Perhaps Less Than Meets the Eye

I hesitate in commenting upon the Jeffrey Epstein matter. After all, the motto of the RBC is that “Everyone is entitled to his own opinion, but not his own facts.” Somehow, the feel of this story is more National Enquirer than, say, the sort of measured and sober analysis which this blog attempts to traffic in. However, the indictment and arrest of Epstein today, coupled with Wednesday’s decision of the United States Court of Appeals for the Second Circuit unsealing vast amounts of material filed in a defamation suit in New York, take this matter outside of the seamy margins of “journalism” practiced by the likes of the Enquirer.

While I haven’t checked, I have to assume that these two coincident developments are “trending” on FaceBook and Twitter. There is, simply put, a tsunami of what might best be described as prurient speculation as to the identities of the famous and near-famous who might be implicated in Epstein’s alleged one-man sex-trafficking ring. However, let me point out the following:

I think that the caveat set forth by the Second Circuit in its opinion deserves more attention than it is likely to receive:

[T]he  media  does  the  public  a  profound disservice when it reports on parties’ allegations uncritically. We have previously  observed  that  courts  cannot  possibly  “discredit  every statement or document turned up in the course of litigation,” and we have criticized “the use by the media of the somewhat misleading term ‘court  records’  in  referring  to  such items.”  Even  ordinarily  critical readers  may  take  the  reference  to  “court  papers”  as  some  sort  of marker of reliability.  This would be a mistake.


We  therefore  urge  the  media  to  exercise  restraint  in  covering potentially defamatory allegations, and we caution the public to read such accounts with discernment. 

Slip op. at 23-24, footnote omitted.

The one thing that we know is that the public will not read “such accounts” with discernment. And, this lack of discernment is certainly stoked by the current resident of the White House who, for instance, claims that he was the victim of some vast electoral conspiracy. However, I have done my job by striking this cautionary note.

Update: I have uploaded a copy of the Epstein indictment here.

Census Litigation Update

I’ve posted the government’s latest filing in the ongoing Census litigation in the U.S. District Court for the District of Maryland. (There is similar litigation ongoing in two other district courts.)

In essence, the government is claiming that the Supreme Court’s action upholding the current injunction is based solely on the claim that the rationale behind the initial actions of the Secretary of Commerce was pretextual. As such, the case is essentially moot because the government will no longer rely upon that rationale. Thus, no further discovery should be allowed at this point. Then, as explained by the government:

Any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action, and Plaintiffs will be fully entitled to challenge that decision at that time.

Government Motion at 1-2.

Thus:

Here, no amount of discovery will change the fact that the March 2018 decision that was the subject of Plaintiffs’ lawsuit has been vacated and the matter remanded to the agency. The Departments of Justice (DOJ) and Commerce have been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census. In the event the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court, the Government will immediately notify this Court so that it can determine whether there is any need for further proceedings or relief. But proceeding to discovery now in connection with a new decision that has not yet been made would be premature. It would also be extremely inefficient.

I will update as necessary.

UPDATE: Here’s the Court’s letter order denying the government’s attempt to short-circuit the litigation. The Court made short work of the merits of the government’s position:

Plaintiffs’ remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive. The discovery contemplated by the Court related to the recently discovered evidence in this case goes directly to that issue. Regardless of the justification Defendants may now find for a “new” decision, discovery related to the origins of the question will remain relevant. Given that time is of the essence, therefore, the prudent course is to proceed with discovery. As both sides acknowledge, the schedule may be adjusted as circumstances warrant.

As to the procedural issue that the case is now moot, the Court said:

Additionally, Defendants suggest in their filing that Plaintiffs’ Rule 60(b) Motion is now moot. If Defendants wish to further litigate that issue, while conducting discovery, an appropriate motion can be filed and the Court will formally respond upon full briefing. In the meantime, in accordance with the Order being issued today, discovery shall commence.

Simply put, the Court saw through the government’s attempt to issue a new order, either by the Secretary of Commerce or via an Executive Order issued by Trump, and thus avoid investigation into the intent behind the inclusion of the citizenship question.

Disorder in the Court

I have uploaded the transcript of the telephone conference/hearing in the case ongoing in the United States District Court for the District of Maryland concerning the census question re: citizenship. I have highlighted certain passages and made a few comments.

The transcript shows the government is in total disarray. Not only is the chain of command not being followed (that would have required that directions come from the Secretary of Commerce or the Attorney General), but the Justice Department attorneys have been given no official direction whatsoever. (Twitter is not an authorized mode of governmental communication.)

Let’s be as clear as possible: The basic incompetency of Donald Trump to discharge the duties of his office is no longer seriously in doubt. His strutting performance tomorrow will only serve to underline that fact.

He Shall Be Released?

When I first began to practice law, I was with a small, general practice firm that took whatever walked in the door. At one point, we had a federal court appointment to represent a defendant in an alleged drug conspiracy involving the Pagans motorcycle gang.

In response to our discovery requests, the U.S. Attorney’s Office dumped on us a ton of wiretap transcripts between the various Pagans and their followers and even mail that had been picked up in physical searches. When I say “dumped,” I mean “thrown in a box, randomly and in no particular order, and delivered to us.” It was my job to go through each piece of paper to see whether there was any possible evidence that would exculpate our client.

As I read the material, a strange pattern appeared. The Pagans did not believe that they were engaged in any wrongdoing. Rather, they believed that they were the objects of a conspiracy of by law enforcement and were being unfairly persecuted. In a very real way, it was like looking through a window into a universe of some alternative reality.

Tonight, I read the Sean Hannity/Paul Manafort text message “conversation.” Again, I had the same feeling of looking at some alternative reality. Manafort believed that the Office of Special Prosecutor, particularly Andrew Weisman, was in a conspiracy with the “Main Stream Media” to frame him. I don’t know whether Hannity actually also believed that, but he certainly feed Manafort’s fantasy.

The text stream ended on June 5, 2018. Since then, Manafort has been convicted by a jury of five counts of tax fraud, one count of failure to file a report of foreign bank and financial accounts and two counts of bank fraud. The jury voted 11-1 on 10 other charges. And, of course, Manafort has pleaded guilty to two counts of conspiracy. There was a conspiracy, but no one conducted by prosecutors.

I haven’t had much contact with the criminal justice system since those early days in practice. But perhaps because also I watched Martin Scorsese’s documentary Rolling Thunder Revue: A Bob Dylan Story tonight and then read the text exchange, I saw certain of Dylan’s lyrics in a different light. That is, perhaps most criminal defendants are as self-deluded as those Pagans and Paul Manafort:

Down here next to me in this lonely crowd
Is a man who swears he’s not to blame
All day long I hear him cry so loud
Calling out that he’s been framed

Where Is Blaise Pascal When You Really Need Him?

Both the Washington Post and the New York Times have reported that the Trump White House refused to approve the written testimony of Dr. Rod Schoonover for entry into the permanent Congressional Record. Dr. Schoonover had testified on Wednesday before the House Permanent Select Committee on Intelligence on the dangers that climate change poses to the security of the US.

Both the Post and the Times had links to the MS Word document of
Dr. Schoonover’s comments complete with the editorial comments of the WH censors reviewers. I have posted a copy of that document here. (I have added the RBC “Seal” and OCR’d the document.) Reading the document is more alarming than the fact of the suppression of Dr. Schoonover’s comments. It reveals a White House or NSC staff that is dominated with climate-denier ideologues.

For instance, one comment reads:

[T]here is nothing exceptional about current climate and it is profoundly incorrect to say that ‘characteristics of global climate are moving outside the bounds experienced in human history.” There was faster and greater Medieval warming around the year 1000 when Norse settled southern Greenland and developed a thriving agricultural society.

BJME 3.

The blog Skeptical Science shoots a hole in that nonsense:

Firstly, evidence suggests that the Medieval Warm Period may have been warmer than today in many parts of the globe such as in the North Atlantic. This warming thereby allowed Vikings to travel further north than had been previously possible because of reductions in sea ice and land ice in the Arctic. However, evidence also suggests that some places were very much cooler than today including the tropical pacific. All in all, when the warm places are averaged out with the cool places, it becomes clear that the overall warmth was likely similar to early to mid 20th century warming.


Since that early century warming, temperatures have risen well-beyond those achieved during the Medieval Warm Period across most of the globe.  The National Academy of Sciences Report on Climate Reconstructions in 2006 found it plausible that current temperatures are hotter than during the Medieval Warm Period.  Further evidence obtained since 2006 suggests that even in the Northern Hemisphere where the Medieval Warm Period was the most visible, temperatures are now beyond those experienced during Medieval times  (Figure 1).  This was also confirmed by a major paper from 78 scientists representing 60 scientific institutions around the world in 2013.


Secondly, the Medieval Warm Period has known causes which explain both the scale of the warmth and the pattern. It has now become clear to scientists that the Medieval Warm Period occurred during a time which had higher than average solar radiation and less volcanic activity (both resulting in warming). New evidence is also suggesting that changes in ocean circulation patterns played a very important role in bringing warmer seawater into the North Atlantic. This explains much of the extraordinary warmth in that region. These causes of warming contrast significantly with today’s warming, which we know cannot be caused by the same mechanisms.

However, at the center of the WH attack is the “uncertainty principle.” That is, the proposition that we cannot act on the threat of global climate change because it is possible that our conclusions are not airtight. Thus, they include this quote from Syukuro “Suki” Manabe: “Don’t put your model in a race with nature. Your model will lose this race.” The quote is literally accurate but taken out of context. What Manabe did in his work was to simplify his models, taking out complexities and, thereby, isolating specific factors in climate change. See here. Manabe believes in the reality of CO2 driven climate change and the basic accuracy of climate models.

Finally, we get to Blaise Pascal and his famous wager. In its most simple form, Pascal posits that we cannot by human reason either prove or disprove whether God exists. He points out that if a wager was between the equal chance of gaining two lifetimes of happiness and gaining nothing, then a person would be a fool to bet on the latter. He then concludes that it is irrational to risk an eternal life of happiness for the possibility of gaining nothing. (“If you gain, you gain all; if you lose, you lose nothing.”) (I’m certain that many of the members of the RBC would jump on me if I did not point out that one of the flaws in the wager is that there are many competing gods and that one cannot, using human reasoning, prove which is the true god.)

But that’s not the choice we face in addressing global climate change.

First, modeling, while not perfect, allows us to fairly accurately compute the future temperature rise and rise in ocean acidity due to CO2 buildup. Thus, we are out of “coin flip” territory. The probabilities of a disastrous outcome are, if not certain, very high.

Second, we can assess our costs, but downside and upside, with some degree of accuracy. We have projections of populated areas that are threatened by sea rise, species that are at risk of extinction, and the geographic shift of areas that can be used in agriculture.

Basically, Pascal basic approach was correct. Weigh the upside against the downside. He was in error in assessing the upside (i.e., that there are many competing gods) and could not calculate the probabilities involved. We are not so limited. Except in the White House.

The Queen of Hearts

From today’s Meet the Press transcript, a portion of the colloquy between Chuck Todd and Sarah Sanders:

CHUCK TODD:
Well it sounds like you’re not — that’s my point. It doesn’t sound like you want him to do his job. It sounds like you, the president has already determined the outcome.
SARAH SANDERS:
Chuck, that’s the reason that he’s granted the attorney general the authority to declassify that information, to look at all the documents necessary is so that we can get to the very bottom of what happened. Once again, we already know about some wrongdoing. The president’s not wrong in that. But he wants to know everything that happened and how far and how wide it went.

I’ve posted the entire Sanders portion of the Meet the Press transcript here.


5 U.S.C. § 3(a) and (b) provide as follows:

§ 3. Appointment of Inspector General; supervision; removal; political activities; appointment of Assistant Inspector General for Auditing and Assistant Inspector General for Investigations
(a) There shall be at the head of each Office an Inspector General who shall be appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations. Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment. Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpena [sic] during the course of any audit or investigation.
(b) An Inspector General may be removed from office by the President. If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal.

5 U.S.C. § 3(g) provides as follows:

Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service, obtain legal advice from a counsel either reporting directly to the Inspector General or another Inspector General.

The “investigation” being undertaken by Bill Barr at the direction of Trump is nothing more than a de facto removal from office of the Inspector General of the Department of Justice. When, as Sarah Sanders says, “we’re going to let the attorney general make that determination [of whether James Comey committed treason and should be arrested] as he gets to the conclusion of this investigation” (lines 95-99), what she is saying is that the Trump Administration is intentionally violating 5 U.S.C. § 3(g). That section goes to the core of the independence of the Inspector General. It makes it clear that the Inspector General can only seek legal counsel from an attorney who reports directly up the line to the Inspector General, not the head of the agency that the Inspector General is charged with overseeing.

 “Let the jury consider their verdict,” the King said, for about the twentieth time that day.
“No, no!” said the Queen. “Sentence first–verdict afterward.”
“Stuff and nonsense!” said Alice loudly. “The idea of having the sentence first!

Alice in Wonderland, by Lewis Carroll : Chapter XII

Shortly after that passage, Alice awoke:

‘Oh, I’ve had such a curious dream!’ said Alice, and she told her sister, as well as she could remember them, all these strange Adventures of hers that you have just been reading about; and when she had finished, her sister kissed her, and said, ‘It was a curious dream, dear, certainly: but now run in to your tea; it’s getting late.’ So Alice got up and ran off, thinking while she ran, as well she might, what a wonderful dream it had been.

Somehow, I don’t think that we will soon awaken from this dream. Certainly, we will not view it in retrospect as a wonderful dream.

Another Win for Original Intent

Tonight, the United States District Court for the Northern District of California (Gilliam, J.) issued an injunction as follows:

Defendants Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense, Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, Steven T. Mnuchin, in his official capacity as Secretary of the Department of the Treasury, and all persons acting under their direction, are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as Yuma Sector Project 1 and El Paso Sector Project 1 using funds reprogrammed by DoD under Section 8005 of the Department of Defense Appropriations Act, 2019.

Slip op. at 55

The court’s reasoning is succinctly summed up in the conclusion of the opinion as follows:

Congress’s “absolute” control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one. See [U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012)] at 1346–47 (“The power over the purse was one of the most important authorities allocated to Congress in the Constitution’s ‘necessary partition of power among the several departments.’”) (quoting The Federalist No. 51, at 320 (James Madison)). The Appropriations Clause is “a bulwark of the Constitution’s separation of powers among the three branches of the National Government,” and is “particularly important as a restraint on Executive Branch officers.” Id. at 1347. In short, the position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds “without Congress” does not square with fundamental separation of powers principles dating back to the earliest days of our Republic. See City & Cty of San Francisco, 897 F.3d at 1232 (“[I]f the decision to spend is determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened.”) (internal quotation marks and brackets omitted) (quoting Clinton, 524 U.S. at 451) (Kennedy, J., concurring). Justice Frankfurter wrote in 1952 that “[i]t is not a pleasant judicial duty to find that the President has exceeded his powers,” Youngstown, 343 U.S. at 614 (Frankfurter, J., concurring), and that remains no less true today. But “if there is a separation-of-powers concern here, it is between the President and Congress, a boundary that [courts] are sometimes called upon to enforce.” E. Bay Sanctuary Covenant, 909 F.3d at 1250; see also Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 825–26 (9th Cir. 2017) (“To declare that courts cannot even look to a statute passed by Congress to fulfill international obligations turns on its head the role of the courts and our core respect for a co-equal political branch, Congress.”). Because the Court has found that Plaintiffs are likely to show that Defendants’ actions exceeded their statutory authority, and that irreparable harm will result from those actions, a preliminary injunction must issue pending a resolution of the merits of the case.

Slip opinion at 54-55.

I have posted a copy of the opinion here.

Emergency Etiquette Help Needed

I am a past chair of the Section of Taxation of the Maryland State Bar Association. Tonight, May 22, the Section will be holding its annual dinner. The keynote speaker is the current I.R.S. Commissioner, Charles P. Rettig. I will be in attendance.

An article appeared in today’s Washington Post, revealing that there was a memo (perhaps simply a draft), that concluded that the Secretary of the Treasury does not have the authority to deny a request for taxpayer returns from the House Ways and Means Committee. Here’s a copy of the memo. I don’t have quick access to the relevant documents right now, but I’m am fairly certain that the obligation to enforce the tax code has been delegated to the IRS Commissioner and that this delegation order has (i) not been revoked and (ii) cannot be revoked except upon thirty days’ notice, which notice has not been made. So, Mr. Rettig would seem to be under a specific legal obligation to honor the Ways and Means Committee’s request.

Now, I try to remain civil and non-confrontational in face-to-face interactions. (My internet interactions are, um, somewhat different.) This leaves me in a bit of a quandary that I am hoping members of the RBC can help me resolve. Should I:

  • Question Mr. Rettig about the issue in a semi-confrontational matter (“Isn’t it true, Mr. Commissioner that . . . .”)
  • When Mr. Rettig is called to the rostrum, ostentatiously turn my back to him.
  • When Mr. Rettig is called to the rostrum, ostentatiously leave the room.
  • When Mr. Rettig is called to the rostrum, quietly and unobtrusively leave the room.
  • Simply maintain the ordinary sort of courtesies expected in such social and professional situations (ala Nancy Pelosi in her recent meeting with Attorney General Barr), remaining in the room and politely applauding Mr. Rettig after he finishes his remarks.
  • Any other suggestion?

I note that while I have never meet Mr. Rettig, I know a good number of my colleagues who have. They are unanimous in their appraisal of him that he is an intelligent, decent, and honorable man.

Lab Report

In his dissent in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), Justice Brandeis wrote:

[T]he advances in the exact sciences and the achievements in invention remind us that the seemingly impossible sometimes happens. There are many men now living who were in the habit of using the age-old expression: ‘It is as impossible as flying.’ The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation. In those fields experimentation has, for two centuries, been not only free but encouraged. Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the states and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the states which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity which have attended progress in the useful arts.

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Id., 285 U.S. at 310-311.

The states either supported by their courts or, in some cases, lead by their courts, have been doing a good deal of experimentation.

For instance, in League of Women Voters v. Pennsylvania, __ Pa. __ (February 18, 2018), the Pennsylvania Supreme Court held that a Republican attempt to gerrymander congressional districts violated the Pennsylvania state constitution. The U.S. Supreme Court refused to block the Pennsylvania ruling. Thus, the Pennsylvania ruling is impervious to the sort of attack I recognized as a possibility with respect to the various federal cases holding gerrymandering unconstitutional under the federal constitution.

Earlier, I posted a report on a Kansas decision based on that state’s constitution, upholding, at least temporarily, a woman’s right to an abortion.

Finally, this week, the Maryland Court of Special Appeals, Maryland’s intermediate appellate court, in Montgomery County v. Complete Lawn Care, Inc., fended off an attack on a county ordinance restricting the use of certain pesticides for cosmetic purposes in the county. The attack was based upon a claim that the county enactment was preempted by state law. (Among the plaintiffs seeking to block the law was the misleadingly named “Responsible Industry for a Sound Environment, a Committee of Croplife America,” a pesticide trade organization.)

I suppose that it could be argued that the current round of cases differs from the situation presented in New State Ice Co. There, the courts were blocking progressive legislative actions. In the Pennsylvania and Kansas cases above, the courts were acting as bulwarks against legislative attacks on progressive positions. Of course, this gives a somewhat different take on the concept of states’ rights.

Decision Overturning Ohio’s Political Gerrymandering

I have uploaded the decision of a three-judge district court overturning the political gerrymandering of Congressional districts in Ohio engineered by Republican legislators.

The opinion is 301 pages and, no, I have not read it from beginning to end. However, due to the length of this opinion, the Court provided the reader with a more concise summary which states, in part:

“Partisan gerrymandering” occurs when the dominant party in government draws district lines to entrench itself in power and to disadvantage the disfavored party’s voters. Plaintiffs in this action are individual Democratic voters from each of Ohio’s sixteen congressional districts, two non-partisan pro-democracy organizations, and three Democratic-aligned organizations. They challenge the constitutionality of Ohio’s 2012 redistricting map. Defendants are Ohio officials, and Intervenors are Ohio Republican Congressmen; Defendants and Intervenors both argue that the Plaintiffs’ claims are not properly before this Court and defend the map’s constitutionality on the merits.

* * * * *

We join the other federal courts that have held partisan gerrymandering unconstitutional and developed substantially similar standards for adjudicating such claims. We are convinced by the evidence that this partisan gerrymander was intentional and effective and that no legitimate justification accounts for its extremity. Performing our analysis district by district, we conclude that the 2012 map dilutes the votes of Democratic voters by packing and cracking them into districts that are so skewed toward one party that the electoral outcome is predetermined. We conclude that the map unconstitutionally burdens associational rights by making it more difficult for voters and certain organizations to advance their aims, be they pro-Democratic or pro-democracy. We conclude that by creating such a map, the State exceeded its powers under Article I of the Constitution. Accordingly, we declare Ohio’s 2012 map an unconstitutional partisan gerrymander, enjoin its use in the 2020 election, and order the enactment of a constitutionally viable replacement.


This raises a significant question. For me, this might even be characterized as an existential question. I went to law school. I then went to graduate law school. I’ve always believed that there are, roughly speaking, neutral principles of law that I can master. While there are close cases, at some point, one can discern an authoritative answer to legal questions.

There are currently pending two political gerrymandering cases before the Supreme Court: Rucho v. Common Cause, from North Carolina, and Lamone v. Benisek, from Maryland. Assume that the Court holds that courts cannot address claims that political gerrymandering violates the Constitution. That would mean that the various judges in the numerous cases that have all held to contrary have misinterpreted the law. And, of course, their actions were not off-the-cuff. Every case was well-briefed both by the litigants and by numerous amici curiae. The opinions were detailed and scholarly.

At some level, if so many judges with such a mammoth amount of legal resources at their fingertips cannot reach a “correct” conclusion, the concept of law based upon principles comes into question. In other words, I have simply been fooling myself for the last 45 years?