the »

D.C. anti-Trump rioters hide behind bogus free speech claims

Featured image The Washington Post reports on the trial of six defendants who are charged with what the Post calls the “fiery, glass-shattering civil disturbance on President Trump’s Inauguration Day.” (“Fiery” as in setting fires). The trial began today. The Post story was written after jury selection but before the opening statements and the presentation of evidence. The defendants face felony charges of inciting a riot and destruction of property. Each offense »

Linda Greenhouse freaks out

Featured image Linda Greenhouse, the former Supreme Court reporter for the New York Times, is often wrong but never in doubt. These days, she has no doubt that “we’re all living in Sheriff Joe [Arpaio] country now.” How so? Because of the Trump administration’s position on whether a 17 year-old illegal immigrant in federal custody can obtain an immediate abortion on demand. A three-judge panel ruled, in a 2-1 decision, that the »

Should Boalt Get the Boot?

Featured image Lawyers will know that U.C. Berkeley’s law school has long been known as Boalt Hall, named for John Boalt, a prominent 19th century California lawyer whose estate donated the money for Berkeley to start a law school way back in 1906. But there’s a problem: it seems Mr. Boalt harbored some racist views, in particular against the Chinese. You can read a paper Boalt delivered in 1877 entitled “The Chinese »

Judge refuses to dismiss case against Menendez

Featured image The bribery case against U.S. Senator Bob Menendez will proceed, and eventually be resolved by a jury, the trial judge ruled today. Judge William Walls rejected a motion by the defense to dismiss the charges against Menendez. A few days ago, it looked like the defense motion would succeed. Judge Walls initially indicated a willingness to accept Menendez’s position that the prosecution’s bribery case cannot withstand the Supreme Court’s decision »

Have Trump’s tweets aided the kneelers’ legal position?

Featured image The Washington Post wants to create that impression. Its story on the subject is called (in the paper edition): “Trump may have bolstered kneelers’ legal position.” No sound argument supports this notion. The Post’s Tracy Jan who, according to the paper “covers the intersection of race and the economy,” peddles the view that Trump’s talk about revoking the NFL’s tax breaks means that the government is now infringing free expression. »