Supreme Court Goes All In For Trump »

The nation is devoting rapt attention to a trial in New York that will likely end in a hung jury and mistrial and come to nothing. A far more serious "trial" took place in D.C.… Read More »

The January 6 Case Against Donald J. Trump »

To anyone who followed the events between the 2020 election and January 6, 2021, the notion that it would be difficult to prove Donald J. Trump guilty of multiple crimes against the country is ludicrous. The story teems with plots to overthrow the election of Joe Biden. The man attempted… Read More »

Can There Be a Middle Ground to End the Abortion Debate? »

The fight over abortion is a war without end because it has always been conducted at extremes. The Alito doctrine resolves none of that because, assuming Roe v. Wade is overturned on his terms, the justice has only moved the issue from one extreme to the other.

For the 50 years… Read More »

Supreme Court Greenlights Yet Another Religion Case »

Joe Kennedy coached high school football in Bremerton, Washington. It was his custom to engage his team in locker-room prayer before a game, and gather both teams for after-game prayers. With fans still in the stands, Kennedy kneeled on the… Read More »

Rising Discontent Says It’s Time to Reform the Supreme Court… »

The Supreme Court is back in session facing a docket filled with controversial cases involving abortion, gun rights, and religion that are bound to stir anger no matter how decided. The court's new 6-to-3 configuration whereby Trump's three conservative appointments… Read More »

There’s No Oversight of the Supreme Court »

Judicial scholars are skeptical of several of the Supreme Court's practices. The court goes its own way, subject to no check and balance, and certain of its actions raise ethical questions. Unlike all other courts, the high court is uniquely… Read More »

So Many Reasons Not to Impeach »

The president's defense in the Senate trial hoisted a flurry of reasons that impeachment was unwarranted. We put together the following list with our own observations. You can probably think… Read More »

The Perfect Phone Call That Everyone Knew Was Wrong »

"Can you believe that I will be impeached today by the Radical Left, Do Nothing Democrats? AND I DID NOTHING WRONG!". Donald Trump believes that because, hadn't he decreed that… Read More »

How the Electoral College Distorts Our Democracy »

With Hillary Clinton's majority in the popular vote now beyond 2,800,000, those who voted for her are thoroughly disillusioned by a system that doesn't look like a democracy at all. They are discovering — the young among them for the first time — that America's electoral system is rigged indeed, but by an ancient construct called the Electoral College.

The Founders wanted the slave states to join the Union so they acceded to counting slaves — who did not have the… Read More »

Is the Supreme Court Plotting to Scramble Elections? »

The nation was in the grip of fear from the killings in Colorado Springs and San Bernardino, so there was little notice in early December of the hearing by the Supreme Court that could result in a blockbuster decision. In a case brought by two Texans, the justices were asked, shouldn't election districts be sized according to the number of eligible voters each contains rather than its total population? They're called "election districts" so what is the relevance of counting… Read More »

Corporations Appoint Themselves Judge and Jury &#0151 It’s in the Fine Print »

The New York Times this past week ran a three day investigative series on the now near universal preemption by corporations of consumer access to the U.S. justice system for resolution of disputes. Filling seven pages of the Times large format print edition, the paper found that Americans are almost entirely unaware that, when they do business with U.S. corporations, they are signing away a constitutional right — that… Read More »

Laws Broken but Obama Administration Refuses to Prosecute »

The Senate Intelligence Committee's investigative report on the CIA during the Bush administration has brought forward the question of prosecution that the Obama administration has resolutely avoided. There is no question that the abuse of detainees as described was torture, and the artifice of legality concocted by the government was a sham.

The America Civil Liberties Union and Human Rights Watch in particular say the failure to prosecute is an abrogation of American law. The ACLU's Senior Legislative Counsel,… Read More »

High Court Has Reversed What Presidents Have Done Throughout Our History »

Central to the Supreme Court’s ruling that President Obama acted unconstitutionally when he filled three empty seats on the National Labor Relations Board (NLRB) during a Senate recess is the justices’ contention that the Senate was not in recess. The Court thus gave its blessing to the practice in the Senate of an opposition party conducting sham sessions for the sole purpose of blocking a president from making recess appointments.

The Senate is seldom at work — Christmas runs from well before until deep into January, Easter lasts two weeks, every one-day holiday is stretched to a week, they are gone all of August (when are they not in recess one might ask after watching this spoof). But… Read More »

Government Surveillance Cannot Be Challenged, Says High Court »

The 2008 FISA Amendments Act permits the government to listen in on any of your phone calls and read your e-mail to or from anyone outside the country. In late February, the Supreme Court ruled that, if you object to this invasion of your privacy, if you find it a “search and seizure” violation of the 4th Amendment, you are denied any recourse of challenging the government in court.

The plaintiffs in the case —… Read More »

While You Weren’t Watching, Obama Renewed Dark Side Laws »

Americans are almost entirely unaware that, a year ago, President Obama signed into law an act that contained the most brazen trespass upon our civil rights in modern history.

This was a budgetary law, the National Defense Authorization Act (NDAA), that primarily funded the military and defense expenditures for the coming year, but it added a frightening provision: the president could could turn over to the military anyone, including American citizens, merely suspected of being a terrorist or associating with terrorist groups for indefinite detention without due process, without the right of habeas corpus, without trial. Stripped of our system’s legal safeguards of individual freedom, a person could effectively disappear.

It was an extraordinary action by any president, as we reported then, and stunning by a former professor of constitutional law at the University of Chicago. It was not surprising that he chose a moment to sign the law when no one was looking: New Year’s Eve. Obama then said he would not not use the law to imprison a U.S. citizen, but this from the man who had also promised to close Guantanamo. And the law is on the books for any future president to apply.

At the end of this December, Congress had the opportunity to fix the… Read More »

Still No Fix to Our Most Dangerous Law »

Donald Trump expects there to be riotous protests if he is elected and has let it be known that he will, the moment he is inaugurated, invoke the Insurrection Act… Read More »

Colorado’s Tossing Trump Off Ballot Stirs Legal Uproar »

The Colorado Supreme Court's decision that Donald Trump must be removed from that state's 2024 election ballot ignited outrage on the right. Even some on the left feared the repercussions.

In the fervent debate that ensued, we heard that the amendment applies only to prior "officers" of the government… Read More »

With a Special Counsel, Garland Helps Trump Run Out the Clock »

The moment "the pause" was over — the 60-days before an election during which the Justice Department refrains from actions that might affect votes — Donald Trump announced a run for a second term. The Justice Department has a rule not to indict a sitting president. Trump's maneuver, the earliest… Read More »

The Death of Ethics: The Right Wants Justice Thomas to Refuse to Recuse »

When Bob Woodward and Robert Costa broke the story about the 29 emails exchanged between Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, and Trump's Chief of Staff Mark Meadows, it seemed indisputable that the justice should recuse himself from any case related to the January 6th coup plot… Read More »

Supreme Court Takes On Gun Rights Again. Will We All Be Packing Heat? »

Eclipsed by the morning-after autopsies of the November 3rd elections, that the Supreme Court that same day took on an inflammatory gun rights case was barely noticed.

The case challenges a century-old New York state law that requires a resident to… Read More »

The Electoral College Has Got to Go.
But We’ll Never Get Rid of It »

Consider this: Donald Trump's insistence that the election was rigged, his claim of millions of fraudulent ballots, his re-election campaign filing some 60 lawsuits to overturn the election in… Read More »

Supreme Court Ranks Religion Above Public Health »

Just before midnight on Thanksgiving Eve, the Supreme Court issued a temporary injunction that nullified New York's limits on how many could gather in public places. The restrictions are meant to control the spread of the coronavirus. The Court… Read More »

We Sent a Letter to the Supreme Court on Gerrymandering »

It is expected that the Supreme Court, having grown weary of dealing with one after another state stacking the deck against the opposition political party by the way they draw electoral districts, will in June, in cases brought against Maryland and the notorious North Carolina, come up with general rules for states to follow to avoid the gavel's blow in the future.

But as we've argued here, here, and here, the whole ugly business of two centuries of gerrymandering could be swiftly ended if the black-robbed solons could only do some 21st Century catch-up.

In February,… Read More »

Will the Rule of Law Survive Donald Trump? »

Within 24 hours came the guilty plea of Michael Flynn, President Trump's
momentary National Security Adviser, and the disclosure by the New York Times that over thesummer Trump had repeatedly contacted Senate Republicans urging that they halt the intelligence committee's probe into Russia's election interference.

Flynn's sole charge of lying to the FBI disregards his involvement in a portfolio of questionable activities most notably with the Turkish government, suggesting that in return he has… Read More »

Trump Transition Plays Fast and Loose with Laws, Tradition »

The Trump transition is showing little regard for law, as it pushes forward cabinet appointees who have not submitted required documents, as it brushes aside the anti-nepotism statute to give son-in-law a White House Post, and as Trump retains international assets which could lead to foreign policy conflicts. A rundown:

That the Republican-controlled Senate tried to cram nine hearings of cabinet appointees into three days was certainly a deliberate strategy to not just hinder Democrats who want a shot at the President-elect's controversial choices, but to keep the public from seeing the questioning most of them faced. Only one hearing at a time would get television coverage, so we might not learn how labor secretary appointee Andy Puzder would explain why working men and women whose interests he will represent should be denied an increase in the minimum wage, say, or how Scott Pruitt can justify his appointment to run the Environmental Protection Agency he has sued from his perch as attorney general of Oklahoma.

Senators sit on more than one committee, so overlapping hearings would mean a number of them had to attend one and miss the other, thus not hearing testimony meant to guide their vote. Senate Minority Leader Chuck Schumer was left to lament on the Senate floor that "jamming all these hearings into one or two days, making members run from committee to committee, makes no sense".

For the transition team, it made perfect sense, but pressure won out and hearings for three appointees who have not completed the two-part FBI background ethics disclosures were delayed somewhat. The usual practice is for the president-elect's transition team to pre-clear cabinet choices, vetting for potential ethical conflicts or security liabilities before submitting their names to the Senate. The transition did not follow the practice, keeping under wraps the vast and complex business holdings of a few appointees that may be rife with conflicts. A couple, such as Betsy DeVos, appointed to run the Education Department, are billionaires. She and her husband have investments in some 250 companies registered at a single Grand Rapids, Michigan, address, "a tangle that could take weeks to investigate".

Rather than objecting, Majority Leader Mitch McConnell was party to the rush job. With only ten days to go before inauguration, he assured us that "Everyone will be properly vetted as they have been in the past and I'm hopeful that we'll get up to six or seven, particularly the national security team, on day one". That wasn't the point. The committee members should have those disclosures before them, because they may contain information that could lead to questioning or challenges. McConnell portrayed the Democrats as unreasonable:

"I was in Sen. Schumer's position eight years ago…What did we do? We confirmed seven cabinet appointments the day President Obama was sworn in…all of these little procedural complaints are related to their frustration in having not only lost the White House but having lost the Senate. I understand that, but we need to sort of grow up here and get past that".

McConnell failed to disclose that in a 2009 letter to then-Senate Majority Leader Harry Reid he had demanded that all President-elect Obama's nominees complete FBI background checks and government ethics reviews prior to their hearings. Schumer reminded him of that, reading aloud that 2009 letter on the Senate floor and pointing out that:

"Back in 2009, every Obama cabinet nominee had an ethics agreement in before their hearing, every Obama cabinet nominee underwent a full FBI background check before the Senate considered their nomination. President-elect Trump's nominees are way behind that mark."

The director of the Office of Government Ethics just wrote in a letter that,

“I am not aware of any occasion in the four decades since OGE was established when the Senate held a confirmation hearing before the nominee had completed the ethics review process”

And his office clears thousands of appointees, not just cabinet picks. The question remains whether the short delays will mean completed background paperwork for the three with the most complex portfolios: Ms. DeVos, Wilbur Ross (Commerce) and Andrew Puzder (Labor).

Donald Trump's son-in-law Jared Kushner — married to daughter Ivanka — is evidently very capable but he chose the right parents — as with Trump, his family had built a real estate empire — and then he married well. The combination fueled the 36-year-old's meteroric rise to breathtaking power. Trump values his judgment, "describing him as so talented that he could help 'do peace in the Middle East'”, and has even decreed that all foreign policy matters first go through Kushner. We wonder how that will sit with Secretary of State appointee, Rex Tillerson.

To calm criticism about a White House position as his father-in-law's adviser, the Trump camp says Kushner will take no salary, as if money is what defines nepotism. They claim that the nepotism law does not apply to the president. It reads:

"A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.

Certainly, the spirit of the law applies to the president. It was passed in reaction to President Kennedy having chosen brother Robert as Attorney General. Another argument is that the federal budget that funds the White House offices labels it an "agency", the criterion used in the clause. None of these principles have deterred the president-elect.

The transition office says Kushner has resigned as CEO from his real estate company, divested foreign holdings, and will relinquish his stake in the family's flagship 5th Avenue building in Manhattan. But left in place will be his ownership stake in all the other family real estate holdings and other assets.

As with other real estate firms, the Kushner Companies borrow heavily, and much of its borrowings are from foreign entities, making for concerns that circumstances could arise where foreign policy toward a given country might be colored by those debts, such as the "multiple loans from Israel's largest bank".

And now Ivanka has announced that she will resign from her position and board seat at the Trump Organization and move to D.C., not to take a White House job — that would be nepotism — but with a West Wing office to act as adviser to her father, because in the Trump administration's re-definition, only a job can be nepotism.

So for Trump the management of the United States is to be reconfigured as another family business.

The President-elect's press conference was unusual for his lawyer taking the podium for an extended description of the many steps taken to separate Donald Trump from the Trump Organization and turn control of the business to his two sons, Donald Jr. and Eric. They will call a halt to all foreign development projects and work only in the U.S. Dad will have no say over any new U.S. project they choose to undertake. The President "will only know of it if he reads it in a newspaper or sees it on a television", said lawyer Shari Dillon. The president will resign from all corporate positions and the assets of the company will be transferred to a trust.

But the trust is anything but blind. As lawyer Dillon said, "President Trump can't unknow that he owns Trump Tower". Neither can he unknow all his other assets that he continues to own and simply transferred to a trust. Lawrence Tribe of Harvard, often turned to as an acknowledged expert on the Constitution and given to prickly commentary, is outraged by this arrangement. An opinion piece of his in The Guardian is titled, "Donald Trump will violate the US constitution on inauguration day" for running afoul of the so-called Emoluments Clause of the Constitution found in Section 9 of Article I:

And no Person holding any Office of Profit or Trust under them, 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.

The media has made conspicuous example of the newly opened Trump International Hotel in D.C., positing that foreign emissaries calling upon the government will (and already have) curry favor by making it known to the president that they are staying there (at $439 to $900 a night, says TripAdvisor). An example: "In February, the Kuwaiti Embassy plans to hold its National Day celebration for about 600 guests at the hotel", says the Wall Street Journal. So, Ms. Dillon says, to avoid any appearance of emolument, the Trump Organization will forego the profit from from the stays of any such foreign delegations and contribute it to the U.S. Treasury. "This way, it is the American people who will profit." So the ploy has been to convert the hotel from a conflict of interest into a PR gesture. (Will those contributions be made, it is fair to ask? A number of Trump's past pledged donations weren't).

And then there's debt, the several hundred million dollars that Deutsche Bank loaned the Trump Organization backed by the personal guarantee of Donald Trump. The bank has been the target of the Justice Department over "irresponsible" mortgage-backed securities. The years-long case was settled in December for $7.2 billion in fines but is still undergoing a criminal investigation. As the months proceed should we wonder about whether the fines might be reduced or charges lessened while never knowing whether there's been a quid for the quo?

What about the emoluments received from "foreign States" when their dignitaries and office holders join his golf course clubs or stay at other Trump hotels around the world, or, for that matter, seek to flatter Trump by applying to his Mar-a-Lago club with its $100,000 initiation fee?

Tribe told LawNewz.com that “the whole phony setup would make President Trump a living, walking, talking, tweeting violation of the Emoluments Clause each time banks or funds linked to foreign sovereigns are allowed to take steps that Trump will necessarily know are enriching the total value of his family’s mega-business.”

Courts Reversing Few Phony Voter Fraud Laws »

In rapid order, five federal courts have turned back laws enacted by Republican-controlled legislatures in four states that were designed to
keep targeted groups from the ballot box. Rulings have rejected laws in North Carolina, Texas, Wisconsin and North Dakota, four of the ten states that have made such changes to voting laws.

To prevent voter fraud is the reason the proponents of the laws hide behind. Officially-issued identification documents with an individual's photos are needed to combat the problem of voters committing fraud by impersonating someone else — except that every study has shown that the problem is rare to the point of non-existence. We cited overwhelming proof Setback… Read More »

The Constitutional Standoff Over the Supreme Court Seat »

Senate Majority Leader Mitch McConnell had no truck with the niceties of eulogies and condolences. Barely an hour after death of Justice Antonin Scalia was confirmed he issued a categorical rejection of anyone President Obama might
nominate as his
replacement, proclaiming, "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a… Read More »

Maybe You’ll Have Your Day in Court Again »

Hopefully you've never had a serious dispute with any of your credit card companies, or your bank, your investment broker, your mortgage lender, your cell phone service, your cable television provider, or increasingly just about everyone you contract with, even local merchants such as a gym or a tanning salon. Because deep in the legalese behind the checkbox that you clicked on the Internet labeled “Accept”, or in the text you never read before you signed a paper contract, is… Read More »

Proof of Police Preying On Civilians »

Readers expressed disbelief of our story titled " Law Enforcement Has a License to Steal from You" which ran last November. It reported the growing criminality of police stopping mostly blacks and Latinos on America's highways, searching their cars, and giving them the choice of signing over everything found in the car or facing arrest. Police departments use the sale of the proceeds to fund their departments. You can find that story here.

Then came the investigative report on the police in Ferguson, Mo., exactly corroborating what we reported. Calling it a culture of "predatory government", the report said that the city's municipal government considered its police department as a kind of "collection agency" to bolster the town's revenue. Offered promotions if they increased their "productivity", cops preyed upon mostly blacks, writing inflated citations such as $427 for disturbing the peace or $102 fines for unmowed lawns. The report called it "predatory government".

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Law Enforcement Has a License to Steal
from You »

Time was when the roads between villages and towns were perilous. One risked being set upon by highwaymen who'd make off with all your worldly goods. Fortunately, those days or gone — or so you thought. Fact is, across the country there are bands of highwaymen newly risen to steal from you as you pass through their territory. But they are not spoken of as "highwaymen". They are called "police".

Response to the demonstrations in Ferguson, Mo., made Americans aware of the ominous militarization of police forces around the country. But the armament we… Read More »

Corporations Are Now Persons With Religious Sensibilities, Says Supreme Court »

On the last day of its current term, the Supreme Court chose to give closely-held family-owned businesses a special exemption from the Obamacare requirement that they pay for insurance coverage that covers contraceptives if they offend the religious beliefs of the corporation.

After a string of 9-0 verdicts, the Court once again split on its usual fault line, with the 5 conservatives siding with the corporations and the 4 liberals against.

In the infamous Citizens United case, the Court went beyond the original treatment of corporations as "persons" to allow them access to courts by deciding that corporations should be thought of as more like us, and therefore entitled to contribute unlimited amounts to… Read More »

Supreme Court Gives Us Citizens United 2.0 »

Chief Justice John Roberts may have said in his Senate confirmation hearings that he would act only as an "umpire" at the Supreme Court, but instead he and
his conservative cohort is clearly following an activist agenda, twice now overturning settled campaign finance law of almost 40 years ago. In a 5-to-4 decision with the usual right-left alignment, the Court has opened a second floodgate for money to flow into political campaigns, deciding in McCutcheon v. Federal Election Commission that there should be no aggregate limit… Read More »

Doubling Down on Citizens United? »

Depending on how the Supreme Court soon rules in a case heard last October, the name “McCutcheon” may enter the political vocabulary to the same extent as we now speak of “Citizens United”. Shaun McCutcheon is CEO of an engineering firm in Birmingham, Alabama, that specializes in the mining industry, but he is more widely known in Republican circles as a generous campaign contributor.

McCutcheon wants to contribute still more, and the case he brought asks why an individual should… Read More »

Supreme Court Readies Obama Smackdown »

It’s clear from their questioning that the justices have already decided: Despite a practice used hundreds of times beginning with George Washington, a president’s right to make appointments during a Senate recess should be close to zero.

It was the first time the Court has considered the recess appointment clause of the Constitution and the debate largely turned on the difficulty for Congress to assemble when the document was written versus the ease of convening now.

“Congress met and… Read More »

Federal Judge Strikes Down Obama’s Assault on the Constitution »

Under cover of New Years Eve last year, while the fewest Americans would notice, Barack Obama signed into law an act that disgraces his presidency.

In mid-May a federal judge appointed by Obama, Katherine Forrest of the U.S. eastern district in New York, ruled that the law is "facially unconstitutional"and enjoined it from going forward.

Section 1021 of the National Defense Authorization Act (NDAA) signed December 21, 2011 tramples the Constitution’s guarantee of due process, jeopardizes freedom of the press… Read More »