Officials in Santa Barbara County, California, wanted to
start reopening the local economy as the state’s coronavirus epidemic began to
ease. But they had a problem.
This coastal county, known for its vineyards and stunning
ocean views, is also home to the Lompoc Federal Correctional Complex, which
of the country’s largest COVID-19 outbreaks in a prison. Nearly 1,000
prisoners have tested positive. Two have died.
California’s governor had set clear requirements for
counties to emerge from lockdown. The prison outbreak made it hard for Santa
Barbara to meet those standards. So local officials proposed a solution: Don’t
count the prisoners.
“The individuals in the Lompoc prison are not out in the
community, so it’s really a whole separate population,” said Suzanne Grimmesey,
a county spokeswoman.
Some advocates for prisoners called the decision to exclude
the cases problematic, raising concerns that the move could reduce political
pressure to address the COVID-19 crisis behind bars. They were also dubious
about the idea that prisons are separate from the larger community, noting that
staff come and go each day.
“It's a fiction,” said Kate Chatfield, a senior advisor at
the Justice Collaborative, a criminal justice advocacy group. “The virus
doesn’t stay within the walls of the prisons, as we know.”
If the case involving retired Army Gen. Michael Flynn wasn’t
already unconventional, it has now gotten downright weird.
The procedural posture of Flynn’s case is anything but your
run-of-the-mill federal prosecution. First, the defendant was the president’s
national security adviser. Flynn, the third highest-ranking adviser to the
president, pleaded guilty. Then he fired his legal team and asked to withdraw
Flynn admitted, under oath in open court, to lying during an
FBI interview on Jan. 24, 2017, four days after taking office. The lies
regarded conversations Flynn had with the Russian ambassador about not escalating
hostilities over sanctions imposed by the Obama administration.
The prosecution had won a conviction. Then the Justice
Department, more aptly prosecutors and the defense, asked for the charges
against Flynn to be dropped. The judge deferred a decision on the request.
Just when things couldn’t get any stranger, the judge hired
an attorney to respond to an appeal by Flynn, and appointed a retired New York
federal judge to argue against the Justice Department’s request to dismiss
Flynn’s charges—a sort of advocatus diaboli for the court.
The presiding judge, U.S. District Judge Emmet G. Sullivan,
delayed a decision on the motion to dismiss the charges so he could hear his
appointed advocate, former federal judge John Gleeson, and other public groups
who intended to argue against the Justice Department’s request to drop the
The U.S. District Court of Appeals for the District of
Columbia is now examining Judge Sullivan’s actions. To that end, the judge has
retained Attorney Beth Wilkinson to represent him in defending his decision to
the appeals court in Washington, according to the Washington Post. Gleeson has
proposed that Judge Sullivan allow the government and outside groups to respond
after he files his argument.
There are more than a few outside groups who want to
weigh-in on the matter. The first group, comprised of nearly 1,000 former
Justice Department prosecutors, has accused Attorney General William Barr of
protecting the president’s interests over the interests of the nation. The
prosecutors, who have served the last 11 presidential administrations, argued
in a brief to the court that Barr violated his oath to faithfully execute the
According to news reports, attorneys with the nonpartisan,
nonprofit group Protect Democracy have submitted a brief suggesting that
Supreme Court precedent gives Sullivan authority to undertake “a searching
review” of Flynn’s case and to “protect the public interest in the evenhanded
enforcement of our laws.”
With regard to Attorney Wilkinson she is no demagogue. She
represented Justice Brett M. Kavanaugh during his tumultuous confirmation. She
also represented a longtime confidant of Hillary Clinton during an
investigation into whether then-Secretary Clinton mishandled classified
information by using her personal email.
Wilkinson will help guide Judge Sullivan as the U.S. Court of Appeals reviews
whether Sullivan overstepped his authority.
The appeals court set a June 1 deadline for Sullivan to
respond to a petition from Flynn’s lawyers that seeks the immediate dismissal
of the case.
Stuart M. Gerson, who served as assistant attorney general under President
George H.W. Bush and as acting attorney general early in the Clinton
administration, recently wrote in the Washington Post, “It’s not uncommon for a
court to appoint an outside lawyer to argue a case in lieu of the government
when circumstances call for that approach.”
Some have suggested that Gleeson, Judge Sullivan’s
court-appointed advocate, is biased.
Gerson contends, “However “biased” he [Glesson] might be in
opposing the motion to dismiss, is he any less biased than whatever lawyer the
Justice Department will send to argue in favor of ending the prosecution?
Indeed, rephrase that so-called bias as “zealous advocacy,” something that the
legal profession’s code of professional responsibility requires of counsel.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter at @MatthewTMangino.
Tensions between President Trump and Twitter escalated as he threatened to "strongly regulate" or shut down social
media platforms, which he accused of silencing conservative viewpoints, reported NPR.
Trump's threats come one day after Twitter, for the first
time, added a fact-check
warning to a pair of his tweets. In them, Trump claimed without
evidence that mail-in ballots are fraudulent.
"Republicans feel that Social Media Platforms totally
silence conservatives voices," Trump
tweeted on May 27, 2020. "We will strongly regulate, or close
them down, before we can ever allow this to happen. We saw what they attempted
to do, and failed, in 2016. We can't let a more sophisticated version of
that.... happen again."
Twitter declined to comment on the president's threats.
It's unclear what Trump could do to crack down on social
media platforms, but the power of Silicon Valley tech giants has been the
subject of investigations by
federal and state agencies, as well as congressional hearings.
University of Miami Law Professor Mary Anne Franks said the
president has little legal recourse against Twitter's decision to fact-check
his posts because the company has the right to set and enforce its own rules.
"Can a public official try to regulate or to shut down
a private entity on the basis of not liking what they did?" she said.
"No, that would be exactly what the First Amendment protects us against.
That's the great irony of this."
Twitter labeled two of President Donald
Trump’s tweets with a fact-check warning for the first time,
prompting the president to accuse the platform of “stifling free speech,” reported The Huffington Post.
The social media platform applied the tag on two of Trump’s tweets that made claims, without evidence, that
voting with mail-in ballots would be “substantially fraudulent.” The labels say
“Get the facts about mail-in ballots” and direct users to a collection of news
reports and articles debunking the tweets.
Near the top of Twitter’s fact-check page, a statement
reads: “Trump falsely claimed that mail-in ballots would lead to ‘a Rigged
Election.’ However, fact-checkers say there is no evidence that mail-in ballots
are linked to voter fraud.”
The president has ramped up his attacks to discredit the integrity of mail-in
voting in recent weeks, despite substantial evidence to the contrary.
Twitter spokesperson Katie Rosborough said the tweets were
labeled because they contain “potentially misleading information about voting
processes and have been labeled to provide additional context around mail-in
The Coronavirus has ushered in a steep drop in major crimes, reported the New York Times.
“The dynamics of street crimes, of street encounters, of
human behavior are changing because people are staying home,” said Philip M.
Stinson, a former police officer turned criminal justice professor at Bowling
Green State University.
Crime, say those who study it and those who fight it day to
day, requires three things — a perpetrator, a victim and an opportunity.
With tens of millions of Americans off the streets, would-be
victims and opportunities for crimes have vanished, causing a drop in the
number of perpetrators committing infractions. The dip in crime is compounded
by the fact that some police departments have been hampered by quarantines, or
have made fewer arrests to limit interactions or to avoid filling the jails.
Arrests in Chicago, where the Cook County jail became one of the nation’s largest-known virus hot spots, were down more
than 73 percent during roughly the initial month of the lockdown, said Deputy
Chief Thomas Lemmer of the Chicago Police Department.
Crime did not entirely disappear, of course, and some of the
worst offenders remained undeterred. Homicides in numerous cities remained flat
or even rose.
Not so fast, Chicago’s Memorial Day weekend was the deadliest in five
years, with 10 people killed and 39 wounded, said Sally Bown, a spokeswoman for
the city’s police department. Temperatures were in the 80s, she noted, and even
without a lockdown, warm weather tends to send people outdoors and drive up
crime rates. According to The Crime Rport, violence on Memorial Day weekend is not a new phenomenon.
At the beginning of Memorial Day weekend — the unofficial
start of summer — Chicago Police Superintendent David Brown announced opening a
Summer Operations Center to centralize police resources in an effort to tamp
down on summer gun violence. The most recent fatal shooting was Monday evening
in Garfield Park on the West Side. Two men, 45 and 52, were standing on the
sidewalk about 8:30 p.m. when someone in a white sedan fired shots. On Sunday
afternoon, a person was fatally shot in Rosemoor on the South Side. Sunday
morning, a man was killed in Humboldt Park on the Northwest Side. A 45-year-old
man was killed several hours before that in Grand Crossing on the South Side.
The newspaper detailed a string of other shootings.
"Fourscore and seven years ago our fathers brought
forth on this continent a new nation, conceived in liberty and dedicated to the
proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether
that nation, or any nation so conceived and so dedicated, can long endure. We
are met on a great battlefield of that war. We have come to dedicate a portion
of that field as a final resting-place for those who here gave their lives that
that nation might live. It is altogether fitting and proper that we should do
this. But, in a larger sense, we cannot dedicate — we cannot consecrate — we
cannot hallow — this ground. The brave men, living and dead, who struggled here
have consecrated it, far above our poor power to add or detract. The world will
little note, nor long remember what we say here, but it can never forget what
they did here. It is for us the living, rather, to be dedicated here to the unfinished
work which they who fought here have thus far so nobly advanced. It is rather
for us to be here dedicated to the great task remaining before us — that from
these honored dead we take increased devotion to that cause for which they gave
the last full measure of devotion — that we here highly resolve that these dead
shall not have died in vain — that this nation shall have a new birth of
freedom and that government of the people, by the people, for the people, shall
not perish from the earth."
The New York Times has written about a group of Democrats and some Republican brainstorming on what could be called political doomsday scenarios. Things like, President Trump declaring a state of emergency in
major cities in battleground states, like Milwaukee and Detroit, banning
polling places from opening.
How about Attorney General William P. Barr, a week before the election, announcing a criminal investigation into the Democratic presidential nominee,
Joseph R. Biden Jr.
Or, after Mr. Biden wins a narrow Electoral College victory, Mr.
Trump refuses to accept the results, won’t leave the White House and declines
to allow the Biden transition team customary access to agencies before the Jan.
Far-fetched conspiracy theories? Not to a group of
worst-case scenario planners — mostly Democrats, but some anti-Trump
Republicans as well — who have been gaming out various doomsday options for the
2020 presidential election. Outraged by Mr. Trump and fearful that he might try
to disrupt the campaign before, during and after Election Day, they are engaged
in a process that began in the realm of science fiction but has nudged closer
to reality as Mr. Trump and his administration abandon longstanding political
“In the eight to 10 months I’ve been yapping at people about
this stuff, the reactions have gone from, ‘Don’t be silly, that won’t happen,’
to an increasing sense of, ‘You know, that could happen,’” said Rosa Brooks, a
Georgetown University law professor. Earlier this year, Ms. Brooks convened an
informal group of Democrats and never-Trump Republicans to brainstorm about
ways the Trump administration could disrupt the election and to think about how
to prevent it.
But the anxiety is hardly limited to outside groups.
Marc Elias, a Washington lawyer who leads the Democratic
National Committee’s legal efforts to fight voter suppression efforts, said not
a day goes by when he doesn’t field a question from senior Democratic officials
about whether Mr. Trump could postpone or cancel the election. Prodded by
allies to explain why not, Mr. Elias wrote a column on the subject in late March for his
website — and it drew more traffic than anything he’d ever published.
But changing the date of the election is not what worries
Mr. Elias. The bigger threat in his mind, he said, is the possibility that the
Trump administration could act in October to make it harder for people to vote
in urban centers in battleground states — possibilities, he said, that include
declaring a state of emergency, deploying the National Guard or forbidding
gatherings of more than 10 people.
Such events could serve to depress or discourage turnout in
pockets of the country that reliably vote for Democrats.
“That to me is that frame
from which all doomsday scenarios then go,” he said.
The pandemic has altered the way justice is meted out in
courtrooms across the country. While courts have tried to be innovative, video
conferencing and closed courtrooms are not what the founding fathers had in
mind when drafting the Bill of Rights.
No amendment to the Constitution has been trampled on, in
the name of public health, more than the Sixth Amendment.
The Sixth Amendment provides, “In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial
jury ... be confronted with the witnesses against him ... and to have the
assistance of counsel for his defense.”
In 1932, the U.S. Supreme Court ruled that the U.S.
Constitution required defendants in capital cases be given access to counsel
Ten years later the court refused to extend the right to
counsel to criminal charges other than capital murder. The court held that a
refusal to appoint counsel for an indigent defendant charged with a felony did
not violate the U.S. Constitution.
In the landmark case of Gideon v. Wainwright, the court
found that a person accused of a serious crime was entitled to free legal
Today, courthouses are closed - public defenders and
prosecutors have been furloughed and judges are on call. The right to counsel
is being tested across the country. Having access to counsel is fundamental.
The aid of counsel helps preserve all the other protections
provided by the Sixth Amendment.
For instance, the Sixth Amendment also provides that those
accused of a crime are entitled to a speedy and public trial by a jury of their
peers. Unfortunately, those clearly established rights have been set aside by
governors and judges for the sake of protecting the public from a highly
Jury trials have essentially disappeared in this era of
COVID-19. Certainly, there is concern that 12 jurors sitting side by side for
days or being housed for an extended period of time in a room deliberating a
verdict is a legitimate health risk. However, men and women accused of crime
have a right to be heard in a timely manner.
The matter is further complicated by the fact that some of
those accused of a crime are sitting in jail awaiting trial. Their lives are at
risk as well. Hygiene is at a premium and social distancing is a utopian idea
The Sixth Amendment also provides that those accused of a
crime have the right to “be confronted with the witnesses against him.”
This is where innovation has complicated matters. Many
courts have adopted measures to deal with emergency criminal cases. For
instance, some courts have adopted the use of video conferencing to deal with
bond hearings, preliminary hearings and other time sensitive matters when an
accused is sitting in jail awaiting trial.
Cross-examining witnesses through video conferencing can be
challenging, especially when the judge, witness and lawyers are all in
different locations. When the Constitution provided that an accused has the
right to confront witnesses - that confrontation was in person.
When a lawyer and her client are in two different locations,
communication with the client during the proceeding is impossible. The
Defendant can simply not aid in her defense.
Even after the pandemic - what is done today will have an impact for years to
come. Every proceeding in court is transcribed. The reason to transcribe a
proceeding is to create a record of the testimony and evidence that is
presented to the court for possible review on appeal.
In our new world of virtual justice, if counsel objects to
specific testimony, often the witness continues to talk, conveying evidence to
the court that might have not have otherwise been admissible.
Creating a good record with remote witnesses is very
difficult. Counsel, witnesses and even judges can at times talk over one
another. Creating a clear record for appeal is going to be a daunting task.
What is the big deal?
The Sixth Amendment protects those who have been accused of a crime -
not convicted. Protecting the public from the transmission of COVID-19 is a
laudable goal, but trampling on the U.S. Constitution to do it is risky
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book “The Executioner’s Toll, 2010” was released by McFarland
Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter at @MatthewTMangino
To visit the column CLICK HERE
The Florida Supreme Court reversed its previous
ruling allowing any death row inmate to challenge a sentence based on a higher
standard for determining whether they are intellectually disabled, reported The Associated Press.
The decision marked the second time this year that the
new-look court overturned one of its own decisions on the death penalty.
The court reversed a previous decision that allowed
retroactively applying a U.S. Supreme Court ruling that said Florida couldn’t
base the determination of a condemned prisoners intellectual disability
strictly on an IQ test because there is a margin of error.
The latest decision a 4-1 Florida ruling said that the state high
court previously made the mistake of making the issue retroactive, and thus
Harry Phillips can’t make the case that his death sentence should be converted
to life because he is intellectually disabled.
Phillips was sentenced to death for the 1982 murder of
parole supervisor Bjorn Thomas Svenson in Miami. A prior claim that he was
intellectually disabled was denied, but that was when Florida law set an IQ of
70 or below as the definition of intellectually disabled.
In 2002, the U.S. Supreme Court ruled that executing the
intellectually disabled violates the Constitution’s ban on cruel and unusual
punishment. But until the 2014 ruling, it let states decide how to determine if
condemned prisoners were disabled.
The U.S. Supreme Court ruled on a Florida case in 2014 that
because of a margin of error of five points, condemned individuals with IQ
scores up to 75 points could challenge a death sentence using other factors to
determine their disability.
In 2016, the state Supreme Court allowed a condemned
prisoner to get a new sentencing hearing based on the U.S. Supreme Court
decision. Now, the court says that was a mistake because cases decided before
the 2014 U.S. Supreme Court shouldn’t be retroactive. The decision drew a sharp
rebuke from Florida Justice Jorge Labarga.
“Yet again, this Court has removed an important safeguard in
maintaining the integrity of Florida’s death penalty jurisprudence,” Labarga
wrote in his dissenting opinion. “The result is an increased risk that certain
individuals may be executed, even if they are intellectually disabled.”
The Florida Supreme Court also reversed itself in January
with a ruling saying it was wrong when it said a jury must be unanimous in
deciding a convicted murderer should be sentenced to death. It was dramatic
legal reversal potentially affecting dozens of death row cases.
The composition of the Florida high court has gone from
leaning liberal to firmly conservative. Three liberal justices on the
seven-member court were forced to retire because of age limits on the same day
Republican Gov. Ron DeSantis took office in January 2019. That gave DeSantis
the opportunity to appoint three conservative judges. Two of those justices
have since been appointed to a federal appeals court and were not part of
Thursday’s 4-1 decision.
This week, a federal judge on denied requests
by defendants to stay proceedings in a civil
case in which President Donald Trump, three of his children and his
company are accused of participating in a scheme to defraud investors, reported Jurist.
The civil complaint,
brought by unnamed plaintiffs who were among a potential class of plaintiffs,
alleges that The Trump Corporation, President Trump, Eric Trump, Donald Trump
Jr. and Ivanka Trump, received millions in secret payments between 2005 and
2015 from a multilevel marketing company called ACN. The complaint alleges that
President Trump falsely told prospective investors that his endorsement was
“not for any money” and that ACN was doing hundreds of millions of dollars in
The denial of the request for stay comes weeks after the
defendants’ request for mandatory arbitration was denied and
means that the lawsuit is set to continue in district court. However, an appeal
of the denial is currently pending and was a factor in consideration of
Monday’s denial for stay.
Judge Lorna Schofield considered the four-factor standard
for whether a stay in the proceedings would be appropriate:
(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and
(4) where the public interest lies.
Schofield reasoned that the first factor weighed “heavily in
favor of denying the stay” because neither the Trumps nor ACN demonstrated a
“likelihood of success on appeal” regarding the pending appeal for the recent
denial of a request for mandatory arbitration. Schofield further supported her
conclusion by asserting that there is no legal requirement to arbitrate the
underlying dispute. In terms of the second factor, the defendant Trumps and ACN
argued that they were open to substantial prejudice absent the stay due to
their being subject to third-party discovery that might otherwise not be
available in arbitration, and which may injure their reputation. However,
Schofield asserted that no matter if the defendants had a credible appeal, it
does not entitle them to prevent the case from moving forward pending that
Additionally, the strong likelihood of failure on appeal outweighed the
possibility of injury to the defendants. In evaluating the third factor,
Schofield held that further delays suffered by the plaintiffs do weigh
“somewhat against a stay,” but it was not enough to outweigh the first two
“most critical” factors. Lastly, Schofield considered that the because the
nature of the lawsuit is merely a private business dispute, no public interest
was present, therefore, the fourth factor weighed slightly in favor of
implementing a stay.
The next matter for consideration in the case is whether the
plaintiffs may continue the case under pseudonyms or whether they must reveal
their identities to the defendants. The parties are set to submit briefs on
this issue by June 30, 2020 supporting their support or opposition to the
pseudonym. Meanwhile, the parties are set to continue to meet and confer
regularly to negotiate a timeline for the production of documents and discuss
the remaining disputes.
Walter Barton was executed in Missouri by lethal injection on May 19, 2020 for fatally stabbing an 81-year-old woman nearly three decades ago, the first
U.S. execution since the coronavirus pandemic took hold, reported the USA Today.
Barton, 64, had long maintained he was innocent of
killing Gladys Kuehler, and his case was tied up for years due to appeals,
mistrials and two overturned convictions. His fate was sealed when neither the
courts nor Gov. Mike Parson intervened.
Barton breathed heavily five times after the lethal drug
entered his body Tuesday evening, then suddenly stopped. In his final statement
released prior to his execution, Barton said: "I, Walter "Arkie"
Barton, am innocent and they are executing an innocent man!!"
Concerns related to the coronavirus caused several states to
postpone or cancel executions over the past 2 ½ months. Until Tuesday, no one
had been executed in the U.S. since Nathaniel Woods was put to death in Alabama
on March 5. Ohio, Tennessee and Texas were among states calling off
The last execution in Texas, the nation's busiest capital
punishment state, was Feb. 6. Seven executions that were scheduled since then
have been delayed. Six of the delays had some connection to the pandemic while
the seventh was related to claims that a death row inmate is intellectually
Barton's attorney, Fred Duchardt Jr., and attorneys for
death row inmates in the other states argued that the pandemic prevented them
from safely conducting thorough investigations for clemency petitions and
last-minute appeals. They said they were unable to secure records or conduct
interviews due to closures.
Attorneys also expressed concerns about interacting with
individuals and possibly being exposed to the virus, and they worried that the
close proximity of witnesses and staff at executions could lead to spread of
COVID-19, the disease caused by the coronavirus.
Barton was executed in Bonne Terre, Missouri, about 60 miles
(97 kilometers) south of St. Louis, at a prison that has no confirmed cases of
the virus. Strict protocols were in place to protect workers and visitors from
exposure to the coronavirus.
Everyone entering the prison had their temperatures checked.
Face coverings were required, and the prison provided masks and gloves for
those who didn't have them.
Six state witnesses — a reporter for a Springfield
television station, an Associated Press reporter and four department of
corrections employees — waited in a room together for about an hour prior the
execution. All six were masked. At one point, four department of corrections
officials, including Director Anne Precythe and three other officials, briefly
entered. They did not wear facial protection. The witness waiting room was
about 300 square feet.
Barton often spent time at the mobile home park that Kuehler
operated. He was with her granddaughter and a neighbor on the evening of Oct.
9, 1991, when they found her dead in her bedroom.
Police noticed what appeared to be blood stains on Barton's
clothing, and DNA tests confirmed it was Kuehler's. Barton said the stains must
have occurred when he pulled Kuehler's granddaughter away from the body. The
granddaughter first confirmed that account, but testified that Barton never
came into the bedroom. A blood spatter expert at Barton's trial said the three
small stains likely resulted from the "impact" of the knife.
In new court filings, Duchardt cited the findings of
Lawrence Renner, who examined Barton's clothing and boots. Renner concluded the
killer would have had far more blood stains.
Duchardt said three jurors recently signed affidavits
calling Renner's determination "compelling" and saying it would have
affected their deliberations. The jury foreman said, based on the evidence, he
would have been "uncomfortable" recommending the death penalty.
On Friday, May 15, President Trump announced in
a letter to Speaker of the House Nancy Pelosi that he was firing State
Department Inspector General Steve Linick. Severalsources have
reported that Stephen Akard, the Senate-confirmed director of the State
Department’s Office of Foreign
Missions, will replace Linick in an acting capacity. Trump’s firing of
Linick is almost certainly lawful. However, it is unclear whether Trump can
immediately replace Linick with Akard, if that is the plan, according to a Lawfare.com column by Jack Goldsmith and Ben Miller-Gootnik.
1. Is the Firing Lawful?
Bracketing for a moment the question of retaliation, which
we discuss briefly below, Trump’s firing of Linick appears to be lawful. The
State Department inspector general is governed by the Inspector General Act of
1978, as modified by the Inspector General Reform Act of 2008 (IGRA). The
amended statute states that
an inspector general “may be removed from office by the President” but requires
the president to “communicate in writing” to both houses of Congress “the
reasons for any such removal” at least 30 days before the removal. The reason
that Trump provided for the removal in his letter to
Pelosi was that he “no longer” had the “fullest confidence” in Linick. This was
the exact reason and language Trump used when he fired Michael
Atkinson as inspector general of the intelligence community in April.
It is also the precise reason and language that President
Barack Obama used in 2009 when he fired Gerald
Walpin as inspector general of the Corporation for National and Community
Service (CNCS), though the Obama White House within a week after the
termination provided detailed
reasons for the firing. After Obama fired Walpin, Walpin sued the CNCS
for reinstatement. The federal district court in 2010 rejected
Walpin’s request for mandamus relief on the grounds that he lacked a
cause of action. Part of Judge Richard Roberts’s reasoning was that in
complaining “that the President’s rationale [for the firing] was insufficient,
Walpin fails to show how the [Inspector General Act] provides any sort of
criteria that would allow a court to make that determination.” The court also
noted that the Senate
report accompanying the IGRA indicated that Congress rejected a higher
“for cause” removal standard, hoped that the notice provision alone would deter
improper firings, and stated that the notice provision “does not alter the
President’s ultimate authorities with respect to Executive Branch employees.”
In short, the standard for firing the State Department
inspector general is a low one, and Trump’s thin reason almost certainly
suffices—especially against the background of the president’s constitutional
authority to fire presidential appointees at will absent a statutory provision
to the contrary.
This conclusion does not extend to potential legal
constraints related to the possibility that
Linick was fired in retaliation for investigating Secretary of State Mike
Pompeo. The State Department inspector general statute, at 22
U.S.C. § 3929(a), specifies that “[n]either the Secretary of State nor any
other officer of the Department shall prevent or prohibit the Inspector General
from initiating, carrying out, or completing any audit or investigation, or
from issuing any subpoena during the course of any audit or investigation.”
This may have been the provision that Rep. Eliot Engel and Sen. Bob Menendez
had in mind when they stated that
Linick’s firing “may be an illegal act of retaliation.” It is unclear how § 3929(a) intersects
with the termination provision of the inspector general statute, and in any
event the statute limits the secretary of state and not the president. But
Pompeo’s reported recommendation to fire Linick, if substantiated, may
implicate the State Department inspector general statute independent of the
legality of firing itself.
2. Can President Trump Place Linick on Administrative
The IGRA requires notice
to Congress “30 days before the removal.” This implies that Linick
must remain State Department inspector general for almost a month longer.
One partial way around this conclusion would be for Trump to
place Linick on administrative leave during that period prior to his formal
termination and thus effectively (even if not technically) remove him from
office immediately. That is what Trump did with
Atkinson in April. It is what the State Department spokesperson might have
implied when he or she recently said that
Akard “will now lead the Office of the Inspector General at the State
Department.” And it is also what Obama did with Walpin in 2009. According
to Walpin (page
2) and a Republican staff report on
the Walpin firing (page 44), Walpin was placed on administrative leave
immediately upon notice of the termination and not permitted to return to his
At first glance, the placement of a terminated inspector
general on administrative leave for the 30-day period appears to violate the
statutory requirement of notice to Congress 30 days before removal. But in the
2010 Walpin decision, Roberts provided reasons why this move may not
violate the 30-day rule. He explained that the IGRA states
that “[n]othing in this subsection shall prohibit a personnel action otherwise
authorized by law, other than transfer or removal.” He noted that Office of
Personnel Management regulations on
civil service employment define “removal” as “the involuntary separation of an
employee from employment with an agency.” And he noted that courts had ruled—in
contexts not concerning an inspector general—that placing an employee on
administrative leave did not amount to removal. For these reasons, placing a
terminated inspector general on administrative leave during the 30-day period
is not a “removal” and thus does not violate the inspector general statute’s
notice requirement. (The House’s latest coronavirus relief bill seeks
to address this issue by adding the placement of an inspector general on “paid
or unpaid non-duty status” to the list of personnel changes that require
congressional notification 30 days before taking effect.)
In sum, it appears that the IGRA prohibits the Trump
administration from formally terminating Linick for almost a month. If Linick
is placed on administrative leave, that can be construed to be consistent with
the statute’s 30-day rule on the ground that the leave technically does not
constitute removal. This conclusion raises separate issues for Trump’s apparent
replacement of Linick with Akard.
3. Can Akard Replace Linick Immediately?
A State Department spokesperson said that
Akard would replace Linick and become acting inspector general “now,” which
implies immediate replacement. But as of this writing it remains unclear
whether Akard will assume the acting position immediately or after the 30-day
period. There is a recent precedent, however. When Trump fired Atkinson from
the intelligence community inspector general slot in April, he replaced
him immediately with Thomas Monheim, who at the time was the general
counsel of the National Geospatial-Intelligence Agency. If something similar
happens here, would it be lawful?
The answer turns on the intersection of the IGRA and the
Federal Vacancies Reform Act (FVRA), and is complicated—too complicated to sort
out definitively here. But here are the issues.
Recall that to make it possible for Linick to be placed on
administrative leave for 30 days consistent with the 30-day notice requirement
of the IGRA, we probably need to conclude that Linick has not been removed from
his inspector general position for 30 days. Considered alone, that would seem
to make it impossible for Akard to replace him during that period, since the
slot has technically not been vacated.
But the FVRA has different criteria for when an office is
vacant and can be filled. It allows a
president to fill Senate-confirmed positions with certain defined persons when
the person confirmed for the position “dies, resigns, or is otherwise unable to
perform the functions and duties of the office.” Akard satisfies one of the
defined replacement criteria—he was confirmed by the Senate for a different
slot. But is Linick “otherwise unable to perform the functions and duties of the
We have found no case law on the question of whether someone
on administrative leave is unable to perform the functions and duties of the
office for purposes of the FVRA. For a “normal” administrative leave for
sickness or temporary absence, the answer is probably yes. The reason is that
the FVRA likely covers both temporary and permanent vacancies, as the Office of
Legal Counsel ruled in a 2017
memo. That interpretation seems sound. The preceding Vacancies Act
explicitly listed “sickness” as one of the conditions under which the president
could temporarily fill a vacant office, and the FVRA’s legislative
the FVRA was only intended to expand that act’s reach. As a result, it seems likely
that the temporary nature of administrative leave by itself poses no bar to an
Whether an imposed administrative leave following a
notification of presidential firing counts as a vacancy under the FVRA turns on
the much-mootedquestion of
whether someone fired by the president is “unable” to serve under the FVRA and
thus can be replaced under the statute. The Office of Legal Counsel has taken the position that
a presidential firing implicates the FVRA and allows the president to replace
the fired officer. The Office of Legal Counsel’s main arguments are that the
bill’s sponsor suggested on the Senate floor that the FVRA would reach firings
and that “troubling” practical consequences would result if it did not. At
least one federal district court has
disagreed with this interpretation in dicta, and one of us recently
argued that the Office of Legal Counsel’s view is wrong because it
misinterprets the act’s legislative history, improperly reads its text and
structure, and overlooks its historical context.
But even assuming the Office of Legal Counsel is right,
there is still the question in the present context of how to reconcile its
interpretation of the FVRA with the more specific and later-enacted IGRA. The
IGRA does not allow Linick to be removed for 30 days, and Trump can only place
Linick on administrative leave if he does not formally remove him. The
statutory inability to remove Linick under the IGRA might control over an
interpretation of the more general and earlier-enacted FVRA that allows Trump
to replace Linick due to his being on administrative leave. And even if the
FVRA is interpreted to allow Linick to be replaced immediately under its terms,
the replacement still might independently violate the IGRA’s 30-day rule.
The U.S. Supreme Court rejected three out of 13 separate appeals involving
the controversial doctrine of “qualified immunity,” which shields government
officials from liability for alleged civil rights violations. I recently wrote a column examining qualified immunity for GateHouse Media.
Advocates across the political spectrum have been clamoring
for the court to curtail or even eliminate the doctrine that they say too often
deprives civil rights plaintiffs of the ability to challenge abusive behavior
by police and other public officials, reported Bloomberg News.
Officials can receive immunity from suit if their alleged
actions weren’t “clearly established” violations of constitutional rights.
That’s had the effect of keeping even the most seemingly outlandish conduct out
of court, so long as the specific factual allegations at issue hadn’t
previously been found by a court to be unlawful.
Monday’s denials in three unrelated cases—from Nebraska, California,
that the justices aren’t ready to take on the issue. Not yet, anyway. At least
10 other petitions on the subject are pending on the high court’s docket.
The justices were initially set to consider 13 qualified
immunity appeals at their private conference on Friday, including these three
now declined. That raised speculation as to whether the court might be eyeing one
or more of the petitions as a vehicle for taking up the doctrine that’s been
criticized not just by lawyers and academics, but even by some of the lower
court judges bound to apply it.
Yet the court only wound up considering these three cases at
the conference, putting the others on hold and, in turn, causing further
confusion and speculation about its qualified immunity plans.
The rejection of these three cases doesn’t make those plans
clearer. After the denials, the justices put the remaining petitions back on
for consideration at this Thursday’s conference, so the next chapter in the
high court’s qualified immunity saga could be published by the court in an
orders list next week.
Schweikert of the Cato Institute deemed the denials “definitely a
disappointment,” pointing to what he called the “especially egregious
applications of qualified immunity” in two of the cases. In the Nebraska
matter, a police officer received qualified immunity despite allegedly
body-slamming a small woman who walked away from him during an interview.
In the California case, officers allegedly stole $225,000 in
cash and rare coins while executing a search warrant.
In successfully opposing high
court review, the Nebraska officer observed in his brief to the justices that, “for
more than 30 years, the Court has repeatedly emphasized that the objective
reasonableness of a particular use of force by law enforcement must consider
the totality of the facts within the perception of the officer at the scene.”
He said he seized the woman in a “bear hug” and “brought her
to the grass after she physically obstructed police operations, proceeded to
move toward a person involved in a heated altercation with one of her family
members, and ignored” the officer’s commands.
In fending off the California appeal, those officials told the
justices that no theft took place, and that calls from outside groups,
including Cato, to eliminate or curtail qualified immunity “should provide no
support for review of this case.”
Despite the closely-watched nature of the issue, none of the
three denials prompted separate statements from any of the justices, including
Justices Sonia Sotomayor and Clarence Thomas, who have suggested that the court
further examine the issue.
That could show that some members of the court are keeping
their powder dry for one or more of the still-pending petitions, or it could
simply reinforce the court’s lack of interest in taking up the issue for
As an example of the high court’s thinking on the subject,
in a 2017 ruling, the justices cautioned
against second-guessing law enforcement actions in a police-shooting
Advocates are disappointed that the justices won’t
second-guess their approach to qualified immunity in any of the cases declined
While conceding that the doctrine “protects government
officials’ innocent mistakes from harassing litigation,” New Civil Liberties
Alliance senior litigation counsel Michael P. DeGrandis said
the California case “shows us how easily bad people can pervert qualified
immunity in a way that deprives us of our civil rights.”
Still, some qualified immunity critics see hope on the
Schweikert added that “the fact that the Justices denied
these petitions doesn’t necessarily mean they aren’t still interested in
revisiting qualified immunity.” He noted the 10 outstanding petitions that were
taken out of consideration from the justices’ last conference.
Among those petitions, he said, are ones that “raise the
fundamental question of whether the doctrine should be reconsidered entirely.”
Their rescheduling could “indicate that the Justices are more interested
in addressing this larger question, rather than taking a narrower approach,”
But even if the court takes up one or more of the remaining
petitions, it’s unlikely that a “seismic shift is in the offing” when it comes
to the immunity doctrine, said Kent
Scheidegger, of the Criminal Justice Legal Foundation, who has filed many
briefs over the years supporting the government at the high court in various
“This is a well-established body of law,” he said, and,
unlike constitutional doctrine, “it is one that Congress could change any time
if it wanted to.”
Belmont Correctional Institution is emerging as Ohio’s
latest prison hot spot for the coronavirus as COVID-19 cases soar and
conditions at the minimum-to-medium security facility in eastern Ohio
deteriorate, reported the Columbus Dispatch.
But the public may never know it because the state has
stopped the mass testing that showed prisons in Marion and Pickaway counties
were the top COVID-19 hot spots in the nation.
Since Belmont’s first positive case of an inmate on April
13, 132 inmates and 66 staffers have tested positive, up from 30 inmates and
one staff member just two weeks ago. And on Tuesday, Belmont reported its first
COVID-19 fatality with the death of inmate Ronald Wanyerka, 62, of Cuyahoga
Statewide, 58 inmates and two prison employees have died.
Those on the front lines say the virus almost certainly is
more widespread than reported because the Ohio Department of Rehabilitation and
Correction is no longer conducting widespread testing in prisons. Instead, the
state is primarily testing inmates exhibiting symptoms of the disease.
Corrections officers at Belmont complain that they aren’t
given adequate personal protection equipment, no longer have space to keep sick
inmates apart from healthy ones, and are forced to go to a drive-through
facility in nearby West Virginia to be tested themselves.
Scott Stevens, who has worked as a corrections officer at
Belmont in St. Clairsville for 24 years and is chapter representative for the
Ohio Civil Services Employees Association, the union representing 8,000 prison
employees statewide, said Belmont consists of 10 dorm-style facilities, each
housing more than 200 inmates who sleep in bunk beds and share kitchen and
Once five inmates in a facility test positive, the whole
dorm is considered to have the coronavirus. But unless someone needs medical
treatment, they remain in the dorm to recuperate, he said, adding that from one
to five inmates are being sent to the hospital each day because their
conditions have worsened.
Mississippi leaders have said that they are testing early
and thoroughly for COVID-19, but the state’s Department of Corrections has so
far failed to test most of its employees and people in its custody. As of
last week, 44 prisoners out of more than 14,000 have been tested
for the novel coronavirus at DOC prisons and detention centers—a rate of 0.4
percent, according to The Appeal.
The nearly 20,000 staff members and incarcerated people
form a population greater than 43 percent of counties in Mississippi. Yet they
are being left out of the state’s testing push, which Governor Tate Reeves has
touted as “aggressive” in recent press briefings.
“Testing is critical to manage this disaster,” he said on
April 6, “and that’s one thing that we in Mississippi are very fortunate of, is
we became very aggressive very early on testing.”
During a May 6 briefing, The Appeal asked Reeves about the
low testing rate inside prisons. He responded, “We haven’t had large numbers of
individuals in our prison system that have had symptoms.” The DOC has
succeeded in avoiding “major, catastrophic spreading” because of early
interventions, he said.
“Much like President Trump was very, very early by cutting
off travel to China, in Mississippi we were very early in cutting off visitation
in the Department of Corrections,” Reeves said at the same briefing. As of
Monday, the DOC reported that 10 incarcerated people and seven employees had
tested positive for COVID-19.
He added that temporarily banning prisoners from doing road
work across the state has helped taper the spread, too.
Cliff Johnson, director of the MacArthur Justice Center in
Mississippi, said that low rates of testing are not indicative of low disease
rates. “The surest way to have zero confirmed cases in your facility is to
conduct zero tests,” he said.
Last week, the U.S. Supreme Court was sitting in an unprecedented
“virtual” conference. At the May 15 conference, the Court decides which cases
to accept for review. A case needs only four votes to be placed on the docket.
The issue of the day appears to be qualified immunity. The
Supreme Court will review 13 cases that deal with the judicial doctrine that
shields the police and other state officials from liability for misconduct.
This country’s primary federal civil rights statute can be
found in Title 42 of the U.S. Code. “Section 1983” - as it is commonly referred
to - provides that any state actor who violates a person’s constitutional
rights “shall be liable” to the party injured.
Section 1983 grew out of the Civil Rights Acts of 1871. The
Act was passed after the Civil War to prevent public officials and the Ku Klux
Klan from violating the constitutional rights of former slaves.
Section 1983 provided relief - in the form of money damages
- to claimants whose constitutional rights had been violated by a police
officer or public official acting under state authority. The Act provides that
a wrongdoer “shall be liable to the party injured in an action at law.”
About 100 years after the Civil Rights Act the Supreme Court
established qualified immunity, a potential defense to wrongdoers. About a
decade later, the High Court further refined qualified immunity. The Court
ruled a state actor would be immune from liability if at the time of the harm,
the conduct “was not clearly established” as a civil rights violation. The
Court continued, “An official could not reasonably be expected to anticipate
subsequent legal developments, nor could he fairly be said to ‘know’ that the
law forbade conduct not previously identified as unlawful.”
Demonstrating “clearly established” conduct has proven
difficult for plaintiffs. For a claimant to prevail in the face of a qualified
immunity defense she would have to show that the harm inflicted was established
as a civil rights violation in a prior case with identical facts. It is not
unusual for a court to tell a Plaintiff that her civil rights were violated but
there is no similar case on point - so you lose.
One of the 13 cases to be reviewed by the Supreme Court is
out of Michigan and was brought by Joshua Brennan. The Sixth Circuit Court of
Appeals granted immunity to a sheriff’s deputy who went to extreme lengths to
attempt to administer an alcohol breath test to Brennan who was on probation.
The deputy parked his patrol car in front of Brennan’s house turned the lights
and sirens on for over an hour; circled the man’s house numerous times, peering
into and knocking on windows; and covered the home’s security camera with tape.
Brennan filed a 1983 action against the deputy, the sheriff,
and the County. The lower Court held that this warrantless invasion of
Brennan’s property violated the Fourth Amendment, but nevertheless granted
immunity due to a lack of “clearly established law.”
Such decisions seem to fly in the face of the very purpose
of Section 1983. In fact the Supreme Court has said as much. The Supreme Court
has suggested the remedy created by Section 1983 exists not just to provide a
remedy for citizens whose rights are violated, but also - “to hold public
officials accountable when they exercise power irresponsibly.”
It will be interesting to see what direction the Supreme
Court goes. Left-leaning Justice Sonia Sotomayor and conservative Justice
Clarence Thomas have recently criticized qualified immunity and the court’s
role in expanding it.
In a 2018 dissent, Sotomayor wrote that a decision favoring
the police tells officers that “they can shoot first and think later, and it
tells the public that palpably unreasonable conduct will go unpunished.”
Thomas wrote, in a 2017 concurring opinion, ”(T)he ‘clearly
established’ standard is designed to ‘protect the balance between vindication
of constitutional rights and government officials’ effective performance of
their duties.’” He lamented, that decision is for the legislature not the
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book “The Executioner’s Toll, 2010” was released by McFarland
Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter at @MatthewTMangino.
New research shows a rise in food insecurity without modern
precedent, reported the New York Times. Among mothers with young children, nearly one-fifth say their
children are not getting enough to eat, according to a survey by the Brookings Institution, a rate three
times as high as in 2008, during the worst of the Great Recession.
The reality of so many Americans running out of food is an
alarming reminder of the economic hardship the pandemic has inflicted. But
despite their support for spending trillions on other programs to mitigate
those hardships, Republicans have balked at a long-term expansion of food
stamps — a core feature of the safety net that once enjoyed broad support but
is now a source of a highly partisan divide.
Democrats want to raise food stamp benefits by 15 percent
for the duration of the economic crisis, arguing that a similar move during the
Great Recession reduced hunger and helped the economy. But Republicans have
fought for years to shrink the program, saying that the earlier liberalization
led to enduring caseload growth and a backdoor expansion of the welfare state.
For President Trump, a personal rivalry may also be in play:
In his State of the Union address in February, he boasted that falling
caseloads showed him besting his predecessor, Barack Obama, whom Newt Gingrich,
the former Republican House speaker, had derided as “the food stamp president.” Even as the pandemic
unfolded, the Trump administration tried to push forward with new work rules
projected to remove more people from aid.
Mr. Trump and his congressional allies have agreed to only a
short-term increase in food stamp benefits that omits the poorest recipients,
including five million children. Those calling for a broader increase say
Congress has spent an unprecedented amount on programs invented on the fly
while rejecting a proven way to keep hungry people fed.
“This program is the
single most powerful anti-hunger tool that we have and one of the most
important economic development tools,” said Kate Maehr, the head of the Chicago
food bank. “Not to use it when we have so many people who are in such great
need is heartbreaking. This is not a war that charity can win.”
The debate in Congress is about the size of benefits, not
the numbers on the rolls. The Supplemental Nutrition Assistance Program, or
SNAP, as food stamps are also known, expands automatically to accommodate need.
“SNAP is working, SNAP will increase,” said Representative
K. Michael Conaway of Texas, the top Republican on the House Agriculture
Committee, which oversees the program. “Anyone who qualifies is going to get
those benefits. We do not need new legislation.”
Mr. Conaway noted that Republicans have supported huge
spending on other programs to temper the economic distress, and increased
benefits for some SNAP recipients (for the duration of the health emergency,
not the economic downturn). Democrats, he said, want to leverage the pandemic
into a permanent food stamp expansion.
The federal judge overseeing the case against President
Trump’s former national security adviser Michael
T. Flynn appointed a hard-charging former prosecutor and judge to oppose the Justice Department’s effort to drop the case and to
explore a perjury charge against Mr. Flynn, reported the New York Times.
Judge Emmet G. Sullivan’s appointment of the former judge,
John Gleeson, was an extraordinary move in a case with acute political
overtones. Mr. Flynn pleaded guilty twice to lying to investigators as part of
a larger inquiry into Russia’s interference in the 2016 election.
Mr. Flynn later began fighting the charge and sought to
withdraw his guilty plea. Then last week, the Justice Department abruptly moved to drop the charge after a long campaign by
Mr. Trump and his supporters, prompting accusations that Attorney General William P. Barr
had undermined the rule of law and further politicized the department.
Judge Sullivan also asked Judge Gleeson to explore the
possibility that by trying to withdraw his pleas, Mr. Flynn opened himself to
The Justice Department declined to comment. Judge Gleeson
did not respond to a request for comment. Judge Sullivan had said on Tuesday
that he would consider briefs from outsiders known as amicus curiae, or
“friend of the court,” who opposed the government’s request to dismiss the case
against Mr. Flynn.
While judges do sometimes appoint such third parties to
represent an interest they feel is not being heard in a case, Judge Sullivan’s
move was highly unusual, said Samuel Buell, a former federal prosecutor who now
teaches criminal law at Duke University.
Judge Sullivan, he said, is essentially bringing in an
outsider to represent the point of view of the original prosecutors, who
believed Mr. Flynn had committed a crime before Mr. Barr intervened and
essentially replaced them with a prosecutor willing to say he had not.
“This is extraordinary for the judge to appoint somebody to
argue against a prosecutors’ motion to dismiss a criminal case,” Mr. Buell
said. “But it’s extraordinary for a prosecutor to move to dismiss this sort of
“What the Justice
Department did in the first case is, as far as any of us can figure out,
unprecedented,” he added. “So the fact that this is pretty unprecedented too is
not that surprising.”
It was not immediately clear what Judge Sullivan was focused
on with his request for input on whether to essentially accuse Mr. Flynn of
Mr. Buell said he doubted it would qualify as perjury for
Mr. Flynn to embrace the Justice Department’s claim that he committed no crime
because his admitted lies were purportedly immaterial to a proper investigation
— whether or not that legal theory is true. But, Mr. Buell said, there could be
a legitimate issue if Mr. Flynn were to claim that he did not lie after all — a
notion the Justice Department’s filing also hinted at — despite previously
telling judges that he had.
American Jews were targets of more anti-Semitic incidents in
2019 than any other year over the past four decades, a surge marked by deadly
attacks on a California synagogue, a Jewish grocery store in New Jersey and a
rabbi’s New York home, the Anti-Defamation League and Los Angeles Times.
The Jewish civil rights group counted 2,107 anti-Semitic
incidents in 2019, finding 61 physical assault cases, 1,127 instances of
harassment and 919 acts of vandalism. That’s the highest annual tally since the
New York-based group began tracking anti-Semitic incidents in 1979. It also
marked a 12% increase over the 1,879 incidents it counted in 2018.
Jonathan Greenblatt, the group’s chief executive, attributes
last year’s record high to a “normalization of anti-Semitic tropes,” the
“charged politics of the day” and social media. This year, he said, the
COVID-19 pandemic is fueling anti-Semitic conspiracy theories.
According to The Pennsylvania Capital-Star, Pennsylvania
charted a truly appalling 109 incidents of anti-Semitism statewide in 2019.
That's the second highest-level since tracking began in 1979, according to a new report by the ADL.
The 2019 tally, a 22 percent increase over 2018 totals, is also 70 percent higher
than the state's historic average of 64 incidents a year, the civil rights
group said Tuesday.
Last year's shameful total caps an eye-watering 150 percent increase in
anti-Semitic incidents in the state over five years, the group said in its
report. Only New York (430), New Jersey (345), California (330) and
Massachusetts (114) had more last year, the ADL said in its
"We're very concerned about the data because rising anti-Semitism is a
danger to us all. We have found that, at times of political uncertainty,
social unrest or downturns in the economy, anti-Semitic incidents tend to
increase. And as anti-Semitism rises, other groups often experience rising hate
as well," Shira Goodman, regional director of the ADL of
Philadelphia, said in an email.
"This appears to be the case during the pandemic. We've seen
ignorance and fear fuel growing hatred towards Jews, members of the Asian
American Pacific Islander community, Muslims, immigrants and other
minorities," Goodman continued. "Education, activism and
allyship can help turn the tide, and that's a responsibility we all
Justice Clarence Thomas’s participation in oral
arguments this term has been remarkable, and one of the most important
consequences of the court’s teleconferencing experiment, wrote Tony Mauro wrote
on the National Journal’s Supreme Court
A Wall Street Journal report found: "Before the telephonic arguments,
Justice Thomas spoke in 32 of
approximately 2,400 cases the court has heard since he succeeded Justice
Thurgood Marshall in 1991, according to research by University of Minnesota
political scientist Timothy Johnson. Justice Thomas’s questions took up 26 minutes over those 29 years, Mr.
Johnson found. By comparison, he spoke for approximately 7½ minutes over four cases in the past week alone."
After decades when his argument questions were minimal or non-existent, Thomas
has asked a slew of questions in the four days of teleconferencing thus far.
Equally notable is the fact that advocates and justices alike have been making
numerous references to Thomas’s questions during the arguments.
In the 92-minute argument in McGirt v. Oklahoma on Monday, Thomas asked five questions, and advocates and justices mentioned
his questions seven times.
Court scholars RonNell Andersen Jones of the University of Utah S.J.
Quinney College of Law and Aaron Nielson of Brigham Young University
J. Reuben Clark Law School, studied Thomas’s questions in 2016, finding at
that time that he had asked only 39
questions since joining the court in 1991.
In light of the latest arguments, the scholars updated their analysis in an article for The Hill titled, “Pandemic proves
Justice Thomas does have something to say.”
“Justice Thomas finds the theatrics of contemporary oral argument
inappropriate,” the authors wrote. But in the current “more orderly, decorous
format,” Thomas has opened up.
Then and now, Andersen Jones said in an interview Monday, Thomas asks questions
“in a way that appears calculated to be helpful—to the parties, to his fellow
justices, and to the decision at hand.” She added, “It is an exponentially more
interactive court as a whole, as Thomas adds himself to the mix and as the
others find his questions useful and worthy of engagement.”
Will Thomas’s chattiness continue? “Whether this foray into telephonic
questioning might embolden the Supreme Court’s most silent justice to continue
to participate when the justices someday return to the courtroom remains to be
seen,” Andersen Jones said.
Also uncertain is whether Thomas’s newly found voice will affect how he decides
cases. But if his dissents have a somewhat reclusive, go-it-alone feel, then
his collegial experiences at the latest arguments may change his tenor, if not
Mary B. McCord, the
former acting assistant attorney general for national security at the
Department of Justice, and current legal director for Georgetown Law’s
Institute for Constitutional Advocacy and Protection and a visiting law
professor, takes on Attorney Genreal Bill Barr’s decision to “pardon “ General
Kelly in a New York Times op-ed:
At the direction of Attorney General Bill Barr, the Justice
Department last week moved to dismiss a false-statements charge against Michael
Flynn, President Trump’s former national security adviser. The reason stated was that the continued prosecution
“would not serve the interests of justice.”
The motion was signed by Timothy Shea, a longtime trusted
adviser of Mr. Barr and, since January, the acting U.S. attorney in Washington.
In attempting to support its argument, the motion cites more than 25 times the
F.B.I.’s report of an interview with me in July 2017, two months after I left a
decades-long career at the department (under administrations of both parties)
that culminated in my role as the acting assistant attorney general for
That report, commonly referred to as a “302,” is an
interesting read. It vividly describes disagreements between leadership of the
Justice Department and the F.B.I. about how to handle the information we had
learned about Mr. Flynn’s calls with the Russian ambassador Sergey Kislyak and,
more specifically, Mr. Flynn’s apparent lies about those calls to incoming Vice
President Mike Pence.
But the report of my interview is no support for Mr. Barr’s
dismissal of the Flynn case. It does not suggest that the F.B.I. had no
counterintelligence reason for investigating Mr. Flynn. It does not suggest
that the F.B.I.’s interview of Mr. Flynn — which led to the false-statements
charge — was unlawful or unjustified. It does not support that Mr. Flynn’s
false statements were not material. And it does not support the Justice
Department’s assertion that the continued prosecution of the case against Mr.
Flynn, who pleaded guilty to knowingly making material false statements to the
FBI, “would not serve the interests of justice.”
I can explain why, relying entirely on documents the
government has filed in court or released publicly.
Notably, Mr. Barr’s motion to dismiss does not argue that
the F.B.I. violated the Constitution or statutory law when agents interviewed
Mr. Flynn about his calls with Mr. Kislyak. It doesn’t claim that they violated
his Fifth Amendment rights by coercively questioning him when he wasn’t free to
leave. Nor does the motion claim that the interview was the fruit of a search
or seizure that violated the Fourth Amendment. Any of these might have
justified moving to dismiss the case. But by the government’s own account, the
interview with Mr. Flynn was voluntary, arranged in advance and took place in
Mr. Flynn’s own office.
Without constitutional or statutory violations grounding its
motion, the Barr-Shea motion makes a contorted argument that Mr. Flynn’s false
statements and omissions to the F.B.I. were not “material” to any matter under
investigation. Materiality is an essential element that the government must
establish to prove a false-statements offense. If the falsehoods aren’t
material, there’s no crime.
The department concocts its materiality theory by arguing
that the F.B.I. should not have been investigating Mr. Flynn at the time they
interviewed him. The Justice Department notes that the F.B.I. had opened a
counterintelligence investigation of Mr. Flynn in 2016 as part of a larger
investigation into possible coordination between the Trump campaign and Russian
efforts to interfere with the presidential election. And the department notes
that the F.B.I. had intended to close the investigation of Mr. Flynn in early
January 2017 until it learned of the conversations between Mr. Flynn and Mr.
Kislyak around the same time.
Discounting the broader investigation and the possibility of
Russian direction or control over Mr. Flynn, the department’s motion myopically
homes in on the calls alone, and because it views those calls as “entirely
appropriate,” it concludes the investigation should not have been extended and
the interview should not have taken place.
The account of my interview in 2017 doesn’t help the
department support this conclusion, and it is disingenuous for the department
to twist my words to suggest that it does. What the account of my interview
describes is a difference of opinion about what to do with the information that
Mr. Flynn apparently had lied to the incoming vice president, Mr. Pence, and
others in the incoming administration about whether he had discussed the Obama
administration’s sanctions against Russia in his calls with Mr. Kislyak. Those
apparent lies prompted Mr. Pence and others to convey inaccurate statements
about the nature of the conversations in public news conferences and
Why was that so important? Because the Russians would have
known what Mr. Flynn and Mr. Kislyak discussed. They would have known that,
despite Mr. Pence’s and others’ denials, Mr. Flynn had in fact asked
Russia not to escalate its response to the sanctions. Mr. Pence’s denial of
this on national television, and his attribution of the denial to Mr. Flynn,
put Mr. Flynn in a potentially compromised situation that the Russians could
use against him.
The potential for blackmail of Mr. Flynn by the Russians is
what the former Justice Department leadership, including me, thought needed to
be conveyed to the incoming White House. After all, Mr. Flynn was set to become
the national security adviser, and it was untenable that Russia — which the
intelligence community had just assessed had sought to interfere in the U.S.
presidential election — might have leverage over him.
This is where the F.B.I. disagreed with the Justice
Department’s preferred approach. The F.B.I. wasn’t ready to reveal this
information to the incoming administration right away, preferring to keep
investigating, not only as part of its counterintelligence investigation but
also possibly as a criminal investigation. Although several of us at Justice
thought the likelihood of a criminal prosecution under the Logan Act was quite
low (the act prohibits unauthorized communications with foreign governments to
influence their conduct in relation to disputes with the United States), we
certainly agreed that there was a counterintelligence threat.
That’s exactly why we wanted to alert the incoming
administration. Ultimately, after our dispute over such notification continued
through the inauguration and into the start of the Trump administration, the
F.B.I. — without consulting the Justice Department — arranged to interview Mr.
Flynn. By the time Justice Department leadership found out, agents were en
route to the interview in Mr. Flynn’s office.
The account of my July 2017 interview describes my department’s
frustration with the F.B.I.’s conduct, sometimes using colorful adjectives like
“flabbergasted” to describe our reactions. We weren’t necessarily opposed to an
interview — our focus had been on notification — but any such interview should
have been coordinated with the Justice Department. There were protocols for
engaging with White House officials and protocols for interviews, and this was,
of course, a sensitive situation. We objected to the rogueness of the decision
by the F.B.I. director, Jim Comey, made without notice or opportunity to weigh
The Barr-Shea motion to dismiss refers to my descriptions of
the F.B.I.’s justification for not wanting to notify the new administration
about the potential Flynn compromise as “vacillating from the potential
compromise of a ‘counterintelligence’ investigation to the protection of a
purported ‘criminal’ investigation.” But that “vacillation” has no bearing on
whether the F.B.I. was justified in engaging in a voluntary interview with Mr.
Flynn. It has no bearing on whether Mr. Flynn’s lies to the F.B.I. were
material to its investigation into any links or coordination between Mr.
Trump’s presidential campaign and Russia’s efforts to interfere in the 2016
And perhaps more significant, it has no bearing on whether
Mr. Flynn’s lies to the F.B.I. were material to the clear counterintelligence
threat posed by the susceptible position Mr. Flynn put himself in when he told
Mr. Pence and others in the new administration that he had not discussed the
sanctions with Mr. Kislyak. The materiality is obvious.In short, the report of
my interview does not anywhere suggest that the F.B.I.’s interview of Mr. Flynn
was unconstitutional, unlawful or not “tethered” to any legitimate
An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.