My Pet Peeve

As those who read my posts know, one of the reasons that I post source documents is that I don’t think that people should have to rely solely upon a report summarizing a court opinion or a statute even if I am the author of the summary. Thus, I believe that the practice of linking to source documents should be the rule rather than the exception for all news media.

I am not alone here. Today, the Lawfare Blog announced that, going forward:

Lawfare’s readers [will have] direct access to the primary law underlying the issues discussed on Lawfare. Lawfare readers can now click on references to legal authorities cited in Lawfare’s articles to go to the full text of the opinion or statute, published on Casetext.

The full text of the announcement is here.

While the larger newspapers, such as the Washington Post and the New York Times, have increasingly been linking to source material, their practices are not consistent. Smaller news outlets virtually never provide links. Yet, the marginal cost of downloading source material, storing it on a news outlet’s server, and adding a link to a story carried online is trivial. I rather suspect that the rationale is something like: “We’ve been doing it without links for [fill in the blank] number of years and we see no reason to change now.”

Let me both make a suggestion and ask a favor of RBC members. Whenever you see a story on a court case, a proposed bill, or a statute and there is no link to the source, send an email to the reporter. Ask the reporter to send you a link and suggest that a link to source material should be provided in all similar stories. Perhaps sooner or later they’ll get the idea.

Denial of Stay in McGahn Case

Judge Jackson has denied the request for a stay in enforcing the House subpoena directed to Donald McGahn. I have posted a copy of the memorandum opinion.

One part of the opinion seems to me to clearly be directed at thwarting the use of appeals to simply delay the process. The Court distinguishes the McGahan case and, by extension, all of the other cases attempting to defeat subpoenas directed to the Trump Administration, from the opinion in Comm. on Judiciary, U.S. House of Representatives v. Miers (Miers
Stay Opinion)
, 575 F. Supp. 2d 201, 204 (D.D.C. 2008). At page 6 of the slip opinion, the Court notes:

Miers was a case of first impression, whereas, now, two federal district court judges have addressed the same legal issues concerning both the authority of the federal courts to entertain a disputed subpoena-enforcement claim brought by the House Judiciary Committee after a former White House Counsel refused to testify before Congress in response to a valid subpoena; and also the President’s assertion that senior-level presidential aides have absolute testimonial immunity. And both judges rejected the Executive branch’s contentions—a track record that had not developed at the time that the D.C. Circuit considered the stay motion in Miers.

And, on page 16 of the slip opinion, the Court states:

[T]he fact that the issuance of a stay of McGahn’s testimony would
impede an investigation that a committee of Congress is undertaking as part of an impeachment inquiry is yet another distinction between the instant circumstances and those that existed when the D.C. Circuit stayed the district court order in Miers.

Emphasis by the Court.

If the Courts continue to enforce the Congressional subpoenas and refuse to delay their enforcement, Senate acquittal will no longer be certain.

Don’t Know Much Biology

Apparently, Republican state legislators in Pennsylvania are attempting to rise to the level of ignorance of biology displayed by their counterparts in Ohio. Specifically, they have introduced House Bill 1890 that requires health care facilities that possess “fetal remains” to cremate or inter the fetal remains.

The proposed statute defines “fetal remains” to mean a “fetus expelled or extracted in the case of a fetal death.” The term “fetus” is not defined. Rather, the proposed statute defines “fetal death” to be the “expulsion or extraction from its mother of a product of conception which shows no evidence of life after the expulsion or extraction.” Thus, the statute ignores the difference between an embryo and a fetus. According to the Merck Manual, an embryo is not considered a fetus until “the end of the 8th week after fertilization (10 weeks of pregnancy).”

At least one study has calculated that “15% of the documented pregnancies ended in first trimester miscarriages per pregnancy.” Further, “current research showing about 50% to 60% of miscarriages are the result of random fetal chromosomal abnormalities incompatible with life.” (Endnotes omitted.) Somewhat different statistics are presented by the National Institutes of Health which finds that “[i]t is estimated that as many as 26% of all pregnancies end in miscarriage and up to 10% of clinically recognized pregnancies. Moreover, 80% of early pregnancy loss occurs in the first trimester.” (Endnotes omitted.)

Pennsylvania House Bill 1890 is nothing more than a ham-handed attempt to impose specific religious beliefs. It simply ignores the biology of human reproduction. As this paper finds:

A synthesis of many large-scale studies from the last 15 years unambiguously confirms the Wood-Boklage-Holman hypothesis that abortion is an intrinsic and overarching component of human reproduction. It is the most common outcome of conception across a woman’s lifetime and the predominant factor controlling age-specific variation in human female fertility. To reproduce, a human female cannot forgo a high risk of abortion, and to have a large family it is virtually impossible to avoid multiple abortions. Modern birth control with access to elective abortions, markedly reduces –rather than increases– the lifetime number of abortions a woman produces.

Note: As used in the paper the term “abortion” refers to any any early termination of a pregnancy whether by miscarriage or by intention.

Oh, yeah, one other thing. The proposed bill is unlikely to raise GOP support among women.

The Ohio Anti-Abortion Bill

H.B. 182 introduced into the House of the Ohio General Assembly by Republican members has attracted a good deal of negative press because it outlaws the termination of an ectopic pregnancy unless the procedure “is intended to reimplant the fertilized ovum into the pregnant woman’s uterus.” However, we owe a H/T to Charles Gaba who has pointed out in May that H.B. 182 does far more and is more onerous than just that one provision.

First, H.B. 182 defines the term “abortion” so broadly that it includes the use of IUDs and the use of such drugs as Levonorgestrel (the active drug in the morning-after pill).

Then, the bill would both prohibit both state and local government insurance policies in Ohio and any insurance policy issued in that state from providing coverage for “abortions” as that term is defined in the statute. (Presumably, the use of separate provisions for government provided insurance and all policies of insurance is to make the provisions severable, so that if the blanket prohibition against any insurance coverage is judicially overturned, the government-employee insurance prohibition might still withstand scrutiny.)

Finally, even if an abortion is allowable under the statute, a burdensome reporting requirement is imposed on any physician who performs the procedure before the physician is paid with “state or local funds.”

I have posted a copy of H.B. 182 with markups highlighting the issues noted above.

Query: Does anyone think that this will drive women to vote Republican?

Resignation of Navy Secretary Richard Spencer

I have uploaded the resignation letter of Navy Secretary Richard Spencer. All one needs to know to understand why Donald Trump should not be president is set forth in two paragraphs of that letter as follows:

The rule of law is what sets us apart from our adversaries. Good order and discipline is what has enabled our victory against foreign tyranny time and again, from Captain Lawrence’s famous order “Don’t Give up the Ship”, to the discipline and determination that propelled our flag to the highest point on Iwo Jima. The Constitution, and the Uniform Code of Military Justice, are the shields that set us apart, and the beacons that protect us all. Through my Title Ten Authority, I have strived to ensure our proceedings are fair, transparent and consistent, from the newest recruit to the Flag and General Officer level.

Unfortunately it has become apparent that in this respect. I no longer share the same understanding with the Commander in Chief who appointed me. in regards to the key principle of good order and discipline. I cannot in good conscience obey an order that I believe violates the sacred oath I took in the presence of my family, my flag and my faith to support and defend the Constitution of the United States.

Emphasis added.

Lessons Learned In Hebrew School

At the outset, let me make it clear that I was not the best student in Hebrew school. In fact, it was well established that my best friend in that school and I were in a race to the bottom of the class. However, I did retain some of the knowledge my teachers attempted to impart.

One Biblical passage came back to me today when I commented that the Republican Party was the ignorant and stupid party. One of the listeners objected that I was painting with too broad a brush and that there were some Republicans who weren’t all that bad. At that point, a portion of the story of Sodom and Gomorrah set forth in Genesis, Chapter 18, came back to me. Here’s that portion, lightly edited and brought up to date.

And the Lord said, “Since the cry of the GOP has become great, and since their sin has become very grave,

I will descend now and see, whether according to her cry, which has come to Me, they have done; [I will wreak] destruction [upon them]; and if not, I will know.”

And the men turned from there and went to the White House, and Abraham was still standing before the Lord.

And Abraham approached and said, “Will You even destroy the righteous with the wicked?

Perhaps there are fifty righteous men in the midst of the GOP; will You even destroy and not forgive the place for the sake of the fifty righteous men who are in its midst?

Far be it from You to do a thing such as this, to put to death the righteous with the wicked so that the righteous should be like the wicked. Far be it from You! Will the Judge of the entire earth not perform justice?”

And the Lord said, “If I find in the GOP fifty righteous men within the party, I will forgive the entire party for their sake.”

And Abraham answered and said, “Behold now I have commenced to speak to the Lord, although I am dust and ashes.

Perhaps the fifty righteous men will be missing five. Will You destroy the entire party because of five?” And He said, “I will not destroy if I find there forty-five.”

And he continued further to speak to Him, and he said, “Perhaps forty will be found there.” And He said, “I will not do it for the sake of the forty.”

And he said, “Please, let the Lord’s wrath not be kindled, and I will speak. Perhaps thirty will be found there.” And He said, “I will not do it if I find thirty there.”

And he said, “Behold now I have desired to speak to the Lord, perhaps twenty will be found there.” And He said, “I will not destroy for the sake of the twenty.”

And he said, “Please, let the Lord’s wrath not be kindled, and I will speak yet this time, perhaps ten will be found there.” And He said, “I will not destroy for the sake of the ten.”

And the Lord departed when He finished speaking to Abraham, and Abraham returned to his place.

I take from this that the days of the Republican Party are numbered.

Trump Tax Return Subpoena Update

A little over a month ago, I suggested that Trump’s opposition to the subpoenas issued for his tax returns would shortly become moot. Trump’s opposition was rooted primarily in the distinction between a congressional subpoena for legislative purposes and one pursuant to an impeachment proceeding. I therefore predicted that, because the investigations would shortly ripen into impeachment investigations, the alleged distinction between Congressional legislative power and its impeachment power would no longer be pertinent. At the time, I noted that:

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. 

Today, the D.C. Court of appeals, in a per curiam opinion, declined to block the subpoena. Judge Rao, in one of the two dissents, realized that the facts that underlay her original opinion had basically disappeared. However, she fought on:

The Committee’s suggestion that the current impeachment inquiry somehow alters this case depends on whether House Resolution 660 ratifies this subpoena. This Circuit has not determined whether a defective subpoena can be revived by after-the-fact approval. But we need not confront that question here, because even assuming the subpoena could be issued under the impeachment power, the Committee has not reissued the subpoena pursuant to that power and House Resolution 660 does not purport to sweep previously issued subpoenas into the ambit of the impeachment inquiry.

Slip op. at 6-7 (Rao, J. dissent at 2-3). citation and internal quote omitted.

Judge Rao’s dissent would open up nothing more than a path to further delay. As the case stands now, the previous objections to the tax return subpoenas are, as a practical matter, moot. It’s always difficult to make predictions about the actions that the Supreme Court might take, but I don’t think that the Court will take this case up in its present posture.

Trump Foundation Settlement

I have uploaded a copy of the order settling the claims for breach of the fiduciary duties that Donald Trump and his family owned to the The Donald J. Trump Foundation. Much of the relevant information, however, is apparently contained in a stipulation and I have not, as yet, been able to locate a copy.

The stipulation puts shackles on the ability of Trump and his three oldest children to actively participate in charitable organizations. Footnote 2 of the order approving the settlement, for instance, states:

As per the Final Stipulation, if Mr. Trump opts to serve as an officer or director of a pre-existing New York charitable organization, he may only do so if the organization: “(i) engages counsel with expertise in New York not-for-profit law to advise the organization and its officers and directors on compliance with all applicable laws, regulations, and accepted practices; (ii) engages the services of an accounting firm to monitor and audit the charity’s grants and expenses annually; (iii) has a majority of the board members that are independent, i.e., they have no familial or business relationship with Mr. Trump or any entity owned by Mr. Trump or his relatives, as defined in N-PCL section 102(a)(22) (referred to herein as “family members”); and (iv) agrees not to engage in any related party transactions as defined in N-PCL section 102(a)(24) with Mr. Trump, his family members or any entity owned or controlled by Mr. Trump or his family members (a `Trump Entity’) and agrees to otherwise comply with N-PCL section 715.” The same requirements must be met if Mr. Trump decides to form a new charitable organization and serve as its officer or director. Further, the Final Stipulation provides that should Mr. Trump serve as an officer or director of a new charitable organization, he must also meet the following additional requirements: (i) the newly formed organization will provide the Attorney General with annual reports for five years; (ii) the newly formed charitable organization will enact specific corporate governance procedures; and (iii) Mr. Trump will maintain a working familiarity with the applicable New York rules and laws governing charitable organizations and their officers and directors, for as long as he holds either position.

I will post the stipulation if I can get my hands on it.

Update

I’ve obtained a copy of the stipulation and I have posted it here. I suppose that everyone has his or her own “favorite” Trump scam and sleaze. With respect to the numerous scams and sleazes outlined in the stipulation, my favorite is one of the smaller ones. It’s what I call the Trump Portrait Sleaze and is outlined on pages 7-8 of the stipulation.

In March, 2014, the Unicorn Children’s Foundation, a 501(c)(3) charity held a fundraiser at Mar-a-Lago. As part of that fundraiser, there was a charity auction. One of the items to be auctioned was a portrait of Trump. Trump put in the winning bid of $10,000 for the portrait. However, the $10,000 was paid by the Trump Foundation and the portrait was displayed, where else, at Trump’s Doral Hotel.

In November, 2016, the portrait was returned to the Trump Foundation and the hotel paid $185.82 plus interest to the Foundation for the rental of the painting. The painting was then placed in storage and, so far as anyone knows, never again publicly displayed. As part of the settlement with New York, in May, 2019,one of the members of the Trump family, whose precise identity is not disclosed, paid the Trump Foundation $10,000 to reimburse it for the purchase price. So, let’s analyse this.

Trump has a fancy charity gala at Mar-a-Lago, with respect to which he personally profits. Appearing to act magnanimously, he purchases a portrait of himself for $10,000. But instead of using his own funds to pay for the portrait, he uses funds from a charitable foundation. However, the painting is never used by the charitable foundation that purchased it for any charitable purpose. Rather, it is given to Trump to use as sort of an advertisement at his other hotel. Only in November, 2016, either right before or right after the election, does he take it off of display. And, we also know that most of the later contributions to the Trump Foundation were not made by Trump or members of his family, but came from others who sought to curry favor with him.

Simply put, Trump made money on a charitable event giving the Unicorn Children’s Foundation a discount on its costs via the purchase of the painting. But the contribution/discount never came out of Trump’s pocket. Rather, he funded the discount via the Trump Foundation using money contributed by others.

Of course, big time sleaze is not something that will faze Trump. However, it’s his attention to the small things, the little scams, that is the measure of the man. He scams therefore he is.

No Conscience

I’ve uploaded the opinion in New York v. U.S. Dept. of Health and Human Services handed down today by Judge Paul A. Engelmayer of the U.S.D.C. for the Southern District of New York. The case involves challenges to a rule recently promulgated by HHS entitled “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority.” The rule purports to interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection. Judge Engelmayer vacated the rule in its entirety.

I won’t even begin to pretend that I’ve read all 147 pages of the opinion. But as those who regularly (or even semi-regularly) read my posts here, I find it troublesome when news outlets comment on judicial opinions but fail to provide links to the opinions themselves. This post is my small contribution to making judicial opinions more accessible to the public.

The following passage gives the reader a flavor of what Judge Engelmayer thought of HHS’s arguments:

HHH . . . urges the Court to sever and vacate only the offending provisions of the [] Rule.

The Court has carefully considered HHS’s application to preserve parts of the Rule that are not compromised by legal deficiencies. Had the Court found only narrow parts of the Rule infirm—for example, had the Court held invalid only § 88.7(i)(3)(iv) [of the Rule], the portion of the remedial provision that authorizes termination of the entirety of a recipient’s funding—a remedy tailoring the vacatur to only the problematic provision might well have been viable.

The APA violations that the Court has found, however, are numerous, fundamental, and far-reaching. The Court’s finding that HHS lacked substantive rule-making authority as to three of the five principal Conscience Provisions nullifies the heart of the Rule as to these statutes. The Court’s finding that the agency acted contrary to two major existing laws (Title VII and EMTALA) vitiates substantive definitions in the Rule affecting the health care employment and
emergency contexts. The Court’s finding that HHS failed to give proper notice of the definition it adopted of “discriminate or discrimination” voids that central dimension of the Rule. And the Court’s finding that the Rule was promulgated arbitrarily and capriciously calls into question the validity and integrity of the rulemaking venture itself. Indeed, the Court has found that HHS’s stated justification for undertaking rulemaking in the first place—a purported “significant increase” in civilian complaints relating to the Conscience Provisions—was factually untrue.

In these circumstances, a decision to leave standing isolated shards of the Rule that have not been found specifically infirm would ignore the big picture: that the rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors. And leaving stray non-substantive provisions intact would not serve a useful purpose. As the D.C. Circuit has observed in the course of invalidating a rule in its entirety, here “it is clear that severing all . . . [of the invalid sections] would severely distort the [Agency’s work] and produce a rule strikingly different from” the one HHS promulgated and has fiercely defended in court,
making severance inappropriate.

Slip op. at 141-142 (citations omitted, emphasis added).