Trump and Judicial Appointments (with an aside about Kelo v. City of New London)

On yesterday’s This Week with George Stephanopoulos, Trump was asked what kind of judges he would appoint. Among other things Trump said:

TRUMP: Well, I can say like any —  if you look at — if you look at some of the judges that we have like on the Supreme Court, Justice Roberts turned out to be a nightmare for conservatives. I mean… you know a judge who is a totally underrated and not spoken is Justice Thomas. I mean,….

A copy of the transcript is available here.

(Trump also discussed the importance of eminent domain, referring specifically to the controversial case of Kelo v. City of New London. Connecticut’s own Wes Horton argued the case on behalf of New London. Thanks to the Oyez Project you can listen to the oral argument here. Using the search tool, you can search for “Horton” and will be taken to the beginning of Mr. Horton’s excellent, successful argument. In his argument, Horton refers to a case in which eminent domain was used to create a limousine parking lot for a Trump casino).

An Unconstitutional War? A Primer and A Question: Should Lawyers Speak Out?

For all the talk about the U.S. response to ISIS, including criticism of the Obama administration’s strategy or alleged lack thereof, there is very little mention of the fact that the war on ISIS is most likely unconstitutional. Trevor Timm of The Guardain has written an excellent opinion piece entitled, “President Obama’s speech reminded Americans that the war with ISIS is still illegal.” If you are interested in an introduction to the issue, Timm’s op ed piece is a good place to start. His piece includes links to the opinions of constitutional scholars across the political spectrum, to an article about Connecticut Senator Chris Murphy who has called for Congressional action, and to an outline of proposed war resolution against ISIS.

After the attacks in Paris the British Parliament, following a vigorous debate, voted to commence air strikes on ISIS. Why do President Obama and the Congress refuse to address the issue of the war’s constitutionality? What are the consequences of their refusal? As Timm notes:

But any decision – or indecision– could have significant consequences beyond 2016: Republican front runner Donald Trump has boasted he would “bomb the shit out of Isis” and, disturbingly, said the US military should kill their families as well. Ted Cruz bragged he would “carpet bomb” the Middle East. And, if you take away the rhetorical flourishes, it’s hard to tell how Hillary Clinton’s policy on Isis is any less hawkish than the Republicans.

There is no more important constitutional decision than the decision to go to war. In the absence of Congressional action, there is a serious risk that the executive branch will engage in military actions that the country does not support. It is hard to imagine prosecuting, much less winning, a war that a majority of the country does not support. And yet here we are arguably at war without Congressional authorization. Where are the leaders? For political reasons are they hiding? The British Parliament had the leadership and the courage to debate and decide. What does it say about our government that it does not?

Do lawyers have a professional opportunity to speak out about this issue? The Preamble to Connecticut’s Rules of Professional Conduct provide in part:

As a public citizen, a lawyer should seek
improvement of the law, access to the legal system,
the administration of justice and the quality
of service rendered by the legal profession.

One could argue that because of the reluctance of the President and Congress to put the war issue before Congress, the public is being denied access to the legal system for deciding questions of war and peace, and that lawyers should seek improvement of the law and access to the legal system by speaking out about the need for Congressional action. As it is, it appears that electoral politics, the desire not to expose oneself to the risk of being defeated at the polls, is deemed to be of greater significance than the Constitutional command that Congress debate and act on the question of whether the United States should be at war in the Middle East. Lawyers may wish to consider raising this issue in their communities, explaining the role that Congress ought to be playing and the consequences of its failure to do so.

For Criminal Defense Lawyers … and anyone else who cares about or is curious about the criminal justice system

Note: (h/t: Legal Ethics Forum. see post by John Steele on Nov. 20, 2015 at 10:01am)

Judge Alex Kozinski has written an interesting, provocative and worrisome law review article that raises serious doubts about the fundamental fairness of the criminal justice process.See Preface  Criminal Law 2.0  44 GEO. L.J. ANN. REV. CRIM. PROC (2015). One can get a sense of what the article is about from its first sentence: “Although we pretend otherwise, much of what we do in the law is guesswork.” Judge Kozinski discusses and raises serious questions about some “facts” that are taken for granted in the criminal justice system, including:

  1. Eyewitnesses are highly reliable.
  2. Fingerprint evidence is foolproof.
  3. Other types of forensic evidence are scientifically proven and therefore infallible,.
  4. DNA evidence is infallible.
  5. Human memories are reliable.
  6. Confessions are infallible because innocent people never confess.
  7. Juries follow instructions.
  8. Prosecutors play fair.
  9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
  10. Police are objective in their investigations.
  11. Guilty pleas are conclusive proof of guilt.
  12. Long sentences deter crime.

Judge Kozinski also makes proposals intended to spark discussion and debate about the following topics:

  1. Juries
    1. Give jurors a written copy of the jury instructions.
    2. Allow jurors to take notes during trial and provide them with a full trial transcript.
    3. Allow jurors to discuss the case while the trial is ongoing.
    4. Allow jurors to ask questions during the trial.
    5. Tell jurors up-front what’s at stake in the case.
    6. Give jurors a say in sentencing.
  2. Prosecutors
    1. Require open file discovery.
    2. Adopt standardized, rigorous procedures for dealing with the government’s
      disclosure obligations.
    3. Adopt standardized, rigorous procedures for eyewitness identification
    4. Video record all suspect interrogations
    5. Impose strict limits on the use of jailhouse informants.
    6. Adopt rigorous, uniform procedures for certifying expert witnesses and
      preserving the integrity of the testing process.
    7. Keep adding conviction integrity units.
    8. Establish independent Prosecutorial Integrity Units.
  3. Judges
    1. Enter Brady compliance orders in every criminal case.
    2. Engage in a Brady colloquy.
    3. Adopt local rules that require the government to comply with its discovery
      obligations without the need for motions by the defense.
    4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
    5. When prosecutors misbehave, don’t keep it a secret.
  4. Miscellaneous
    1. Abandon judicial elections
    2. Abrogate absolute prosecutorial immunity.
    3. Repeal AEDPA § 2254(d).
    4. Treat prosecutorial misconduct as a civil rights violation.
    5. Give criminal defendants the choice of a jury or bench trial.
    6. Conduct in depth studies of exonerations.
    7. Repeal three felonies a day for three years.

Because Judge Kozinski makes reference to cases in which the Department of Justice hid evidence – for example see United States v. Stevens,No. 08-cr-231 (EGS), 2009 WL 6525926 (D.D.C. Apr. 7, 2009) – the DOJ wrote a response to Judge Kozinski’s article. For a copy of the DOJ response, click here. (h/t: Above the Law)

For a chilling book about prosecutorial misconduct see “Not Guilty: The Unlawful Trial of U.S. Senator Ted Stevens,” by Rob Cary. Mr. Cary, along with Brendan Sullivan and others at William & Connolly, represented Senator Stevens.

Opinion Letters Authorize Kill Shots

For transactional lawyers opinion letters are a familiar part of corporate – commercial practice. Their purpose is to provide “comfort” on a legal issue central to the transaction by using the reputation of the firm issuing the opinion letter to assure a non-client that for example, a lender has a perfected, valid, first position security interest in the borrower’s assets while reducing the liability of the firm issuing the opinion letter as much as possible.

Opinion letters also play a role in the law of war. That was certainly true during the administration of George W. Bush.Think of the now highly contentious opinion of John Yoo authorizing “enhanced interrogation” techniques. As described in a new book, Power Wars: Inside the O’bama’s Post 9/11 Presidency, Pulitzer Prize winning NYT reporter Charlie Savage, describes how President Obama, like George W. Bush, relied on legal opinions to shape his administration’s policies in the war on terror.  For example, in a recent NYT article, Savage describes four opinion letters authorized the killing of Osama bin Laden. The title of the article is “How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden.”   It would be interesting to review those opinion letters to examine the legal basis for their conclusions. It may be that the basis for those opinion letters was, at least in part, the law of perceived necessity, the necessity being the demands of national security. In a time of war and armed conflict it is fair to observe that the law is often malleable (think of the Supreme Court’s decision in Korematsu).If that is the case one may fairly ask in a time of war “what is law?” and “what is a lawyer’s responsibility when asked to interpret law for the Commander-in-Chief?” Anyone interested in thinking about those questions may be interested in Jack Goldsmith’s The Terror Presidency: Law and Judgment Inside the Bush Administration. See also the Wikepedia entry for “The Constitution is not a suicide pact,” and Not a Suicide Pact: The Constitution in a Time of National Emergency, by Richard A. Posner.

Opinion letters,whether in the context of corporate-commercial transactions or in the context of the war on terror, are examples of how much the judgment of lawyers matter.