PrawfsBlawg

Senior Judges and Biden appointments

Donald Trump's in disputable success as President was in filling judicial vacancies (leaving to one side the political disputes over how he had those vacancies, how he filled them, and with whom). He appointed more than 300 judges, including more than 1/4 of the judges on the courts of appeals. And there are not many vacancies for President Biden.

But under the Rule of 80, active judges can take senior status when they are 65 or older and their age + years of service is 80. As the Judicial Nominations Blog reports, more than 80 Carter, Clinton, and Obama appointees are eligible to take senior status, creating a vacancy for Biden to fill.  Judge Victoria Roberts of the E.D. Mich. submitted a letter today announcing her intention to take senior status in February. She may the first of many, especially in the two years that Biden will have a Senate majority.

On that note, check out Marin Levy, The Promise of Senior Judges (Nw. U. L. Rev.), which considers the role of senior judges, including mechanisms for incentivizing judges to take senior status.

Maybe the executive is not so unitary (Updated)

Twelve years ago almost to the minute, I wondered about the four-minute gap between noon and Barack Obama taking the oath of office and whether he was President in the intervening four minutes. That they screwed up the oath and redid it lent further oxygen to the question of when a new presidential term begins--at noon on January 20th or upon taking the oath of office.

Today we had the opposite: Biden took the oath at 11:53 (ed: 11:48), twelve minutes before the Constitution says Trump's term ended and the term of his successor began, after which the Chief said, "Congratulations, Mr. President." The prevailing view in 2009 was that he took office at noon and the oath was something between a formality and a precondition to executing the powers of the office held. And I suppose there is nothing inherently wrong with taking an oath prior to taking office. So Biden took the oath and for seven minutes Trump remained President. But then was the Chief wrong to congratulate "Mr. President?"

On the other hand, if the oath makes someone President, then in 2009 we had no President for four minutes (or Biden, who had been sworn as VP at 11:58, was acting president for four minutes). And today we had two Presidents for about seven ten minutes. Too bad Trump did not administer the pardon to Jeanine Pirro's ex at 11:58.

Does anyone know why they altered the timing of the ceremony, to administer the oath ahead of noon?

Updated: The Washington Post offers a brief story with commentary from Jonathan Turley (GW) and Bobby Chesney (Texas). Bobby offers a good reconciliation: The oath class requires the oath "before" a person can take office, but does not explain how long before. Whether intentional, Bobby argues that doing it this way is preferable to the 2009 situation in which you create a gap in which no one is President (or no one is able to exercise the powers of the presidency).

Further Update: Someone on the Conlawprofs listserv argues that if the oath can be administered before the office is vacant, it might be validate for the President to nominate and the Senate to confirm a SCOTUS nominee before the seat becomes vacant, then hold the unsigned commission until the vacancy occurs. Same principle at work.

Painting Constitutional Law

I am happy to announce publication of Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights (Brill), co-edited by my colleague M.C. Mirow and me.

Cortada is a Miami-based, law-trained artist. His May It Please the Court is a series of paintings depicting SCOTUS cases that originated in in Florida; he did the original seven paintings in 2002, then added three newer cases for this book. We invited legal scholars to discuss the cases and their artistic depictions; all took the mix seriously and produced a fascinating combination of legal and artistic analysis.

Contributors from the legal academy were Paul Marcus (William & Mary) and Sue Backus (Oklahoma), Jenny Carroll (Alabama), Leslie Kendrick (Virginia), Corinna Lain (Richmond), Linda McClain (Boston University), Kathleen Brady (Emory), Jim Pfander (Northwestern), Erwin Chemerinsky (Berkeley), Laura Underkuffler (Cornell), and Andrew Ferguson (American).

Monosyllabic presidents

Pattern for the day: The disaster that is the Trump presidency results not from Trump being everything Hamilton feared might find his way into the presidency. Rather, it results from Trump having one syllable in his last name.

Of 45 (as of Wednesday) people to hold the presidency, nine have had monosyllabic last names. Here is where they appear in the presidential rankings from C-Span (2017) and Sienna (2018).

Polk (14/12)

Pierce (41/40)

Grant (22/24) (perhaps with a bullet--his presidency is being reconsidered)

Hayes (32/33) (could see a drop following the new conversation around the racist bargain that made him President in 1877)

Taft (24/22)

Ford (25/27)

H.W. Bush (20/21)

W. Bush (33/33)

Trump (NA/42) (and his spot on the next survey should be obvious)

So three single-syllable Presidents are in the top half of each survey and none makes the top quartile. Meanwhile, two are among the five worst. In addition, seven served one term or less, five of those losing reelection bids.

Facts, epithets, exams, and anti-racism (Amended)

Above the Law reported about a brewing controversy at UIC-John Marshall involving Prof. Jason Kilborn and his Civ Pro exam.

Kilborn included the following short-answer question on his exam:

After she was fired from her job, Plaintiff sued Employer under federal civil rights law, claiming employment discrimination on the basis of her race and gender. [discussion of other evidence omitted]  Employer also revealed that one of Plaintiff’s former managers might have damaging information about the case, but no one at Employer knew where that former manager was, since she had abruptly quit her job at Employer several months ago and had not been heard from since.  With nothing to go on but the manager’s name, Employer’s lawyer pieced together several scraps of information and concluded that this former manager must be located in a remote area of northern Wisconsin.  Employer’s lawyer spent $25,000 to hire a private investigator, who successfully located the former manager in northern Wisconsin.  Employer’s lawyer traveled to meet the manager, who stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a “n____” and “b____” (profane expressions for African Americans and women) and vowed to get rid of her.

                Later, Plaintiff’s lawyer served [another discovery demand, omitted, and] an interrogatory demanding the identity and location of any person with any information related to the termination of Plaintiff’s employment at Employer or potential discrimination against Plaintiff by Employer or any agent of Employer.

The question asked whether the employer could refuse to disclose the witness's location (while disclosing her name) on grounds of work-product privilege.

The school's BLSA chapter responded with a petition. It calls for, among other things, multiple sections of all mandatory classes (so students can avoid professors such as Kilborn with a "history of bias"), Kilborn's resignation from the academic affairs committee, and an "open dialogue event" with Kilborn. The ATL piece is somewhat sympathetic to Kilborn, surprising, given that site's general rage against professors who use racist language and epithets in class.

Amendment: Kilborn was subject to university sanction--the school placed him on administrative leave, cancelled his new-semester classes and committee assignments, and barred him from campus. There is some uncertainty over the grounds for the university sanction or the process followed; I have deleted comments or speculation from the original post about that process. Regardless, the exam question sparked controversy and triggered a student petition within the school; that raises teaching issues worth thinking about. The post focuses on those.

Please note that I have never met Jason in-person. I know of him from posts to the Civ Pro profs listserv, where he has discussed infusing anti-racism and racial-justice issues into the Civ Pro curriculum. So this is not defending a friend. But I am genuinely curious as to what was wrong with the question. What are the rules, so professors can avoid creating "momentous distraction and cause[ing] unnecessary distress and anxiety" or demonstrating "lack of respect, decency, and civility?"

    • The question did not use explicit and complete epithets, which had been the flashpoint for past controversies over what professors said in class or wrote in materials. ATL has covered those controversies at length, sharply criticizing faculty for mentioning the word. Eugene Volokh and Randall Kennedy present the contrary view, relying on the "use-mention" distinction.

    • Is the rule that bowdlerized reference to epithets is not OK? What if the test had the witness say "n-word," as in "she stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a n-word and c-word"? Are all references to epithets off-limits?

    • Is it only racist epithets, given the focus on "centering race" in the academic discussion? What if the question used a misogynist epithet or anything other than a racist one? What if this question only had the employer calling the plaintiff a "c____" or a "b____"?

    • If bowdlerized use of the word is not OK, is all reference to racist epithets not ok? What if that last sentence of the facts had the witness state "she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, and referred to her with profane expressions for African Americans and women"? Does the reference to the epithet, even this obliquely, cause the same distress and anxiety? Students will be as aware of the "profane expression for African Americans" being referenced as by saying it with ____ or *** or "n-word."

    • If any reference or hint at epithets is not ok, then does it follow that exam questions touching on racist discrimination are off-limits? What if that last sentence of the exam had said the witness "stated that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, and talked about how much they hated having to employ African-Americans"? The question reveals discriminatory animus without using the word. Of course, the legal issues might come out differently in that case than in an epithet case. If this is problematic, then it seems to eliminate one major litigation area, or at least certain types of cases in that litigation area, as a testing subject; I discussed this issue several years ago.

    • How much does subject matter? The question tested work-product privilege, so the petition argued that the hint at the epithet served no educational purpose. Would the reaction have been different had the question been asked in, say, Employment Discrimination? For what it is worth, a friend who teaches that subject often tests with a fictional religion with fictional stereotypes and fictional epithets. But does that capture the same idea, given the effects of history? It has been decided that this word is the worst in the English language, so bad it cannot be written or spoken or even mentioned. It follows that its use may affect the outcome of a case in a unique way not captured by a fact patter in which someone calls a member of the Church of the Shiny Rock (my friend's actual example) a "Rockette" (I made that one up).

    • This may create unique problems for Civ Pro (and Fed Courts, Evidence, and Civil Rights--basically my entire teaching package). The course material itself is not "sensitive," compared with Con Law or Immigration or Employment Discrimination. But teaching and testing Civ Pro requires that we adopt and use the substantive issues that reach court and must be litigated under the rules we are teaching and testing on. One could argue that there is always another way to test on work-product privilege--use a slip-and-fall tort claim that will not affect anyone's feelings. But one could respond that discrimination claims comprise a substantial piece of the federal docket and it makes no sense to ignore such common claims. Kilborn told ATL that the class casebook uses a lot of employment cases, so that context pervaded the course and made sense as a testing vehicle. And, as I wrote several years ago, the full range of litigation subjects and issues should be fair game.

    • Kilborn also told ATL that the question was designed to illustrate how civil litigation can be used to help women of color overcome the burdens they face in the workplace. And the egregious nature of what the witness reports the employer saying may be relevant to why the employer was so determined not to reveal the witness and why the plaintiff would have a "substantial need" for the information. In other words, just as the precise nature of discriminatory conduct is important "context" in a substantive E/D class, it may provide essential "context" for procedural questions. Given Kilborn's intent, there is great irony that this question has led to these consequences.

Closer to home, I have been watching the litigation in Stallworth v. Nike, a lawsuit by an African American couple alleging that they were subjected to "shopping while Black" in a Santa Monica Nike store and that the SMPD had an agreement with the area stores to arrest or detain anyone on the word of the stores. The complaint runs 50 pages and 200 paragraphs, although without detailed allegations of how Nike and SMPD worked together to create action. The complaint contains pages and paragraphs about the plaintiffs' personal and professional histories, Nike's role in social justice, and last summer's protests; they want to frame the case--likely for consumption by the public rather than the Court--within the broader anti-racism movement. I considered assigning this as one of my in-class pleadings, as an opportunity to discuss the propriety and effectiveness of pleading-as-press release and to analyze the sufficiency of the state-action allegations. I decided against it--partly because it is a long pleading (the other complaints I use are <20 pages) and partly because I could not predict student reactions. There are no racial epithets, but the case touches a raw topic.

Today in cancel culture

One cheer only for President Trump's recorded statement on Wednesday urging his supporters to refrain from violence.

He loses one cheer because he never mentioned Biden or that the election has  been resolved and produced a legitimate result. Trump's calls for non-violence--that violence is inconsistent with the "movement" (a word he repeated)--ring hollow when he simultaneously continues to convince people that the election was illegal, fraudulent, and stolen, the greatest political crime in history. Some of these people believe it is 1776 because Trump has told them it is; to continue to say "it's 1776 but do not be violent" is incoherent.

He loses a second cheer for his final-minute detour into the First Amendment and the problem of "canceling." His obvious targets were Twitter/Amazon, corporations and other donors withholding money from GOP officeholders, and other businesses and institutions working to distance themselves (in sensible and silly ways) from him, his family, those who aided and abetted Trump through his presidency, and those who created the conditions in which the assault on the Capitol occurred. But he (and others) continue to ignore the way in which these actions are themselves an exercise of First Amendment rights to express, through disassociation and non-support, opprobrium. If donating and spending money to support an official or candidate is protected expression, then so must withholding that money. When Twitter and Amazon should be treated as unique actors, under current law they are not, so banning speakers or speech communities from their spaces is an act of expression. If a private sports organization such as the NFL can and should fire the sons of bitches who do something as offensive as kneeling during the national anthem, then a private sports organization such as the PGA can fire the business owned by a person who incited an assault on the legislative branch.

Sorry, this still is not the speech in which "Trump became President." He has 114 hours and 14 minutes as I draft this for that to happen.

Mootness and nominal damages

The Court on Tuesday heard argument in Uzuegbunam v. Preczewski, on whether a case becomes moot if the government repeals the challenged policy but a claim for nominal damages remain. A few thoughts.

• Chief Justice Roberts hammers everyone on justiciability and merits melding into one another. But he wants to find ways to draw magical lines, rather than recognizing that they collapse into one another because they are the same thing.

• Justice Kavanaugh recognizes that the real issue here is attorney's fees. A plaintiff cannot recover attorney's fees if the government moots the case by repealing the challenged policy; the real point of the nominal damages claim is to keep the case alive through a claim for retroactive relief on which the plaintiff can prevail.

• There was no discussion of qualified immunity, which also enters this picture. If the nominal damages claim keeps the case alive, it also is subject to an immunity defense. This helps the government avoid paying $ 1, which avoids attorney's fees.

• The case is a weird vehicle for this issue, because the challenged policy was never enforced against one of the plaintiffs prior to its repeal. The "injury" the plaintiff claims is for the past chilling effect of wanting to speak but not feeling able to for fear of enforcement. Chilling effect can be a basis for standing for prospective relief; it is strange to see it as a past injury.

• There was some confusion among a number of concepts--prospective v. retroactive relief, compensatory v. non-compensatory remedies, claims v. remedies. It seems to me the answer to this case is that a plaintiff can bring a claim for a past injury caused by the policy while the policy was in effect--a retroactive injury seeking a retroactive remedy. Having proved past injury, the question is one of remedy--actual damages (however small) or nominal damages in their stead. Counsel for the government seemed to acknowledge the last pairing, insisting that nominal damages is not a claim but a remedy once that claim has been proven. But that should cut against the government's position.

• The case highlights the problems with Buckhannon, in which the Court rejected the "catalyst theory" of attorney's fees, under which a plaintiff prevails if the lawsuit is the catalyst for the government repealing the challenged policy. A plaintiff does not prevail when the policy change is not reduced to a judgment. At the same time, Buckhannon left this case open--whether a claim for retroactive relief can keep the case, and thus fees, alive.

But counsel for Georgia made this point in his closing:

[T]he way that this case was resolved is a good thing. Litigation prompted college officials to review their policies, and just ten weeks later to revise them in a way that maximizes and respected First Amendment rights on campus, not just for Petitioners but for all students. And it even led to an enduring state-wide policy change for every public college in Georgia. That kind of early out-of-court resolution should be encouraged.

Except such a resolution requires that plaintiffs are able to obtain counsel to bring litigation. This is why Congress provides for fees in civil rights cases--to incentivize counsel to bring these cases. But there will be no such change if individuals are unable to bring litigation because they are unable to get counsel because counsel knows that the "good" solution for the government will be to repeal its policy, preempting fees, and thus will not agree to bring the case.

My best guess is that the Court reverses, at least where the plaintiff has suffered past harm from enforcement. But I am always wrong.

Citizens United meets cancel culture

The premise of the campaign-finance/First Amendment connection is that spending money to support candidates (as expenditures and contributions) is a form of expression by the donors/spenders--expressing their support for the candidate, what the candidate stands for, and what he will do in office. Whether true, the premise could be tested in the coming months and years as companies request the return of donations or refuse to donate to candidates who voted in favor of the objections to electoral votes.

Shouts of "cancel culture" by the "leftist mob" are sure to follow. But if donating to candidates is First Amendment activity, then so must refraining from donating to candidates who act in ways of which you do not approve. To insist that corporations--whose constitutional right to donate you have demanded--must continue funding you regardless of your actions reveals that complaints about cancel culture really are complaints about counter-speech.

Mind you, I do not expect this newfound corporate conscience to last. But while it does, it is the logical flipside of the Court's entire body of campaign-finance jurisprudence.

Universal universality (Updated)

The Fourth Circuit affirmed a universal injunction (mistakenly styled nationwide) prohibiting enforcement of the federal policy requiring state and local affirmative consent to accept refugees. The injunction protected six non-party resettlement agencies, in addition to the three plaintiffs.

In affirming as to scope, the court relied on Trump v. IRAP (the pre-Hawaii order that stayed various parts of the travel-ban injunctions) for the proposition that "a nationwide injunction may be appropriate when the government relies on a 'categorical policy,' and when the facts would not require different relief for others similarly situated to the plaintiff." This policy "by its nature" affects all immigrants assigned to all agencies operating throughout the country and a particularized injunction would produce "inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect."

One problem with the "universality only in certain cases where appropriate" is that any standards for determining when universality is appropriate collapse to allowing it in every case. This captures that. All policies are categorical and all policies by their nature affect all persons subject to those policies. All policies apply the same to similarly situated non-parties--that is what makes them similarly situated and also what would allow them to form a 23(b)(2) class, which the plaintiffs chose not to do here. Moreover, "inequitable treatment" follows in all cases in which a party obtains a non-class injunction--those who obtained the injunction enjoy a legal protection that those who did not obtain the injunction do not enjoy. That is the point and effect of obtaining an injunction.

If that is the standard, every injunction must be universal.

Update: Sam Bray reaches the same conclusion.

Trump, Twitter, mootness, and attorney's fees

Josh Blackman raises a question about the government's cert petition in Trump v. Knight Foundation, holding that the President violated the First Amendment by blocking people on Twitter: Does the ban moot the case and will the Court issue a Munsingwear order vacating and remanding with instructions to vacate the judgment. But Josh's question is, so to speak, moot. The case always was going to become moot at noon on January 20 when Trump left office and any federal action disappeared. It is conceivable the Court waited on the case for that reason--had Trump won reelection, the case would have remained alive for another four years; when he lost, it was a matter of waiting out the extra few months.

A secondary question is whether the plaintiffs will be able to get attorney's fees under the EAJA if and when the judgment is vacated. Courts and cases are all over the map on whether a plaintiff is a prevailing party if it obtains interim relief that is dissolved on mootness grounds on appeal. Courts look to a number of factors, including whether the interim relief changed the defendant's conduct and gave the plaintiff what it asked for while it lasted and the length of time the interim relief was in place. Under that, Knight should be a prevailing party. The district court issued its judgment in May 2018 and the Second Circuit affirmed in 2019, meaning the plaintiffs have gotten what they wanted--being unblocked and able to read the President's tweets--for more than two years. More importantly, the plaintiff's desire and constitutional entitlement to continue doing so was always time-limited, ending whenever Trump's term ended (January 20 2025, at the latest). That sounds like a meaningful change in the relationship between the parties for the precise period the plaintiffs wanted.

Also relevant is that the district court granted declaratory, but not injunctive, relief against Trump (the aide who run his Twitter account was enjoined). Courts are again mixed as to whether a declaratory judgment alone is sufficient to make a plaintiff a prevailing party, especially where other relief is denied. Here, it should be relevant that a DJ is the only remedy the plaintiff could get from Trump, since courts will not, and perhaps cannot, enjoin the President (as opposed to All the President's Men).

Which Republican party will emerge? Early returns not encouraging

In two posts, I discussed suggestions that the GOP was going to come apart into two or three groups. The question is which group will retain the party's power within government. Would the autocrats be cast out or abandoned, leaving a slightly smaller but rational center-right party committed to the system? Would the autocrats be left alone in the husk of a party (a la the pro-slavery Whigs) while the pro-democracy group formed a new entity? Or would the autocrats retain control aided by the pragmatic fence-sitters who want to retain power, leaving the tiny group of sort-of moderates (Murkowski) and those committed to the system (Romney) nowhere to go but to stay and shout at the rain.

Early returns are not encouraging. Trumpist Ronna McDaniel was reelected, unopposed, as RNC Chair. A super-majority of House Republicans voted to sustain challenges in Arizona and Pennsylvania and would have sustained challenges in Georgia, Michigan, and Nevada had any Senators gone along. Mitch McConnell will not bring the Senate back before January 19 and an evenly divided Senate may decide there is no jurisdiction over an ex-President. Lindsay Graham says it is time to "heal and start over" and not hold anyone accountable for a mob storming the Capitol (he was talking about impeaching Trump but I assume he would say the same about efforts to censure or expel Hawley, Cruz, et al).

Even after Republican playacting at overthrowing the government turned real, violent, and deadly, most members of the Republican congressional caucus and others "think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know."

Update: Steve Scalise says the same thing about impeachment interfering with whatever will unite and bring our country together, while Jim Jordan speaks of "united and healing." Even Derrick Evans, the West Virginia legislator who was arrested for being part of the mob, wants  to help the healing process and bring the nation together. So everyone seems to have received the talking points memo. And the talking point is that unity, healing, and bringing the country together are more important than accountability and repercussion for past misdeeds--at least when Republicans engage in those misdeeds.

Sanctions, disbarment, and sedition

There was discussion prior to Wednesday about sanctions or bar consequences for the attorneys who brought the nonsense election challenges. Even if Trump and his lackeys did not commit incitement on Wednesday, there was a steady stream of statements about election fraud, stolen elections, and official malfeasance, including in court documents and in press conferences and quasi-hearings related to those lawsuits. Given potential  evidence they were part of a coordinated effort that caused, even if unintended, Wednesday's events, might that affect how courts judge sanction requests, how willing courts are to raise sanctions sua sponte, and how state bars judge disciplinary actions?

On "cancel culture"

A great post on cancel culture from Sasha Volokh at the VC. He touches on the Hawley book contract, social media control (presciently written before Twitter banned the President and the accounts of everyone the President was using to try to get around the ban), private universities, and school-curriculum choices. I join his closing point:

"Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is doing the acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.

Contrast this with the statement of the National Coalition Against Censorship's statement on the Hawley book, which concludes that the "best defense for democracy is a strong commitment to free expression." This rests on one of two competing premises--either that the only one engaging in "expression" here is Hawley's or that the expressive rights of the publisher must be in the direction of producing more speech.

NCAC also errs in relying on this idea: "Many of the books–and many of the authors–are highly controversial and generate intense opposition. When that happens, it is crucial that publishers stand by their decision to publish, even when they strongly disagree with something the author has said." Perhaps that is the correct principle in the standard-issue "author of YA fiction says controversial thing about topic du jour" case or in the "non-group members cannot write well about groups" case. This is not that. Simon & Schuster reacted to Hawley's actions as a United States Senator that contributed (in their view) to a mob storming the Capitol and attempting to interfere with the work of the government. That is a distance from JK Rowling taking an unpopular position on gender issues.

And a third example comes from various Republicans and conservatives on Twitter, defining "private company exercises control over the country's leader" as something that happens in China and complaining that the culling of right-wing extremists from the site has reduced their followers.

July ('74): District of Columbia

Reports are that Nancy Pelosi spoke with Joint Chiefs Chair Mark Milley about "precautions" against Trump starting a war. We are in July 1974 territory when military and DOD officials were informally telling one another to ignore potentially crazy orders from President Nixon, who was drinking heavily, sensing that the end was near, and a threat to lash out. Of course, Nixon was an intelligent person with some baseline respect for the constitutional order (yes, he committed crimes--there are obvious degrees).

We are not so fortunate at the moment.

No on Brandenburg (Updated)

Updates at bottom.

Here is the full transcript of Soon-to-be-Ex President Trump's remarks to the pre-sedition rally. After reading it (and at this point hearing Trump's voice as I read his words), I will follow-up on this post by being more assertive: There is no way this is punishable incitement under Brandenburg.

The speech is largely a string of oral tweets from the past few weeks and months and no different than what he has said at rallies, most recently on Monday in Georgia: The press as enemy of the people and not telling the truth; fanciful and farcical nonsense stories about election misconduct; "sir" stories about the people who are nice to him; touting of his accomplishments as President;* crowd size; cancel culture and critical theory; and the usual airing of grievances 11 days to late. He also laid out a series of election-reform proposals. And he told lies about what the Constitution allows or requires.

[*] There is an amazing disconnect. Before Wednesday, Trump still had competition from Andrew Johnson and James Buchanan. That race is over. But Trump and his supporters continue to talk about him as one of the top Presidents.

The words spoken matter--they must explicitly or implicitly encourage lawless action, allowing for rhetorical hyperbole, overstatement, and even offensiveness. Second, and related, Eugene Volokh argues that modern doctrine is unlikely to treat as incitement words that do not on their face call for unlawful conduct (e.g., Antony's funeral oration or the often-misquoted "will no one rid me of this troublesome priest"). Third, context matters. The lawless action must be "imminent" and "likely." So the same words spoken in front of a large crowd determined to "stop the steal" two miles from the Capitol while votes are being counted is different than spoken at a rally in northern Georgia on a Monday night. Finally, whatever we may think we "know" about Trump's intent, it is hard to prove beyond a reasonable doubt.

The general content here is not incitement of anything; it is standard Trumpian fare. It does not matter that the speech is designed to get the crowd upset at the injustices visited upon Trump and upon them.  Nor does it matter that it is likely or foreseeable that some would act unlawfully upon hearing these words and becoming outraged. The point of moving to Brandenburg from the old clear-and-present danger test was that we punish conduct not speech and that we do not routinely punish speakers because of what unconnected third parties do. We also want to leave speakers free to engage in words--one man's vulgarity and all of that.

With that in mind, much of this speech does not call on or encourage anyone to do anything, much less something that is lawless and imminent.

Here are the only segments that might come close:

1)

All of us here today do not want to see our election victory stolen by a bold and radical left Democrats which is what they are doing and stolen by the fake news media. That is what they have done and what they are doing. We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved.

Our country has had enough. We will not take it anymore, and that is what this is all about.

And to use a favorite term that all of you people really came up with, we will stop the steal.

This is from the beginning of the speech. It is hard to see this as other than hyperbole.

2)

We will not let them silence your voices. We're not going to let it happen.

Not going to let it happen.

[This was followed by a chant of "Fight for Trump," for which Trump thanked the crowd].

He is urging the crowd to not let the silencing of their voices happen, not to engage in unlawful action.

3)

[Speaking of Pence doing the non-thing of sending the votes back to the states] That takes courage, and then we are stuck with a president who lost the election by a lot, and we have to live with that for four more years. We're just not going to let that happen.

This could be read as urging people to not to let happen the four years of the Biden Administration. But, again, allowance must be made for rhetoric and hyperbole.

4)

We're going to walk down. Anyone you want, but I think right here, we're going to walk down to the Capitol--

And we're going to cheer on our brave senators and congressmen and women and we're probably not going to be cheering so much for some of them.

Because you'll never take back our country with weakness. You have to show strength and you have to be strong.

We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today, we will see whether Republicans stand strong for integrity of our elections. But whether or not they stand strong for our country, our country. Our country has been under siege for a long time.

This was the segment that has been making the rounds in the media and that I quoted in my prior post. Note that last paragraph specifically speaks of marching to "peacefully and patriotically make your voices heard" after calling for strength. In rejecting tort claims against Trump arising from a 2016 rally, the Sixth Circuit emphasized that Trump followed his call to get the protester out, the alleged incitement to assault, by saying "don't hurt him" as mitigating the meaning of the words and the intent. Similarly, the call for strength is tempered by the call to do it peacefully. That call for peacefulness is perhaps tempered the other way by the subsequent insistence that the country has been "under siege"--peacefully talking is not the "strong" response when one is under siege.

In any event, again, fiery rhetoric is allowed.  Also, in terms of imminence, the above occurred less than 1/5 of the way into the speech. So does that mitigate the intent or likelihood of encouraging imminent lawlessness if he then keeps talking? Eugene Debs spoke for something like three hours in Canton.

5) This is the final 90 seconds-or-so:

I said something is wrong here, something is really wrong, can't have happened and we fight, we fight like hell, and if you don't fight like hell you're not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country, and I say this despite all that has happened, the best is yet to come.

So we are going to--we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give--the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try--give our Republicans, the weak ones because the strong ones don't need any of our help, we're try--going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

Again, not encouraging or hinting at lawlessness. "Fight like hell" lest we no longer have a country is troubling, but in context does not suggest fighting in the physical or unlawful sense as opposed to be speaking out--again, rhetorical hyperbole is fair game. Trump is talking about marching, not storming the Capitol. Urging people to give members of Congress "pride and boldness" could mean peacefully speaking or protesting in support of what the crowd wants and hopes they will do.

This analysis goes to a possible post-January 20 (or even post-January 12) criminal prosecution. It is a separate question whether this constitutionally protected speech could be the basis for impeachment-and-conviction. Josh Blackman and Seth Tillman argue that it cannot.

Without getting too far into the point (this post is already too long), otherwise-protected speech can be the type of abuse of office that impeachment exists to punish. As Volokh argued, the view that Trump's speech was unprotected comes from a gut feeling that POTUS should not engage in such talk, regardless of the Brandenburg line. As he outs it, "Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant." Impeachment exists to remedy those failures. Update: Jonathan Adler and Ilya Somin agree that the First Amendment is not a bar to impeachment, grounded in the broader view that impeachable conduct need not be criminal.

Noisy withdrawals (Updated)

Everywhere today. Some questions remain: Are these exits appropriate and appropriately done? And why now--other than consequences resulting from the conduct of others, was Trump's conduct before and after the putsch any different than what he has been doing and saying for 3 years and 50 weeks? And with 13 days left, how is this different than giving two weeks notice.

Facebook (and other social media sites followed).

The attorney in Philadelphia whom the court called out for saying there were "non-zero" Republican observes in the counting areas. I would like to hear from PR experts whether this was done in an appropriate manner. I have seen some lawyers suggesting that the noisiest of withdrawals should not include specific accusations that may breach confidentiality.

Chad Wolf as nominee for Secretary of Homeland Security. This is tangled up in competing stories about the timing of the re-nomination and withdrawal.

Bill Barr, who already withdrew but is not being noisier about it. This one rings hollow, given his fawning statement as he stepped out the door.

Several national-security officials have resigned in the past 24 hours and reports are more may be coming in the next few hours or days.

Updates:

Transportation Secretary Elaine Chao (aka Mr. Elaine Chao, the Senate-Majority-Leader-for-the-moment), effective Monday. There is some question whether acting cabinet members can participate in the 25th Amendment process, so similar resignations could make that path trickier than it otherwise might be.

Forgot Mick Mulvaney, who resigned  as special envoy to Northern Ireland, saying "I can’t do it. I can’t stay." Mulvaney will (or should) forever be tagged for his November 7 Wall Street Journal article (paywalled) guaranteeing Trump will concede gracefully if he loses.

Three (maybe four) parties?

John McLaughlin (Johns Hopkins) says it "Feels like we might be heading for a 3 party system, formally or in practice. Hard to understand how Rs like Toomey, Sasse, Romney, etc. share future goals with Cruz, Hawley, Johnson, House Rs who are about to challenge basic democratic norms. These are not mere policy disputes."

But returning to my response to Steve Schmidt's similar suggestion, I think we have to tweak McLaughling's argument to make it four parties: 1) Cruz, Hawley, et al; 2) Romney, Sasse, Toomey; and 3) the vast remainder of the GOP who voted against the challenges but might have acted differently if the possible result would have been different.

However framed, I do not see this rift as permanent. McLaughlin is right that there "are not mere policy disputes." But that is because these groups do not disagree on most policy matters. And those policies are the "future goals" they share. Toomey, Sasse, and Romney were appropriately and explicitly angry with the actions of Cruz and Hawley and the +/- 125 House Republicans in futilely challenging electors for show and political points based on false claims of wrongdoing. But they can and will continue to make common cause because they agree on most policy questions. And that is before we get to the many members who will make common cause around the simple idea of obstructing Biden.

I might view it differently if there appeared  to be a move among party leaders (most of whom are more in group 3 than 2) to sanction Hawley or anyone else for undertaking these efforts, especially after the siege laid bare the problem of pushing false narratives on the public. I have seen no indication that this will affect Hawley's relative position within the Republican Senate caucus (which may be less important to him than visiting Iowa and New Hampshire).

The answer may depend on whether a combination of photos, speeches, and votes from today has electoral consequences for the highest-profile Republicans. Does that photograph end Josh Hawley's political career, as David French hopes? Will political ads juxtaposing member speeches about fictitious made-up votes with images of rioters hurt them with voters, who seem them as simpatico on policy but unworthy of support because of their lack of commitment to democracy? If so, that might cull what Schmidt called the autocratic faction.

But that depends on how this multi-party split plays among Republican voters. I quoted Mike Sacks (prior to Wednesday) that GOP Congressmen "think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know." In other words, how many GOP voters are in the autocratic faction, how many in the pro-democracy, and how many in the pragmatic.

I have long feared the answer. Yesterday shows I am right to be afraid.

Brandenburg Concerto

Does anything that Trump or Rudy said at the pre-putsch rally satisfy Brandenburg? I describe the Brandenburg paradigm as standing in front of a torches-and-pitchforks mob outside a poorly guarded jail and shouting "let's go get this guy." And at least the Sixth Circuit holds that "get him out of here (but don't hurt him)" to a grandstand of rallygoers surrounding a protester is not enough. How close were yesterday's statements to calls to invade the Capitol right now?

Here is Trump: "And after this, we're going to walk down there, and I'll be there with you, we're going to walk down ... to the Capitol and we are going to cheer on our brave senators and congressmen and women . . . And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

And Rudy: "If we are wrong we will be made fools of, but if we're right a lot of them will go to jail. So let's have trial by combat."

Brandenburg is (and must be) a high hurdle, so I doubt it. Is either specific enough as a call for a physical attack? (Rudy might say "trial by combat" refers to an alternative adjudicative process and was a criticism of how courts have handled their lawsuits--although how many of the people who heard him know that and how many would hear "combat" as a general call to arms to put wrongdoers in jail). How will a court regard temporal imminence if the crowd had to walk some distance from the Ellipse to Capitol Hill after the speakers were done--we'll take the fucking Capitol after we walk two miles.

Update: Eugene Volokh thinks not, because Trump's words were not specific enough about rioting or invading the building. Fiery rhetoric designed to promote peaceful protest must be allowed, even if some might act violently on it. He allows that what is different here is that Trump's job is not only not to call for imminent lawlessness (that is everyone's job), but to stop lawlessness when it occurs, so he ought to steer farther from the line. But that is a political concern over governmental duties, not baked into Brandenburg.

That last point works in both directions. The special obligation on government officials does not affect the Brandenburg analysis. But it also makes morally blameworthy speech that comes nowhere near Brandenburg. Had Trump not spoken at the rally, he has been fomenting what happen with his charges of fraud and stolen landslides--none of that is close to incitement, all of it would be regarded as morally blameworthy.

Testing the Koufax Curse

Testing the Koufax Curse: How 18 Jewish Hitters, 18 Jewish Pitchers, and Rod Carew Performed on Yom Kippur has been published in the Baseball Research Journal.

JOTWELL: Mullenix on Russell on frivolous defenses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Thomas D. Russell, Frivolous Defenses, which focuses on tort defendants' non-compliance with the rules governing responsive pleadings. I spend time in Civ Pro on this subject, especially the way that defendants refuse to respond to allegations (common response: "Neither admit nor deny and strict proof demanded thereof," which is nonsense) and the refusal of any judge other than Milton Shadur^Z"L of the ND Ill. to hold attorneys to account for these practices.

More movie stars and diversity jurisdiction

Elizabeth Taylor has company in the Civ Pro canon. The S.D.N.Y. denied a motion to remand in Rapp v. Fowler, an action for sexual assault against Kevin Spacey. (H/T: Volokh Conspiracy). The victims filed the action in New York state court. Spacey removed, alleging he is a Maryland citizen. The plaintiffs moved to remand, arguing that Spacey is domiciled in the U.K., making him stateless and not subject to suit on diversity. The court denied the motion, for now, because the only evidence of Spacey's intent was a declaration from Spacey that he intends to return to Maryland; the contrary evidence was a declaration from the plaintiffs' attorney, who lacks personal knowledge. The court allowed the parties to take jurisdictional discovery and for the plaintiffs to perhaps renew the motion.

Partisan messaging

Keith Whittington at Lawfare breaks down the legal, constitutional, social, and political problems with what congressional Republicans plan to do tomorrow.

He responds to the argument that this is harmless political posturing, a "messaging" act that causes no harm because it cannot succeed (akin to voting for a bill that will not pass or that is likely to be declared invalid). But:

[E]ven as a political messaging exercise, what exactly is the message? Are these congressional Republicans telling voters that if they elect enough like-minded politicians, then a majority coalition would be willing and able to overturn the result of a presidential election? Is the message that every future presidential election is up for grabs when Congress meets to “count” the votes and that election results are simply contingent on who holds the majority in Congress? This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way.

Whittington is right that this is the message Republicans are sending to voters. And that tracks with questions over the divide within the Republican party and which direction that divide might go. Perhaps the message is that voters must primary the pragmatic faction and elect more autocrats, at the federal and state levels, so this will work in the future. Perhaps the message is to GOP autocrats at the state level to alter their election laws and processes to allow this to work in the future, up to and including returning selection of electors to the legislatures (the past two months show that many Republican voters would not oppose this in their Red or gerrymandered states).  Or perhaps the message is to the pragmatic wing of the GOP in Congress--hang with us, even if opposing us now, because eventually there will be an election that comes down to one state and a few hundred votes (e.g., Florida in 2000) and this will work.

Regardless of the message, Whittington's ultimate point stands: "This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way."

Court smacks down dumbest election lawsuit and its lawyers

The dumbest election lawsuit was the one in the District of D.C. against Pence, the Electoral College, Congress, and a bunch of state officials, alleging that Article II requires that a state legislature certify the results post-election so any electors appointed without that certification (i.e., all 538) were invalid and could not cast lawful votes. District Judge Boasberg initially gave the plaintiffs busywork of providing proof of service on all defendants, including the Electoral College (which, of course, is not a thing that can be sued). When no such service occurred after twelve days, the court declined to wait any longer and denied the motion for preliminary injunction.

And Boasberg was not messing around. The suit would have been "risible were its target not so grave: the undermining of a democratic electionfor President of the United States." Plaintiffs’ "theory that all of these laws are unconstitutional and that the Court should instead require state legislatures themselves to certify every Presidential election lies somewhere between a willful misreading of the Constitution and fantasy." And this is the closer:

Yet even that may be letting Plaintiffs off the hook too lightly. Their failure to make any effort to serve or formally notify any Defendant—even after reminder by the Court in its Minute Order—renders it difficult to believe that the suit is meant seriously. Courts are not instruments through which parties engagei n such gamesmanship or symbolic political gestures.As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.

Many have noted the absence of sanctions in these cases, despite all being patently sanctionable. One reason may be the details of FRCP 11 and the incentives of parties and courts. Rule 11(c) imposes a safe harbor--before seeking sanctions, a party must notify the opposing party of its intent to seek sanctions (by serving, without filing, a copy of the proposed motion for sanctions) and give the party 21 days to cure the sanctionable conduct, as by withdrawing or amending the challenged paper. But the defendants in these cases want these cases to go away, not to drag the cases out by giving the plaintiffs time to cure. And most courts have held that the safe harbor means that sanctions cannot be sought after dismissal, so post-dismissal sanctions are not possible. Meanwhile, judges have the same interest as defendants in making these cases go away and no desire to keep them around with additional rounds of satellite litigation.

This was was unique in several respects, so it makes sense that it might trigger sanctions activity. Because plaintiffs never bothered serving anyone, the case never reached an adversarial posture; the judge was on his own own. And the theory and construction of the case was uniquely loony. That combination raised the suspicion, more than the other Kraken cases, that this was a political show and nothing more.

One more thing, because it is something I expect to see in the coming months. The plaintiffs alleged that they had been "disenfranchised," which Boasberg said was not true since they had voted and their votes counted. But "disenfranchisement" means something different in the minds of these groups of voters and advocates. The "franchise" means not that I was able to vote or that my vote was counted, but that I was able to elect the candidate of my choosing; I am disenfranchised if my candidate loses. This framing is not new. Many of the early Tea Party rallies in 2009 and 2010 were covered as complaints of disenfranchisement--the protesters were disenfranchised because the person they did not vote for had one and he was pursuing policies they did not favor. That is certainly grounds for protest; it is not disenfranchisement and should not be accepted as such.

Political parties and notes on a broken process

A jumble of thoughts on the role of political parties in presidential selection and what happens next.

The Framers considered but rejected legislative selection of the executive, fearing that a president chosen by Congress would not be sufficiently independent of the body to which he owed his office. That is why the states were empowered to decide the methods of choosing electors and why the electors would act on their own. The House contingent election was a necessary fail-safe. At the same time, some believed that fail-safe would become the norm, at least once George Washington left the scene. They doubted one figure could attain sufficient national recognition and support to achieve an EC majority, especially in a race among multiple candidates representing different regions and interests. These figures expected the EC to become a screening mechanism to produce two or three candidates, from whom the House would select the President.

The unforeseen (or unaddressed) development of political parties and settlement into a two-party system allowed the Electoral College (as tweaked by the Twelfth Amendment) to function as a true selection mechanism, making the contingent election an unnecessary vestige. The one post-Washington election that operated as the EC was designed on paper was 1824--and it produced the contingent election that some Framers expected or feared. There were no competing political parties and multiple candidates represented different regions and interests within that party, none of whom had the national stature to gain a majority. Otherwise, the competition between two major national parties ensured sufficient support nationwide support for one candidate, absent a breakdown in state processes (as happened in 1876 but has not happened since, including this year, conspiratorial fantasies aside). The congressional role became ministerial and ceremonial--count the votes and confirm the winner of state-controlled processes.

The 140+ House Republicans and dozen Senate Republicans planning on making futile-but-dangerous mischief on Wednesday have clothed themselves in a vision in which Congress plays a substantive role in checking the limits of the EC and choosing the President. Ted Cruz has pointed to 1876 and the congressional commission; historical ignorance aside, Cruz argues that Congress can and should exercise meaningful power in looking under the hood of state and EC processes--the House as the ultimate arbiter of the election. Never mind that this vision has never controlled in 240 years of elections. On the other hand, the two-party system means that a congressionally selected President would not be dependent on Congress as the Frames feared when they rejected legislative selection. Party identification unifies the branches, so congressional Republicans support rather than attempt to control a Republican executive whom they chose. Another example of the Levinson-Pildes separation-of-parties-not-powers thesis.

The maneuvering will not give Trump another term in office nor stop Biden's inauguration on January 20th.* It further undermines Biden's presidency. And it lends further cover to the inevitable refusal of all Senate Republicans--not only these twelve, but the silent Rubios and McConnells--to cooperate in any way with the Biden Administration.

[*] The insistence by Peter Navarro on Fox News that Congress could move the inauguration is laughable. But it reflects the moving goalposts. Several people insisted that there was no reason litigation had to end by December 14, since that date did not appear in the Constitution; the implicit argument is that statutory deadlines are meaningless. Apparently, so are constitutional deadlines. Although Navarro may be correct that Congress could move the Inauguration as an event. But that will not keep Trump in office past noon on the 20th.

So what happens after the play-acting fails? Former Republican political consultant Steve Schmidt argues that January 6 will mark the beginning of the end of the modern Republican Party, as the 1854 Kansas-Nebraska Act marked the end of the Whig Party. Both brought to the fore fundamental divides that drove the party apart. As he puts it, the GOP's "Pro Democracy faction and Autocratic factions can no more exist together then could the Whig Party hold together [t]he abolitionist with the Slave master."

I want Schmidt to be correct, but I do not believe he is. Abolitionists and supporters of slavery could not exist within the Whig Party because that fundamental philosophical divide made it impossible to agree on policies or candidates and to do the things political parties are designed to do. The anti-slavery Whigs found a home in the new Republican Party.

But the GOP's factions can co-exist when the smoke clears because the divide is not so philosophical. They will unite around knee-capping Biden (again, has any President had zero judges confirmed) and retaking the House/retaining the Senate in 2022 around a platform of Biden's failure to unite the country as he promised to do. Schmidt imagines a '22 primary bloodletting (including an Ivanka Trump-Marco Rubio primary in my home state of Florida, for which I will buy popcorn and a ringside seat). But, again, GOP party identification unites the factions against the common Democratic enemy once those primaries end. GOP voters will vote for whichever candidate carries the Republican label, the  party's structural advantages means there will continue to be more Rs than Ds in both houses, and the unifying goal will be opposition to the Democrats.

And unlike 1854, there is no place for these pro-Democratic Republicans to go. They are not going to become Democrats. And there is no room in the system for a third party.

Moreover, Mitt Romney and a few others aside, I think Schmidt misidentifies the factions within the party, at least within Congress. There is not a pro-Democracy faction and an Autocratic faction. Instead, there is one windmill-tilting autocratic faction and one pragmatic faction that will not waste time on futile efforts but would be "fine with this effort actually succeeding" and likely would not "refrain[] from supporting it if they thought it could succeed." McConnell is not using or threatening to use any of the tools at his disposal to pull these Cruz, Hawley, et.al in line. Perhaps he knows it cannot work. More likely, he knows that he and the rest of the party benefit from these failed efforts. It is enough to shut up and reap the benefits.

I believe Mike Sacks has it right: "They’re playacting an attempt to overthrow democracy because they think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know." Sack was talking about Gohmert, Cruz, Hawley, et al. But it is true of every member of the party's congressional caucus.

Where are they now: Tolan v. Cotton

The Washington Post on Friday ran a story on Robbie Tolan, a baseball player who was the victim of a 2008 police shooting in Texas that ended his potential career. His lawsuit was the subject of Tolan v. Cotton (2014), the rare case in which the Court reversed the grant of summary judgment on qualified immunity, when the lower court defined the context of the right despite factual disputes. I wrote about the case. Following remand, Tolan settled for $ 110,000; the newspaper story describes how he has gotten on with his life twelve years later. (H/T: Jonah Gelbach).

Mike Pompeo? (Updated)

Criticizing Lin Wood's legal acumen is fish-in-a-barrel stuff these days. Still I was struck by this: In his prediction/call/hope that Vice President Pence would be arrested and executed for treason, Wood said that Secretary of State Mike Pompeo would take charge of the Senate on January 6 and would save the election.

Obviously this is nonsense, and I do not know whether Wood believes it. But I am curious how he got there--even if you know nothing about law or the Constitution, what is the logical progression that gets the Secretary of State--an executive-branch officer whose existence is not provided for in the Constitution--presiding over a joint session of Congress and performing a function that is constitutionally delegated to the VP? The only thing I could think of is that Wood went through the line of presidential succession to find the next executive-branch officer and decided that person must perform the VP's functions if the VP is sitting in prison awaiting execution. This is wrong for several reasons, but I think that is it.

By the way, I am with the many people believing that this insanity does not end on January 6. Someone will seek to enjoin Chief Justice Roberts from issuing the oath to Biden or will seek to mandamus Roberts to issue the oath to Trump. Someone will challenge a Biden-signed law or Biden-issued executive order and argue that Biden is not really the President. Someone pointed out that the birther lawsuits continued into December 2012. And I would not be surprised if some Republican House members made noise about impeachment, which would be the appropriate vehicle (as opposed to these nonsense lawsuits) for removing a President who won the office by deceit or wrongdoing.

I also continue to believe that none of these will hurt the Republican Party or any individual Republican officials, in the short or long term.

Updated: Apparently, there is a different version of Pompeo, the Hero, in which Pompeo becomes acting president. According to the December 16 LawFare podcast, Senate Republicans will delay count-and-challenge until January 20 (Cruz's demand for a 10-day study, followed by referral to state legislatures, would achieve), then obtain a ruling from OLC that § 19 is constitutionally invalid to the extent it allows a non-executive officer to become acting president. The OLC ruling would require the executive branch to accept Pompeo as acting president, while the rest of the government would presumably recognize Nancy Pelosi as acting president.

Maybe this year will be better than the last

Wishing our bloggers, commenters, and readers a safe New Year's Eve and a healthy and (hopefully) happier 2021.

Let us hope this apparent Russian joke does not come true: On average, we live pretty well: worse than last year, but definitely better than next year. (H/T: Julia Ioffe and David Frum).

My former teacher Steve Lubet at Faculty Lounge does a weekly post featuring different versions of a particular song. In honor of my hope for 2021, here is my version of a post.

 

 

 

 

 

 

 

Third-party universality

A judge in the Northern District of California has universally enjoined the President's Executive Order on diversity training. Plaintiffs are several non-profit LGBT education and advocacy organizations that do trainings and education programs for local businesses, governments, and health-care providers. These programs cover systemic bias, anti-racism, white supremacy, and other issues the EO attempts to stop. The court held that the EO violates the First Amendment.

The court made the injunction universal/nationwide, based on third-party effects. "Permitting Plaintiffs to provide training regarding “divisive concepts,”or to promote those concepts,would do Plaintiffs little good if their sources of employment and funding remain subject to the Executive Order." Pointing to evidence of third-party cancellation of programs in which the plaintiffs were scheduled to participate, "[i]njunctive relief is necessary to allow third parties to hire and/or fund Plaintiffs without fear of violating the Executive Order."

Third-party effects can expand the scope of a particularized injunction, in the sense of protecting those with whom the protected plaintiff engages in its protected capacity. For example, the injunction stopping enforcement of the Muslim travel ban as to the University of Hawaii protected actual and potential students; the injunction stopping enforcement as to HIAS protected actual and potential HIAS clients. Similarly, the court is correct that protecting these plaintiffs requires protecting those who do business with them.

But it did not follow that the injunction stopping the travel ban should protect other state universities, other immigration organizations, or other potential immigrants who have nothing to do with those plaintiffs. Similarly, it does not follow that this injunction must protect other training providers who have nothing to do with these plaintiffs or other entities who do not and would never do business with the plaintiffs. Giving relief to other grantees/contractors, who have nothing to do with the plaintiffs, is not necessary to give the plaintiffs complete relief.

Remembering James Watt

Can we agree that the President's closest advisers at the moment--"a felon, adherents of the QAnon conspiracy theory, a White House trade adviser and a Russian agent’s former lover" is the greatest collection since James Watt in 1983?

Plenty of perjury and authoritarianism

Two unrelated items, united by the news of the day.

Based on the quality of lawyering we have seen the past 46 days, does anyone believe Nick Sandmann recovered anything more than nuisance value in settling his $ 250 million lawsuit against CNN?

In spring 2016, I had a conversation with two conservative academics about the ongoing Republican primary. One said GOP folks were worried about Trump winning. I responded, "why, because he's a crazy Fascist?", to which he responded with a smirk that they were worried about down-ballot drag. I said "which really means they know he's a crazy Fascist." The other asked, indignantly, why I thought Trump was a fascist and why I believed wanting to keep our country safe made him a fascist. I hope we agree that talking with people in the Oval Office about calling in the military to seize voting machines and order a redo of an election makes someone a fascist.* As someone wrote earlier today, Trump is a dictator; that the adjective "failed" goes in front of that does not change the fact that he is a dictator.

    [*] Or let's say a dictator or an authoritarian or a person not committed to democracy. I admittedly used fascism as a synonym for those. I think the point stands.

Godwin's Law of Standing

An intentionally provocative framing of Friday's standing decision: A mayor (to keep the numbers small) issues a memorandum ordering department heads to identify, "to the extent practicable or feasible," all Jewish municipal employees so they may be excluded from receiving annual raises. Jewish employees must be identified by December 31, the date on which annual raises are triggered.

Could it really be that a Jewish employee does not have standing to challenge that memorandum prior to being identified and denied a raise? That each employee must wait until he is denied the raise, then sue?

And if not, how is this different than the census case? Is it numbers--there are more undocumented immigrants in the United States than Jews working in my hypothetical municipality, so it is more likely that all Jews can be identified? Is it the certainty of harm--no raise as opposed to maybe a loss of money or seats?

I should add I know there is no logic or consistency in standing analysis. But it is worth thinking about.

Malevolence + Incompetence = No Standing

That is the gist of the Per curiam decision dismissing the challenge to exclusion of undocumented persons from the census for lack standing/ripeness (at this point they are the same and we should stop treating them as distinct). Government agencies are struggling to identify undocumented persons and exclude them from the count--in other words, struggling to implement the presidential memorandum--by the December 31 deadline. This creates "contingencies" and "speculation" as to the extent of the harm (how many millions of people will be identified and affected) that "impedes judicial review."

Breyer dissented for Sotomayor and Kagan. Money quotation:

To repeat, the President’s stated goal is to reduce the number of Representatives apportioned to the States that are home to a disproportionate number of aliens without lawful status. The Government has confirmed that it can identify millions of these people through administrative records. But if the Census Bureau fails to fulfill its man-date to exclude aliens without lawful status and reduce the number of Representatives to which certain States are en-titled, it will be for reasons not in the record. Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not de-cline to resolve the case simply because the Government speculates that it might not fully succeed.

Otherwise, we have a new principle: Plaintiffs lack standing if government is too incompetent to get its shit together and commit the violation it intends, as a matter of announced formal policy, to commit.

Oh, and I forgot to add: I presume folks in the Trump Administration now believe standing requirements are great and necessary constitutional bulwarks and not technicalities and dodges wielded by fearful Justices.

Departmentalism and the First Amendment

Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.

Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.

Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.

Cuomo explained his reason for signing despite the constitutional questions:

This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message.

“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”

So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.

Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?

Fake electors

If the Trump presidency began with alternative facts, it ends with alternative electors: Uncertified Trump would-be electors who got together, voted for Trump, and sent their results to the archive to be opened in Congress on January 6. None of these actions have any basis in law. Michael Dorf explains that the lack of legal basis might not matter, while Neil Buchanan explains how some stupid mischief could play out without success on January 6, which may explain why Mitch McConnell has discovered his limit on cravenness.

But let me add one more wrinkle combining the posts. Neil argues that one reading of the Electoral Count Act is that Congress cannot reject a slat of electors unless there is a competing slate purporting to be properly appointed. Neil argues that simply rejecting the Biden electors would not create a path to Trump becoming President, because the rejection would not be of their votes but of their appointment as electors. So Congress could not subtract 73 electors (MI/PA/AZ/GA/WI) from Biden's 306, drop him to 233, and call for a contingency election; the 73 would be dropped from 538, giving Biden 233/465 and a one-vote majority. In other words, it is not enough to carve 73 votes from Biden; they need to shift votes to Trump.

This is where the "alternate" Trump electors (whom Dorf analogizes to the French citizens taking the "Tennis Court Oath" in 1789) come in. Although lacking a fig leaf of legal authority or state support (despite what Sidney Powell apparently represented to SCOTUS), they actually exercise as much authority as force and other actors are willing to accord them. Now there is an alternative slate of electors that Republicans in Congress could recognize, despite the lack of meaningful authority; instead of 306-232 Biden, it is 305-233 Trump. Note, again, no House contingency election; Trump wins outright.

Finally, Jermey Mayer offers a final nightmare in which congressional Republicans drag things out by contesting and debating every vote, then declare that there is no electoral college winner, triggering contingency elections. Steve Vladeck explains why this cannot work: There cannot be a contingency election unless Congress agrees that no one received a majority, which cannot occur unless Congress rejects--and replaces--some Biden votes. Delaying certifying Biden's win also delays certifying the absence of a majority winner. And, Steve goes on, if they delay until noon on January 20, Nancy Pelosi becomes acting president.

Mayer's hypothesis shows a problem with using shorthand in lieu of text and procedure, something I try to explain to my students. Mayer says "The Constitution specifies that if there is no Electoral College winner, the Senate chooses the vice president and the House picks the president." But that is not an accurate description of the text or process.  The 12th Amendment says, in relevant part, "the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority," there will be contingency elections in the Senate and House. This requires more than Congress taking a long time to challenge votes. It requires Congress to do something--count and announce the results of that count. And a count, absent rejected votes or switched slates, will reveal a 306-232 Biden win. The text does not allow Congress to do nothing or to not count; inaction just runs the clock until no one shall have qualified as President or Vice President.

Note: None of this will happen, because Democrats control the House; this is all a parlor game. At the same time, if Democrats did not control the House, none of the legal niceties at work here would matter, because Republicans have shown themselves willing to do whatever they want. Which is the common them of both Neil's and Mike's posts.

Universality and the facial/as-applied distinction

An aspect of universality about which I have not written is its intertwinement with the distinction between facial and as-applied challenges to the laws.

Normatively, it should not matter. Dick Fallon has it right in arguing that facial/as-applied relates to the scope of the precedent rather than the scope of the judgment. A facial challenge produces precedent pre-determining the validity of the law as to non-parties and future cases, which future courts will apply as firmer precedent in resolving the second lawsuit. But any injunction in that first lawsuit remains limited to prohibiting enforcement only against the plaintiff. Descriptively, however, suggestions that a challenge to a law is facial bleeds into questions of who will be protected by the resulting judgment.

Case in point is Tuesday's First Circuit decision on a First Amendment challenge to Massachusett's ban on surreptitious recording, even of government officials performing public functions in public. In consolidated cases, the panel* the panel found one challenge ripe (Martin) and affirmed a declaratory judgment prohibiting enforcement as to recording of police in public spaces, while finding a second challenge (Project Veritas) not ripe as applied to recordings of all public employees and other individuals lacking expectations of privacy.

[*] The panel was David Barron, an Obama and potential Biden short-lister, who wrote the opinion; Justice Souter riding circuit; and Bruce Selya of the large vocabulary. Interesting note on seniority on the panel, which goes: Active Circuit, Retired SCOTUS, Senior Circuit

There was preliminary wrangling over whether Martin was facial or as-applied. Here is how Judge Barron resolved the back-and-forth:

This battle over labels is not fruitful. The Martin Plaintiffs' challenge takes aim at only a portion of Section 99, but it seeks to block it in circumstances beyond the Martin Plaintiffs' own recording. The challenge thus has both "as-applied" and "facial" characteristics. There is no obvious sense in which one predominates.

Fortunately, the Supreme Court has confronted similar half-fish, half-fowl First Amendment challenges and instructed that where the challengers "do[] not seek to strike [a statute] in all its applications" but the relief sought "reach[es] beyond the particular circumstances of [the] plaintiffs," they must "satisfy [the] standards for a facial challenge to the extent of that reach." John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010) (emphasis added); see also Showtime Ent., LLC v. Town of Mendon, 769 F.3d 61, 70 (1st Cir. 2014). We thus proceed on the understanding that the Martin Plaintiffs seek the invalidation -- facially -- of Section 99 but only insofar as it applies to bar the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces.

We emphasize, though, that the Martin Plaintiffs contend that Section 99 is unconstitutional as applied to their own recording. In that respect, they are not bringing a First Amendment overbreadth challenge. Nor are they seeking, however, to invalidate the measure only insofar as it applies to their own conduct. They are bringing a challenge to a portion of Section 99 that they contend cannot be applied to bar such recording, whether undertaken by them or by anyone else, because it is not tailored in the way that they contend the First Amendment requires.

With the Martin Plaintiffs' challenge now better in view, we are well positioned to explain why we conclude that it is ripe.

The court addressed this it affected ripeness. But note how scope-of-remedy bleeds into the analysis. Twice the court describes the plaintiffs as attempting to stop recording "beyond [their] own recording" and "whether undertaken by them or by anyone else." But  a party cannot, as a matter of the judgment and absent class certification, stop enforcement of the law as to anyone else or anyone else's conduct. Speaking in these terms creates that remedial confusion, even where, as here, only a declaratory judgment and not an injunction is sought.

Other than this remedial quibble, this is another great addition to the burgeoning body of law establishing a First Amendment right to record.

Not a technicality, still a distraction (Updated)

Standing is the word of the weekend, as the lame-duck President took to Fox to decry the reliance on "little technicalities, like a thing called standing," before expressing shock and awe that "the President of the United States does not have standing."

I prohibit my students from using the word "technicality" in class or in their work. Another word for technicality, I tell them, is "the law." It is not a technicality when evidence is excluded because police executed an unlawful search, because there are laws prohibiting police from doing that and those laws are no less important than the law prohibiting some action as a crime. And it is not a technicality when a court dismisses (or refuses to hear) case because it lacks the authority to hear it (as standing is understood), because the laws limiting the court's adjudicative authority is as important as the Electors Clause.

Update: Trump later tried his hand at textualism, insisting that SCOTUS' original jurisdiction is enumerated in the Constitution. But so is standing (descriptively derived as it is from the "case or controversy" language), in the prior clause of the same section of the same article.

Trump's complaint also ignores that one court found standing before rejecting all the merits arguments. The court's standing analysis is debatable. I agree that Trump was injured and that an injunction prohibiting certification would remedy that injury (subject to whatever happens next under state law). But any standing here would have been Third Party standing--Trump asserting the rights of the Wisconsin legislature to set election rules. The court either needed to find the other elements of third-party standing (close connection between Trump and the real right-holder and some barrier to the right-holder asserting its rights) or conclude that, as in Bond v. U.S., a party with standing can assert any alleged constitutional defect in a law.

All that said, I continue to believe that standing is jurisdictionalized merits. What courts have made a jurisdictional threshold is a merits determination: "Your constitutional/statutory rights have not been violated in this case because the law does not recognize those rights, so you lose on the merits." That is what standing measures--"perhaps the Constitution or law was violated in some way, but it did not affect you so you cannot be the one to pursue the claim and obtain a judicial remedy." Would we be better off if courts spoke about it in those terms, rather than as a threshold that can be waved away by non-lawyers as a technicality?

JOTWELL: Carroll on Martinez on judges behaving badly

The new Courts Law essay comes from new contributor Maureen Carroll (Michigan), reviewing Veronica Root Martinez, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 223 (2020), considering how to create mechanisms for holding judges accountable for misconduct when they no longer are on that court.

Requiem for principles

Multiple items, unconnected except by the thread of the ongoing coup attempt:

• Carter Philips, Republican former Assistant to the SG and SCOTUS advocate and leader of an early amicus opposing the Texas lawsuit, tells the National Law Journal (subscription required) that it would be "counterproductive" to seek attorney sanctions: "The problem is you just want this to end and to move on. It doesn’t help it to end if you start filing [frivolous litigation] motions and trying to sanction the other side. . . . It turns up the volume and gives more reason for rancor." Phillips is correct that sanction activity--or post-litigation efforts before state bars--keep this going. But then how do you stop this from happening again and again? The purpose of Rule 11 is to deter repetition of this conduct or comparable conduct by others similarly situated. Without the threat of sanctions, because those sanctions are counter-productive, nothing deters Wood, Powell, Paxton, et al. from doing this again. Put another way, sanctions exist because most lawyers are internally motivated to do the right thing and sanctions can deal with the outlier. What happens when those not internally motivated are not the outliers?

• Jeb Bush says: "This is crazy. it will be killed on arrival. Why are smart people advancing this notion? Let it go. The election is over." Does he really not know the answer to that question? Smart people are advancing this notion because they can get not-smart (or not-informed or not-engaged) people to believe their narrative of a stolen election. That narrative might be dead on arrival before SCOTUS. But that narrative will allow them to maintain public support when they undertake a scorched-earth campaign against voting rights (which has already begun in Georgia in advance of the Senate run-offs) and against the Biden Administration. Ted Cruz said the Senate will not confirm Biden nominees "[a]s long as there's litigation ongoing, and the election result is disputed." So unethical lawyers bring bullshit cases, without fear of sanction or consequence, and unethical legislators use those cases as pretext to prevent Biden from governing, without fear of sanction or consequence.

• Speaking of: The President's new argument is that the Biden Administration will be a "scandal-plagued mess for years to come." Short term, he uses this as a basis for SCOTUS action (Principle: If SCOTUS knows the incoming administration will be bad, it can overturn the election to "Save America"?). Long-term, this is a repeat of Trump's successful 2016 move. It was obvious four years ago that Trump was a corrupt liar, but he managed to convince the press and a sufficient number of people that Hillary was more of a corrupt liar.

Now a President who was impeached, presided over the most corrupt and unethical modern administration, surrounded himself with criminals, engaged in blatant nepotism, and profited from public office is suggesting that the new administration is scandal-plagued before it begins. Which will work to make the press report on Biden's scandals--no matter how unrelated to the President or the administration--as if it was on a similar scale and degree to what we just witnessed (and continue to witness).

• And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences  for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.

New Fed Courts cases from SCOTUS (Updated)

As the Court wrestles with absurd original-jurisdiction cases, some procedure decisions from SCOTUS today, with some interesting twists and background points.

• Carney v. Adams involved a challenge to Delaware law controlling party affiliation for judges; a unanimous Court, per Justice Breyer, held the plaintiff lacked standing because he failed to show he was "able and ready" to do something to be injured by the challenged law. Bare testimony that he "would apply" for a judgeship but for the party limitations was insufficient to establish a particularized harm, especially when balanced against the sequence of events (he never applied for any judgeship, retired as an attorney, read a law review article about the invalidity of these party limits, unretired, changed his party affiliation from Democrat to Independent, then filed the lawsuit about a week later). Basically, he got Lujaned--he did not have the judicial-application equivalent of a plane ticket. Justice Sotomayor concurred to comment on some issues that might arise on the merits of a future challenge to laws such as these.

• Tanzin v. Tanvir, unanimously per Justice Thomas, held that federal officers could be sued for damages under RFRA; the action was brought against FBI agents who allegedly placed three Muslim men on the "No Fly List" when they refused to act as informants. A lot of discussion. RFRA provides an express cause of action against governments, which includes officials and other persons acting under color of law, terms which include personal-capacity claims against government employees. The Court uses § 1983 to establish background understanding for concepts such as under color and damages as a remedy for constitutional violations.

Qualified immunity lurked in the background in Tanvin in two interesting respects. First, the Court drops in a footnote that everyone agrees that the officers can assert qualified immunity, which pre-ordains what will happen in this action on remand (it will not be clearly established that placing someone on the List in retaliation for not spying on their neighbors violates religious freedom). I guess it makes sense as a policy matter that qualified immunity applies. But why does it work as a statutory matter. The logic of qualified immunity and § 1983 is that a qualified-immunity-type defense existed at common law in 1871 and was incorporated as background in § 1983 in the absence of a plain statement rejecting the defense. (The dissimilarity between modern QI and what existed at common law is the basis for Will Baude's criticisms). The logic of qualified immunity and Bivens is that Bivens is the federal counterpart to § 1983. But what is the source of qualified immunity to assume it was incorporated (again by silence) into RFRA? I guess the argument would be that RFRA displaced § 1983 and Bivens and was modeled after both, so any defense built into these was built and incorporated into the new statute. (Update: Doug Laycock confirms this, along with the belief that QI was a necessary concession to get a damages remedy in the statute. Thomas describes the scope of § 1983 at the time of RFRA as permitting "monetary recovery against officials who violated 'clearly established' federal law.").

Second, Thomas is the one Justice who expressed an interest in at least reconsidering QI. It thus is interesting that he incorporates into RFRA the broad understanding of under color to include suits against any official acting as an official in his personal capacity. One argument for broad QI (as Will discusses in his article) is as a counterweight to a broad conception of under color--Screws/Monroe were wrong, so QI corrects that imbalance without overruling those cases. But I wonder what Thomas' broad adoption of under color means for his views on QI.

• United States v. Briggs unanimously held that certain rape prosecutions under the UCMJ were timely, an unfortunate loss for Steve. Justice Gorsuch concurred to express his continuing view that SCOTUS lacks jurisdiction to review decisions from the Court of Appeals for the Armed Forces (an Article I Court).

Hungary and Germany arguments

Here is my SCOTUSBlog recap of Monday's arguments in Hungary, which focused on comity abstention; the Germany argument focused on FSIA jurisdiction.

My (usually wrong) quick take is that the judges were sympathetic to the plaintiffs' arguments that abstention is categorically unavailable where FSIA accords jurisdiction. But several justices wondered whether that issue is mooted if it holds that the expropriation exception does not apply in Germany. I need to re-listen to the Germany argument; initial reports suggest at least some justices were skeptical of allowing FSIA's expropriation exception to reach these sorts of foreign genocide claims.

The lawyer for the plaintiffs in Germany mentioned abstention in his opening and closing, including with an awful baseball metaphor.

What a difference 160 years makes

Pardons and Mootness

Judge Sullivan has dismissed the prosecution of Michael Flynn in light of the President's pardon.

Interestingly, Sullivan dismisses the cases as moot and I do not understand why. The opinion discusses the understanding that acceptance of a pardon implies a confession of guilt, while exempting the individual from the punishment the law inflicts for a crime committed. Because the pardon does not render Flynn innocent of the crime charged, the appropriate course is to dismiss as moot.

I do not see why that follows. Dismissal on the ground of actual innocence is not appropriate. But saying the pardon "exempt[s]" the individual from the usual punishment for a crime suggests a dismissal of the prosecution because the pardon has placed Flynn beyond the reach of the law. That sounds in the merits--not actual innocence, but the scope and application of a law to an individual and an individual's conduct, which Morrison says is the merits. It sounds in an immunity, which is usually (and properly) seen as merits. It does not sound in an outside change of circumstances depriving the court of its power to accord meaningful relief or resolution to a dispute. (contra a defendant dying while the case is pending).

Consider it from the other direction. Imagine Trump grants himself a pardon for all conduct violating federal law prior to January 20, 2021. The U.S. prosecutes, Trump moves to dismiss the indictment based on the pardon, and the court decides that a self-pardon is valid. It seems to me the court would dismiss that indictment, finding the prosecution cannot proceed because Trump is, by virtue of the pardon, exempt from that law and its ordinary consequences. I do not think that court would dismiss as moot. So it should not be different because the pardon came before the prosecution was initiated as opposed to after.

Kraken the 11th Amendment

Judge Parker of the Eastern District of Michigan denied a preliminary injunction in the Michigan Kraken suit. One basis for dismissal, which I had not seen in these suits, was 11th Amendment. The court held that Ex Parte Young did not allow the § 1983 claims against the individual officers because the requested injunction is retroactive rather than prospective. EPY requires that the plaintiff seek prospective relief to end a continuing violation of federal law. This is not the mine-run EPY action, in which the plaintiff seeks to stop continuing enforcement of a constitutionally invalid law; the plaintiffs seek to "undo what has already occurred"--the certification of the election and the slate of Michigan electors.

This does not seem quite right to me. This is not a completed past violation. Plaintiffs do feel the ongoing effects of the constitutionally defective election and certification--the wrong candidate was certified as winner and the wrong electors appointed, in violation of these plaintiffs' constitutional rights. The relief, if granted, would have prospective effect--they would be back in the place they would be had the violative certification not occurred and in a position to have their rights remedied prospectively by a proper future certification. The analogy is a reinstatement claim, which is allowed under EPY--the unlawful firing occurred in the past, the plaintiff continues to feel the ongoing effects of the firing, and the court order will restore the plaintiff to where she would have been had she not been unlawfully fired.

The plaintiffs cannot get the remedy sought for other reasons--I doubt the court could order decertification, not to mention that their rights were not violated to begin with. But that does not mean the remedy is not "prospective" or the violation not "ongoing." Another way that all of these doctrines conflate jurisdiction, merits, and remedies.

Identify yourself as an academic

The New York Times questions Jenna Ellis' credentials as a lawyer (I am shocked, shocked to find they are not what she plays them to be), including how she came to call herself a "constitutional law attorney" and a "professor of constitutional law." Colorado Christian University, where she taught in an undergraduate legal-studies program as an adjunct and as full-time professor, says she never held the latter title.

But that got me wondering: How many of you use the subjects in which you write/teach in your title for purposes of self-identification, web sites, media, etc.? And how common is it for academics to do that? I identify myself as a professor of law, not a professor of civil procedure. Frankly, I become suspicious when I see "professor of [subject]" in a person's title on a web site or LinkedIn page, a sign that the person is trying too hard.

Am I being too harsh?

How many cheers for the GOP? (Updated)

On one hand, officials such as Georgia's Brian Kemp and Brad Raffensperger have certified vote counts and denied claims of fraud or misconduct in the election. Republican legislative leaders in Michigan and Pennsylvania made it known early and clearly that the legislature would not (and in most cases could not) appoint a different slate of chosen electors.

On the other hand, Republican legislators (including committee chairs) in Michigan, Pennsylvania, Wisconsin, Arizona, and Georgia have provided official-seeming (and thus official for those who do not know any better) forums for Rudy Giuliani, Sydney Powell, Jenna Ellis, and their traveling show of rejected SNL-skit characters to spout nonsense. Pennsylvania State Sen. Doug Mastriano led the introduction of a formal resolution to appoint electors (he left the game when he contracted COVID). Republican members of canvassing boards in Michigan made noisy performance out of declining to perform (or considering declining to perform) ministerial functions.  Wisconsin Sen. Ron Johnson says Biden won but it would be political suicide to admit it--and Democrats do not love America. Alabama Rep. Mo Brooks announced that he will challenge electoral votes from the swing states, at least if he can find Senators to go along for the ride. And even those who have acknowledged Biden as the winner of the election and the president-elect have been couched--"I have not seen evidence so far." Obviously the President is being the President.

So, on one hand, a handful of Republicans in key positions who matter have made clear that nothing will be done to prevent Biden electors from voting in the College on December 14 and nothing will stop Biden's inauguration on January 20. The democratic process worked to install the properly elected official. On the other hand, they have amplified and lent credence to the stolen-election narrative. This will 1) undermine Biden's presidency before it begins in the eyes of a large swath of people (a much larger swath, officially sanctioned, than anything that happened in 2017) and 2) provide a pretext for Republican officials to enact sweeping changes to election laws to make it more difficult to vote, especially for certain constituencies in certain locations.

So how many cheers? They did not destroy democracy now. They are teeing up the possibility for destruction next time.

Update: How about both hands in one person? On one hand, Gabe Sterling, Georgia's Republican voting systems implementation manager, called out  the people making these false claims and inciting violence, including the Republican candidates in the two Senate run-offs. On the other hand, Sterling said he still would vote for both "because some things are bigger than this." What could be bigger than undermining democracy through calls for violence and false claims of voter fraud? How can calls for violence and false claims of voter fraud, if they are "not right," not be disqualifying for public office? In the balance of structural principles, partisanship prevails over democracy, even when the express goal of partisanship is undermining democracy.

Updated Again: Deduct at least part of a cheer. Republican House members, including the Speaker and Majority leader, sent a letter to the state's congressional delegation urging them to object to the state's electoral votes. it will not work now, for many reasons.* But the effort undermines Biden's presidency. And it puts in place the framework, narrative, and precedent to work in the future.

[*] As Steve notes, the House will not go along even if the Senate tries this and the safe harbor controls, requiring a divided Congress to accept the governor-certified slate. Biden has a 36-vote cushion, so losing Pennsylvania's 20 votes does not push him below 270. And if it did (or if other Republican-controlled legislatures join this circus, a distinct possibility), I am persuaded by the Dorf-Tribe argument that rejecting a state's slate of electoral votes lowers the number of electors appointed, lowering the denominator needed for a majority. So if Republicans pulled this for the four swing states (worth 52 electoral votes), Biden wins with 254 out of 486 votes, ten more than he needs.

Lethal religion

The Third Circuit held in an unpublished opinion that a Delaware prison did not violate RLUIPA or the First Amendment in denying a Jewish prisoner the use of teffilin (leather boxes connected by long leather straps). The maximum-security prisoner has a history of mental illness, being violent, threatening suicide, and smuggling contraband. Teffilin might allow him to smuggle contraband in the boxes or to harm himself or others with the straps and the prison could not divert the resources and manpower necessary to monitor his use. A dissenting opinion argued that RLUIPA requires the state to show more than inconvenience, including that it would be impossible (not merely inconvenient) to authorize the additional overtime and work hours necessary to supervise the plaintiff while he prays.

Botching jurisdiction and merits, Ex. No. 613

Here is an awful jurisdiction/merits decision from the Fifth Circuit, involving the treatment of state action/under color in a § 1983 action. (H/T: Jack Preis).

A public-school educational aide sues a contract sheriff's deputy assigned to the school, claiming excessive force from the deputy punching him. The district court denies qualified immunity, while noting in passing some doubt about state action but that the defendant conceded the issue. The deputy appeals the Q/I denial under the collateral order doctrine. The Fifth Circuit remands, on the ground that by failing to determine action under color, the district court failed to establish its subject matter jurisdiction before ruling on the merits.

This is many shades of wrong. State action/action under color is an element of a § 1983 action and has nothing to do with the court's subject matter jurisdiction. This is true as a logical matter--merits ask who can sue whom and for what conduct, which is what state action determines in a constitutional case (whether this defendant can be sued for this conduct because it was under color). But it is especially true after Arbaugh and Morrison, which labels as merits issues those affecting the "reach" of a law, meaning what the law "prohibits"--what conduct (under color or not under color) can form the basis for liability in a § 1983 constitutional claim. It has nothing to do with subject-matter jurisdiction, which is established because federal law "creates" the rights plaintiff is asserting (Fourth Amendment) and his right of action (§ 1983).

The court may have found itself bound by a 1980 circuit precedent saying state action was required to "invoke the district court's jurisdiction." But that case (both the majority and dissent) uses the term jurisdiction in the thoughtless way the Court (particularly Justice Ginsburg) has tried to rein in the past twenty years. And it is inconsistent with how Morrison and Arbaugh framed the definition of merits issues. A Third Circuit panel was willing to overrule circuit precedent that could not stand in light of those recent cases. Perhaps this panel was unwilling to do the same. But then perhaps tee this for en banc review.

One other note: This decision is a stew of bad Fed Courts doctrine. The only reason the court was in position to consider the issue at this point is the immediate appealability of qualified-immunity denials, which some have argued contribute to the over-protection of police. Immediate review is designed to speed litigation. Instead, the court avoided immunity to create a new round of district-court (and probably appellate) litigation of an issue that should not have been before the court of appeals.

Federal Rules of Trumpist Procedure

I started to add this to my earlier post about Trumpist Procedure (great article title), but decided it needs to stand alone.

Powell's Wisconsin lawsuit, which includes a plaintiff who never agreed to the lawsuit, included a "Motion for Declaratory, Emergency, and Permanent Injunctive Relief." It had to be filed twice because the lawyers filed a draft. They filed both without saying whether they had provided notice to the defendants or otherwise complied with FRCP 65(b) and local rules or whether they wanted a hearing. The court issued an order refusing to do anything, which is the best kind of order. Brad Heath of Reuters put it well:

Just an amazing pattern of lawyers showing up with what they say are the most important cases ever filed and botching the basics. Even the President's lawyers screwed up the everyday rules for suing people. These are the mistakes you see when prisoners represent themselves.

Courts are going to have to figure this out. But I am not sure demanding that the Trumpist lawyers adhere to the rules, refusing to act if they do not is the solution, and issuing (rightfully) annoyed orders is the answer. First, doing so ignores that their point is to make official-sounding noise in any forum; a court with "rules" is no different than a Courtyard-by-Marriott without rules. Second, orders such as this one make the court, especially an Obama appointee, part of the expanding conspiracy.

Judges, procedure, and Trumpist litigators (Updated Again and Again and Moved to Top)

We have seen some strangeness the past two days over one of Sydney Powell's Kraken lawsuits in Georgia. That lawsuit seeks, among other things, an order seizing and impounding voting machines in the state and allowing plaintiffs to perform a forensic inspection. On Sunday afternoon, the court issued a scheduling order that included a TRO prohibiting the state from scrubbing data from the machines. Later, the court issued a second order, rescinding the TRO, apparently because the state does not control the machines; counties do and the counties were not sued. On Sunday evening, the court issued a third order following a Zoom conference, reinstating the TRO prohibiting defendants from scrubbing or allowing scrubbing of the machines, limited to three counties, apparently on the understanding that plaintiffs will amend the complaint to add them as defendants. This morning came a fourth order, certifying the third order for immediate review under § 1292(b).

Why the insanity? I agree with several online lawyer-commenters. The judge issued a routine, non-adversary scheduling order that sought to preserve the status quo. And Powell, Lin Wood, etc. reacted by taking to Twitter to crow about a giant initial step towards exposing the massive international voter-fraud conspiracy, a substantive victory. Then the defendants pointed out the problems with the litigation and thus with even that routine order--the plaintiffs sued the wrong people and the machines probably cannot be subject to a plaintiff-run forensic audit, at least without more allegations and proof of wrongdoing. And the court sought a middle ground by allowing someone (not clear who) to appeal an otherwise-unappealable order. And questions remain about what the controlling question of law could--whether it was proper to issue a TRO before the amended complaint was filed? whether a forensic audit is available? It might be that the 11th Circuit could reject any appeal (the court of appeals must agree with the district court's certification that appeal is appropriate).

The lesson is that courts must be as cautious as everyone else in these waters. Routine litigation is not routine litigation with these lawyers or with their public followers, because they are not here for judicial resolution. The most innocuous order or statement by the court will be seized upon and trumpeted either further evidence of the vast international conspiracy of which the judge is a part or as a heroic step by a heroic judge to stopping the greatest evil in human history. (Recall Jenna Ellis's insistence that Giuliani had won the argument in the MDPa case, as evidenced by the judge recommending places for the lawyers to get a drink). But unless courts begin to use the tools at their disposal to stop these abuses, they must think twice about even the smallest procedural step or statement.

Updated on Tuesday: Politico has the full story based on the transcript of the Sunday conference, with commentary. The first two orders were proposed drafts circulated among the court and parties that were publicly disclosed and promoted by plaintiff counsel, thus far without consequence. The judge seems less unreceptive to these allegations than others; while stating that the allegations are backed by "precious little proof," he appears to take them as sufficiently plausible to warrant ordering limited preservation. The § 1292(b) order was entered in response to the state's desire to appeal, although still no word on the controlling question of law. No appeal has been filed.

My basis point in this post stands: Trumpist litigators are going to abuse the system. And judges have to be ready for it.

Updated on Wednesday: Instead, the plaintiffs appealed the TRO granting them narrow relief (no clearing machines in three counties). And they did not rely on the § 1292(b) certification, which appears to have been at the state's request. Instead, plaintiffs argue that this is an appeal as of right of an injunction under § 1292(a), based on Eleventh Circuit precedent from the Terri Schiavo litigation treating a TRO as an appealable preliminary injunction where the grant or denial "might have a serious, perhaps irreparable, consequence, and can be effectually challenged only by immediate appeal." In Schiavo, the consequence was that Schiavo would die; I doubt the consequences here are so grave.

Meanwhile, the notice of appeal argued that the appeal divests the district court of jurisdiction. This caused the district court to stay its scheduling order, including the briefing schedule (state briefs were due today) and a Friday hearing, both of which are off. This was unnecessary and probably unwise, because the district court must begin anew when the case returns (probably quickly) from the court of appeals. The district court was was not pleased, stating in the order that any delay in briefing and holding a hearing upon remand would be attributable to the plaintiffs and not the court.

Mike Dunford has more on how bad the lawyering has been in this case. Again, my basic point: This is about using the system to put on a show for a segment of the public. 

Judicial departmentalism, writs of erasure, and the stupidity of political hackery

Tennessee state representative Jay Reedy has introduced a resolution calling on Congress "to enact legislation to prohibit the desecration of the United States flag." Reedy is being dragged by free-speech types.

As a matter of judicial departmentalism, Congress could constitutionally enact this law and Reedy and his compatriots can constitutionally urge Congress to do so. If Congress believes that the best understanding of the First Amendment is that it does not prohibit flag desecration, it can act on that understanding and enact legislation prohibiting flag desecration. And Reedy can urge that action. It would be a waste of time, a zombie law that could never be enforced because of existing judicial precedent (any attempt at enforcement likely would not enjoy qualified immunity). But Congress could pass such a law, if only for symbolic purposes. And Reedy may have good reason for wanting it to do so.

Here is why Reedy is stupid: A federal law prohibiting flag desecration already exists. Because judicial review does not erase laws, the provisions of the Flag Desecration Act of 1989, declared invalid in Eichman, remains on the federal books. So the problem is not that Reedy is urging Congress to enact an "unconstitutional law," since Congress can make its own judgments as to constitutionality, even if they differ from those of SCOTUS. It is that Reedy is urging Congress to enact a law it already has.