Archive for legal

An Open Letter to the Honorable Chuck Grassley

Posted in Law & Justice, Social & Political with tags , , , , , , , on July 12, 2017 by xaipe

"History shows that the ten-year term limit isn't there to protect the FBI Director from politicians or politics; it's there to protect–to help prevent the FBI Director from overreaching or abusing power."

Dear Senator,

I directly quote you above to highlight a serious factual error in your statement. I'm not sure what history text you're consulting for this position, but I would suggest you find another source, perhaps documents from your own Senate.

Case in point, from the 2nd Session of the 93rd Congress, Report No. 93-1213, Calendar No. 1151, Ten-Year Term For FBI Director:

"The purpose of this bill is to achieve two complementary objectives. The first is to insulate the Director of the Federal Bureau of Investigation from undue pressure being exerted upon him from superiors in the Executive Branch. The second is to protect against an FBI Director becoming too independent and unresponsive."

As Chair of the United States Senate Committee on the Judiciary, the same position you now occupy, Senator Robert Byrd would be an excellent source for you to reference. As I think should be clear from the above citation, you are clearly incorrect in stating that the ten-year term limit for the FBI Director isn't meant to insulate the Director from undue political influence.

I would further argue that you fail to comprehend the meaning of the plain English language in the amendment itself:

"(b) Effective with respect to any individual appointment by the President, by and with the advice and consent of the Senate, after June 1,1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years. A Director may not serve more than one ten-year term. The provisions of subsections (a) through (c) of section 8335 of title 5, United States Code, shall apply to any individual appointed under this section."

—S. 2212 (94th): Crime Control Act, Sec. 203 (emphasis mine)

I highlighted the relevant language so that we might operate from the same set of facts. The law says clearly that the term of the Director "shall be ten years." This reminds me of other language that seems familiar, i.e. "Congress shall pass no law…" within the text of the Bill of Rights. I draw this parallel for a reason.

We take the language in the Bill of Rights to mean what it says, so when we read:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

We understand it to mean that Congress will never, ever, do any of these things. The words "shall make no" carry weight & force. While the auxiliary verb "shall" denotes future action, its connotation is that of expressing an assertion or a command. This is the function of these words in general, but the example helps to elucidate their gravity.

In a like manner, S. 2212, Sec. 203, states in few words that the FBI Director's term "shall be ten years." There is no equivocation nor qualification in the words chosen. There is nothing suggesting that its authors meant for the term to be "up to" ten years. They say quite simply that the term will be exactly ten years.

We could argue that they could have been more clear about how the Director functions under the umbrella of the Office of the Executive, under what specific conditions the Director can be fired, etc. However, while such debate might be relevant to the esoteric discussions of the future, it has no bearing on this issue.

The notion of FBI independence is not about to whom the FBI reports or under whose office they are organized. At its core, FBI independence is about ensuring that, when the coercive powers of the State are moved en masse against an individual or a group, those coercive powers are brought to bear with absolute regard for Constitutional Rights & the demands of Justice, without being colored by political motivations.

That you fail to grasp this simple concept is unconscionable. In my mind, it borders on negligence. Your apparent ignorance about important, relevant legislation would drive me to distraction were I an Iowan; as an American I'm simply incensed. You made these statements in public, on the record, opening the confirmation hearing for the nominee for the position of Director of the FBI!

I'd like to say that history will judge you unkindly, but I have little faith that many people will pay any attention to this whatsoever. I suggest that contravening such an opinion as yours is of great importance. If allowed to proliferate, your notions could easily lead to a situation in which every incoming president will simply appoint his or her preferred director, a situation the 94th Congress sought to avoid at all costs.

I won't attempt to address further remarks you made disparaging Andrew McCabe, James Comey, & the FBI for carrying the ugly legacy of J. Edgar Hoover, as if the very fact of the ten year term doesn't already address Hoover. To suggest that a politically independent FBI is somehow a threat to liberty is not just foolish, it is irresponsible.



In What Is The Supreme Court Interested?

Posted in Law & Justice, Social & Political with tags , , , , , , , on June 26, 2017 by xaipe

Caveat emptor: I am not now nor have I ever been a lawyer.

The Supreme Court today allowed parts of the Executive Order (EO) that restricts travel from 6 largely Muslim nations to be enforced in part. Essentially, the Court did two things. It acknowledged concerns by opponents & is allowing those with direct ties to United States citizens to continue to enter the country. Additionally, the Court is allowing enforcement of the EO against those who have no ties to United States citizens.

That’s all well & good, but the larger question should be framed differently: what is the Court’s interest in hearing this case?

It seems the case should be moot. The 90 days originally requested by the EO are gone, even from the second EO effective date. Further, it seems the Administration’s claims have little merit, i.e. these EOs speak directly to important national security concerns, but the Administration has not moved forward with the extreme vetting they requested back in January.

POTUS originally claimed (& still does claim) that this EO would:

“[F]or a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United States of certain aliens from the seven identified countries — each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States — would be detrimental to the interests of the United States.”

It seems to any casual observer, however, that this statement by the White House is false. This EO has been mired in the courts for five months at this point, yet the Administration has not rolled out any enhanced or “extreme” vetting procedures.

Either the White House is being disingenuous when it says that this EO is temporary “while existing screening and vetting procedures were under review,” or it completely lacks concern for national security.

One would assume that, this being an incredibly important issue for the Administration, regardless of the position of the various federal courts, the Administration would have began the review of existing screening & vetting procedures immediately. This “extreme vetting” was said to be entirely necessary for the security of our nation & the safety of its inhabitants.

As we all know, however, this Administration has not rolled out any enhanced or extreme vetting procedures whatsoever. They haven’t even indicated that they’ve begun the process!

According to The Weekly Standard, no such policies or procedures are forthcoming, despite repeated claims that the EO is temporary to allow time to implement these extreme vetting policies that are (allegedly) so crucial to our security. The tweets from POTUS himself seem to also suggest that the EO itself is the device that will enhance our security, as he continually says that we need this ban to be removed from the courts so that we can be safe.

The White House has had ample time to implement extreme vetting if that were truly what this is about. Having apparently done absolutely nothing to institute extreme vetting, the argument that the EO is necessary for the security of the county doesn’t hold. 

Regardless, the case before the Court should be a moot issue because the time requested by both the original and the second EO has come & gone (additionally, the 120 days ‘pause’ requested for the refugee program has passed regarding the first EO). The lawyers responding to the government cited this issue in brief. The government responded further by having the White House change the effective date of the EO so that it doesn’t go into effect until the injunction is lifted. In their decision, the Justices noted:

The memorandum further provided that, to the extent necessary, it “should be construed to amend the Executive Order.” Ibid. The Government takes the view that, if any mootness problem existed previously, the President’s memorandum has cured it.

Further, the Court directed both parties to respond to the question of whether or not the case is moot as of June 14, 2017, to be heard during argument in October (this because the second EO is what’s under consideration, with an effective date originally in March).

The concerning issue for me is their interest in hearing this case at all. The case, on its face, seems to have no relevance anymore. However, the Justices will only hear argument about the moot question in October. Further, in a separate “concurrence,” Justice Thomas, joined by Justice Alito & Justice Gorsuch, is of the opinion that the government has a likelihood of succeeding on the merits of the case, i.e. The Court will ultimately strike down all challenges & decide for the government. 

I’m not sure how the government’s case does succeed on the merits. As I argued above, the behavior of the Administration belies any real interest in national security. The Court further notes in the decision that the Administration is free to conduct its review of vetting procedures, “if it has not already done so.” It seems to me the Court is cognizant of the national security issues, but I don’t believe they’ll brook any attempt to play in this area. If the Executive hasn’t competed & implemented their review or tries to expand the timeframe of the EO, I don’t see the Court being pleased.

As an aside, I think there is an argument to be had with the finding regarding refugees. The Court applies the same standard for visa waivers to the refugee program. It seems unlikely that people seeking refugee have bona fide relationships with US citizens, & while no one questions that no alien has a constitutional right to enter this country, one might still suggest that human beings fleeing inhuman treatment at least might have the right to be heard.

Regardless, I’m very interested to see where this goes. If the courts go too far toward Thomas & Gorsuch, we will see a further erosion of public trust in the institutions of democracy. These justices trend toward syssiphean feats of logical acrobatics to turn the law away from the People & towards corporations & moneied interests. At least that’s my opinion. 

The clock starts June 29, 2017. Mark your calendars for September 26, 2017. We’ll see what happens in the 90 days & beyond.

What is this Florida International University Constitutional Law Professor saying?

Posted in Law & Justice, Social & Political with tags , , , , , , , on June 11, 2017 by xaipe

Er, perhaps I should correct that to simply say, “What the Fuck?!”

This is Professor Elizabeth Foley Price on MSNBC Live , which aired Sunday, June 11, 2017. To be as accurate as possible, I want to transcribe the part of her statement that contains the central argument offered in answer to the question posed by Ms. Witt regarding whether or not the POTUS can order the FBI to back off an investigation of Michael Flynn because Flynn is the President’s friend, i.e. that POTUS obstructed justice:

“To the extent people want to make this obstruction of justice, there’s a million reasons why this is not technically obstruction of justice, either as a statutory matter or a constitutional matter. But this point in particular about corrupt intent is even worse because, think about it, the President also has the authority, under Article II of the Constitution, to pardon people. But we don’t say, for example, that the President can’t pardon cert…er…a certain person because he has a corrupt intent. ‘He, he likes the guy, he’s known him for a long time; therefore, he can’t pardon him.’ The pardon power, like the power to head the investigative, or, er, rest of the executive branch, like the FBI, like the DOJ, is a plenary discretionary authority of the President. He can pardon anybody for any reason he wants to, ‘corrupt motive’ or no. And he can direct the investigation or non-investigation of anyone, ‘corrupt purpose’ or no.”

Wow. I’m going to state immediately that I am not a lawyer of any kind. Even our host only seemed to be able to attempt a rebuttal, making an honorable effort. Because I find this whole thing to be laden with words that sound like specific legal jargon, I’m going to look for terminology that could have a particular meaning within the law. I want to make sure that I don’t conflate any jargon-laden meaning with the plain meaning of the colloquial language, so I’m going to post the relevant material I find that might lead to understanding.

Obstruction of Justice: there’s a well covered federal statute that defines this legal term, 18 USC sec. 1505. Stated in the most simplistic manner, the first part of this statute deals with anyone withholding or destroying or concealing or lying about information requested in compliance with an investigation or proceeding. The second part deals with the act of interfering, by any means or manner, with the administration of the law, sought through inquiry or investigation, by any federal judicial or congressional proceeding.

Corrupt Intent: this one is pretty simple. Committing an act despite knowing it is illegal is corrupt intent. This is a broad definition, however. It should be noted that the above referred 18 USC sec. 1505 also contains language that suggests that anyone who seeks, “corruptly or by threats of force,” etc,  to impede said proceedings, is obstructing.

Plenary Power: again, this seems pretty straight forward. A plenary power gives complete authority over a particular area. Cornell University Law chooses an example from the Constitution, Article I, Section 8, Clause 3, which grants Congress authority over Interstate Commerce. The courts have viewed this as a plenary power, holding that State’s do not have the right to pass laws governing interstate commerce without the consent of Congress. Prof. Price is also correct that Presidential Pardon is considered a plenary power. There is some argument surrounding this; however, it has nothing to do with the POTUS’ power to direct the Offices of the Executive Branch.

(As an aside, here is an interesting article in the William & Mary Law Review that argues that it might be time to restrict the pardon power, giving an extensive history that begins with the concept in English Law. Of course, the paper does not argue that pardon power currently has limits. It just suggests that pardon power ought to be limited.)

Let’s take all that we’ve discovered so far & see if we can’t state her argument in syllogistic form.

Premise 1: POTUS cannot commit obstruction of justice with regard to directing FBI investigations because obstruction in this sense requires corrupt intent.

    Sub 1: The POTUS has “plenary power” to pardon people.

    Sub 2: The power to head the Executive Branch of government, including the FBI, is like the power to pardon, i.e. it’s a plenary power.

    Sub 3: Therefore, POTUS has plenary power to head the FBI.

Premise 2: Because POTUS has plenary power to head the FBI, he can direct investigations in any manner he sees fit, regardless of motive.

Conclusion: The POTUS cannot commit obstruction of justice with regard to directing FBI investigations. 

    It’s a fairly neat argument. Her assertions seem all to be represented, & the order I have given her premises seem to follow the logic…
    Who am I kidding? I can’t possibly take this seriously. Logic was thrown out the window the second she started down her “plenary” road.

    If we simply examine that singular statement about plenary authority, we’ll find the flaw as well as one of the most insane statements I’ve ever heard a lawyer utter. 

    First, she provides no relevant citation from the text of the Constitution or any legislation demonstrating that any plenary power to direct the Executive Branch en bloc exists. She speaks only generally to “Article II of the Constitution,” indicating no specific section or clause. Article II is concerned with establishing the Office of the President & delineating the powers of the Office in general, but the Constitution is mute on the subject of the FBI & its director.

    The FBI exists simply by force of will. In 1908, Attorney General Charles Joseph Bonaparte, just decided to hire his own team of DOJ investigators without request, without permission, & without objection. With tacit congressional & executive consent, his successor dubbed this new investigative arm the Bureau of Investigation.

    The FBI is organizationally under the Department of Justice (it was created out of whole cloth by an Attorney General, after all), & so far as I can tell the original directors were simply appointed by the Attorney General with no oversight or consent from any other governmental party required. It was in response to Hoover’s extremely long reign, & the incredible amount of power he had amassed from the information he’d gathered through often illegal or questionable means, that on his death the President & Senate assumed the authority for appointment & consent of the Director of the FBI respectively.

    It isn’t until 1976 that Section 203 of the Crime Control Act establishes that the person who fills the position of the Director of the FBI will serve a term of ten years & is appointed by the President with the advice & consent of the Senate. While the legislation doesn’t specifically state its purpose for creating this ten-year term, it didn’t arise in a vacuum.

    I refer here to a really fantastic piece in LawfareBlog by Andrew Kent, Susan Hennessey, & Matthew Khan, a brief history of the Crime Control Act of 1976. Essentially, it comes down to these small paragraphs:

    “When recommending enactment of the ten-year term, the Senate Judiciary Committee wrote a comprehensive report of its rationale, including:

    ‘The purpose of this bill is to achieve two complementary objectives. The first is to insulate the Director of the Federal Bureau of Investigation from undue pressure being exerted upon him from superiors in the Executive Branch. The second is to protect against an FBI Director becoming too independent and unresponsive.’

    As Chairman of the Judiciary subcommittee overseeing the FBI, Senator Robert Byrd said during a hearing on the ten-year term legislation that the FBI director must not use the Bureau as ‘a political action agency for the President,’ but cannot be allowed to turn the Bureau into a personal ’empire.’”

    I’m not sure I could or should add anything. It seems exceedingly obvious that this particular legislation was intended, as evidenced by the clear and convincing statements of the Judiciary Committee & its chairman during the crafting of the bill, to act as an affirmative check on the power of the POTUS to “direct” the FBI in any regard.

    Ultimately, Prof. Price’s point was to say that we really want to avoid thinking of indicting the POTUS in the usual way of criminal indictments. She wanted to alarm us about the Court having to “constrain the power of the POTUS,” though that is, ostensibly, the very role of the Courts in the practice of Judicial Review, a cornerstone principle unique to American jurisprudence (you might think a Con-Law Prof would know that).

    While I don’t disagree that criminally prosecuting a sitting President in courts of law is problematic at best & potentially unconstitutional, I have to again fault her for her words.

    Rather than point out the liquefied ground on which such a prosecution might rest–who would arrest & detain a sitting President, who would prosecute, & who would adjudicate?–she again retreats to language that belies her assertion by later stating that it would somehow be problematic for the Courts to perform their integral function of constraining the powers of the POTUS as a co-equal branch of government, especially given she believes these powers to be plenary, an assertion she also fails to prove as her premises fail to establish her conclusion.

    This is enough for me to question her fitness as a Professor of Law & a Juris Doctor, but I’m not quite finished.

    Let’s revisit the clear, plain language meaning of what Professor Elizabeth Foley Price of Florida International University said:

    “The pardon power, like the power to head the investigative, or, er, rest of the executive branch, like the FBI, like the DOJ, is a plenary discretionary authority of the President. He can pardon anybody for any reason he wants to, ‘corrupt motive’ or no. And he can direct the investigation or non-investigation of anyone, ‘corrupt purpose’ or no.

    Her final affirmative statement says, without equivocation, that the POTUS has absolute, unchallenged authority to command the FBI to investigate or not to investigate any person for any reason whatsoever, even if the motivation for ordering the commencement or cessation of the investigation is itself known to be illegal, immoral, or unethical!

    I’m going to rephrase that in case it stunned you into a fugue state: an American professor of American Constitutional Law at an American university apparently believes that the United States Constitution gives our POTUS the unassailable authority to use the FBI as his personal Gestapo!

    I’m not sure that a more clearly stated paraphrase can be cobbled together from any other language. Frankly, I’m pretty sure anyone stopping on a blog about “political & social philosophy” would have easily discerned this meaning immediately. I’m sure the one individual reading this already gleaned for him- or herself exactly what the professor was saying.

    Still, it is important to recognize that the reduction to absurdity isn’t The only thing fatal about her argument. The fact that her entire assertion reduces to, “POTUS can use FBI indiscriminately & without remorse or consequence, so he can’t obstruct justice” is a bonus to me. Her argument fails, both on its merits & on the fact that it renders an absurd subconclusion, i.e. that the power of POTUS over the FBI is plenary. Either way, she makes a case that she might not be fit to train young minds in the vagaries of United States Constitutional law.

    Does anyone have an email address for the President of Florida International University? I’d really like to ask him or her, “What the fuck?!”