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.

Harassing the President

Getting back to work.

Today, Donald Trump may have surpassed all of his previous efforts to file nonsensical lawsuits. Today, he filed a complaint seeking to block the House Ways and Means Committee from examining his New York tax returns.

By way of background, New York has passed the so-called TRUST Act which “directs the Commissioner of the New York State Department of Taxation and Finance to grant the [House Ways and Means] Committee’s request for the President’s state tax returns if the Committee has already requested the President’s federal returns from Treasury. ” It offers only two bases for relief.

In Count I of the Complaint, Trump claims a violation of Article I of the Constitution and the House Rules. Admittedly, I’m merely a poor, but honest, tax lawyer, not a Constitutional scholar. But the complaint is brought by Trump in “his capacity as a private citizen,” not in his official capacity as president. I simply cannot see how a private citizen has the standing to assert violations of either Article I or the House Rules.

In Count II, Trump alleges “Retaliation and Discrimination In Violation of the First Amendment,” claiming that the Act “was enacted to retaliate against the President because of his policy positions, his political beliefs, and his protected speech, including the positions he took during the 2016
campaign.” The baselessness of this claim is shown by the text of the complaint itself where Trump consistently refers to himself as “the President.” That is, unwittingly, Trump’s lawyers make it clear that the intended subject of any Committee investigation is Trump the president, not Trump the individual.

Finally, there is a question as to whether at this point there is even a case or controversy. The Act is only effectuated if (i) the Committee requests Trump’s income tax returns and (ii) has previously requested the returns from the Treasury. The Committee has, of course, previously requested the returns from the Treasury. However, not only has the Committee not only not requested the New York returns, but Committee Chair Neal has disclosed that House counsel has expressed legitimate concerns about requesting Trump’s state returns. Admittedly, Neal has requested that House counsel review his previously expressed position, but “Chairman Neal did not specify when this review will end.” Complaint ¶ 66, at 22.

Even if counsel gives Neal the green light, there is still a question as to whether Neal will request the New York returns. In other words, Trump’s perceived harm is, at this point, speculative at best.

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