Category Archives: Fifth Amendment

I'm pleased to say that my article, Decryption Originalism: The Lessons of Burr, has just been published by the Harvard Law Review. Here's the abstract:

The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr's private secretary if he knew the cipher to an encrypted letter Burr had sent to a coconspirator. Burr's secretary invoked the privilege against self-incrimination, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment's ratification. The Article presents that reconstruction, and it concludes by applying Burr's lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.

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"Decryption Originalism: The Lessons of Burr," Is Now Out - Reason

While there are not many days left in his presidency, Donald Trump remains an unparalleled menace to democracy. He must be removed from power and brought to justice as soon as possible. Each day we delay, we run the risk of catastrophe.

With news that Articles of Impeachment willbe introduced into the U.S. House of Representatives, a vibrant discussion abounds on whether this is the appropriate method of censure and removal. On Friday, Senate Majority Leader (for now) Mitch McConnell circulated a memo to colleagues outlining the process an impeachment might follow.

There is also talk of removing Trump from office by means of the Twenty-Fifth Amendment. But while the debate has been healthy and spirited, it has for the most part been poorly framed because it presents a false either or dichotomy.

Donald Trump remains an unparalleled menace to democracy. He must be removed from power and brought to justice as soon as possible. Each day we delay, we run the risk of catastrophe.

As a matter of strategy, tactics and law, the Twenty-Fifth Amendment and impeachment can and should be pursued simultaneously. The remedies they offer are complementary, not in conflict.

The real question is not whether Congress should invoke either the amendment or pursue impeachment. The question is whether Congress has the will to take action quickly and decisively.

Ratified in 1967 in the aftermath of uncertainty following the assassination of President John F. Kennedy, the Twenty-Fifth Amendment offers the quickest route to accountability.

The amendment sets forth a process and a detailed timeline for declaring a sitting President incapable of performing his duties, and transferring executive authority to the Vice President. To initiate the transfer, the Vice President and a majority of the members of the Cabinet need only sign a declaration asserting that the President is unable to discharge the powers and duties of his office. Thereafter, the Vice President shall immediately assume those powers.

The amendment also permits the President to resume office by signing a counter-declaration alleging his capacity to serve. But within four days of receiving the counter-declaration, the Vice President and a majority of the Cabinet can keep the President out of power by signing another declaration of their own. After that, the issue of the Presidents fitness is committed to the Congress, which must make a final decision by a two-thirds majority vote within twenty-one days.

Vice President Mike Pence reportedly hasnt closed the door on invoking the amendment, but clearly, he must be pushed both by Democrats and the public at large to change his mind before Trump unleashes another MAGA mob to wreak havoc in Washington, D.C., or elsewhere, prior to the Inauguration of Joe Biden on January 20.

Should Pence do soand remember that he had his come to Jesus moment when, on the morning of January 7, he certified Bidens Electoral College victoryTrump would be unable to restore himself to power within the amendments timeline.

But whether or not Pence can be made to heed the call of history, Democrats should launch a second, high speed impeachment proceeding against Trump. A new impeachment resolution has already been drafted for this purpose, charging Trump with incitement of insurrection for sparking the failed violent coup attempt staged at the U.S. Capitol on January 6.

Even if the process cannot be completed before Inauguration Day, a second impeachment is a necessity.

Even if the process cannot be completed before Inauguration Day, a second impeachment is a necessity. Its principal goal would be to disqualify Trump from ever holding federal office again. It would also take from him the many perks (financial and otherwise) that are given to former Presidents under the 1958 Former Presidents Act. He would, however, continue to have Secret Service protection under a 2012 amendment to that act.

Normally, when we think of impeachment, we envision the removal of an official from office. But underArticle I, Section 3 of the U.S. Constitution, judgments in cases of impeachment extend not only to removal, but also to future disqualification.

As I have written elsewhere, there is no legal bar to trying Trump in the Senate on a new article of impeachment after January 20. In 1876, theSenate conducted an impeachment trial of Secretary of War William Belknapeven though he had resigned before the House voted to impeach him for financial corruption.

While Richard Nixon was able to escape impeachment via resignation, the current House and Senate, now controlled by the Democrats, would not be bound by the Nixon example. Both chambers would be free instead to follow theBelknap precedentin the case of impeaching a former President, as severalleading constitutional scholars have indicated in interviews with the Washington Post in 2019. Impeachable offenses, moreover, arenot subject to the Presidents pardon power.

Given the growing sense of shame and disaffection in the ranks of the GOP, Trump should expect a full Senate trial in his second impeachment, in sharp contrast to the perfunctory acquittal he received in his first impeachment.

Witnesses would be called. Evidence would be presented. The whole world would watch as Trump and the fascism he has promoted are put on display.

No federal official in American history has ever been impeached twice. But Trump has always prided himself as being a norm-buster, and no American President has ever deserved harsher treatment.

No federal official in American history has ever been impeached twice.

A second impeachment would be a fitting conclusion to Trumps defilement of the presidency. Better still, if we maintain our vigilance and continue to press for accountability, a second impeachment could also be a prelude to future federal and state criminal prosecutions of Trump and his principal enablers.

We havent a moment to lose.

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Unequal Justice: Use Both the 25th Amendment and Impeachment to Hold Trump Accountable - Progressive.org

When it comes to U.S. criminal law, a felony is perhaps one of the most critical legal issues you may encounter. A felony conviction can lead to prison time, while there are other implications such as fines, penalties, and probation costs. Your criminal record will probably haunt you for a lifetime as it damages your personal and professional reputation. It is vital to take the right approach to deal with these changes to save the trouble and get freedom at the earliest. Here are some steps that can help you handle the toughest situation.

Being charged with a felony can be hard on anyone, and it is easy to lose control. But the last thing you should do is to blow up and resist arrest because it will only aggravate the problem. Resisting arrest can make you look guilty and even bring additional charges. The best thing to do at the time of arrest is to stay calm and composed and cooperate with the authorities.

According to the Fifth Amendment, every accused has the right to refuse to incriminate oneself in a criminal case. You also have the right to remain silent in custody and insist that you will answer questions only in the presence of your lawyer. But make sure that you are polite rather than hostile with the authorities when you demand to exercise this right and get a lawyer to represent you.

Seeking legal advice quickly is the best piece of advice for anyone facing felony charges. Calling someone right away will save you from saying something unfavorable in custody because the authorities may use it as evidence during the trial. It is vital to understand the law of your state because it can impact your verdict. If you face charges in Alaska, hiring thebest criminal defense lawyer in Anchorage to represent you in courtgets you in a vantage position. Let them know the truth so that they can build an effective defense strategy to save you from the penalty.

Unfortunately, most people do not even understand the difference between a felony and a misdemeanor. It means that you hardly know the severity and the harsh potential consequences of the crime if convicted of a felony. You will probably end up with a jail sentence and may also have to pay restitution. Further, you may lose some rights even after being released, such as the right to vote and own a firearm. Go the extra mile to understand the changes and their potential implications.

When you face a felony charge, you have to be present at all court proceedings, from the time of the plea to preliminary hearings and the final verdict. You should also be there when evidence is given to the jury or the judge. As a defendant, you must know the key dates and events during the trial and be in court when they happen. Failure to attend the proceedings not only gets you in bad books but may also lead to something as serious as the issuing of an arrest warrant.

While you must abide by the legal norms, it is vital to keep your case confidential. Avoid discussing anything with your family and friends because anything you tell them can go against you. Have a legal expert to guide you throughout and follow their advice.

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Dealing With Felony Charges - Your Guide To Handling The Toughest Situation - State-Journal.com

Wrongful Conviction Podcast with Jason Flom

Now Free, and an Attorney, Marty Tankleff Sits Down With Jason Flom to Discuss His 19-Year Wrongful Conviction Nightmare

NEW YORK, Jan. 13, 2021 (GLOBE NEWSWIRE) -- In March 2007, Marty Tankleff was released from a 19-year prison nightmare after being wrongfully convicted of murdering his parents. In 2018, he was awarded an $18 million settlement from Suffolk County (in addition to a $3.375 million settlement from New York State). Last year, he was admitted to the New York State bar to work as a lawyer. And this week, hes revisiting his story on the hit podcast, Wrongful Conviction with Jason Flom.

Marty was just 17 years old when his parents, Arlene and Seymour Tankleff, were bludgeoned to death in their Long Island home in late 1988. In June 1990, Marty was convicted and sentenced to 50 years to life in prison. His conviction was based largely on a confession that Marty gave after many long hours of interrogation by Suffolk County detective K. James McCready a confession that the teen recanted almost immediately and refused to sign.

Maintaining his innocence, Marty obtained pro bono legal assistance and persevered through multiple appeals filed in state and federal courts. New evidence emerged that pointed to Jerry Steuerman as the orchestrator of the murders. Steuerman, who had been partners with Martys father in a bagel store, was owed $500,000 by the elder Tankleff and had, according to Marty, threatened his parents with violence before leaving their home the night they were murdered.

A man named Glen Harris offered a sworn statement that on Steuermans orders, he had driven two hit men, Joe Creedon and Peter Kent, to the Tankleff home on the night of the murders. When Harris was denied immunity by Judge Stephen Braslow in a July 2004 hearing, Harris invoked his Fifth Amendment right and his testimony went unheard.

Evidence of Martys innocence continued to pile up, however. Another witness came forward to say that Creedon had told her of his involvement in the murder, describing how he and another man initially hid in the bushes outside the Tankleff home before running to avoid capture and disposing of their bloody clothing. In addition, evidence surfaced that the detective who had obtained the false confession from Marty had come under investigation for perjury.

In December 2007, Martys conviction was overturned by an appellate court ruling that Judge Braslow did not properly consider new evidence brought by Martys legal team. He walked free nine days later.

Wrongful Conviction with Jason Flom has highlighted the stories of hundreds of wrongfully convicted men and women, from The Central Park Five and Brendan Dassey to Rodney Reed, Amanda Knox, and more. The series is a valuable resource for lawyers, criminal justice advocates, all citizens who are potential jurors, as well as the wrongfully convicted themselves.

Flom, the founder and CEO of Lava Records and a longtime criminal justice advocate, has been personally involved in the cases of hundreds of wrongfully convicted people. Wrongful Conviction with Jason Flom is produced by Lava For Good Podcasts in association with Signal Co. No1.

Hear Martys mind-blowing story on http://www.wrongfulconvictionpodcast.com or on all popular podcast streaming platforms.

About Lava for Good Podcasts:

Lava for Good Podcasts exists at the intersection of entertainment, inspiration, and impact. Produced by renownedmusic executive, children's book author, and philanthropist Jason Flom along with Lava Media COO Jeff Kempler in association with Signal Co. No1, Lava for Good Podcasts works directly with a highly-engaged audience to entertain, empower, and create a sense of participation and community impact. Its #1-charting lineup of criminal justice podcasts explores the interrelated topics of systemic racism, over-policing, and criminal justice reform and currently includes Wrongful Conviction with Jason Flom, Wrongful Conviction: False Confessions, and Wrongful Conviction: Junk Science.

Beyond the success and impact of the podcast series, Wrongful Conviction is now a multi-channel platform with podcasts, video content (through third-party partnerships with NowThis and Facebook) and livestream panel discussions hosted by Wrongful Conviction (such as the Power to the People civil rights panel) or created via a partnership media organizations such as Billboard and Vibe.

As the founder of Lava Media (which includes Lava Music as well as Lava for Good Podcasts), Flom is one of the most successful music executives in history, having backed and discovered superstar artists from Twisted Sister and Skid Row to Matchbox 20, Paramour, Kid Rock, 30 Seconds to Mars, Katy Perry, Lorde and Greta Van Fleet. He has also served as the chairman of Atlantic Records, as well as Virgin Records/Capitol Music Group. With his daughter Allison Flom, he is the co-author of the children's book Lulu is a Rhinoceros soon to be a major children's TV show.

For media inquiries: Dawn KamerlingThe Press Housedawn@thepresshouse.comwww.thepresshouse.com

A photo accompanying this announcement is available at https://www.globenewswire.com/NewsRoom/AttachmentNg/6fb05459-b6eb-4f8d-8322-50038c71bb03

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Now Free (and an Attorney), Marty Tankleff Sits Down With Jason Flom to Discuss His 19-Year Wrongful Conviction Nightmare - GlobeNewswire

Donald Trump and his dwindling band of loyalists are planning a defiant final week in office. Citing sources familiar with Trumps thinking, Bloomberg News reported on Sunday that between now and January 20th, when Joe Biden takes office, Trump plans to visit the Mexican border, issue more Presidential pardons, and try, once more, to introduce some restrictions on Big Tech companies like Twitter and Facebook, which have kicked him off their platforms in recent days. Trump is confident Vice President Mike Pence and members of his cabinet will not attempt to remove him under the 25th Amendment, the Bloomberg story went on to say, and the President and his allies believe Democrats are overreaching by trying to once again impeach him over Wednesdays siege at the Capitol, and think Senate conviction would be unlikely.

With Nancy Pelosi and her House colleagues planning an impeachment vote in the next few days if Trumps Cabinet colleagues dont act under the Twenty-fifth Amendment, it is tempting to dismiss stories like this one as mere bluster from Trump. Unfortunately, that could be wishful thinking. Despite all the outrage sparked by last weeks riot, Trump still has grounds for believing that he wont receive any immediate sanctions for openly inciting an insurrection. Its conceivable that he could be punished further down the road, but even that is far from certain. Repeating a tragic pattern that has been evident since he launched his first Presidential bid, in 2015, the American political system is proving too weak and divided to deal with the threat he poses.

Lets start with the pitiful figure of Vice-President Mike Pence, who was whisked away from the Capitol during Wednesdays riot and seems to have been in hiding since. On Sunday, Hallie Jackson, NBC Newss White House correspondent, reported that Pence doesnt think its practical to invoke the Twenty-fifth Amendment and force Trump from office. Of course, the main thing ruling out such a move is the pusillanimity of Pence and other senior members of Trumps Cabinet. If the Vice-President, Secretary of State Mike Pompeo, and Treasury Secretary Steve Mnuchin agreed to invoke the amendment, a majority of their colleagues in the Cabinet might well support them. All it would require is a bare majority vote, and Pence would take over as President.

To be sure, the aftermath would be messy. Trump could contest the Cabinet decision and appeal to Congress, where a two-thirds vote of both houses would be necessary to confirm his removal from office. But, in the interima period that would surely last through January 20thPence would be the acting President, and the danger of Trump doing something truly crazy again would be removed. Unfortunately, Trump is right. This isnt going to happen.

What about impeachment? On Sunday night, Pelosi said that the House would vote Monday on a nonbinding resolution asking Pence to invoke the Twenty-fifth Amendment, and she called on him to respond within twenty-four hours. If he doesnt, the House Democrats will move ahead quickly with impeachment proceedings, Pelosi indicated. Since more than two hundred Democratic representatives have already expressed support for the idea, they shouldnt have any problem passing the articles of impeachment. The problem lies in the Senate, where Mitch McConnell, the Majority Leader, is invoking procedural rules and saying a trial couldnt begin until January 19th, the day before Bidens Inauguration. McConnell is just playing games, Norm Eisen, a Washington attorney, who served as special counsel to the House Judiciary Committee during the 2020 impeachment and trial of Trump, told me on Sunday. If McConnell were to call the Senate back into session this week, an impeachment trial could be completed in the next ten days, Eisen, who is also a senior fellow at the Brookings Institution, contended. He pointed out that two pieces of critical evidence in the caseincluding Trumps speech to his supporters on January 6th, and the transcript of his January 2nd conversation with Brad Raffensperger, Georgias secretary of stateare both freely available. The facts are clear; the law is clear, Eisen said. It is just a matter of two votes of courageone in the House and one in the Senate.

Sadly, there is little chance of McConnell doing the right thing. Even if he surprised everybody, assembling the seventeen Republican votes it would take to convict Trump would be a mighty task. In recent days, the G.O.P. senators Pat Toomey and Lisa Murkowski have called on Trump to resign, but neither of them has said that they would vote to convict the President. On Saturday, Toomey told Fox News that Trump had committed impeachable offenses. On Sunday, appearing on NBC Newss Meet the Press, Toomey said that Trump spiralled down into a type of madness last week. But Toomey also said that he didnt think there was time for an impeachment, adding, I think the best thing would be a resignation.

Since Trump clearly has no intention of resigning, that is a cop-out. And Toomey and Murkowski are two of the most independent-minded G.O.P. senators. Roy Blunt, the second-term senator from Missouri, is more representative of McConnells Republican caucus. My view is what the President should do is finish the last ten days of his Presidency, Blunt told CBS Newss Face the Nation on Sunday. The President touched the hot stove on Wednesday and is unlikely to touch it again.

Given the Republican Partys continued refusal to take responsibility for Trump, what can be done to bring a dangerous President to book? Some Democrats are concerned that starting the Senate trial as Biden takes office, which is the timetable that McConnell has put forward, could endanger the new Administrations policy agenda and its hopes of getting its Cabinet nominees confirmed quickly. One option that Pelosi and her colleagues are exploring is delaying the impeachment trial in the Senate, perhaps for as long as two or three months. Under this scenario, which Representative James Clyburn, the third-ranking Democrat in the House, laid out on Sunday, the House would pass the article, or articles, of impeachment this week but then hold off on passing them along to the Senate. Lets give President-elect Biden the hundred days he needs to get his agenda off and running, Clyburn, who is a close ally of Bidens, said on Fox News on Sunday. And maybe we will send the articles sometime after that.

If the only goal of impeachment is to prevent Trump from running again in 2024, delaying a trial might be a defensible option. The danger is, though, that it might lessen the pressure on Senate Republicans to vote for a conviction. With many G.O.P. members already trying to wriggle away from their responsibilities in the immediate aftermath of Wednesdays insurrection, how much less likely are they to answer the call in three months? Conceivably, a delayed trial could give Trump yet another burst of publicity at a moment when most Americans are hoping to be rid of himand then end with him claiming to have been vindicated.

One other option that is worth considering, Eisen told me, is invoking Section 3 of the Fourteenth Amendment, which says that anybody who has called for an insurrection against the federal government cant run for office. Trumps actions certainly seem to satisfy the statute, and Section 5 of the Amendment gives Congress the power to enforce it. Thats certainly something that should be in the mix, Eisen said. But we should lead with impeachment.

Whats required is a way to punish Trump for his sedition, make sure he cant run for President again, and deprive him of the oxygen he so craves. The permanent ban by Twitter goes a long way toward meeting the third goal, but the first two are arguably even more important.

In other democracies, a leader who tried to overthrow an election result and incited a violent insurrection might well be cooling his heels in prison by now. In this country, the job of policing the President falls largely on the legislative branch. For four years, it has failed dismally to carry out this task. Even after the unprecedented events of last week, its far from clear that Congress will prove up to the task now. But this time, surely, and for the sake of American democracy, Trump must be held accountable.

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Trump Cant Be Allowed to Escape Justice Yet Again - The New Yorker

MINNEAPOLIS -- A former Minneapolis police officer who held his knee to George Floyd's neck for minutes will be tried separately from the three other former officers accused in his death, according to an order filed Tuesday that cites limited courtroom space due to COVID-19 restrictions.

Derek Chauvin will stand trial alone in March while the other three former officers will be tried together in the summer. In his order, Judge Peter Cahill cited the limitations of physical space during the coronavirus pandemic, saying it is impossible to comply with COVID-19 physical restrictions given how many lawyers and support personnel the four defendants say would be present.

Prosecutors disagreed with the judges decision. A defense attorney for former officer Thomas Lane said he believed a separate trial would be better for his client, while the other defense attorneys either declined to comment or did not return messages.

Legal observers say the change benefits Chauvin's co-defendants, who will get a preview of what the state's witnesses will say and more time to prepare. They'll also blame Chauvin, who won't be on trial with them to push back.

Last week, prosecutors asked Cahill to postpone the March 8 trial to June 7 to reduce public health risks associated with COVID-19. In his Monday order, which was filed Tuesday, the judge wrote that while the pandemic situation may be greatly improved by June, the Court is not so optimistic given news reports detailing problems with the vaccine rollout.

Cahill's order included an email from Hennepin County Chief Judge Toddrick Barnette, who requested that the trials be separated in a way Cahill deemed fair, after he learned that each defendant planned to have co-counsel or legal support in court. Barnette wrote that he looked at the courtroom's configuration and concluded social distancing couldn't be enforced in that space with so many people. Barnette wrote he believed the courtroom could handle up to three defendants at once.

Floyd, a Black man, died May 25 after Chauvin, who is white, pressed his knee against Floyds neck while he was handcuffed face down on the street. Police were investigating whether Floyd used a counterfeit bill at a nearby store. In a video widely seen on social media, Floyd could be heard pleading with officers for air, saying he couldnt breathe.

Floyds death sparked protests in Minneapolis and elsewhere and renewed calls for an end to police brutality and racial inequities.

Chauvin is charged with second-degree murder and second-degree manslaughter in Floyds death. Former officers Lane, Tou Thao and J. Alexander Kueng are each charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter.

Defense attorneys had argued last year that the officers should be tried separately, but prosecutors argued against it.

Attorney General Keith Ellison, whose office is prosecuting the case, said Tuesday that he disagrees with Cahills decision to separate the trials and to hold Chauvins in March.

The evidence against each defendant is similar and multiple trials may retraumatize eyewitnesses and family members and unnecessarily burden the State and the Court while also running the risk of prejudicing subsequent jury pools, Ellison said in a statement. It is also clear that COVID-19 will still be a serious threat to public health in 8 weeks time. ... Nevertheless, we are fully prepared and look forward to presenting our case to a jury whenever the Court deems fit.

Lanes attorney, Earl Gray, said he thinks its better for his client to have a trial separate from Chauvin.

In a joint trial, theres always a spillover effect no matter what. You know a jury is supposed to consider each client separately, but thats hard for anyone to do common sense tells you that, Gray said.

Attorneys for Kueng and Chauvin had no comment. Thao's attorney did not return a message seeking comment.

Mike Brandt, a criminal defense lawyer who is not connected to the case, said the decision will benefit Chauvin's co-defendants because they'll get a preview of the state's witnesses and they can hone their strategies. They will also have trial transcripts, which can be powerful if a witness changes his or her story during the second trial.

In addition, he said, all three officers can point fingers at Chauvin, who won't be in the same trial to defend himself.

If Chauvin is acquitted, Brandt said, the other three officers can still be tried on the aiding and abetting counts, but the case would become more difficult. Brandt said it's hard for prosecutors to prove a case against those who may be seen as less culpable if they can't convict the alleged main actor.

Brandt also said its unlikely the three officers would testify against Chauvin during his trial because they have a Fifth Amendment right against self-incrimination. Even if prosecutors were to offer them immunity, the officers could still face federal criminal charges for violating Floyds civil rights and immunity offered by the state wouldnt apply in federal court.

Brandt said that while prosecutors likely want the other officers to testify against Chauvin, it's highly unlikely they'd offer immunity in this case.

I expect it to be all or nothing. I dont think they are going to make deals for anyone because of the high profile nature of it, he said. If this was a gang banger murder, would they be making deals with the less culpable ones? You bet. But these are police officers.

Thao, Kueng and Lane are scheduled to stand trial Aug. 23.

Associated Press writer Gretchen Ehlke in Milwaukee contributed to this report.

Excerpt from:
Officer with knee to George Floyd's neck to be tried alone - ABC News

This is a moment in which political time seems compressed, with different events overlying one another. On Monday, Joe Biden, wearing a dark-gray polo shirt, spoke briefly to reporters after receiving his second dose of the Pfizer-BioNTech COVID-19 vaccine. The first question he was asked was whether he has confidence in his coronavirus team (I do, he said); the second was whether he is afraid of taking his oath of office outdoors (No, Im not). The third was whether he is worried that the impeachment of Donald Trump might create delays in getting a new stimulus bill through Congress. Biden said that he had been speaking with senators about whether, if House members move forward with impeachment (which they obviously are), it might be possible to bifurcate thisthat is, to have the Senate divide its days into two parts, using one half for an impeachment trial and the other to get Bidens Cabinet nominees confirmed and his agenda approved. And why not? Everything else seems to be playing on a split screen now.

Similarly, Mondays pro-forma session of the House lasted less than a quarter of an hour, and yet it involved two measures that reflect how serious, and still precarious, this moment is. One was the formal submission and acceptance of the resignation of the House sergeant at arms, Paul Irving. His counterpart on the Senate side, Michael Stenger, has also resigned, but the questions about the role that each man played in the failure to defend the Capitol have only begun. Timothy Blodgett, who had been Irvings deputy, was immediately sworn in as his successor. The second measure was the introduction by the House Majority Leader, Steny Hoyer, of a resolution calling on the Vice-President, Mike Pence, to invoke the Twenty-fifth Amendment and begin the process of stripping Trump of the power of the Presidency, on the ground that he is incapable of carrying out his duties. Hoyer asked for unanimous consent; the chamber was almost empty, but Alex Mooney, Republican of West Virginia, was on hand to object. The result is that the full House will consider the resolution on Tuesday.

The Speaker of the House, Nancy Pelosi, has told her members to be back for the vote on the Twenty-fifth Amendment resolution and for what is expected to follow. The plan is to pass the resolution on Tuesday evening, give Pence twenty-four hours to act on it, and, if he does not, proceed with a vote on impeachment. Pence has signalled that he does not plan to try to remove Trump; he and Trump met on Monday night, but their exchange reportedly had the character of a conversation, not a showdown. Trump, unrepentant, said on Tuesday, as he was leaving the White House for Texas, that efforts to hold him accountable constitute a witch hunt. Republicans, with some exceptions, still seem to be clinging to the idea that obliviousness and impunity are the only way to address the violent, direct attack on our democracy. As long as they take that position, the House, as Biden put it, is obviously moving forward with impeachment.

There is, at the moment, a single Article of Impeachment, on the charge of incitement of insurrection. The first time that Trump was impeached, just a little more than a year ago, there were two articlesabuse of power and obstruction of Congressand he was eventually acquitted on both charges in the Senate. (Conviction in a Senate trial requires sixty-seven votes; last February, Mitt Romney, of Utah, voted to convict on the first articlehe was the only Republican to do sothough not on the second.) There could, undoubtedly, have been even more articles this time. Trumps phone call to Brad Raffensperger, Georgias secretary of state, pressuring him to find enough votes to deliver the state to the President, could be an article on its own, and there are reports of other calls from the White House to Georgia officials. For the moment, the Raffensperger incident is simply recounted in the incitement article, as an element in Trumps larger scheme to subvert and obstruct the certification of the results of the 2020 Presidential election. The article also mentions the loss of life in the attack, and the vandalism of the Capitol. It continues, In all this, President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government.

That last phrase is a significant one. The message from Pelosi and others is that, even though Trump will soon be out of office, the occasion of a President orchestrating an attack on Congress is in a category of its own, and demands a response from Congress. (In an interview with Lesley Stahl, of 60 Minutes, Pelosi suggested that the decision to go ahead with impeachment and various lawsuits involving Trump is in part a separation of powers issuemeaning that Congress has its own institutional concerns, beyond what the proceedings would mean for Bidens agenda.)

Kevin McCarthy, the House Minority Leader, who voted to reject the Electoral College votes of Arizona and Pennsylvania, is among those Republicans now complaining that impeachment is divisive. (In a private, closed-door meeting of the House Republican caucus, McCarthy reportedly acknowledged that Trump has some responsibility for what happened on January 6tha pathetic half-gesture that only raises the question of why McCarthy seems afraid to hold the President to account in public, and whether he is ready to renounce his own votes to overturn the Electoral College.) As Jamelle Bouie observed, in the Times, this sentiment is better understood as a threat to the country than as a desire for unity. The process will be as divisive or as unifying as the Republicans allow it to be. Seen from another angle, Pelosi is offering her Republican colleagues a chance to come together in a bipartisan way to make the point that the President should not instruct a crowd to march down Pennsylvania Avenue and fight like hella phrase quoted in the article of impeachmentagainst the certification of the legitimate winner of the election. Only a handful of House Republicans, notably Adam Kinzinger, of Illinois; Peter Meijer, of Michigan; and Liz Cheney, of Wyoming, seem likely to seize the opportunitylast week, after all, a majority of Republican House members voted to effectively disenfranchise the voters of Arizona and Pennsylvania. (Over the weekend, Meijer wrote of speaking to a colleague who said that he was objecting to the Electoral College tally only because he feared for the safety of his family.) But these are unpredictable days.

One way or another, it seems improbable that any trial in the Senate would begin before Trump leaves office. Even so, it would hardly be moot. In addition to removal from office, an available penalty after conviction is disqualification from holding federal office in the future; Trump could be barred from running in 2024. Again, a conviction would require a two-thirds majority of the Senate, which the Democrats dont have. But the contours of the trial, and what might be revealed in the course of it, are not yet clear. There is much that we dont know about what happened last week in Washington, and that we still need to know.

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A Second Trump Impeachment Could Answer More Questions About the Attack on the Capitol - The New Yorker

The best way to contain the danger Trump continues to pose to our democratic institutions is, simply, to run out the clock.

Trumps opponents could try to remove him from office through either impeachment or the Twenty-Fifth Amendment.

To remove Trump from office under the Twenty-Fifth Amendment, the vice president and the majority of the Cabinet would need to agree that he has become incapable of exercising the duties of the presidency. If Trump contested this determination, as he surely would, Congress would decide his fate. Unless two-thirds of both the House and the Senate declared him unfit, he could resume his duties.

Use of the Twenty-Fifth Amendment would have an important advantage over impeachment. The initial step would be taken by Trumps own appointees. This would minimize the risk that the attempt to oust him would turn into a purely partisan affair that pits the great majority of Democrats against the great majority of Republicans.

Even so, the Twenty-Fifth Amendment is neither a wise nor a realistic path toward removing Trump from office. It is unwise because it would clearly violate the spirit of the amendment. After John F. Kennedys assassination, Democrats and Republicans agreed that the country needed clearer provisions for how to handle emergency situations in which a president becomes incapacitated. As Lyndon B. Johnson explained in his second State of the Union address, he would soon propose laws to insure the necessary continuity of leadership should the President become disabled or die. Trump simply does not fit that criterion.

Brian C. Kalt: The whole point of the 25th Amendment

As I have argued ever since he declared his candidacy, Trump is morally unfit for office. A man so beholden to his own ego, and so willing to attack the countrys institutions, should never have been elected president of the United States. But this does not mean that he is either mentally or physically incapacitated. On the contrary, he remains what he always has been: an authoritarian populist who believes that he alone speaks for the American people, and who is unwilling to tolerate constitutional constraints on his power. To oust him by use of the Twenty-Fifth Amendment would amount to fighting an antidemocratic leader by antidemocratic means.

The second problem is simpler but more definitive. Some members of Trumps Cabinet are clearly disgusted by his recent actions. But there is simply no indication that a significant number of them is willing to claim that he is incapacitated. Elaine Chao and Betsy DeVos have, instead, chosen to resign. And although Vice President Mike Pence defied his boss by affirming the electoral count, he has since ruled out making use of the Twenty-Fifth Amendment.

This leaves one more avenue: impeaching Trump for a second time.

Read more here:
Dont Impeach - The Atlantic

On January 1 the minimum wage in many U.S. states and cities increased. As reported in the New York Times "in 27 of these places the pay floor will reach or exceed $15 an hour."

These pay increases are intended to help low-income people, who obviously could use the help. It is hard to imagine how anyone could live on the current $7.25 federal minimum. But intent is one thing and actual consequences may be quite different. According to standard microeconomics, when labor's price increases the amount employers will buy decreases.

Experts at the Congressional Budget Office recently estimated that increasing the minimum wage to $15 would lift 1.3 million people out of poverty and increase paychecks for 27 million--an excellent result! But they also predicted that the increase would render 1.3 million people jobless, with young people, part-time workers, and those with no education beyond high school disproportionately hurt.

How do we calculate the net benefit of such legislation?

Oddly enough, though, dramatic increases in the minimum wage offer a golden opportunity to lawyers. It invites them to bring class action lawsuits that , while increasing their own incomes, will also help those poor people who otherwise would be getting the short end of the stick.

The lawsuits would be based on the Fifth Amendment's Eminent Domain clause, which says that that "private property" may not "be taken for public use, without just compensation."

Poor people generally have little property in the narrower sense of the term: real estate, stocks, bonds, bank accounts. Their most important possession is therefore their ability to earn a living by working. As Benjamin Franklin famously observed, "He that hath a trade hath an estate."

A minimum wage law which drives someone into unemployment deprives that person of his or her most valuable property. Government may justify this damage on the grounds that it benefits people fortunate enough to retain their jobs, who will be earning more---certainly an important public purpose. But the Fifth Amendment requires government to give "just compensation" to people injured by that law.

"Just compensation" here must do more than replace what people could have earned if they could find a job. Income, although very important, is not the only reward for working. Working is educational. It helps employees learn new skills--- leading to better opportunities ---and to develop habits and dependability that employers value. A job also reinforces the employee's self-respect and community standing.

The "just compensation" required by the Fifth Amendment therefore will be for government to hire everyone who can't find other work, to pay that person the minimum hourly rate that its own laws require, and to include all legally required fringe benefits.

A democratic government probably wouldn't do this without external pressure, since the taxes to pay for it would be unpopular. But a successful class action on behalf of all unemployed people could force government to choose between guaranteeing jobs for everyone or repealing the popular minimum wage laws.

Lawyers do very well financially when they win class action lawsuits. Even a tiny percentage of the results of this class action would make the lawyers rich. But they would have earned it.

Two major benefits for the general public would result. It would destroy unemployment, thereby increasing everyone's security--- no small achievement in a dynamic economy where nobody with a good job today can count on being employed tomorrow.

The public would also benefit from the services performed by the people employed by the government. Unemployment has never rested on a lack of things that need to be done. As President Franklin D. Roosevelt said during the Great Depression, why pay people for doing nothing when there is lot of useful work to be done?

Let it be done!

Paul F. deLespinasse is professor emeritus of political science and computer science at Adrian College. He can be reached at pdeles@proaxis.com.

Read the original post:
Minimum wage increase creates opportunity for lawyers and all Americans - Monroe Evening News

Litigation arising out of Hurricane Harvey (Harvey) has been ongoing since the first lawsuit was filed within days of Harvey making landfall onAugust 25, 2017, inundating Houston with an unprecedented amount of rainfall and flooding. The litigation, which is pending in the U.S. Court of Federal Claims, centers around the U.S. Army Corps of Engineers decision to release the Addicks and Barker reservoirs after Harvey made landfall. These reservoirs were constructed in the 1940s to reduce the potential of catastrophic flooding in downtown Houston and the Houston Ship Channel.

After Harvey made landfall, the reservoirs began filling up at an alarming rate and water began to flow around the edge of one of the dams. On the morning of August 28, 2017, the U.S. Army Corp of Engineers was forced to begin releasing water to ensure that the reservoirs did not experience catastrophic overflow and/or failure. Those properties that were affected by flooding due to the reservoirs overflowing pre-release are referred to as the upstream claimants in the litigation. The properties that were flooded after the reservoirs were intentionally released are referred to as the downstream claimants.

With respect to the status of the litigation, Judge Charles F. Lettow overseeing the upstream claimants actions heard testimony and received evidence for certain test or bell-weather claims in May 2019. He issued his opinion and order in December 2019, finding that the governments conduct relating to the reservoirs and the attendant flooding of various properties constituted an unconstitutional taking of a flowage easement under the Fifth Amendment to the U.S. Constitution, and that the upstream claimants therefore were entitled to compensation from the government. Judge Lettow then ordered the test cases to proceed with discovery on damages, providing that he would receive testimony related to the test properties damages in November 2020. Unfortunately, it appears that the damages phase has been continued for the time being, presumably because of COVID-19 related issues.

Conversely, Judge Loren A. Smith overseeing the litigation involving the downstream claimants actions granted the governments motion to dismiss effectively finding that neither Texas law nor federal law creates a protected property interest in perfect flood control in the face of an Act of God. The final order was executed in September 2020 and the downstream claimants have formally begun the appellate process.

The upstream claims obviously have the most viable subrogation potential at this time since Judge Lettow overseeing those claims has already issued an affirmative finding of liability against the government. While the downstream claims present more of a challenge given the adverse ruling and pending appeals process, we nevertheless recommend that such claims be referred to ensure the viability of the claims are protected should the adverse ruling ultimately be reversed.

See the original post:
Hurricane Harvey Litigation Update: Conflicting Opinions Spur Trial on Damages and Appeal - JD Supra