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Wednesday, January 03, 2018

Common theme: Insanity swirls around this administration

About the only basis I could think of for one short post touching three disparate issues wafting from this administration:

1) Paul Manafort sued Rod Rosenstein and Bob Mueller, seeking a declaratory judgment and injunction invalidating Rosenstein's appointment of Mueller and the actions Mueller has taken in investigating and bringing charges against Manafort. Steve Vladeck is quoted in this Slate article arguing that the district may abstain on Younger/equitable grounds. I think Steve is right. Although not challenging the constitutionality of the statute of conviction (the typical Younger case), the action challenges the legal basis for a criminal prosecution and seeks an order that would require dismissal of the pending prosecution. The Slate piece is right--this lawsuit looks more political than legally sound.

2) Acting ICE Director Thomas Homan has asked DOJ to examine whether California Governor Jerry Brown and other officials in sanctuary jurisdictions are violating the federal law prohibiting harboring of aliens. This is far from my area. But it seems to me the statute requires a defendant to conceal or harbor a specific person; it is not enough to know that many aliens are present and not to do something to help the government some or all of them. It also seems that a state or local official should be able to assert a Tenth Amendment limitation on a statute that would criminalize officials for making state policy. If federal law cannot impress state or local governments to enforce federal law, it cannot allow for the arrest and prosecution of state and local officials who control those governments and who make and enforce those policies refusing to enforce federal law.

3) Does a news organization that receives one of the President's media awards wear it as a badge of First Amendment honor? As a Bizarro Pulitzer Prize?

Posted by Howard Wasserman on January 3, 2018 at 07:00 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Re 2: you seem to be making two separate arguments. One, that these sanctuary policies do not, as a technical matter, violate the statute against harboring or conspiring to harbor people here illegally. And two, even if they do technically violate federal law, anyone acting under color of state law has immunity from being prosecuted for violating federal law, at least where the Constitution does not prohibit those state actions (e.g., violating the 14th Amendment).

First, let's list some particular sanctuary policies: 1) The government does not share information with the feds. 2)The government prohibits its employees from sharing info with the feds. 3) The government instructs its employees to help illegal aliens evade the feds, for example, by bringing them to and from court through side doors when the feds are waiting outside the front door (see, http://www.abajournal.com/news/article/did_judge_help_immigrant_escape_ice_agents_waiting_outside_courtroom_federa).

In number 3, the employees know that this individual is here illegally. Those employees clearly are guilty of:
"knowing ... that an alien ... remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation."

Anyone ordering that employee to do that is clearly part of the conspiracy to do so. The fact that the orderer does not direct the employees to do so for each individual illegal alien, but instead gives a broad directive that any illegal alien in their custody should be shielded from ICE surely does not absolve them of culpability, does it? Imagine a gang where the leader orders his foot soldiers to shoot anyone encroaching on their turf. Is the leader not part of the conspiracy to murder because he didn't order the killing of each particular rival?

And as to your apparent second argument, I don't understand. Are you really claiming that state officials are free to actively violate federal immigration laws? Maybe California could plug its impending income tax problems by getting in on the human trafficking business. Do you not see a difference between not being forced to actively take part in federal law enforcement and being allowed to actively violate federal law? How do you reconcile the supremacy clause with your theory?

Posted by: biff | Jan 4, 2018 10:46:58 AM

"But it seems to me the statute requires a defendant to conceal or harbor a specific person; it is not enough to know that many aliens are present and not to do something to help the government some or all of them."

Didn't Gov. Brown just pardon two specific undocumented persons for the express purpose of preventing feds from deporting those two people?

Posted by: anon | Jan 4, 2018 10:33:23 AM

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