The Third Circuit has affirmed the convictions of Bill Baroni and Bridget Anne Kelly. They were the principal participants in the “Bridgegate” scandal in New Jersey. However, the Court reversed two of the seven counts against them and remanded the entire case back to the trial court for resentencing. This is worse than it looks.
First, Baroni and Kelly will have time to file a cert petition with the Supreme Court. Without looking at the exact rules on scheduling, this should allow them at least another six months out of jail even if, as is likely, the Supreme Court rejects their cert petition.
Next, there will be several months of back and forth before the trial court actually passes new sentences and they are actually incarcerated. This could easily allow them to be out of jail through to next Fall, possibly longer.
Under the original sentencing, Baroni was given two years in prison, Kelly only eighteen months. My guess is that, as a practical matter, their actual sentences will run from the time they begin serving them through November 6, 2020.
Massachusetts recreational pot sales draw crowd on first day. How much will Massachusetts earn from taxes on retail marijuana sales? Rep. Joe Kennedy III says he supports weed legalization so the feds can regulate it. Boston Globe seeks a contact high from the spread of marijuana legalization. Legalizing marijuana is one of new Connecticut
governor’s priorities. Where things stand on the push to legalize marijuana in Rhode Island.
Michigan recreational marijuana expected to be legal by December 6th. Forgive Michigan pot offenders—but don’t stop there. Michigan pot becoming legal, but employers and traffic cops still pay attention. How to make legal pot work for Michigan. Michigan legal marijuana has communities already opting out and here’s why.
With Pritzker and Madigan on board, Illinois Democrats push again for pot legalization. Issues to iron out before legal recreational marijuana available in Illinois. Illinois marijuana legalization push gets huge boost with Pritzker win. Illinois Republicans split on legalizing marijuana.
Concerns in Iowa over possible marijuana legalization in Illinois.
Wisconsin state rep. will re-introduce bill to legalize marijuana in 2019.
Vote on legalizing marijuana in New Jersey likely this month. Key New Jersey state senator, once opposed to legalizing marijuana, is ‘leaning yes’. New Jersey finally back on track to legalize marijuana. Hearings scheduled for next week. New Jersey marijuana legalization: Legal weed set for hearing, possible vote on Monday. Tompkins County supports marijuana legalization in New York. Debates about New York marijuana legalization continue with talk about jobs. New York marijuana legalization hearing includes … broccoli, bar fights and Bills games. New York State Senate Democrat says any bill legalizing recreational pot should protect medical marijuana.
New report claims marijuana legalization hurting Colorado more than helping.
Three states passed marijuana legalization measures. Congress might finally be next. Racial justice and legal pot are colliding in Congress. Legal pot, reproductive rights on the docket for new-look Senate. Former Rep. Bob Barr: Marijuana and the 2018 election—did we miss something? Federal marijuana action is an “inevitability,” FDA chief says. Three more states vote to legalize marijuana.
Canada‘s grand cannabis experiment has set scientists free. One-third of Canada‘s cannabis buyers still using illicit dealers. Canada‘s message to teenagers: Marijuana is legal now. Please don’t smoke it.
There were two new filings in the Supreme Court in the challenge to appointment of Matthew Whitaker as Acting Attorney General.
[D]oes not assert any personal-capacity claims against former Attorney General Lynch or any other governmental official, nor does he assert that the Attorney General had any personal role in any matter relating in any way to his claims. The “real party in interest” . . . is thus the Department of Justice or the United States itself, not the individual personally performing the duties of the Attorney General at a particular time.
Motion at 5, internal citation omitted.
Thus, “[a]t all times, the suit has run against a particular Attorney General in name only.”
Moreover, because the lawsuit is against a particular Attorney General in name only, there is no urgency in addressing the Constitutional issue at this point. Further, for that reason, Michaels has no standing to raise the issue of the legitimacy of the Whitaker appointment.
As to the substantive question, the response essentially restates the arguments advanced in the November 14 opinion of the U.S. Department of Justice, Office of Legal Counsel. Specifically, the Solicitor General argues that the Vacancies Act provides an alternative to the Attorney General Succession Act. Motion at 14-20.
Finally, the Solicitor General advances what I believe to be a questionable proposition that:
Although the Attorney General is surely a principal officer for purposes of the Appointments Clause, an individual who merely acts temporarily as Attorney General is not. Both
longstanding precedent of this Court and historical practice demonstrate that “the temporary nature of active service weighs against principal-officer status.”
Motion at 21-22.
In contrast to the Solicitor General’s position is the position set forth in the amicus brief of Morton Rosenberg. Mr. Rosenberg:
[S]erved as an analyst in the American Law Division of the Congressional Research Service for over three decades. In that capacity, he advised Congress on numerous issues of constitutional law, administrative law, and congressional practice and procedure, with a special emphasis on Executive appointments. He is considered a leading authority on the Federal Vacancies Reform Act, having been intimately involved with its enactment.
Rosenberg argues that:
The Vacancies Reform Act was a response to [the] chaos [created when the Office of Legal Counsel sought to create “options” allowing for temporary appointments of lower-level DOJ employees (and others) outside of a congressionally mandated scheme, through creative readings of agencies’ enabling legislation]. [The Vacancies Reform Act was] meant to close down those outside options and limit the Executive’s appointment discretion. It makes no sense to believe that Congress would find such intervention necessary to take away the President’s “option” to appoint lower-level DOJ employees, and yet invite many times the chaos by creating a new “option” for the President to do so for the Attorney General, the most important and powerful Senate-confirmed employee in the Department. Indeed, that illogical premise finds no support in the statute, its legislative history, or prior case law. Instead, each of these sources confirms that the Vacancies Reform Act did nothing to break Congress’s 150-year practice regarding the succession of the Attorney General.
He then concludes simply: “Rod Rosenstein is the Acting Attorney General.”
Amicus Brief at 3-4.
I post here and upload source material such as judicial opinions because I believe that mainstream news sources have abdicated their responsibility to do so. This is not, however, uniformly the case.
Recently, Maine Governor Paul LePage was ordered to comply with Maine’s Medicaid expansion law, which extends health care coverage to as many as 80,000 low-income Mainers. That story was covered by Portland Press Herald. Go to the link to the story. Not only does the story contain a cloud-based link that allows readers to download the entire judicial opinion, but it also has a link to a story in August reporting that the Maine Supreme Judicial Court ruled against the administration when it sought to delay implementation of the expansion until the Legislature funded the state’s cost, estimated to be about $55 million a year. That story contains a cloud-based link to the opinion of the Maine Supreme Judicial Court.
Linking to source material that is the basis of news stories should be the rule rather than the exception. So, if the Portland Press Herald can regularly follow this practice, why can’t the Washington Post, New York Times, CNN, etc., do so?
The case of People v. Donald Trump is the case where the New York Attorney General is seeking relief against Donald Trump, Donald Trump, Jr., Ivanka Trump, Eric Trump, and the Trump Foundation. In its petition, the N.Y. AG:
[A]lleges that the Foundation and its board members have transacted business illegally and abusively over a number of years. The allegations focus on Respondents’ failure to operate and manage the Foundation in accordance with corporate and statutory rules and their fiduciary obligations, resulting in the misuse of charitable assets and self-dealing. Petitioner also alleges that charitable assets, primarily consisting of money donated by outside sources, were used to promote Mr. Trump’s properties, purchase personal items, advance Mr. Trump’s presidential election campaign, Donald J. Trump for President, Inc. (“Campaign”), and settle certain personal legal obligations.
Various causes of action are alleged:
(1) breach of fiduciary duty and waste under New York’s Not-For Profit Corporation Law (“N-PCL”) against the Individual Respondents; (2) failure properly to administer Foundation assets and waste under New York’s New York Estates, Powers and Trusts Law (“EPTL”) against the Individual Respondents; (3) wrongful related party transactions against Mr. Trump as defined in the N-PCL and EPTL; (4) dissolution of the Foundation under the N-PCL §§ 112 and 1101; (5) dissolution of the Foundation under the N-PCL §§ 112 and 1102; and (6) an injunction pending resolution of the proceeding.
In its opinion, the Court (per Scarpulla, J.) rejected all of the Trump group’s attacks except as to the injunction pending the outcome of the proceedings. Thus, the case will proceed.
It is of some significance that the Court rejected the Trump group’s request to conduct discovery. Slip. op. at 26-27, fn. 14. In other words, this case is on a fast track.
In Jackson Women’s Health Organization v. Currier, the U.S.D.C. for the Southern District of Mississippi (Reeves, J.) permanently enjoined a Mississippi statute which provided that:
Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than ﬁfteen (15) weeks.
The Court stated that:
At various times throughout this Order, the Court has asked, “why are we here?” The State concedes that plaintiﬀs’ articulation of the relevant facts is correct, and it cannot provide any controlling law that requires this Court to consider other facts. The only other explanation in its brief is that the State is making a deliberate eﬀort to overturn Roe and established constitutional precedent. With the recent changes in the membership of the Supreme Court, it may be that the State believes divine providence covered the Capitol when it passed this legislation. Time will tell. If overturning Roe is the State’s desired result, the State will have to seek that relief from a higher court. For now, the United States Supreme Court has spoken.
Slip op. 15-16 (footnotes omitted).
I have uploaded the opinion of the Northern District of California (per Tigar, J.) in the case of East Bay Sanctuary Covenant v. Trump. In that case, the Court, last evening, issued a nationwide injunction against enforcement of the rule that, together with Trump’s proclamation, had the effect of making “any alien who enters the United States across the southern border at least over the next ninety days, except at a designated port of entry, is categorically ineligible to be granted asylum.” Slip op. at 6.
I post judicial opinions because I think that it’s important to have easy access to source documents. Judicial opinions often set forth the rationale underlying the action taken by the court in meticulous detail. I think (hope?) that by allowing wide access to these opinions, the qualitative level of debate about the matters of public debate will be raised, mitigating to some extent, the tendency of debates to descend into shouting matches.
With respect to Judge Tigar’s opinion in this case, in 37 pages he carefully discusses (i) the principles underlying the standing of the plaintiffs to bring the action, (ii) the precise substantive questions at issue, (iii) the standards applicable to the issuance of injunctions, and (iv) the reasons that a nationwide injunction is appropriate. However, Judge Tigar’s opinion rests on those broad principles set forth in the first two paragraphs:
The Immigration and Naturalization Act (“INA”) “deals with one of the oldest and most important themes in our Nation’s history: welcoming homeless refugees to our shores,” and it “give[s] statutory meaning to our national commitment to human rights and humanitarian concerns.” 125 Cong. Rec. 23231-32 (Sept. 6, 1979). As part of that commitment, Congress has clearly commanded in the INA that any alien who arrives in the United States, irrespective of that alien’s status, may apply for asylum – “whether or not at a designated port of arrival.” 8 U.S.C. § 1158(a)(1).
Notwithstanding this clear command, the President has issued a proclamation, and the Attorney General and the Department of Homeland Security have promulgated a rule, that allow asylum to be granted only to those who cross at a designated port of entry and deny asylum to those who enter at any other location along the southern border of the United States.
Three senators, Blumenthal, Whitehouse, and Hirono, have now filed a complaint challenging the appointment of Matthew Whitaker as Acting Attorney General. Their complaint differs slightly from the other two motions previously filed that challenge Whitaker’s appointment in two respects.
First, the Senators allege that they have standing to challenge the appointment because they:
[A]re sitting U.S. Senators who were denied the right to vote guaranteed to them by the Appointments Clause. They bring this lawsuit to ask the Court to remedy that injury and vindicate their ability to fulfill their constitutional role.
Second, they set forth in greater detail the particular substantive areas that they might direct attention to if allowed to investigate whether to vote to extend the advice and consent of the Senate to Whitaker’s nomination:
- Senators would have had the opportunity to consider Mr. Whitaker’s criticism of the two active federal law enforcement matters involving President Trump, his campaign, and his close associates, including the investigation currently being conducted by Special Counsel Robert Mueller into whether those associated with Mr. Trump’s presidential campaign—including the President and members of his family—cooperated with Russian efforts to interfere in the 2016 presidential election, and whether the President or others have attempted to obstruct the investigation. Mr. Whitaker has been a vocal and frequent critic of the Mueller investigation. Despite the ongoing nature of the investigation into possible coordination between the Trump campaign and the Russian government, as well as possible obstruction of justice, Mr. Whitaker has made public statements denying that the President or his associates engaged in such obstruction of justice or in a conspiracy with the Russian government. And despite having made those statements, Mr. Whitaker has not recused himself from supervision of these two investigations. ¶¶ 25-26 at Complaint 9-10 (footnote omitted).
- Senators also could consider public comments Mr. Whitaker has made about the proper interpretation of the Constitution and other legal matters. For instance, Mr. Whitaker has suggested that the judiciary should not be “the final arbiter of constitutional issues,” which runs directly counter to centuries of established law concerning our Constitution’s separation of powers, see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).8He also has said that states should be able to “nullify” federal law,an idea the Framers of the Constitution rejected when they adopted the Supremacy Clause, which makes federal law “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. ¶ 27 at Complaint 11 (footnote omitted).
- Senators also could consider that Mr. Whitaker was on the board of a company that allegedly defrauded consumers and is under investigation by the FBI, which is part of the very Department that Mr. Whitaker has been designated to lead. From October 2014 until shortly before he joined the DOJ, Mr. Whitaker was a member of the advisory board of World Patent Marketing, a company that promised clients it would patent and market their ideas for a sizable fee. Yet the company allegedly took clients’ money—amounting to millions of dollars—and provided almost no services in return. Earlier this year, the company was ordered by a court to pay more than $25 million to the consumers who were defrauded. The FBI is also conducting a criminal investigation of the company’s conduct. Both the court order and the criminal investigation relate to conduct that occurred while Mr. Whitaker was on the company’s board. ¶ 28 at Complaint 11-12 (footnote omitted).
- Finally, Senators could consider Mr. Whitaker’s contacts with the White House regarding specific enforcement matters—serving as the White House’s “eyes and ears” within the DOJ, according to White House Chief of Staff John Kelly—in violation of policies governing contacts between the DOJ and the White House. ¶ 29 at Complaint 12 (footnote omitted).
The Trump Administration appears to be stonewalling with respect to one relevant area that bears on Whitaker’s qualifications for the top job at Justice–his financial disclosures. This area of investigation has not been the subject of a great deal of attention–yet.
A petition for certiorari is pending in a case captioned Michaels v. Whitaker. The attorneys for the petitioner, lead by Thomas C. Goldstein, have filed a motion in the Supreme Court challenging the authority of Matthew Whitaker to act as the Attorney General. (The motion continues to reference the case as Michaels v. Sessions, thus not even conceding that, until the motion is granted or denied, Whitaker is even the Acting Attorney General. Goldstein is representing the State of Maryland and filed Maryland’s challenge to Whitaker’s authority reported on here.)
Now, this motion was reported in the Washington Post at 6:48 P.M. last evening, but not only was there was no link to the motion itself, but the article even omitted the name of the case. Thus, based solely on the article, one could not review the motion or even find it easily. I found the name of the case on the CNN website and was thus was able to track down the motion.
Why do the news media insist on not providing links to court documents that are the subject of stories they are reporting on?
In any event, score this as a semi-scoop for the RBC.
Update Mark has reminded me that in my haste to post and thus make the motion filed in the Supreme Court widely available, I had failed to make it clear how the motion filed in the Supreme Court differed from the motion filed by in the Maryland litigation. First some background on the underlying dispute and then the procedural importance of the motion filed in the Supreme Court yesterday.
The underlying dispute arises out of two statutes that are in seeming conflict: The Attorney General Succession Act (28 U.S.C. 508) and the more general Vacancies Act (5 U.S.C. 3345 et seq.). The Attorney General Succession Act sets forth a line of succession for the office of Attorney General as follows:
(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.
(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.
All of those officers described in the Attorney General Succession Act are appointed by the President with the advice and consent of the Senate. Whitaker, at the time of his appointment as Acting Attorney General, had not been in an office that required the advice and consent of the Senate.
The Vacancies Act has no such “advice and consent” limitation on the person who may be appointed.
The motions filed in both the Maryland litigation and before the Supreme Court raise the same issue: Did Rod Rosenstein, by virtue of the Attorney General Succession Act, automatically become the Acting Attorney General or does Whitaker’s appointment, by virtue of the Vacancies Act, make him the Acting Attorney General. As the motion filed in the Supreme Court nicely puts it:
Under the Attorney General Succession Act, Rod Rosenstein is the Acting Attorney General. But under the Vacancies Act, Matthew Whitaker is the Acting Attorney General. Only one of those can be true. Those officials cannot both serve and not serve at the same time — Schrodinger’s Acting Attorneys General.
Motion at 13.
The procedural difference arises out of the difference between Supreme Court review and that of a federal district court. Why is the question ripe for Supreme Court review? I think that the motion in the Supreme Court provides a full and adequate answer:
From the outset, Movant freely acknowledges that no characteristic of this case distinguishes it from any other in which Mr. Sessions was a named party. But the fact that the same issue has already arisen in multiple cases and has the potential to arise in thousands more is a feature, not a bug, of this promptly filed motion. There is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as Acting Attorney General.
Often, that will not be a ministerial question, as the Attorney General has numerous personal responsibilities under federal law. Every day, Mr. Whitaker would presently be expected to take a number of significant official acts, including appointing immigration judges, authorizing national security warrants, determining not to enforce federal statutes on the ground that they are unconstitutional, approving or withdrawing regulations, and overseeing the investigation of Special Counsel Robert Mueller. See, e.g., 28 U.S.C. §§ 510-19; 50 U.S.C. § 1804; 8 C.F.R. §§ 1003.9-1003.10; 28 C.F.R. pt. 600.
If this Court declines to resolve this question immediately and instead determines several months in the future that Mr. Whitaker’s appointment was always invalid, then “unwinding” all of those personal orders would be a fraught and disruptive exercise that could embroil the federal courts in innumerable collateral disputes. Cf. 5 U.S.C. § 3348(d)(2) (actions of officials not qualified under Vacancies Act “may not be ratified” later). Deciding this Motion promptly avoids those significant difficulties. Even if this Court now determines that the President in fact validly appointed Mr. Whitaker as Acting Attorney General, that ruling would equally benefit the administration of justice by removing the cloud of uncertainty over the appointment and by resolving the burgeoning number of challenges to it that are otherwise likely to be filed in the lower courts.
Motion at 1-2.
Thus, we have a question that will affect thousands of cases and there’s a real necessity to resolve the issue quickly. As the motion before the Supreme Court puts it:
Leaving the question to be decided in the first instance by district courts and the courts of appeals would as a practical matter amount to nothing more than different judges “taking sides” while waiting for the issue to reach this Court.
Motion at 3.
The motion in the Supreme Court then points out that the motion in the Maryland action will likely not be argued until December 19, 2019. (My emphasis.) However, under pertinent Supreme Court Rules, the United States could be required to file its brief by November 26 (with Amicus Briefs due that same day), with the reply brief being due by December 3. Motion at 3-4 and fn. 1.
The motion in the Supreme Court also differs in one major respect from the motion in the Maryland action. Specifically, in somewhat veiled language, it highlights the threat to the Mueller investigation if the Government’s position prevails. In arguing that Congress had not intended that the broad discretion under the Vacancies Act apply to the office of Attorney General:
Congress also would have had in mind President Nixon’s order — issued to a succession of Senate-confirmed officials specified by Section 508 — to fire special prosecutor Archibald Cox. Congress would not have responded to the Saturday Night Massacre by granting the President even broader authority to install his own silent assassin.
Motion at 20 (emphasis added).