A Suggestion of Mootness

On Friday, the U.S. Court of Appeals for the D.C. Circuit upheld the enforcement of the subpoena for Trump’s tax returns issues by the House Committee of Oversight and Reform in a case captioned Trump v. Mazars USA, LLP (the “Mazars Case”). The three judge panel split 2-1, with Judge Neomi Rao dissenting. (The link at the D.C. Circuit’s website pulls up both the opinion of the Court and the dissent as a single file. For ease of use, I have broken that file into separate files. The Court’s opinion can be downloaded here. The dissent can be downloaded here.)

Judge Rao’s dissent is premised solely on what she believes is a limitation on Congress’ legislative power. She makes a distinction between the legislative power of Congress and what she terms its judicial power. Among the areas in which she believes that the judicial power can be exercised is that of impeachment. Thus:

[A]llegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. The House may impeach for “Treason, Bribery, or other high Crimes and Misdemeanors,” U.S. CONST. art. II, § 4, and has substantial discretion to define and pursue charges of impeachment. See The Federalist No. 65, at 338 (impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself”). While it is unnecessary here to determine the scope of impeachable offenses, Congress has frequently treated violations of statutes or the Constitution as meeting this threshold. Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process. Thus, the key determination is whether this investigation targets allegations Congress might treat as “high Crimes” or “Misdemeanors.” To make this determination requires no search for hidden motives, but simply crediting the Committee’s consistently stated purpose to investigate “illegal conduct” of the President. Cummings Memorandum at 4; cf. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975) (“[I]n determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.”).

Dissent slip op. at 6-7 (footnotes omitted).

I do not know whether the distinction that Judge Rao draws is valid. However, why do we even have to address that point now? When the subpoenas at issue in the Mazars Case were first issued, the House had not begun to explicitly investigate the possibility of impeachment. That is no longer the case. In response to Judge Roe’s dissent, the House Oversight Committee should simply issue a new subpoena seeking the same documents that were the subject of the first subpoena. The new subpoena would lack the infirmity that Judge Rao perceived in the subpoena at issue in the Mazars Case and her objections to that original subpoena would therefore be moot. The House could then get on with the pressing task of investigating whether Trump should be impeached. (Yes, I know that the White House Counsel has issued a letter refusing to cooperate with the various constituent parts of the impeachment investigation because, inter alia, there really isn’t a valid impeachment investigation. I suspect that this argument would not be tossed aside lightly by any reviewing court. Rather, it would be thrown aside with great force. Cf. here.)

Unrestricting Employees

While most of us have been distracted by such minor kerfuffles such as whether the president should be impeached, the real world continues to move forward. My friend, Julie Janofsky, relayed to me that Maryland has now, by statute, declared that non-competition covenants entered into by lower paid employees are not enforceable.

The statute, Md. Labor Law Art. § 3-716, makes such provisions unenforceable with respect to employees making $15 or less an hour or $31,200 a year or less. Customer lists and other proprietary information remain protected.

In 2016, the Obama Administration issued a “Call for Action,” urging states to render such provisions unenforceable. Needless to say, the Trump Administration did not join in encouraging such legislative action.

Here, as it is still often the case, Justice Brandeis, dissenting, got it right:

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.

New State Ice Co. v. Liebmann, 285 US 262, 311 (1932).

Latest Immigration Ruling Setback for Trump Administration

I’ve posted the ruling by Judge Dolly Gee of the U.S.D.C. for the Central District of California in Flores v. Barr. That case deals with the Trump Administration’s attempt to overturn the settlement agreement reach in 1997 dealing with the manner in which the INS may detain immigrants who are minors.

The Court enjoined the Trump Administration’s regulations, which would have abrogated the settlement agreement, and granted the plaintiffs’ motion to enforce the agreement. The concluding paragraph of the opinion sets forth the nub of the legal issue:

The blessing or the curse – depending on one’s vantage point – of a binding contract is its certitude. The Flores Agreement is a binding contract and a consent decree. It is a final, binding judgment that was never appealed. It is a creature of the parties’ own contractual agreements and is analyzed as a contract for purposes of enforcement. Defendants cannot simply ignore the dictates of the consent decree merely because they no longer agree with its approach as a matter of policy. The proper procedure for seeking relief from a consent decree is a Rule 60(b) motion by which a party must demonstrate that a change in law or facts renders compliance either illegal, impossible, or inequitable. Relief may also come from a change in law through Congressional action. Having failed to obtain such relief, defendants cannot simply impose their will by promulgating regulations that abrogate the consent decree’s most basic tenets. That violates the rule of law. And that this Court cannot permit.

Slip op. at 24.

An important point to note with respect to all district court opinions blocking Trump Administration actions from this point on. There’s only a little over thirteen months until November, 2020. Many of these cases will not be heard by the Supreme Court by January 20, 2021. Thus, if these district court opinions withstand review by the relevant circuit courts, a new administration can protect the rulings merely by failing to seek Supreme Court review or, if review has been sought by an outgoing Trump (or Pence) Administration, withdrawing the appeal in the Supreme Court.

Finally, I note that while Judge Gee’s ruling has been reported on by the mainstream media, this is the first link to the opinion other than via PACER. Another illustration of the value of the RBC.

Corruption of the Bureaucracy Watch

The Washington Post had a great story which reported that:

Neil Jacobs, the acting head of the National Oceanic and Atmospheric Administration, sent an all-staff email Friday afternoon in an apparent effort to repair damage from an unusual Sept. 6 statement that sided with President Trump rather than agency weather forecasters.

I have obtained a copy of the email and have posted it here. It states that:

Scientific integrity is at the heart of NOAA’s mission and culture, and is essential for maintaining the public’s trust.

Of course, for the government to function properly, all of its component parts must act with integrity. Thus, the NOAA story is but a subpart of the much larger story of a broad-based attempt by the Trump Administration to undermine the integrity of the federal bureaucracy by the Trump Administration.

Going forward, I will attempt to focus on similar examples of this corruption. One question that I would pose to those contributors to the RBC who are from the UK: Is the bureaucracy there under a similar attack? If it either is or were presented with similar pressures, is it institutionally more resistant?

Happy Birthday to . . . .

Every August 27, I celebrate a birthday. Yes, August 27 is my birthday. But the birthday I always celebrate is that of Lyndon Johnson.

For progressives, particularly of my generation, LBJ evokes sharp and conflicting emotions. After all, most of us cut our political teeth opposing the war in Vietnam. Johnson ginned up support for the war effort by lying to the American public, both about the immediate causes (e.g., the Gulf of Tonkin “attack”) and the overarching political stakes (e.g., the alleged falling dominoes). As a consequence, Americans were pitted one against the other to a degree not seen, perhaps, since the Civil War.

But unlike other flawed presidents (Trump comes all too readily to mind), LBJ attempted to bring out the best in America. In that sense, he was clearly a legitimate political heir of Franklin Roosevelt. He changed America for the better by pushing through Medicare, serious gun control, the Voting Rights Act, and the Civil Rights Act. While he didn’t spearhead its passage, the Immigration and Nationality Act of 1965, that removed national quotas, was enacted. He signed the Public Broadcasting Act and set up the National Endowment for the Arts and National Endowment for the Humanities. Today, all Americans are the beneficiaries of his legacy.

I doubt whether anyone who is under the age of, say, 55 can fully appreciate the extent or the intensity of the differences among Americans that the Vietnam War precipitated. The divisions among Americans today are really not as charged. After all, in LBJ’s day, support for his foreign policy world view was widely shared across the political spectrum, albeit perhaps, not evenly. That is clearly not the case currently. Now, support for the wide ranging demagoguery of Donald Trump is limited to a fairly narrow ethnic and economic segment of American society.

Trump intentionally attempts to divide Americans along racial, ethnic, and religious lines. While racial politics and frictions were clearly in play when LBJ was president, he did not attempt to exploit those fault lines. For instance, the urban riots from 1965-1968 tested the mettle of LBJ’s character. It would have been easy for him to fall prey to, say, the racism which at that point began to infect the Republican Party. We should not forget that it was then that the GOP began the program of racist division called the Southern Strategy. Today, fifty years later, we now see the full poisonous flower of that program. But that was not LBJ’s path.

No, LBJ kept his balance. Today, in the diversity that is America, we reap the benefits of what we can only call his wisdom. So on this day, let us invert Mark Anthony and remember that sometimes it is the good that men do that lives after them and that, with the passage of time, we should inter the evil with their bones.

Happy Birthday Lyndon.

No Emergency

I had not planned to post this evening. And, this post deals with a topic that is clearly outside of my area of practice. However, Trump’s claim that the International Emergency Economic Powers Act of 1977, 50 U.S.C. § 1701 et seq., gives him the authority to order U.S. companies to cease doing business in China is so plainly specious that even a first-year law student could debunk it. But, since this is Saturday night and no first-year law students are readily available, I figured that I had to step in.

Section 1701 provides as follows:

Section 1701. Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities

(a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.

(b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat.

Subsection (b) makes it clear that the alleged threat must be based upon a “new declaration of national emergency which must be with respect to such threat.” Presumably, Trump’s Tweet of yesterday does not constitute a “declaration of national emergency.” This conclusion is fortified by 50 U.S.C. § 1703 which requires:

  • That “[t]he President, in every possible instance, shall consult with the Congress before exercising any of the authorities granted by this chapter and shall consult regularly with the Congress so long as such authorities are exercised.” 50 U.S.C. § 1703(a).
  • That “[w]henever the President exercises any of the authorities granted by this chapter, he shall immediately transmit to the Congress a report specifying— (1) the circumstances which necessitate such exercise of authority; (2) why the President believes those circumstances constitute an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States; (3) the authorities to be exercised and the actions to be taken in the exercise of those authorities to deal with those circumstances; (4) why the President believes such actions are necessary to deal with those circumstances; and (5) any foreign countries with respect to which such actions are to be taken and why such actions are to be taken with respect to those countries.” 50 U.S.C. § 1703(b).

50 U.S.C. § 1703(c) requires periodic follow-up reports every six months.

Needless to say, Trump did not consult with Congress prior to the Tweet. Further, he has not even made a pretense that he could outline the matters required to be set forth in the report that subsection (b) requires to be submitted to Congress.

There’s more, however. Subsection (d) of Section 1703 provides that the requirements of Section 1703 “are supplemental to those contained in title IV of the National Emergencies Act.” 50 U.S.C. § 1622 provides methods for terminating a declared national emergency, including “a joint resolution terminating the emergency.” 50 U.S.C. § 1622(a)(1). And, subsection (b) of Section 1622 provides that:

Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.

Subsection (c) sets forth the procedures to be followed with respect to a joint Congressional resolution. Subsection (c)(3) provides that:

Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

Let me translate all of this into plain English: Trump has to formally declare a national emergency. If he does, he has to report it to both houses of Congress. Either house can pass a resolution to terminate the national emergency. Let’s assume that the House of Representatives passes such a resolution. That resolution has to be taken up by the Senate within eighteen calendar days after it is transmitted by the House of Representatives unless the entire Senate, by a majority vote, elects to delay consideration of the resolution. In other words, Mitch McConnell cannot unilaterally block Senate consideration of the resolution.

In the first six months of 2019, the U.S. exported $52 Billion in goods to China and imported a little over $219 Billion. See here. China is the largest trading partner of the U.S. Even Trump is not stupid and/or crazy enough to destroy that relationship. And, even if I’m wrong and he is that stupid and/or crazy, there are at least 51 Senators who would stop him.

Safe and Sanitary

You will, no doubt, remember that wonderful video of Justice Department attorney, Sarah Fabian, argued that “safe and sanitary” is too vague a term to include toothbrushes, soap, warmth, or sleep. No one who watched the video would be surprised that the court rejected the Justice Department’s position:

The district court’s interpretation of the [“safe and sanitary” provisions of the previous consent agreement] is consistent with the ordinary meaning of the language of paragraph 12A [of that agreement], which does provide a standard sufficiently clear to be enforced. The court found, among other things, that minors (1) were “not receiving hot, edible, or a sufficient number of meals during a given day,” (2) “had no adequate access to clean drinking water,” (3) experienced “unsanitary conditions with respect to the holding cells and bathroom facilities,” (4) lacked “access to clean bedding, and access to hygiene products (i.e., toothbrushes, soap, towels),” and (5) endured “sleep deprivation” as a result of “cold temperatures, overcrowding, lack of proper bedding (i.e., blankets, mats), [and] constant lighting.” After so finding, the district court concluded that these conditions fall short of paragraph 12A’s requirement that facilities be “safe and sanitary,” especially given “the particular vulnerability of minors.” Those determinations reflect a commonsense understanding of what the quoted language requires. Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep deprived are without doubt essential to the children’s safety. The district court properly construed the Agreement as requiring such conditions rather than allowing the government to decide whether to provide them.

Slip op. at 13-14.

I have posted the opinion here.

Yogi Wins One

Back in September, I reported on the decision by the U.S.D.C. for the District of Montana (per Christensen, C.J.) that overturned the United States Fish and Wildlife Service’s delisting of the Greater Yellowstone grizzly as an endangered species.

In response to the Court’s order, on July 30, the U.S. Fish and Wildlife Service revised the List of Endangered and Threatened Wildlife to again include grizzly bears in the Greater Yellowstone Ecosystem (GYE) as part of the existing listing for grizzly bears under the Endangered Species Act (ESA).

As reported in Science, the bears are (if you will excuse the expression) not yet out of the woods.

The long-running dispute over the bears may not be over. Legislation to delist them yet again was introduced in February by Senator Mike Enzi and Representative Liz Cheney, two Republicans representing Wyoming. They argue the population of Yellowstone bears has recovered to a healthy level.

Further, the original decision by Judge Christensen has been appealed by the U.S. to the U.S. Court of Appeals for the Ninth Circuit. As of the time of this posting, that appeal has not been dismissed.

Finally, here’s a link to the U.S. Fish and Wildlife’s website for Ursus arctos horribilis.

A Win for Team Putin and His Useful Idiots

Yesterday, the U.S. District Court for the Southern District of New York (per Koetltl, J.) dismissed an action brought by the Democratic National Committee against the (i) Russian Federation (the “GRU”), (ii) WikiLeaks and Julian Assange, and (iii) the Donald J. Trump for President campaign and various official and semi-official operatives of that campaign–Donald J. Trump, Jr., Paul J. Manafort, Jr.; Jared C. Kushner, George Papadopoulos, Richard W. Gates, III, and Roger J. Stone, Jr. (I refer to “semi-official operatives” since Stone, at least, was not a formal member of the Trump Campaign, but sort of an ex officio member.) At least three shadowy go-betweens, Aras Iskenerovich Agalarov, Emin Araz Agalarov, and Joseph Mifsud, were also named as defendants.

The facts alleged in the DNC’s complaint were assumed to be true for the purposes of ruling on the motions to dismiss filed by the various defendants. Those facts are well-known to those who have followed the investigation into Russian interference in the 2016 election. Specifically, Russia hacked into computers and servers of the DNC, “stealing thousands of documents . . . including documents containing donor information, financial and economic information, proprietary opposition research compiled from multiple sources, information regarding planned political
activities, and emails. ” None of the defendants other than the GRU were alleged to have actually participated in the hacking. Rather, the DNC’s claims against the non-GRU defendants rest on the proposition that they:

[C]onspired with the [GRU] to steal the DNC’s emails, trade secrets, and other documents from the DNC’s computer system and disseminate those materials to the public. The DNC does not claim that the stolen materials are false or defamatory. Rather, the DNC seeks to hold the defendants liable for the theft and disclosure of the stolen materials.

The claim against the GRU was dismissed because, due to the provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., the GRU cannot be sued in the courts of the United States for sovereign actions.

The non-GRU defendants argued that “the DNC’s claims against them are barred by the First Amendment because the DNC seeks to hold them liable for publication of documents that they did not help to steal.” The District Court’s decision with respect to the non-GRU defendants rests on two propositions.

The first, derived from the opinion in New York Times Co. v. U.S., 403 U.S. 713 (1971) (the “Pentagon Papers Case”) and its progeny, is that there is a right to publish information of public concern obtained from documents stolen by a third party. The District Court cited Bartnicki v. Vopper, 532 U.S. 514, 517-18 (2001) for the proposition that:

[T]here [is] no liability for disclosing stolen information where (1) the disclosing party “did not participate” in the theft, even though that party knows or has reason to know of the theft, and (2) the disclosure “concern[s] public issues.”

See generally, slip op. at 31-34.

Second, the District Court found that the DNC had failed to plead factual allegations that would show that the non-GRU defendants had conspired with the GRU in committing the thefts. The District Court stated that:

The DNC argues that the various meetings and conversations between the defendants in this case and with persons connected to the Russian government during the time that Russian GRU agents were stealing the DNC’s information show that the defendants conspired with the Russian Federation to steal and disseminate the DNC’s materials. That argument is entirely divorced from the facts actually alleged in the Second Amended Complaint.

Slip op. at 35. Internal record reference omitted.

Stated simply, the District Court did not find that the defendants were blameless. After all, it is clear that they knowingly trafficked in material that the Russians stole from the DNC. Rather, the District Court found that the DNC had failed to state a legally cognizable claim for relief because it could not make any factual allegations that the defendants conspired with the Russians to commit the thefts.

While I’ve been away from civil litigation in federal court for some years now, it seems to me that the District Court misapplies the “plausibility” standard for weighing the sufficiency of allegations in a complaint. (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), cited by the District Court at slip op. 4.) For instance, take this passage from the District Court’s opinion:

The DNC does not allege what specifically was discussed at the [June 9, 2016] Trump Tower meeting but reiterates that the Russians had offered “damaging information about the Democratic presidential nominee” to the Campaign. The day after the Trump Tower meeting, on June 10, 2016, GRU agents unsuccessfully attempted to hack the DNC’s backup server, Raider. On June 12, 2016, Julian Assange — the founder and publisher of WikiLeaks — appeared on a British television show and stated that WikiLeaks had obtained “leak materials concerning the Democratic presidential candidate” and would be releasing them soon.

Slip op. at 13. Internal record citations omitted.

I would humbly suggest that only one who is practiced in believing as many as six impossible things before breakfast could conclude that there was no plausible evidence of a conspiracy between the Trump officials at that meeting and the GRU.

But to focus on the mere technical aspects of legal pleadings certainly misses the point. It is this: The Trump election effort willingly trafficked in material that they knew had been stolen by a foreign enemy of the United States. By so doing, they cooperated with a foreign power to influence a presidential election and, in addition, put themselves in a position to be blackmailed and extorted by the foreign power. The facts set forth in the DNC’s complaint may not be sufficient to set forth a claim for relief, but they clearly disqualify any of the defendants and anyone else who knew of or participated in their actions from ever holding public office.

Harassing the President–New York Update

Both the State of New York and the House Ways and Means Committee have filed responses to Trump’s attempt to block the Committee’s use of New York’s TRUST Act.

Perhaps more significantly, Trump had attempted to have the case assigned to the same judge who is considering Trump’s challenge to the House’s subpoena for his bank records. The Court denied that request.

Significantly, the Court noted Trump’s argument that both cases require an examination of the Committee’s intent:

[I]t is not clear that this case will involve an inquiry into the Committee’s purposes at all. The Supreme Court has made clear that “in determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 508 (1975). This is important because “[i]n times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.” Id. at 509. So while the President insists that both cases will involve the Committee’s purpose in seeking the President’s tax returns, I am not so sure.

Slip op. at 4-5, footnote omitted.